Lopez v. Kink

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BENIGNO LOPEZ, )

)

Plaintiff, )

)

vs. ) Case No. 3:19 -CV-00378 -MAB

)

KEVIN KINK, ET AL., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on two motions for summary judgment filed by

Defendant Brooks (Docs. 43, 44) and Defendants Burle, Garrett, and Kink (Doc. 46).

Plaintiff filed one response to the motions for summary judgment (Docs. 49). For the

reasons set forth below, the motions will be GRANTED.

BACKGROUND

Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 4, 2019

for deprivations of his constitutional rights while incarcerated at Lawrence Correctional

Center (“Lawrence”) (Doc. 1, 11). Plaintiff claims that he was denied medical care for

injuries he sustained in an inmate attack. After a threshold review, pursuant to 28 U.S.C.

§ 1915A, Plaintiff was allowed to proceed on one count against Defendants:

Count 1: Eighth Amendment claim against Defendants for exhibiting

deliberate indifference to Plaintiff’s injuries (including a fractured cheek

bone, dizziness, and jaw pain) sustained in the inmate attack on October 6,

2018 (Doc. 11).

Defendant Brooks filed her motion for summary judgment on June 2, 2020,

arguing that Plaintiff failed to exhaust administrative remedies before filing this action

(Docs. 43, 44). Defendants Burle, Garrett, and Kink filed their motion for summary

judgment, arguing similarly, on July 3, 2020 (Doc. 46). Plaintiff filed a response to the

motions for summary judgment on July 8, 2020 (Doc. 48). Defendants Burle, Garrett, and

Kink filed a reply soon after on July 22, 2020 (Doc. 50). On August 24, 2020, Plaintiff filed

a “response” to the reply brief (Doc. 51), which is essentially a sur-reply. This Court’s

local rules do not allow for sur-reply briefs so the Court need not consider any of the

arguments or issues raised in this brief. See SDIL-LR 7.1(c) (“Under no circumstances will

sur-reply briefs be accepted.”).

An evidentiary hearing, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008),

was held on October 27, 2020 (Doc. 57). Plaintiff was the only witness who testified at the

hearing. Plaintiff was provided with an interpreter for the hearing (Doc. 58).

LEGAL STANDARDS

Summary Judgment

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

CIV. P. 56(a). In making that determination, the court must view the evidence in the light

most favorable to, and draw 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).

Courts generally cannot resolve factual disputes on a motion for summary judgment.

E.g., Tolan v. Cotton, 572 U.S. 650, 656, 134 S. Ct. 1861, 1866, 188 L. Ed. 2d 895 (2014) (“[A]

judge's function at summary judgment is not to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”) (internal

quotation marks and citation omitted). However, when the motion for summary

judgment pertains to a prisoner’s failure to exhaust, the Seventh Circuit has instructed

courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a

prisoner’s efforts to exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing

Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)). Accord Roberts v. Neal, 745 F.3d 232, 234 (7th

Cir. 2014).

Exhaustion

The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit

about prison conditions unless and until he has exhausted all available administrative

remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)).

Exhaustion is an affirmative defense, which the defendants bear the burden of proving.

Pavey, 663 F.3d at 903 (citations omitted).

In order for a prisoner to properly exhaust his or her administrative remedies, the

prisoner must “file complaints and appeals in the place, and at the time, the prison’s

administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see

also Woodford v. Ngo, 548 U.S. 81, 90 (2006). As an inmate in the IDOC, Plaintiff was

required to follow the grievance process outlined in the Illinois Administrative Code. ILL.

ADMIN. CODE, tit. 20, § 504.800, et seq. (2017). The regulations first require an inmate to

attempt to resolve the dispute through his or her counselor. Id. at § 504.810(a).1 If the

counselor is unable to resolve the grievance, it is sent to the grievance officer, who reports

his or her findings and recommendations in writing to the Chief Administrative Officer

(the warden). Id. at § 504.830(e). The warden then provides the inmate with a written

decision on the grievance. Id. If the inmate is not satisfied with the warden’s decision, he

or she has thirty days to appeal to the Director of the IDOC by sending the grievance to

the Administrative Review Board (“ARB”). Id. at § 504.850(a). The ARB submits a written

report of its findings and recommendations to the Director, who then makes a final

determination “within six months after receipt of the appealed grievance, when

reasonably feasible under the circumstances.” Id. at § 504.850(d), (e).

