Opinion
Case No. 18-cv-18-NJR-RJD
09-03-2019
DAVID ROBERT BENTZ, Plaintiff, v. SHARON MCGLORN, et al., Defendants.
REPORT AND RECOMMENDATION
DALY, Magistrate Judge :
This matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S. C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997(e)(a). Based on the following, it is RECOMMENDED that the Motion for Summary Judgment for Plaintiff's Failure to Exhaust Administrative Remedies (Doc. 90) be GRANTED IN PART.
FINDINGS OF FACT
Plaintiff David Bentz, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was incarcerated at Menard Correctional Center ("Menard"). On May 24, 2018, Plaintiff filed an Amended Complaint (Doc. 24). Plaintiff alleges he was the victim of a staff assault on May 11, 2014, from which he sustained injuries to his neck area. These injuries caused him chronic pain, jaw pain, swelling to his left shoulder, neck, and head areas, vision issues in his left eye due to swelling and pressure, rotation issues with his neck and head due to chronic swelling, and occasional leg pain. Following threshold review, Plaintiff proceeds on the following counts:
Count 1: Eighth Amendment deliberate indifference to medical needs claim against Defendants Trost, Monjie, McGlorn, Jane Does Nurse 1, 2, and 15, Threadgill, Lang, Kirk, John/Jane Doe Medical Staff 3, Waller, Little, Westfall, John Doe Sgt. 16, Skidmore, Mears, Moldenhauer, Marshall, John/Jane Doe Medical Staff 7, Shah, Hawkins, Siddiqui, Lafone, Pollion, and Wexford for failing to adequately address the injuries that Plaintiff sustained on May 11, 2014 and the chronic pain he continues to experience.
Count 3: First Amendment retaliation claim against Mears and Lang for refusing to provide Plaintiff with medical care in retaliation for his filing lawsuits.
Defendants Wexford, Moldenhauer, Siddiqui, Trost, McGlorn, and Pollion filed a motion for summary judgment asserting Plaintiff failed to properly exhaust his administrative remedies prior to filing this lawsuit. Plaintiff failed to timely respond to the Motion. Pursuant to Local Rule 7.1(c), the Court considers Plaintiff's failure to respond an admission of the merits of the motion.
Plaintiff filed numerous grievances and appeals during the relevant time period. The Court reviews the following relevant medical grievances contained in the record:
October 2 , 2014, #60-10-14 (Doc. 91-1 at 62-66): Plaintiff submitted this grievance as an emergency. Plaintiff claims C/O Lindenberg and C/O Smith assaulted him on August 29, 2014, and that despite submitting medical request slips, he was denied medical call passes. Plaintiff states he suffered injuries to his neck, chest area, and the right side of his head. Plaintiff grieves that he has continually been denied medical call passes. The grievance does not specifically name or describe actions of any medical staff. The relief requested was that he (1) receive adequate medical care; (2) C/Os Lindenberg and Smith be held accountable for their actions; and (3) Lindenberg be criminally charged for assault and battery.
Plaintiff's grievance was deemed an emergency by the CAO on October 8, 2014. On October 10, 2014, the Grievance Officer contacted the Health Care Unit and Internal Affairs. IA investigated and found the claim was unsubstantiated. HCU responded as follows, "I received your grievance on 10-10-14. I have reviewed your medical record. You reported that you were assaulted on 5-11-14 during line movement. You complained of lt. neck, jaw, side pain. The nurse notes all within normal limits. You were scheduled to see the MD on 8-29-14 but [were] in an altercation before you were seen. You were seen on 10-3-14 by the MD. He noted mild tenderness of the neck and your neck was supple. He ordered Motrin and X-ray of C-Spine. X-ray was done on 10-10-14, no obvious fractures found. You are to be followed up in 2 wks. Request NSC as needed." The Grievance Officer's Report recommended the grievance be denied. On October 24, 2014, the CAO concurred. Plaintiff appealed and on December 2, 2014, the ARB denied the grievance finding the issues were appropriately addressed by the facility Administration.
