Jerry B. Palmer v. James Fenoglio

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 15, 2013 *
Decided March 18, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12‐2266
JERRY B. PALMER,
Plaintiff‐Appellant,
v.
JAMES FENOGLIO,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 10‐cv‐0718‐MJR
Michael J. Reagan,
Judge.
O R D E R
Jerry Palmer, an Illinois prisoner, alleges in this suit under 42 U.S.C. § 1983 that Dr.
James Fenoglio deliberately ignored his pain from a shoulder injury. After conducting a
hearing, the district court found that Palmer failed to exhaust his administrative remedies
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2)(C).

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No. 12‐2266 Page 2
and granted summary judgment for Fenoglio. Because the district court did not clearly err
in finding that Palmer did not grieve Fenoglio’s treatment of him, we affirm the judgment.
This case concerns medical treatment that Palmer received at Lawrence Correctional
Center in 2009. Palmer injured the rotator cuff of his right shoulder seven years earlier at Big
Muddy River Correctional Center. Medical staff there performed an MRI and decided to
treat the injury with hydrocortisone shots instead of surgery. Over the next few years
Palmer was transferred to different prisons. Although he requested surgery and maintained
that his shoulder injury was painful and interfered with his daily activities, prison medical
staff opted to treat him with pain pills, shots, and physical therapy.
After arriving at Lawrence in March 2009, Palmer filed two grievances about the
treatment for his shoulder injury. First, on May 11, 2009, he asked to be transferred to
another facility to receive physical therapy. Palmer filed a second grievance six days later,
detailing his pain, his treatment at other prisons, and stating that “since I been here at
Lawrence Correctional Center, medical personnel have not done anything for me.” The
prison counselor responded to both grievances, stating that “Per Dr. Fenoglio,” Palmer
would be examined.
Palmer then filed this lawsuit, alleging that Fenoglio and 16 other defendants were
deliberately indifferent to his shoulder condition. The district court dismissed the other
defendants at screening, see 28 U.S.C. § 1915A, but it allowed Palmer to proceed against
Fenoglio, whom Palmer claimed had examined him in March of 2009 and improperly
ignored his arm. Fenoglio then moved for summary judgment on the ground that Palmer
had failed to exhaust his administrative remedies, see 42 U.S.C. § 1997e(a), because he did
not name or describe Fenoglio in either of his two grievances, as required by the prison’s
exhaustion procedures, see ILL. A DMIN. CODE tit. 20 § 504.810. Palmer did not dispute that
the grievances do not name Fenoglio; rather, he argued that he need not have named
Fenoglio because Fenoglio was the “primary physician” he saw in March.
The magistrate judge conducted an evidentiary hearing, see Pavey v. Conley, 544 F.3d
739, 742 (7th Cir. 2008). Palmer testified that he did not know whether he saw Fenoglio
before or after filing his grievances. The magistrate judge directed Fenoglio to submit
Palmer’s medical records. After reviewing the records, which showed that Fenoglio did not
see Palmer before June 2009, the magistrate judge found that Palmer had not seen Fenoglio
before filing his two grievances; therefore, neither grievance could have challenged
Fenoglio’s conduct. Accordingly, the magistrate judge recommended that the court grant
Fenoglio’s motion for summary judgment.
Palmer objected to the magistrate judge’s recommendation. Ignoring his own

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No. 12‐2266 Page 3
hearing testimony, Palmer asserted that he saw Fenoglio before May 11, 2009, and accused
Fenoglio of submitting falsified medical records. He also asserted that Fenoglio had failed to
produce an inmate tracking report that, Palmer thought, would show when he visited
Fenoglio. Fenoglio replied that he did not have access to the inmate tracking system. The
district court adopted the magistrate’s recommendation and granted summary judgment in
favor of Fenoglio. Palmer next moved to alter or amend the judgment, swearing in an
affidavit that he had seen Fenoglio before he filed his grievances and insisting that the
tracking system documents would resolve any fact dispute. The district court denied the
motion, noting that Fenoglio had fully complied with the order to produce medical records.
On appeal, Palmer contends that he has genuinely disputed whether he saw
Fenoglio before filing his grievances, so summary judgment was improper. Palmer is correct
that at the Pavey hearing the parties disputed this issue, but under Pavey district courts may
resolve factual disputes relating to exhaustion. Pavey, 544 F.3d at 740–41; see also Begolli v.
Home Depot U.S.A., Inc., 701 F.3d 1158, 1160 (7th Cir. 2012). Here the district court
permissibly found that Palmer first interacted with Fenoglio only after Palmer lodged his
grievances; therefore the only two grievances in the record, which name no doctors at
Lawrence, could not have challenged Fenoglio’s conduct. Based on the medical records
showing that Fenoglio first saw Palmer in June, and the counselor’s response to the
grievances, which reflect that Fenoglio became involved after Palmer filed them, no clear
error undermines the conclusion that Palmer’s grievance did not challenge Fenoglio’s
conduct in May. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011) (holding that district
court did not clearly err in declining to credit prisoner’s testimony about exhaustion); United
States v. Norris, 640 F.3d 295, 297 n.1 (7th Cir. 2011) (noting that credibility findings may be
disturbed only when they are “completely without foundation”).
Because the hearing record supports the district court’s finding, Palmer replies that
the hearing itself was deficient. He argues that Fenoglio should have produced documents
from the offender tracking system, which he speculates would confirm a pre‐grievance visit
to Fenoglio in March. Palmer gives us no reason to believe that Fenoglio possesses these
documents or that they show which medical personnel an inmate sees. But in any case the
district court ordered Fenoglio to produce “medical records.” Given the district court’s
broad discretion to determine whether a party has complied with discovery orders,
see Melendez v. Illinois. Bell Tel. Co., 79 F.3d 661, 670–71 (7th Cir. 1996), the court did not err in
concluding that Fenoglio complied with the order. If Palmer wanted more expansive
records to prove exhaustion, the time to seek them was before the hearing, not after.
See Kalis v. Colgate‐Palmolive Co., 231 F.3d 1049, 1057 (7th Cir. 2000) (holding that district
court did not abuse its discretion by denying motion to extend discovery where “no effort
was made to explain why the requested discovery could not have taken place within the
original discovery period”). Finally, Palmer’s post‐hearing affidavit, in which he swears that

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No. 12‐2266 Page 4
he saw Fenoglio before he filed the grievances, does not negate his hearing testimony that
he had no recall of seeing Fenoglio before grieving. Without an explanation for his suddenly
restored memory, his revised, post‐hearing testimony was permissibly discounted.
See Holloway v. Delaware County Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012); Russell v. Acme‐
Evans, Co., 51 F.3d 64, 67–68 (7th Cir. 1995); Lovejoy Electronics, Inc. v. O’Berto, 873 F.3d 1001,
1005 (7th Cir. 1989).
AFFIRMED.

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