An inmate may also request that a grievance be handled as an emergency by

forwarding the grievance directly to the warden. 20 ILL. ADMIN. CODE § 504.840 (2017). If

the warden determines that “there is a substantial risk of imminent personal injury or

other serious or irreparable harm to the [inmate],” then the grievance is handled on an

emergency basis, meaning the warden will expedite processing of the grievance and

respond to the inmate, indicating what action shall be or has been taken. Id. On the other

hand, if the warden determines that the grievance should not be handled on an

emergency basis, the inmate is notified in writing that he “may resubmit the grievance as

non-emergent, in accordance with the standard grievance process.” Id.

Though the Seventh Circuit requires strict adherence to the exhaustion

1 There are exceptions to this rule, none of which apply here. 20 ILL. ADMIN. CODE § 504.810(a), 504.870

(2017).

requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), an inmate is required to

exhaust only those administrative remedies that are available to him. 42 U.S.C. § 1997e(a).

Administrative remedies become “unavailable” to prisoners when prison officials fail to

respond to a properly filed grievance or when prison officials’ “affirmative misconduct”

thwarts a prisoner from exhausting. E.g., Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.

2002); Dole, 438 F.3d at 809.

FACTUAL BACKGROUND

Plaintiff is currently incarcerated at Robinson Correctional Center (“Robinson”),

but at the time of the events at the center of this lawsuit, he was incarcerated at Lawrence

(Doc. 46, p. 1). On April 16, 2015, Plaintiff participated in the orientation process at

Lawrence and was provided with the Lawrence Correctional Center Orientation Manual.

He signed for this manual (Doc. 46-1; 50-1). Plaintiff testified that he was not provided

the manual in Spanish, his first language, but his cumulative counseling summary details

that “Offender participated in Orientation process and was provided with the

Orientation Manual. Issued Orientation Manual in Spanish to Offenders with poor

English skills. Offenders signed for manuals” (Doc. 46-1, p. 5). Plaintiff signed a form

stating he received the orientation manual (Doc. 50-1).

On October 6, 2018, Plaintiff was attacked by another inmate who struck him in

the face until he lost consciousness and continued punching him until correctional

officers intervened (Doc. 11, p. 2). Plaintiff suffered a fractured cheek bone, lacerations,

and bruising that required hospital treatment. Id.

After returning to Lawrence from the hospital, Plaintiff was placed in segregation

on investigative status. He complained of dizziness and jaw pain, but was not scheduled

for a follow-up appointment. Id. Plaintiff contends he submitted a Nurse Sick Call

request, but received no response. He submitted a second Nurse Sick Call request and

was scheduled for an appointment that was canceled. Plaintiff contends that Defendant

Brooks failed to check on him, but this is the only mention of Defendant Brooks in

Plaintiff’s briefing (Doc. 1).

Plaintiff’s records indicate that he filed a total of two grievances while housed at

Lawrence—one filed on October 29, 2018 and one filed on December 10, 2018 (Doc. 46, p,

2). Plaintiff testified that he submitted a handful, perhaps four to five, additional

grievances, but there is no evidence of these grievances in the record. On October 29,

2018, Plaintiff wrote a grievance regarding the aftermath of the assault (Doc. 44-1, p. 15).

As a result of this assault, Plaintiff indicated that he suffered a cut to his head, a fractured

cheek bone, and non-specific jaw injury. Plaintiff requested “to be treat[sic] right and

been taking good medical treatment. Also my rights been protected.” Id. Plaintiff does

not mention any of the Defendants by name in this grievance and does not detail their

involvement in this grievance. Id.

This grievance was received by Defendant Garrett on October 30, 2018 (Doc. 44-1,

p. 15). The grievance was returned to Plaintiff on October 30, 2018. Defendant Garrett

informed Plaintiff that his grievance was being returned because it was a request for

health care and that Plaintiff must utilize the Nurse Sick Call procedure to get access to

health care (Id. at 17). Plaintiff asserts that he did not receive this information from

Counselor Garrett because when he received his returned grievance, it did not include

his attached memo (Doc. 49, p. 4). As proof, Plaintiff cites to his Cumulative Counseling

Summary, in which there is no note or summary about Defendant Garrett returning this

grievance (Id. at 2; Doc. 44-3, p. 3). The memo is a single sheet of paper with twelve boxes

that can be checked by the grievance officer to indicate why the grievance was returned

(Doc. 44-1, p. 17). In this case, Defendant Garrett marked the box labeled as “Other: This

is a request. To access healthcare, offenders must utilize the Nurse Sick Call procedure

outlined in the Lawrence Corr. Cntr Offender Orientation Manual.” Id.