Defendants assert this grievance is insufficient to exhaust the claims against them because it does not name or describe Wexford, Moldenhauer, McGlorn, Trost, Siddiqui, or Pollion, or their alleged actions at issue in this case.
June 15 , 2016, #101-6-16 (Doc. 91-1 at 58-61): Plaintiff states that on June 9, 2016, he was seen in the health care clinic by Physician Assistant S. McGlorn and requested pain medication for his neck injury. Plaintiff grieves that he was prescribed 875 mg of Naproxen by McGlorn, but that he only received 750 mg of Naproxen. Plaintiff also asserts he had previously been prescribed 850 mg of Naproxen by Trost and only ever received 750 mg. Plaintiff requested that he receive his 875 mg prescription of Naproxen and a follow-up visit with Trost. Plaintiff also requested the identity of the person responsible for filling prescriptions.
On June 16, 2016, the Counselor responded attaching a Memorandum from the Health Care Unit Administrator that set forth the dates Plaintiff had received his Naproxen. On June 29, 2016, the Grievance Officer contacted the Pharmacy and confirmed Plaintiff was receiving his Naproxen prescription. The Grievance Officer recommended the grievance be found moot. On July 7, 2016, the CAO concurred. Plaintiff appealed the grievance but the ARB received the grievance more than 30 days from the CAO's denial and did not issue a determination on the merits.
Defendants assert this grievance is insufficient to exhaust the claims against them because Plaintiff failed to timely appeal and did not follow the proper steps to fully exhaust his administrative remedies.
June 30 , 2016, #12-8-16 (Doc. 91-1 at 54-57): Plaintiff asserts he was assaulted by Lt. Hoppenstedt on June 27, 2016, and subsequently denied medical care. He states he had bruising and injuries to his right elbow, head, left shoulder, and back right side of his neck. Plaintiff claims he submitted multiple requests to the health care box to no avail. Plaintiff does not name or describe medical personnel in the grievance. The relief requested by Plaintiff was that he be seen by a doctor for pain medication and x-rays of his neck; that he be interviewed by IA and have pictures of his injuries taken; that Lt. Hoppenstedt be criminally prosecuted and terminated without benefits; and that John Does be identified.
On July 12, 2016, the Counselor responded to Plaintiff's grievance stating that she contacted staff and was unable to verify the allegations. The Grievance Officer contacted the Health Care Unit Administer who advised Plaintiff was seen on July 1, 2016 for shoulder/neck pain and given ibuprofen and that no sick call requests had been received since that date. The Report recommended Plaintiff's grievance be denied. On August 9, 2016, the CAO concurred. Plaintiff appealed the grievance but the ARB received the grievance more than 30 days from the CAO's denial and did not issue a determination on the merits.
Defendants assert this grievance is insufficient to exhaust the claims against them because Plaintiff failed to timely appeal and did not follow the proper steps to fully exhaust his administrative remedies.
August 11 , 2017, #137-9-17/136-9-17 (Doc. 91-9 at 42-53): Plaintiff grieves he was denied medical care for a broken finger. Plaintiff states that on July 29, 2017, he caught his hand in the cell door and injured his finger. Plaintiff alleges he was denied medical care because his cell house was on lockdown.
There are three copies of this grievance contained in the record. The substance of the grievance is the same on all three copies. It appears Plaintiff sent one copy to the Counselor through the normal channels. A second copy was marked as an emergency and sent directly to the Warden. When the Warden denied the grievance was an emergency on August 18, 2017, that copy was sent directly to the ARB and received on September 7, 2017. On September 11, 2017, the ARB returned that copy to Plaintiff noting that it did not include a copy of the Grievance Officer's Report and the CAO's response.
