STEPHEN C. WILLIAMS, Magistrate Judge.
Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Henry Barrows filed a complaint alleging deliberate indifference against the Defendants. This matter is before the Court on motions for summary judgment filed by Defendants Lisa Goldman, Reva Engelage, Lakesha Hamby, and Amanda Cowan (Docs. 27 and 28) and Jacob Weatherford (Docs. 29 and 30). Plaintiff has filed a response (Doc. 32) in opposition to both motions. The matter has been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge Michael J. Reagan pursuant to
Plaintiff filed his complaint on December 26, 2017, alleging deliberate indifference against Goldman, Weatherford, and Cowan for disregarding his risk of suicide on September 18, 2017 (Count 1) and against Engelage and Camby for closing Plaintiff's wounds with steri-strips and not stiches (Count 2) (Docs. 1 and 3). As narrowed by the Court's threshold order, Plaintiff's complaint alleges that he was on suicide watch on September 18, 2017 when he informed Defendant Weatherford that he had the urge to cut himself (Doc. 3, p. 2). Weatherford did not do anything and returned Plaintiff to his cell where he began cutting himself, hitting an artery and bleeding (Id.). Plaintiff was taken to the infirmary and subsequently transported to Chester Memorial Hospital where he received an emergency operation to close the wound (Id. at p. 2-3).
Upon Plaintiff's return from the hospital, he met with Cowan and completed a mental health evaluation. Defendant Cowan then contacted Defendant Goldman, Mental Health Administrator at Menard, and asked him how to proceed (Doc. 3, p. 3). Goldman told Cowen to take Plaintiff off of suicide watch. After being returned to his cell and not placed on suicide watch, Plaintiff ripped out his stitches and attempted to cut his artery but was unsuccessful (Id.). He began cutting another artery when he was stopped and taken to the healthcare unit. In the healthcare unit, Engelage and Camby stopped the bleeding and debated how to close the injury (Id.). They first tried steri-strips which did not work to seal the wound and stated that stitches would be better (Id.). However, they did not refer Plaintiff for stiches and instead closed to wound with steri-strips (Id.).
Defendants, in their summary judgment motion, argue that Plaintiff failed to exhaust his administrative remedies against them. Plaintiff indicates in his response that he first submitted a grievance to Dr. Goldman and when she did not handle the grievance quickly, he submitted both an emergency grievance to the warden as well as a regular grievance to his counselor. He claims he did not receive a response from either official nor did they return two written requests for a status of the grievances (Doc. 32, p. 2). Plaintiff does not indicate in his response the dates of the grievances nor has Plaintiff attached the grievance to his response or his complaint (Doc. 1).
Plaintiff submitted several grievances at Menard regarding his mental health care prior to September 2017. Plaintiff filed an emergency grievance on June 10, 2017 regarding his mental health medications, but that grievance alleged that Dr. Gupta, who is not a party to this case, stopped his medication (Doc. 30-2, p. 27). Another emergency grievance related to his mental health was filed on July 27, 2017 (Doc. 30-2, p. 13). That grievance indicated that Menard's administration was using GPS to alter Plaintiff's thought process (Id.). He also indicated that he was not receiving his medication and when he filed the previous grievance, the medical staff lied and said that he was receiving his medication (Id.). He requested that he receive medications and that the spy be removed from his cell (Id.). That grievance was treated as an emergency and it was noted by the grievance officer, in a response dated September 15, 2017, that Plaintiff was single celled in protective custody and was receiving medication and had met with mental health on September 7, 2017 (Id. at p. 11). The grievance officer found the issues moot and the chief administrative officer concurred on September 21, 2017 (Id.). This grievance was not received by the ARB (Doc. 30-1, p. 2).
Another grievance submitted August 10, 2017 as an emergency also related to Plaintiff's mental health (Doc. 30-2, p. 17-18). Plaintiff indicated that he complained about hearing voices to Ms. Vanpelt, not a party to this case, and informed her that he was not receiving his medications. He also wrote Ms. Hill and Mr. Weatherford after hearing voices in the night telling him to attack his cellmate (Id. at p. 17). Vanpelt met with Plaintiff on August 1, 2017 in response to Plaintiff's letters to Hill and Weatherford (Id. at p. 18). She told him that he would have to wait for his regularly scheduled appointment and that he would be issued a disciplinary ticket if he wrote any more letters (Id.). Plaintiff was moved to investigative status later that day and issued a disciplinary ticket (Id.). The grievance was deemed an emergency but ultimately denied by the grievance officer as Plaintiff was seen on numerous occasions by mental health in July 2017 and had denied hearing voices and homicidal tendencies (Id. at p. 15). The chief administrative officer concurred with the decision on August 24, 2017 but it does not appear that Plaintiff sent the grievance to the ARB.
After the self-inflicted harm, which occurred on September 17, 2017 (according to Plaintiff's complaint), Plaintiff was seen in the healthcare unit by his counselor on September 26, 2017 (Doc. 28-3, p. 6). Plaintiff noted no issues at that time (Id.). He was seen again on September 27, 2017 by Monica Nippe and provided with grievance forms, request slips, and a trust fund sheet (Id.). Plaintiff submitted a grievance on April 30, 2018, while at Pontiac, directly to the ARB regarding a suicide attempt at Menard Correctional Center (Doc. 28-4, p. 1-4). However, according to the grievance, this suicide attempt and staff deliberate indifference occurred in March 2018 (Id.).
The undersigned first heard testimony from Kelly Pierce, a grievance officer at Menard Correctional Center. Pierce testified that in September 2017, there were two logs: an emergency log and a grievance log. In November 2017, the logs were merged into one log where both emergency grievances and grievances received by the grievance officer were logged. If a grievance was deemed a non-emergency in September 2017, it was logged on the emergency grievance log and then returned to the inmate. If the grievance was deemed an emergency, it was then given a grievance number and logged on the grievance log.