Plaintiff sent this grievance to the Grievance Officer for second level review on

December 6, 2018 (Doc. 44-3, p. 3). The grievance, which was then labeled as Grievance

#12-18-108, was returned to Plaintiff because he had not forwarded the counselor’s

response with his grievance. Plaintiff argues that the prisoner who helped him file his

grievances forwarded all of the information they had, which was only the response from

Defendant Garrett without the memo attached (Doc. 49, p. 5).

Plaintiff then forwarded this October 29, 2018 grievance directly to the

Administrative Review Board, where it was received on December 12, 2018 (Doc. 44-1, p.

14). On December 17, 2018, the grievance was returned to Plaintiff. In the response, the

ARB indicated that “(y)our grievance fails to meet DR504.810. Submit your request to

medical. If you are denied and do not agree with the Doctor’s decision, please complete

a grievance and forward to the grievance officer at your facility.” Id. Plaintiff contends

that both Defendants Kink and Burle denied this grievance; however, Defendant Kink’s

name does not appear to be on the grievance (Doc. 49, p. 2; Doc. 44-1, pp. 14-17).

On December 10, 2018, Plaintiff filed his second grievance, Grievance #12-18-211

(Doc. 1, p. 15). In this grievance, Plaintiff alleged he was not getting healthcare he

requested for his injuries. Plaintiff filed this grievance as an emergency grievance, but it

was deemed as a non-emergency by Defendant Kink and returned to Plaintiff with

instructions to file this grievance in a “normal manner” (Doc. 44-3, p. 2). In this grievance,

Plaintiff details the October 6, 2018 assault and his subsequent attempts at receiving

medical care. He writes, “I cam[sic] back to the jail and days gone by and I sent out a

request slip to health care to get sent to the hospital because my jaw is still messed up. It

hurts daily when I talk and eat and it pops” (Doc. 1, p. 15). He states he needs “to get my

jaw treated and find out why I’m going light headed.” Id. Plaintiff contends that to this

day, he has not received a response from the ARB for this grievance. He also alleges that

he has not received a response from his counselor or a grievance officer (Doc. 49, p. 7).

Defendants do not have a record of this grievance reaching the ARB (Doc. 56). The ARB

maintains a log of grievances it receives in a log known as the IGRV. Plaintiff’s IGRV log

shows he submitted one grievance to the ARB in 2018, which was his October 29, 2018

grievance (Doc. 56; Doc. 46-4, p. 1).

While at Robinson, it appears that Plaintiff filed another grievance potentially

related to the issues of this case. His grievance, filed on August 15, 2019, pertained to

receiving medical treatment for a facial injury (Doc. 44-1, p. 10). He details that on August

13, 2019, he was seen by a Dr. Shah about the injury he sustained at Lawrence (Doc. 44-1,

p.12). Plaintiff describes that Dr. Shah refused him medical care and treatment. Id. This

grievance was denied by Defendant Burle at the ARB because it was determined that the

issue was appropriately addressed by the facility administration as “medical treatment

is at the discretion of the provider.” Id. Plaintiff filed this grievance after he filed this

lawsuit on April 4, 2019 and he does not mention any of the current Defendants or

provide any details about their actions in this grievance. In the counselor response, the

counselor details that Plaintiff had three X-rays taken on or around March 22, 2019, July

29, 2019, and August 16, 2019, all of which do not include evidence of fractures (Doc. 44-

1, p. 12).

Plaintiff contends that he was not aware of the grievance procedure because he

was not made aware of it in his first language, Spanish, when he was housed at Lawrence

(Doc. 49, p. 3). Plaintiff enlisted the help of another inmate to help him file his grievances.