On September 9, 2017, the Counselor responded attaching the response from HCU. The HCU records indicated Plaintiff was scheduled to see a doctor on August 16, 2017, but was a "no show." Plaintiff saw a nurse on August 18, 2017 and was again referred to a doctor. He saw a doctor on August 24, 2017 and had an x-ray ordered. HCU noted pain medication was ordered and that inmates still have access to healthcare while on lockdown. On October 16, 2017, the Grievance Officer reviewed the grievance and contacted the HCU which advised Plaintiff had received subsequent care for his injured finger, including a splint and pain medication. The Grievance Officer recommended the grievance be found moot. On October 19, 2017, the CAO concurred. On November 16, 2017, the ARB denied the appeal.
Defendants assert this grievance is insufficient to exhaust the claims against them because Plaintiff makes no allegations about care for a broken finger in his Amended Complaint. In addition, Plaintiff did not name or describe Defendants Moldenhauer, McGlorn, Trost, Siddiqui, or Pollion.
September 2 , 2017, #137-9-17 (Doc. 91-1 at 34-40): Plaintiff states that this is one of several grievance regarding the denial of medical care by medical personnel. Plaintiff specifically names Wexford Health Services, N.P. Moldenhauer, Dr. Shah, and John and Jane Doe Nurses. Plaintiff includes a lengthy narrative regarding the lack of treatment for a broken finger. Within the narrative regarding his injured finger, Plaintiff also complains that he has not received adequate treatment for a prior neck injury. The relief Plaintiff requested was to receive medical care for his broken finger, right hand injury, and neck injury (i.e. MRI and muscle relaxers for neck); that the issues be investigated; and that each issue be responded to individually and addressed.
On September 5, 2017, the Counselor responded by attaching the Memorandum from the HCU. Dr. Siddiqui reviewed the grievance and stated Plaintiff had seen Dr. Shah on September 2, 2017, he had an x-ray, and that he was scheduled for a follow-up appointment. On October 16, 2017, the Grievance Officer reviewed Plaintiff's recent medical treatment provided in the HCU Response, including that Plaintiff saw Dr. Siddiqui on 10/2/2017 for chronic neck pain and a left ring finger fracture. The Grievance Officer recommended the grievance be found moot as offender was receiving medical treatment. On October 19, 2017, the CAO concurred. On November 16, 2017, the ARB remanded the grievance back to the Menard Grievance Office to review additional claims set forth by Bentz against staff regarding sexual harassment. On December 19, 2017, a revised Grievance Officer's Report was issued addressing the sexual harassment claims against staff. The revised Report once again recommended the grievance be found moot. On December 21, 2017, the CAO concurred. On January 2, 2018, the ARB reviewed the revised report regarding the claims of staff conduct and recommended the grievance be denied.
Defendants acknowledge this grievance exhausted Plaintiff's administrative remedies as to Defendant Shah because he grieved Shah failed to treat his neck injury during the September 2, 2017 visit. Defendants assert, however, even though Plaintiff also named Moldenhauer and Wexford within the grievance, he failed to grieve the conduct at issue in this case. Defendants assert Plaintiff's reference to Moldenhauer and Wexford only grieved treatment of his broken finger.
October 10 , 2017, #8-11-17 (Doc. 91-1 at 28-33): This grievance was submitted as an emergency. On November 2, 2017, the CAO determined the grievance was not an emergency and instructed that it should be submitted in the normal manner. Plaintiff states that he is being deprived of medical care. Plaintiff specifically names Wexford Health Services, N.P. Moldenhauer, Dr. Siddiqui, a number of C/Os, and John and Jane Does. Plaintiff grieves that he is still not receiving proper treatment for his ring finger injury, neck injury, right hand injury, and chronic pain. Plaintiff provided a detailed timeline of his requests for medical care throughout September 2017. Plaintiff requested the following relief: (1) that all above issues be responded to, investigated, and addressed; (2) that an MRI be done of his neck to determine the cause of the injury; (3) that he receive adequate medical care and not be charged the co-pay for his chronic medical needs, and (4) that he be reimbursed the $5.00 co-pay for his chronic medical issues described within the grievance.
