Opinion
Case No. 18-cv-498-SMY-RJD
11-08-2019
RECO WILSON, Plaintiff, v. WEXFORD HEALTH SOURCES, INC., DR. RITZ DR. GARCIA, K. BUTLER, B. NWAOBASI, DR. TROST, M. MOLDENHAUER, and GAIL WALLS, 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 Staci M. Yandle 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). It is RECOMMENDED that the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Defendants Moldenhauer, Trost, and Nwaobasi (Doc. 43) be DENIED IN PART AND FOUND AS MOOT IN PART, and the Motion for Summary Judgment filed by Defendant Butler and Walls (Doc. 46) be GRANTED IN PART AND DENIED IN PART.
FINDINGS OF FACT
Plaintiff Reco Wilson, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was incarcerated at Menard Correctional Center ("Menard"). Plaintiff alleges he was provided inadequate medical treatment and delayed care for a lump on his spine that caused him pain. The lump was surgically removed on November 9, 2017; however, Plaintiff had sought treatment for the lump beginning in March 2011.
Plaintiff's complaint was screened pursuant to 28 U.S.C. § 1983 and he is proceeding on the following claims:
Count 1: Ritz, Garcia, Butler, Nwaobasi, Trost, Moldenhauer, and Walls were deliberately indifferent to the lump on Plaintiff's back in violation of the Eighth Amendment.
Count 2: Wexford had policies and/or practices in place to deny Plaintiff needed healthcare for his lump in violation of the Eight Amendment.
Defendants Moldenhauer, Trost, Nwaobasi, Wexford, Butler, and Walls filed motions for summary judgment arguing Plaintiff failed to exhaust his administrative remedies as to the claims against them prior to filing this lawsuit (Docs. 43 and 46). Defendants explain that records received from the Administrative Review Board ("ARB"), as well as Menard and Lawrence Correctional Center ("Lawrence"), include only one grievance, dated May 11, 2017, concerning the medical condition at issue in this lawsuit.
Defendants Ritz and Garcia did not move for summary judgment on the issue of exhaustion. --------
Plaintiff submitted his May 11, 2017 grievance as an emergency (Doc. 44-1). In his grievance, Plaintiff specifically complains that Dr. Siddiqui's recommendation for an MRI was denied by Dr. Ritz. Plaintiff also states more generally that medical staff has been unable to determine what the mass on his spine is and has repeatedly refused to recommend an MRI or provide treatment beyond ibuprofen to address his condition. The warden found the grievance to be of an emergency nature and expedited it for review on May 24, 2017. The grievance officer recommended that the grievance be denied on May 30, 2017, and the warden concurred on June 2, 2017. The ARB received Plaintiff's appeal of the decision on June 23, 2017, and denied it, with the Director's concurrence, on July 12, 2017.
Defendants Nwaobasi, Trost, and Moldenhauer contend the May 2017 grievance cannot exhaust the claims against them based on the timing of their treatment at issue in this lawsuit, per the allegations in the complaint. In particular, Plaintiff alleges Dr. Nwaobasi treated him on June 22, 2011 and August 25, 2011, that Dr. Trost treated him on December 15, 2014, and NP Moldenhauer treated him sometime between November 21, 2014 and December 15, 2014.
Butler and Walls assert the May 2017 does not exhaust against them because they were neither mentioned nor described.
In response to Defendants' motions (and in his complaint), Plaintiff asserts he submitted emergency grievances on August 29, 2011, December 18, 2014, and December 30, 2014. Plaintiff provided copies of these grievances with his response to Defendants' motion, and they are also attached to his complaint. In his August 29, 2011 grievance, Plaintiff sets forth complaints concerning Dr. Nwaobasi's treatment of the lump on his spine. Plaintiff asks that Dr. Nwaobasi conduct a test to ensure the lump is not cancer and provide surgery as he had promised. There are no responses to these grievances in the record.
In his December 18, 2014 grievance, Plaintiff indicates he saw NP Moldenhauer on November 25, 2014 and Moldenhauer told Plaintiff he thought the lump was a cyst and he was going to refer him to the doctor for observation. Plaintiff recounts being seen by Dr. Trost on December 15, 2014 and complains that Dr. Trost refused to order an MRI. There are no responses to this grievance in the record.
In his December 30, 2014 grievance, Plaintiff indicates he sent Butler an emergency grievance on December 18, 2014 complaining about a knot on his spine. Plaintiff writes that he wrote a letter about his condition around November 21 or 22, 2014. Plaintiff asserts he has seen Dr. Trost, Moldenhauer, Fuentes, and Nwaobasi. Plaintiff asks Butler for help. There is no response to this grievance in the record. Plaintiff also attached a letter to his complaint dated December 30, 2018 directed to Warden Butler explaining he filed an emergency grievance December 18, 2018, but had not yet received a response.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on October 24, 2019. At the hearing, Plaintiff acknowledged he did not complain about Defendant Walls or Defendant Butler in his 2011 or 2017 grievances. Plaintiff further acknowledged his December 2014 grievances did not complain about Defendant Walls. Plaintiff testified these grievances informed Butler about his pain and medical condition, but did not complain about any action taken by Butler.