Id. Plaintiff contends the only time he could fully articulate the issues was when he was

able to speak in Spanish to the Mexican Protection Consulate on or around March 9, 2019

(Doc. 49, p. 9; Doc. 46-1, p. 1). He claims the Mexican Protection Consulate’s assigned

attorney, Daniel Carrera, called the administrators at Lawrence about these issues and

then Plaintiff was immediately transferred to Robinson in 2019 (Doc. 49, p. 10). Plaintiff

includes a declaration detailing his English level and asserts that he cannot understand

English without an interpreter (Doc. 49-1). He filed all of his pleadings in this case with

the help of an interpreter and other inmates. When he entered IDOC, he took a basic

education test called a “TABE” and scored a grade level of 2.7. Id.

DISCUSSION

Plaintiff argues he was, essentially, thwarted from fully exhausting his

administrative remedies prior to filing this lawsuit because of his inability to

communicate in English effectively and because he was not provided with the orientation

manual, which details the exhaustion and grievance procedure, in Spanish. Plaintiff

argues he had to rely on other inmates and inmate-interpreters to access the grievance

procedures and had to put faith in them that they were communicating the necessary

details in his grievances. Defendants argue that Plaintiff was provided with the

orientation manual in Spanish, that Plaintiff did not go through the appropriate grievance

procedures, and, even if he had, that his grievances did not include Defendants’ names

and/or identifying information to put them on notice of this lawsuit. The Court agrees

with Defendants.

The parties agree that there are two main grievances at issue, and a third, filed at

Robinson, which may be related to the present matter, but was filed after the start of

litigation.

A. October 29, 2018 Grievance

To summarize the grievance process, an inmate must first attempt to resolve the

issue with his counselor. If the counselor cannot resolve the issue, then the grievance is

sent to the grievance officer, who issues a report to the warden. The warden then provides

a written decision to the inmate, who can appeal to the ARB if he is not satisfied with the

result. The ARB has six months from when they receive the grievance to issue a decision

to the inmate.

Here, Plaintiff first sent this October 2018 grievance to his counselor, Defendant

Garrett, who informed Plaintiff that his grievance was being returned because it was a

request for health care and that Plaintiff must utilize the Nurse Sick Call procedure to

access health care. It appears from the record that Plaintiff did not utilize the Nurse Sick

Call procedure at this time. Instead, he forwarded this same grievance to the Grievance

Officer. The grievance, which was then labeled as Grievance #12-18-108, was returned to

Plaintiff because he had not forwarded the counselor’s response with his grievance. It

logically follows that the Grievance Officer could not review this grievance without more

information from the counselor.

Finally, Plaintiff forwarded this October 29, 2018 grievance directly to the

Administrative Review Board, where it was received on December 12, 2018 (Doc. 44-1, p.

14). On December 17, 2018, the grievance was returned to Plaintiff. In the response, the

ARB indicated that Plaintiff’s grievance was related to a medical request and he should

submit his request to medical. If he continued to have issues, he could then complete a

grievance and forward it to the grievance officer. There is nothing in the record to indicate

that Plaintiff followed the ARB’s directions.

From the record, it is clear that Plaintiff did not fully exhaust this grievance by

going through the appropriate process. In addition, the content of this grievance indicates

that he is having a medical issue, not that he is reporting any issues with Defendants

Kink, Burle, and Garrett, all of whom do not work in the healthcare unit. While it appears

as if Nurse Brooks does work in the healthcare unit, Plaintiff testified that he did not

include her name on this grievance and in reviewing the grievance, there are no

descriptions or other information that identify issues with the medical care Nurse Brooks

provided to Plaintiff. This grievance was not properly exhausted prior to filing this

lawsuit.

B. December 10, 2018 Grievance

On December 10, 2018, Plaintiff filed his second grievance, Grievance #12-18-211

(Doc. 1, p. 15), as an emergency. An inmate may request that a grievance be handled as

an emergency by forwarding the grievance directly to the warden. 20 ILL. ADMIN. CODE §

504.840 (2017). If the warden determines that “there is a substantial risk of imminent

personal injury or other serious or irreparable harm to the [inmate],” then the grievance

is handled on an emergency basis, meaning the warden will expedite processing of the

grievance and respond to the inmate, indicating what action will be taken. Id.