On December 21, 2017, the Grievance Officer issued a Report determining the issues raised regarding treatment of Plaintiff's right hand, broken finger, and neck pain were previously address in grievance #136-9-17 (September 2, 2017). The Officer noted Plaintiff had been seen by medical staff and treated as the medical professionals felt necessary. The Grievance Officer recommended the grievance be found moot. On January 3, 2018, the CAO concurred. On January 25, 2018, the ARB denied the grievance determining the issues were appropriately addressed by facility Administration.
Defendants assert this grievance is insufficient to exhaust the claims against them because the ARB did not receive Plaintiff's appeal until 15 days after Plaintiff filed his initial Complaint in this case, which was filed on January 4, 2018. Additionally, Defendants argue Plaintiff did not name or describe McGlorn, Trost, or Pollion.
January 26 , 2018, #511-1-18 (Doc. 91-1 at 20-27): This grievance was submitted as an emergency. Plaintiff complains that he was denied medical care for chronic pain and his serious medical needs concerning his neck injury, thyroid, broken left ring finger, right hand issues, and other conditions. Plaintiff names Nurse Practitioner Moldenhauer and complains Moldenhauer told Plaintiff he would not treat him because he had a life sentence and because Plaintiff had previously written grievances about Moldenhauer. Plaintiff requested adequate medical care for the above listed chronic conditions.
There are two copies of this grievance contained in the record. It appears Plaintiff submitted one through the normal process and a second copy he submitted directly to the ARB when it was determined an emergency was not substantiated. The second copy was returned to Plaintiff with directions to provide the required additional responses. --------
On January 30, 2018, the CAO found an emergency was not substantiated. Plaintiff submitted the grievance in the normal manner and the counselor responded to the grievance on March 12, 2018. The Grievance Officer found the grievance moot on May 29, 2018, and the CAO concurred in the response on May 31, 2018. The ARB issued its determination on Plaintiff's appeal of the decision on June 21, 2018, with the concurrence of the IDOC Director.
Defendants assert this grievance is insufficient to exhaust the claims against them because Plaintiff failed to receive a final determination from the ARB prior to filing suit.
March 16 , 2018, #453-3-18 (Doc. 91-1 at 14-19): In this grievance, Plaintiff complains that he is being denied access to legal materials and medical care in retaliation for filing grievances. He complains that the process of carrying his correspondence box strains his injured neck and back. Plaintiff's counselor responded to this grievance on March 28, 2018. The Grievance Officer responded to the grievance on June 5, 2018, finding the issues had previously been addressed. The CAO concurred with the Grievance Officer on June 7, 2018, and the ARB received the grievance on appeal on June 18, 2018. The ARB issued its decision denying the grievance and the IDOC Director concurred on July 5, 2018.
Defendants assert this grievance is insufficient to exhaust the claims against them because Plaintiff failed to receive a final determination from the ARB prior to filing suit.
The Court did not review any grievance filed after May 24, 2018, the date Plaintiff filed his signed Amended Complaint (Doc. 24).
After a careful review of the arguments and evidence set forth in the parties' briefs regarding the issue of exhaustion, the Court determined that an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) is not necessary.
LEGAL STANDARD
Summary judgment is appropriate only if the moving party can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In determining a summary judgment motion, the Court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Pursuant to 42 U.S.C. § 1997e(a), inmates are required to exhaust available administrative remedies prior to filing lawsuits in federal court. "[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies." Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). "[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment." Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). "[A]ll dismissals under § 1997e(a) should be without prejudice." Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a written grievance within 60 days after the discovery of the incident, occurrence or problem, to his or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not resolved through a counselor, the grievance is considered by a Grievance Officer who must render a written recommendation to the Chief Administrative Officer — usually the Warden — within two months of receipt, "when reasonably feasible under the circumstances." Id. §504.830(e). The CAO then advises the inmate of a decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within 30 days to the Administrative Review Board for a final decision. Id. § 504.850(a); see also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). The ARB will submit a written report of its findings and recommendations to the Director who shall review the same and make a final determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
An inmate may request that a grievance be handled as an emergency by forwarding it directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is handled on an emergency basis, which allows for expedited processing of the grievance by responding directly to the offender. Id. Inmates may further submit certain types of grievances directly to the Administrative Review Board, including grievances related to protective custody, psychotropic medication, and certain issues relating to facilities other than the inmate's currently assigned facility. Id. at § 504.870.