Plaintiff testified that he made copies of his 2011 and 2014 grievances prior to filing. Plaintiff submitted these grievances in the locked box for delivery to the warden, but he never received any response. There is no record that his institution received these grievances.
LEGAL STANDARDS
Summary Judgment 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 considering a summary judgment motion, the district 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).
Exhaustion Requirements
Pursuant to 42 U.S.C. § 1997e(a), prisoners 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 2 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
As a preliminary matter, the Court notes that a suggestion of death as to Defendant Samuel Nwaobasi was filed January 25, 2019 (Doc. 39). This Court informed Plaintiff he had 90 days to file a motion for substitution of party pursuant to Federal Rule of Civil Procedure 25(a)(1) (Doc. 40). Plaintiff was warned that if such a motion was not filed within 90 days, any and all claims against Nwaobasi would be dismissed. Plaintiff has not filed a motion for substitution as of the date of this Report and Recommendation. For this reason, the Court recommends Defendant Nwaobasi be dismissed from this action pursuant to Rule 25(a)(1). In light of this recommendation, the Court does not consider whether Plaintiff exhausted his administrative remedies as to Defendant Nwaobasi and recommends Defendant Nwaobasi's motion for summary judgment be found as moot.
Based on the evidence in the record, the Court finds Plaintiff exhausted his administrative remedies as to Defendants Dr. Trost, NP Moldenhauer, Wexford, and Butler, but failed to exhaust his administrative remedies as to Defendant Walls.
First, the Court finds Plaintiff's testimony concerning his efforts to exhaust his August 2011 and December 2014 grievances credible. Plaintiff testified he placed these grievances in a locked box for submission to the warden, but never received any response. Plaintiff not only attached copies of these grievances to his response to Defendants' motions for summary judgment, but he also attached these grievances to his complaint, well before Defendants filed their motions. Having found Plaintiff attempted to exhaust his administrative remedies as to his 2011 and 2014 grievances, but was thwarted in his efforts to complete the process, the Court goes on to consider whether the grievances sufficiently exhaust any claims pending in this lawsuit.
In his August 29, 2011 grievance, Plaintiff complained about treatment rendered by Dr. Nwaobasi on June 22, 2011 and August 25, 2011. Because the Court recommends Dr. Nwaobasi be dismissed pursuant to Rule 25(a)(1), it does not consider whether this grievance exhausted the claims against Nwaobasi.
The Court finds Plaintiff's December 18, 2014 grievance names and describes the actions taken by NP Moldenhauer and Dr. Trost that are at issue in this lawsuit. Plaintiff specifically identifies Moldenhauer and Trost and sets forth issues with the treatment they rendered that are alleged in this lawsuit. In light of this finding, the Court does not consider whether Plaintiff's May 11, 2017 grievance was sufficient to exhaust the claims against Moldenhauer or Trost.
Finally, Plaintiff's December 30, 2014 grievance adequately exhausted the claims against Defendant Butler in this lawsuit. In this grievance, Plaintiff writes that he sent an emergency grievance to Butler on December 18, 2014 concerning the knot on his spine, and submitted a follow-up letter, but never received any response. Plaintiff asks Butler to talk to the doctors in the healthcare unit "about giving" him an MRI so they can determine what is causing him pain. As the allegations in the complaint are substantially similar to the issues set forth in Plaintiff's December 30, 2014 grievance, the Court finds this grievance exhausted the claims against Butler.
It is undisputed that Plaintiff exhausted his administrative remedies for his May 11, 2017 grievance. The remaining question is whether this grievance addressed the claims pending in this lawsuit against either Defendant Wexford or Walls. In this grievance, Plaintiff complains that Wexford has a practice of refusing prisoner's needed medical treatment due to cost considerations, and highlights Wexford's refusal to follow the recommendation of his treating physician, Dr. Siddiqui, for referral for an MRI. The complaints set forth in this grievance concerning Wexford sufficiently address the claims against it in this lawsuit and the Court, therefore, finds Plaintiff exhaust his administrative remedies as to Wexford. However, this grievance does not mention or describe Defendant Walls. Because Walls was not mentioned or described, the institution could not have been put on notice that any treatment by Walls was at issue. Accordingly, Plaintiff did not exhaust his administrative remedies as to Defendant Walls.
RECOMMENDATIONS
Based on the foregoing, it is RECOMMENDED that the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Defendants Moldenhauer, Trost, and Nwaobasi (Doc. 43) be DENIED IN PART AND FOUND AS MOOT IN PART; and the Motion for Summary Judgment filed by Defendant Butler and Walls (Doc. 46) be GRANTED IN PART AND DENIED IN PART. It is further RECOMMENDED that Defendant Dr. Nwaobasi be DISMISSED pursuant to Federal Rule of Civil Procedure 25(a)(1), and that Defendant Gail Walls be DISMISSED WITHOUT PREJUDICE.
If this Report and Recommendation is adopted in its entirety, Plaintiff will be proceeding on the following claims:
Count 1: Ritz, Garcia, Butler, Trost, and Moldenhauer were deliberately indifferent to the lump on Plaintiff's back in violation of the Eighth Amendment.
Count 2: Wexford had policies and/or practices in place to deny Plaintiff needed healthcare for his lump in violation of the Eight Amendment.
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: November 8, 2019
/s/ _________
Hon. Reona J. Daly
United States Magistrate Judge