In this grievance, Plaintiff alleged he was not receiving health care that he

requested for his injuries. Plaintiff filed this grievance as an emergency grievance, but it

was deemed as a non-emergency by Defendant Kink and returned to Plaintiff with

instructions to file this grievance in a “normal manner” (Doc. 44-3, p. 2). In this grievance,

Plaintiff details the October 6, 2018 assault and his subsequent attempts at receiving

medical care. He writes, “I cam[sic] back to the jail and days gone by and I sent out a

request slip to health care to get sent to the hospital because my jaw is still messed up. It

hurts daily when I talk and eat and it pops” (Doc. 1, p. 15). He states he needs “to get my

jaw treated and find out why I’m going light headed.” Id.

There is nothing in the record to indicate that Plaintiff refiled this grievance, as

instructed by Defendant Kink. Again, this grievance details issues with medical care and

not issues with Defendant Kink, Burle, or Garrett, and does not include identifying

information that could put those Defendants on notice of this lawsuit. Plaintiff again does

not detail Defendant Brooks’ involvement either. This grievance, like his last, was also

not properly exhausted prior to filing this lawsuit.

C. August 15, 2019 Grievance filed at Robinson

While at Robinson, it appears that Plaintiff filed another grievance potentially

related to the issues of this case. His grievance, filed on August 15, 2019, pertained to

receiving medical treatment for a facial injury (Doc. 44-1, p. 10). This grievance was

denied by Defendant Burle at the ARB because it was determined that the issue was

appropriately addressed by the facility administration as “medical treatment is at the

discretion of the provider.” Id. Plaintiff filed this grievance after he filed this lawsuit on

April 4, 2019 and details complaints about Dr. Shah’s care, who is not a Defendant in the

present matter.

Once a prisoner is moved to a new facility, they may still file a grievance about

issues that occurred at their prior facility by appealing directly to the ARB (Doc. 46, p. 7,

citing 20 Ill Adin. Code 504.870). The issue here is that Plaintiff filed this grievance

approximately four months after he filed this lawsuit. Additionally, it appears to pertain

to the medical care he received from Dr. Shah and is unrelated to the actions of the named

Defendants in this matter. For purposes of this lawsuit, Plaintiff did not appropriately

exhaust this grievance either.

D. Plaintiff’s Testimony and Response to Defendants’ Motions for Summary

Judgment

Although the Seventh Circuit requires strict adherence to the exhaustion

requirement, Dole, 438 F.3d at 809, an inmate is required to exhaust only those

administrative remedies that are available to him. 42 U.S.C. § 1997e(a). Administrative

remedies become “unavailable” to prisoners when prison officials fail to respond to a

properly filed grievance or when prison officials’ “affirmative misconduct” thwarts a

prisoner from exhausting. E.g., Lewis, 300 F.3d at 833; Dole, 438 F.3d at 809. Plaintiff

contends that he was thwarted from exhausting his grievances prior to filing this lawsuit

due to issues understanding English, which was an argument he first asserted in his

response to the motions for summary judgment (Doc. 49). Prior to this response, Plaintiff

had not brought this issue to the attention of the Court, so a significant portion of the

Pavey hearing was devoted to better understanding Plaintiff’s English-language skills to

determine if he was truly thwarted from exhausting administrative remedies.

Plaintiff’s testimony was inconsistent throughout the course of the Pavey hearing.

He gave conflicting accounts of the number of people who assisted him with his

grievances and court filings, at first testifying that one person (an inmate who worked in

laundry) helped him. He then quickly changed his story to say that multiple inmates

helped him file his grievances and the filings in the present matter. Additionally, he

described requiring the help of an inmate interpreter to navigate prison systems,

including the healthcare unit. If another inmate is unavailable to help him, he relies on

gestures to communicate his ailments.

Plaintiff’s cumulative counseling summary, however, does not support his

assertion regarding his English level and difficulty communicating in the prison. The

cumulative counseling summary details Plaintiff’s interactions with prison officials. On

average, there are monthly to bi-monthly notes about check-ins and meetings that

Plaintiff had with prison officials at his cell door or with his correctional counselor, many

of which were face-to-face (Doc. 46-1). In these descriptions, which start in 2016 and go

through 2019, there is not a single mention of Plaintiff’s inability to communicate in

English. In addition, there are no notes describing that prison officials are communicating

with Plaintiff in Spanish or, alternatively, in English with the help of an interpreter.