CONCLUSIONS OF LAW
Based on the evidence in the record, it is recommended that the Court find Plaintiff failed to exhaust his administrative remedies as to Defendants Trost, McGlorn, and Pollion prior to filing this lawsuit.
The grievance filed by Plaintiff on October 2, 2014 failed to mention or describe Defendants or their alleged actions at issue in this case. The grievances filed on June 15, 2016 and June 30, 2016 were not timely appealed and, therefore, did not serve to fully exhaust Plaintiff's administrative remedies. The grievance filed on August 11, 2017 alleged denial of medical care for a broken finger, a claim that is not the subject of this suit.
Defendants concede Plaintiff's September 2, 2017 grievance fully exhausted his administrative remedies against Dr. Shah for failing to treat his neck injury and chronic pain. The September 2, 2017 grievance mentioned N.P. Moldenhauer and Wexford but did not address their alleged actions at issue in this case. The October 10, 2017 grievance, however, was also fully exhausted and alleged Defendants Wexford Health Services, N.P. Moldenhauer, and Dr. Siddiqui failed to treat Plaintiff's neck injury and chronic pain. Defendants assert the October 10, 2017 grievance was not fully exhausted by Plaintiff until after Plaintiff filed suit on January 4, 2018. However, Plaintiff's claims against Defendants as set forth in the initial Complaint filed on January 4, 2018 were dismissed without prejudice for failure to state a claim. Plaintiff did not proceed on the current claims until the filing of his signed Amended Complaint filed on May 24, 2018. Plaintiff fully exhausted the October 10, 2017 grievance when he received the ARB's final determination issued on January 25, 2018 and the content of the grievance was sufficient to put IDOC on notice of Plaintiff's issues with Defendants Wexford, Siddiqui, and Moldenhauer and their alleged failure to treat his neck injury and chronic pain.
The grievances filed by Plaintiff on January 26, 2018 and March 16, 2018 were not fully exhausted until after the date Plaintiff filed his Amended Complaint.
RECOMMENDATIONS
Based on the foregoing, it is RECOMMENDED that the Motion for Summary Judgment based on Plaintiff's Failure to Exhaust Administrative Remedies filed by Defendants (Doc. 90) be GRANTED IN PART AND DENIED IN PART, that Plaintiff's claims against Defendants Trost, McGlorn, and Pollion be DISMISSED WITHOUT PREJUDICE; and that the Court adopt the foregoing findings of fact and conclusions of law.
If the Court adopts this Report and Recommendation, the remaining claims will be as follows:
Count 1: Eighth Amendment deliberate indifference to medical needs claim against Defendants Monjie, Jane Does Nurse 1, 2, and 15, Threadgill, Lang, Kirk, John/Jane Doe Medical Staff 3, Waller, Little, Westfall, John Doe Sgt. 16, Skidmore, Mears, Moldenhauer, Marshall, John/Jane Doe Medical Staff 7, Shah, Hawkins, Siddiqui, Lafone, and Wexford for failing to adequately address the injuries that Plaintiff sustained on May 11, 2014 and the chronic pain he continues to experience.
Count 3: First Amendment retaliation claim against Mears and Lang for refusing to provide Plaintiff with medical care in retaliation for his filing lawsuits.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). DATED: September 3, 2019
/s/ _________
Hon. Reona J. Daly
United States Magistrate Judge