Kelly Pierce testified that a grievance was received by her from Plaintiff on September 6, 2017 (Doc. 39-1, p. 1). It was checked as an emergency grievance because the warden had deemed the grievance an emergency. She then investigated the grievance and deemed it moot (Id.). It was returned to Plaintiff on September 22, 2017 (Id.).
During September 2017, an inmate could submit a grievance by placing it in a locked box for the counselor on the wall in each cell house. In segregation, an inmate could submit a grievance directly to the counselor or hand it to an officer on the gallery and the officer would then deliver the grievance to the counselor or grievance officer. Pierce testified that she did not pick up any grievance from Plaintiff or talk to him personally about any grievance that he filed. She also does not know if Plaintiff submitted any grievances to the counselor or any officer on his gallery. Pierce testified that she reviewed the two logs in September and the combined logs for November and December. She located one emergency grievance that was received on September 6, 2017 and one grievance in November regarding Plaintiff's property (Doc. 39-5, p. 13). Plaintiff's November grievance was not labeled an emergency grievance. Plaintiff's emergency grievance would be logged on the emergency grievance log and, because the warden deemed it an emergency, it would also be logged on the regular grievance log as it was given a number and addressed by the grievance officer (Doc. 39-1, p. 1; 39-2, p. 1).
Plaintiff also testified about his grievances. Plaintiff testified that he started submitting grievances regarding his suicide attempt two weeks after the incident. As such, he submitted the grievances sometime in late September or early October. He does not have copies of the grievances as Menard Correctional Center does not allow an inmate to make copies of his grievance until he has a counselor response. He first submitted a grievance to Goldman a week after the incident because she told him she would help him file a grievance and a lawsuit. His grievance stated everything that occurred, as stated in his complaint. The grievance was two pages in length.
Plaintiff then submitted a second grievance to his counselor. This grievance was identical to the one he handed to Goldman and was also two pages in length. He submitted a third identical grievance to the warden as an emergency grievance. Both of those grievances were placed in the bars on the same night for pickup by the officers. The two grievances were identical except that the emergency grievance was marked as an emergency. Plaintiff did recall that an officer picked up the grievances but he did not recall the name of the officer. He described the officer as a blond white male with tattoos on his arm. Plaintiff saw the officer drop the grievances in the mail bag.
Plaintiff testified that he never received a response to either grievance. After the deadline for a response passed, he filed his lawsuit. Plaintiff testified that the grievance records show that he files numerous grievances and he is persistent in filing grievances. He could not do anything further after placing the grievances in the bar for pickup. Plaintiff also testified that he believed Goldman was part of the grievance process as grievances regarding mental health issues are sent to mental health for review.
Summary Judgment is proper if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that [Defendants are] entitled to judgment as a matter of law."
Under Pavey, the Seventh Circuit held that "debatable factual issues relating to the defense of failure to exhaust administrative remedies" are not required to be decided by a jury but are to be determined by the judge.
As an inmate confined within the Illinois Department of Corrections, Plaintiff was required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures for Offenders ("grievance procedures") to properly exhaust his claims.
If the inmate is not satisfied with the Chief Administrative Officer's response, he or she can file an appeal with the Director through the Administrative Review Board ("ARB"). The grievance procedures specifically state, "[i]f, after receiving the response of the Chief Administrative Officer, the offender still believes that the problem, complaint or grievance has not been resolved to his or her satisfaction, he or she may appeal in writing to the Director. The appeal must be received by the Administrative Review Board within 30 days after the date of the decision."
The grievance procedures do allow for an inmate to file an emergency grievance. In order to file an emergency grievance, the inmate must forward the grievance directly to the Chief Administrative Officer ("CAO") who may "[determine] that there is a substantial risk of imminent personal injury or other serious or irreparable harm to the offender" and thus the grievance should be handled on an emergency basis.
The undersigned
The undersigned finds Plaintiff's testimony to be consistent and credible. Plaintiff stated what he did with his grievances in both his complaint, his responsive brief, and in his testimony at the evidentiary hearing. The testimony was consistent with his previous statements. Plaintiff stated in his complaint that he submitted three grievances (Doc. 1, p. 1). He testified that his emergency grievance was not responded to nor had he received a response to a grievance that he submitted to the counselor (Id.). His complaint also stated that he submitted a grievance to Mental Health Administrator Goldman and that she said she turned the grievance over to the counselor (Id. at p. 1-2). Similarly, Plaintiff stated the same in his responsive brief (Doc. 32, p. 2). He stated that he first gave a grievance to Dr. Goldman and when she did not handle the grievance properly, he submitted one grievance to the counselor and one to the warden as an emergency (Id.). Plaintiff noted that none of his grievances were returned. He testified in a nearly identical narrative at the evidentiary hearing. He only added during questioning that he submitted the emergency and normal grievance by placing them in the bars for pickup and that an officer picked up the grievances and placed them in a mailbag. Given that Plaintiff's statements and testimony regarding the filing of his grievances has been consistent throughout this case, including in testimony under oath at the evidentiary hearing, the Court finds Plaintiff's testimony to be credible. Plaintiff submitted the grievances in the bars and never saw them again after the officer placed them in the mailbag. Although he did submit a grievance to Dr. Goldman, who is not a part of the grievance process despite Plaintiff's arguments to the contrary, he also submitted two grievances through the correct method, by submitting the grievances to his counselor and the warden. Plaintiff never received a response.
In addition to finding Plaintiff's testimony credible, the undersigned also
Accordingly, it is
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals.
Pursuant to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days of service.
Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).