In fact, Plaintiff’s cumulative counseling summary outlines that Plaintiff and

prison officials communicated about a variety of issues, including transfers (e.g., a note

on June 18, 2018 details, “Offender seen at the cell during 60 day contacts, discussed

current transfer criteria, if interested in a transfer advised to write a request slip with

institution listed, and it would be processed as time allows, no other concerns or issues

advised to write a request slip if he needs anything.”); his visit list (e.g., a note on July 7,

2016 details, “Offender seen on house rounds, he was on my 60 day contact list. He asked

if I had processed his visiting list.”); and job opportunities (e.g., a note on September 12,

2018 details, “Offender seen today, discussed job assignments, he is currently waitlisted

for HU Porter. Would like to know other jobs he may be eligible for. Will review and

reply”) (Doc. 46-1, p. 2, 4). Plaintiff was also repeatedly reminded to send request slips if

he had any issues or concerns (e.g., a note on July 20, 2018 details, “Seen the offender in

the office per his request, discussed his transfer that was submitted for Illinois River C.C.,

DENIED, discussed about obtaining a job assignment, advised to contact placement with

interest, no other concerns or issues, advised to write a request slip if he needs anything.”)

(Doc. 46-1, p. 2). In the note immediately following the October 6, 2018 incident in which

Plaintiff was injured, the cumulative counseling summary details that Defendant Garrett

spoke with Plaintiff at his cell door on November 14, 2018 and recorded, “No issues

offered for discussion by ofndr. Requests & grievances provided as needed” (Doc. 46-1,

p. 2). Additionally, at the Pavey hearing, the Court observed Plaintiff correct his

interpreter in English when she incorrectly stated, in English, that he was taking 200 mg

of Ibuprofen instead of 800 mg of Ibuprofen. And at the Pavey hearing, Plaintiff also

acknowledged that he had a Spanish to English dictionary. Based on the record as a

whole, it appears that Plaintiff’s understanding of English is more advanced than he

asserts.

Courts have previously found that when a prisoner who speaks Spanish is not

provided with the orientation materials in Spanish, the exhaustion procedures may not

be available to them and they cannot be expected to properly exhaust prior to filing a

lawsuit. District Courts base their decision on whether existing remedial processes are

available and have determined they are only if communicated in a way reasonably likely

to be understood by the prisoner. Ramirez v. Young, 906 F.3d 530, 535 (7th Cir. 2018),

citing Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014). In Ramirez, the prison informed

the plaintiff of its grievance procedures in the English version of the orientation manual.

Plaintiff’s cumulative counseling summary documented that he could not understand

oral or written materials in English. At orientation, the prison instructor silenced the

prisoner who was translating for the plaintiff. Ramirez, 906 F. 3d at 535. Here, unlike in

Ramirez, there is documentation that Plaintiff was provided with the orientation manual

in Spanish. And while there is conflicting information about Plaintiff’s abilities to

understand and communicate in English, the weight of the information all suggests that

his understanding of English is far more advanced than he lets on. Unlike Ramirez, there

is no note in Plaintiff’s cumulative counseling summary that he cannot understand

English or that when interpreters were attempting to inform Plaintiff of the grievance

procedure in Spanish, they were silenced. Plaintiff offers only one piece of evidence

detailing his inability to understand English, which was his own sworn affidavit (Doc.

49, pp. 12-16).

It is notable that in Plaintiff’s check-ins and meetings with prison officials, detailed

in the cumulative counseling summary, he did not mention the issues with this current

case, including his injured jaw or what he perceived to be a lack of access to medical care.

While there are notes about the two grievances he filed, there are no other informal notes

about the issues in this case. If Plaintiff is credible in asserting that he was doing

everything he could to exhaust administrative remedies prior to filing, it is logical to

conclude that he may have mentioned these issues to prison officials, some of whom are

named Defendants in this matter, when he had the opportunity to do so. Ultimately,

Plaintiff’s story is inconsistent and implausible in light of all the record evidence. The

documentary evidence all supports the Defendants’ position that Plaintiff failed to

exhaust his administrative remedies. Accordingly, the Defendant’s motions for summary

judgment will be granted.

CONCLUSION

The motions for summary judgment on the issue of exhaustion filed by Defendants

(Docs. 43 and 46) are GRANTED. This case is DISMISSED without prejudice for failure

to exhaust. The Clerk of Court is DIRECTED to enter judgment accordingly.

IT IS SO ORDERED.

DATED: October 29, 2020

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge