Opinion
3:19-cv-01238-SMY-MAB
02-23-2022
GEORGE CORTEZ, #M12004, Plaintiff, v. WEXFORD HEALTH SOURCE, INC., et al., Defendants.
REPORT AND RECOMMENDATION
MARK A. BEATTY UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Motion for Summary Judgment on Exhaustion of Administrative Remedies (Doc. 41) filed by Defendants Angela Crain, Holly Hawkins, Aimee Lang, Ron Skidmore, Anthony Wills, and the Illinois Department of Corrections (“IDOC Defendants”) and the Motion for Summary Judgment on Plaintiff's Failure to Exhaust Administrative Remedies (Doc. 43) filed by Defendants Mohammed Siddiqui and Vipin Shah (“Wexford Defendants”). The motions have been referred to the undersigned by United States District Judge Staci M. Yandle (Doc. 53) 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. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law and GRANT in part and DENY in part the motions as set forth below.
Wills was subsequently dismissed by the Court when Plaintiff's claim for injunctive relief became moot due to a prison transfer (Doc. 67).
Background
Plaintiff George Cortez, an inmate of the Illinois Department of Corrections, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at Menard Correctional Center (“Menard”). Following screening of the First Amended Complaint (Doc. 13) under 28 U.S.C. § 1915A, Plaintiff is proceeding on the following claims (Doc. 16):
Count 3: Eighth Amendment deliberate indifference claim against Lang for refusing to give Plaintiff his pain medications and against Skidmore for failing to correct Lang's misconduct.
Count 4: Eighth Amendment deliberate indifference claim against Skidmore, Siddiqui, Shah, Crain, Lang, and Hawkins for ignoring Plaintiff's complaints that his pain medication was no longer effective to relieve his severe pain.
Count 6: ADA and/or RA claim against the IDOC for failing to accommodate Plaintiff's mobility-related medical conditions and pain.
Defendants filed motions for summary judgment asserting Plaintiff failed to properly exhaust his administrative remedies prior to filing this action (Docs. 41, 43). Plaintiff filed a response in opposition to the motion (Doc. 50). The Court held an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (Doc. 62). Plaintiff testified via video from Menard Correctional Center (Id.). Defendants appeared by counsel (Id.).
Findings of Fact
A. Grievance records
The Administrative Review Board (“ARB”) records contain six grievances Plaintiff submitted regarding medical treatment and/or ADA disability accommodation issues at Menard before the filing of the instant lawsuit.
Grievance 82-9-19 regarding ADA disability accommodation was initiated by Plaintiff on September 4, 2019. (Doc. 41-2, pp. 36-42). Plaintiff grieves the return of his cane and placement in a cell close to medical. After receiving the Warden's decision dated September 17, 2019, Plaintiff signed the intent to appeal on September 20, 2019. The ARB received the grievance on September 25, 2019 and denied it on October 2, 2019. This grievance was fully exhausted.
Grievance 192-6-18 regarding medical treatment and ADA disability accommodation was initiated by Plaintiff on June 10, 2018 as an emergency grievance. (Doc. 41-2, pp. 43-50). Plaintiff grieves issues related to his pain medication, cell placement, and his cane. After receiving the Warden's decision dated July 16, 2018, Plaintiff signed the intent to appeal on July 19, 2018. The ARB received the grievance on July 24, 2018 and denied it on July 30, 2018. This grievance was fully exhausted.
Grievance 531-11-17 regarding medical treatment was initiated by Plaintiff on November 27, 2017. (Doc. 41-2, pp. 32-35). Plaintiff grieves issues related to his pain medication and his cane. A grievance officer responded on December 5, 2017, and the Warden responded on December 8, 2017. Plaintiff signed the grievance indicating his intent to appeal on October 14, 2019. The ARB received the grievance on October 21, 2019. The ARB did not rule on the substance of this grievance because Plaintiff had not alleged the dates of occurrence and the grievance was received more than thirty days after the Warden's decision.
Grievance 70-10-17 regarding staff conduct and medical treatment was initiated by Plaintiff on October 9, 2017. (Doc. 41-2, pp. 20-24). Plaintiff grieves issues related to his pain medication. He states HCUA Walls and RN Hawkins will not do anything about the nurses not bringing his medication at the correct time. The Warden granted expedited review on October 16, 2017 and a grievance officer responded the same day. The Warden responded on October 19, 2017. Plaintiff signed the intent to appeal on October 14, 2019. The ARB received the grievance on October 21, 2019. The ARB did not rule on the substance of the grievance because it was received more than thirty days after the Warden's decision.
Grievance 320-11-17 regarding staff conduct and medical treatment was initiated by Plaintiff on November 8, 2017. (Doc. 41-2, pp. 11-19). Plaintiff grieves issues regarding Dr. Shah's conduct, denial of medical treatment, and his pain medication. A counselor responded on November 27, 2017, a grievance officer responded on December 1, 2017, and the Warden responded on January 4, 2018. Plaintiff signed the intent to appeal on October 14, 2019. The ARB received the grievance on October 21, 2019. The ARB did not rule on the substance of this grievance because Plaintiff had not provided dates of the alleged incident and the grievance was not received within thirty days of the Warden's decision.
Grievance 380-12-18 regarding medical treatment and ADA disability accommodation was initiated by Plaintiff on December 21, 2018. (Doc. 42-1, pp. 2-5). Plaintiff requested the return of his cane. A grievance officer responded on December 27, 2018 and the Warden responded on February 7, 2019. The ARB received Plaintiff's appeal on October 21, 2019. The ARB did not rule on the substance of this grievance because Plaintiff had not provided dates of the alleged misconduct, a similar issue had been addressed on October 2, 2019 in grievance 82-9-19, and the appeal was not submitted within thirty days of the Warden's decision.
Plaintiff also submitted the following six grievances at the institutional level before the filing of the instant lawsuit regarding medical treatment and/or ADA disability accommodation that were not appealed to the ARB:
Grievance 571-11-17 regarding medical treatment and ADA disability accommodation was initiated by Plaintiff on November 29, 2017. (Doc. 44-2, pp. 19-21). Plaintiff grieves issues related to his pain medication and medical lay in. A counselor responded on February 15, 2018 with a memorandum from the Health Care Unit (“HCU”).
Grievance 358-11-17 regarding medical treatment was initiated by Plaintiff on November 16, 2017. (Doc. 44-2, pp. 33-35). Plaintiff grieves he has been trying to see Dr. Siddiqui for a month to get his medical hold released and that he wants to be transferred to Dixon. He states he has been writing Dr. Siddiqui and Holly Hawkins but they have not responded. Additionally, he grieves issues related to Dr. Shah's conduct and his pain medication. A counselor responded on November 27, 2017 with a memorandum from the HCU.
Grievance 122-11-17 regarding staff conduct, medical treatment, and ADA disability accommodation was initiated by Plaintiff on November 3, 2017. (Doc. 44-2, pp. 42-44). Plaintiff grieves that Dr. Siddiqui refused to see him, that he was dragged down the stairs by corrections officers, that he is being forced to see Dr. Shah who refuses to properly treat him, and that he wants his pain medication. A counselor responded on November 27, 2017 with a memorandum from the HCU.
Grievance 31-7-18 regarding medical treatment was initiated by Plaintiff on June 28, 2018. (Doc. 44-2, pp. 16-18). Plaintiff seeks a different doctor to perform his hip surgery and states he needs his pain medication four times a day. A counselor responded on September 28, 2018 with a memorandum from the HCU.
Grievance 219-3-19 regarding staff conduct and medical treatment was initiated by Plaintiff on March 13, 2019. (Doc. 44-2, pp. 13-15). Plaintiff grieves issues with Dr. Shah. A counselor responded on June 17, 2019 with a memorandum from the HCU.
Grievance 388-7-19 regarding medical treatment and ADA disability accommodation was initiated by Plaintiff on July 28, 2019. (Doc. 44-2, pp. 10-12). Plaintiff grieves issues with a number of health care providers, his pain medication, and his cane. A counselor responded on August 16, 2019 with a memorandum from the HCU.
B. Pavey Hearing
Plaintiff testified as follows: He understands the grievance process and has submitted about 50 grievances on medical issues. For every single grievance, whether marked emergency or not, it takes three to four months to get a response, sometimes longer. Some grievances he never got back and any grievance he submitted concerning pain and suffering got “lost.” He gave up on submitting grievances to second level review because “they ain't going to do nothing about it.” He did not understand the law until he received assistance from another inmate. The individual told him that he had to submit his grievances to the ARB before filing a lawsuit and so he sent all the grievances in his possession at that time to the ARB.
At the conclusion of the hearing when Plaintiff offered argument in support of his position, he stated he did not know the law and had no one to represent him because he could not afford a lawyer. The Court notes that Plaintiff appeared clearheaded, he was able to articulate clearly and effectively, and he demonstrated a good understanding of the proceedings and the issues. The Court is thus satisfied that Plaintiff was capable of proceeding pro se and providing necessary information on the exhaustion issue without the assistance of counsel.
Legal Standards
A. Summary Judgment
Summary judgment is proper if there is no genuine issue 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). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323.
When a motion for summary judgment pertains to a prisoner's failure to exhaust administrative remedies, the Seventh Circuit has instructed courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a prisoner's efforts to exhaust. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding facts, and determining credibility, the court must decide whether to allow the claim to proceed or to dismiss it for failure to exhaust. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (citing Pavey, 544 F.3d at 742).
B. The PLRA and Illinois Exhaustion Requirements
The Prison Litigation Reform Act (“PLRA”) 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, 544 F.3d at 740. “The exhaustion requirement is an affirmative defense, which the defendants bear the burden of proving.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). Administrative exhaustion “means using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). This is a mandatory rule that a court does not have discretion to waive. Id. at 93. “[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed.” Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999).
The Seventh Circuit requires strict adherence to the exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). However, an inmate is required to exhaust only those administrative remedies that are available to him. See 42 U.S.C. § 1997e(a). Administrative remedies become “unavailable” when prison officials fail to respond to a properly filed inmate grievance or when prison employees thwart a prisoner from exhausting. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 809.
As an inmate in the Illinois Department of Corrections, Plaintiff was required to follow the grievance process outlined in the Illinois Administrative Code. 20 Ill. Admin. Code § 504.800, et seq. (2017). The regulations require an inmate to file his grievance with his counselor within 60 days of the discovery of an incident, occurrence, or problem that gave rise to the grievance. 20 Ill. Admin. Code § 504.810(a). An inmate may request that a grievance be handled as an emergency by forwarding it directly to the Chief Administrative Officer (“CAO”). 20 Ill. Admin. Code § 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. Id. If the CAO determines the grievances “should not be handled on an emergency basis, the offender shall be notified in writing that he or she may resubmit the grievance as non-emergent, in accordance with the standard grievance process.” 20 Ill. Admin. Code § 504.840(c).
Administrative regulations require the grievance “contain factual details regarding each aspect of the offender's complaint, including what happened, when, where and the name of each person who is the subject of or who is otherwise involved in the complaint.” 20 Ill. Admin. Code § 504.810(c). The Seventh Circuit has held that an inmate is required to provide enough information to serve a grievance's function of giving “prison officials a fair opportunity to address [an inmate's] complaints.” Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011).
If the complaint is not resolved through the counselor, the grievance may be submitted to a grievance officer, who reports his or her findings and recommendations in writing to the CAO. 20 Ill. Admin. Code § 504.830(e). The CAO then provides the inmate with a written decision on the grievance. Id.
If the inmate is not satisfied with the CAO's response, he can file an appeal with the IDOC Director through the ARB. 20 Ill. Admin. Code §504.850(a). The ARB must receive the appeal within thirty days of the date of the CAO's decision. Id. The inmate must attach copies of the responses from the grievance officer and CAO to his appeal. Id. The ARB submits a written report of its findings and recommendations to the Director, who then makes a final determination. 20 Ill. Admin. Code § 504.850(d), (e).
Conclusions of Law
Plaintiff exhausted grievances 82-9-19 and 192-6-18, which raise ADA and medical issues. The grievances are sufficient to exhaust the ADA/RA claim in Count 6 for failing to accommodate Plaintiff's mobility-related medical conditions and pain as it relates to access to his cane and cell location.
Additionally, grievance 192-6-18 is sufficient to exhaust the Eighth Amendment deliberate indifference to serious medical needs claim in Count 4 against Dr. Siddiqui for ignoring Plaintiff's complaints that his pain medication was not effective to relieve his pain. Although he does not specifically state that Dr. Siddiqui is responsible for the issue with his pain medication, the grievance officer's report notes that Dr. Siddiqui is responsible for the reduction in Plaintiff's pain medication. The grievance process is intended to give prison officials a fair opportunity to redress the grievance internally before resorting to litigation, as well as shedding light on factual disputes and reducing potential damages. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004). The failure to identify Dr. Siddiqui as the responsible healthcare provider in the grievance did not prevent the institution from considering the grievance on the merits. The grievance provided enough information to put the prison on notice and the medical records identified Dr. Siddiqui as the healthcare provider responsible for the pain medication. The grievance does not, however, raise any issue related to the claim in Count 4 against Defendants Skidmore, Shah, Crain, Lang, or Hawkins and therefore does not exhaust the claim against these Defendants.
The remaining grievances submitted to the ARB were indisputably untimely. Plaintiff submitted appeals to the ARB on grievances 531-11-17, 70-10-17, 320-11-17, and 380-12-18 collectively in October 2019. The Warden's decision dates on those grievances were December 8, 2017, October 19, 2017, January 4, 2018, and February 7, 2019, respectively. The issue then is whether Plaintiff was thwarted from filing timely appeals.
Plaintiff signed the intent to appeal on the grievances on October 14, 2019 and the ARB received the grievances on October 21, 2019.
Even considering Plaintiff's testimony that he did not receive responses for three to four months after the Warden's decision, this does not explain the delay in the appeals which ranges from approximately eight months to nearly two years. Additionally, Plaintiff did not testify that he appealed each grievance to the ARB after receiving the Warden's decision. Instead, he testified that he sent all the grievances in his possession to the ARB on the advice of another inmate when he was preparing to file this lawsuit.
Plaintiff's testimony that “for every single grievance” he did not receive a response for three to four months (or more) was confusing and not supported by the record. At one point, he appeared to be referring to how long it took for a decision to be made on a grievance. But there are six grievances in the record that show the time from the date of the grievance to the date of the Warden's decision was 13 days, 11 days, 10 days, and 1-2 months (3 grievances). At another point, Plaintiff referred to it taking three to four months from the date of the Warden's decision for him to receive the response. But the grievance log showed grievances returned within a matter of days after the Warden's decision. The grievance log also showed grievances 82-9-19 and 192-6-18 were received in time to sign the intent to appeal only three days after the Warden's decisions.
Plaintiff maintains he was not aware that he had to appeal the grievances to the ARB until he was told to do so by another inmate. However, ignorance of the law cannot be used to avoid a procedural prerequisite. See, e.g., Wilson v. Battles, 302 F.3d 745 (7th Cir.2002) (relative to statute of limitations period for filing a petition for writ of habeas corpus); and Redfield v. Continental Casualty Corp., 818 F.2d 596, 602 (7th Cir.1987) (relative to deadline for filing an appeal). The PLRA “says nothing about a prisoner's subjective beliefs, logical or otherwise, about administrative remedies that might be available to him.” Twitty v. McCoskey, 226 Fed.Appx. 594, 596 (7th Cir. 2007)(holding that a prisoner's alleged lack of knowledge of grievance procedures does not excuse noncompliance with available administrative remedies). Additionally, this testimony is inconsistent with the fact that he appealed grievances 82-9-19 and 192-6-18 to the ARB in July 2018 and September 2019.
Plaintiff also argues the PLRA requires only that he follow the rules of the Illinois Administrative Code, which states an appeal to the ARB is optional, not mandatory. But the exhaustion question is not whether the Code requires an inmate to appeal to the ARB, but whether it is available. See 42 U.S.C. § 1997e; Woodford, 548 U.S. at 85. The entire grievance process is permissive unless the inmate intends to pursue relief in a court. Smith v. Asselmeier, 762 Fed.Appx. 342, 344 (7th Cir. 2019).
Based on the foregoing, the Court finds that the grievance process was available to Plaintiff but he failed to exhaust grievances 531-11-17, 70-10-17, 320-11-17, and 380-12-18.
The next issue is whether Plaintiff's failure to exhaust grievances 571-11-17, 358-11-17, 122-11-17, 31-7-18, 388-7-19 and 219-3-19 was based on the unavailability of the grievance process. These grievances were not submitted for second level review by a grievance officer or appealed to the ARB. Plaintiff testified that he did not pursue the grievances because prison officials were not going to do anything for him.
There is no futility exception to the exhaustion requirement. Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000). “No one can know whether administrative requests will be futile; the only way to find out is to try.” Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 536-37 (7th Cir. 1999). “Exhaustion is required even if the prisoner believes his efforts in securing relief will be futile.” Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (citing Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001)). An inmate's perception that exhaustion would be futile does not excuse him from the exhaustion requirement. Dole, 438 F.3d at 808-809. “When the prisoner causes the unavailability of the grievance process by simply not filing a grievance in a timely manner, the process is not unavailable but rather forfeited.” Koba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Plaintiff cannot choose not to avail himself of the grievance process and then argue that the process was made unavailable to him. Koba, 458 F.3d at 684.
Plaintiff also argues that he did not receive responses to many grievances he filed. However, his testimony on this issue was vague. He did not testify as to any specific grievances where he did not receive a response. There was no testimony that he did not receive a response to any of the grievances in the record. He did not specify the issues he raised in any grievances for which he allegedly did not receive a response. Although he testified that any grievance he ever submitted regarding pain and suffering was “lost, ” this is inconsistent with the record before the Court.
Overall, Plaintiff's vague, inconsistent, and, at times, seemingly exaggerated testimony undermine his credibility. Further, he has not provided sufficient or credible information on grievances that supposedly went without a response. A lack of response does not render a grievance adequate; it merely excuses the failure to take any further steps in the grievance process. As the Ninth Circuit has articulated, “a prisoner must show that he attempted to exhaust his administrative remedies but was thwarted . . . In particular, [he] must establish . . . that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court . . . .” Sapp v. Kimbrell, 623 F.3d 813, 823-824 (9th Cir. 2010). Judges in this district have found the Ninth Circuit's rationale in Sapp to be persuasive and have adopted it. See Anderson v. Thole, No. 3:20-cv-00151-SMY, 2021 WL 2554111, at *2 (S.D. Ill. June 22, 2021); Russell v. Lashbrook, No. 19-cv-963-DWD, 2021 WL 1165120, at *3 (S.D. Ill. Mar. 26, 2021); Walker v. Butler, No. 19-cv-0446-SPM, 2021 WL 857355, at *6 (S.D. Ill. Mar. 8, 2021); and Russell v. Wexford Health Sources, Inc., No. 3:19-CV-681-MAB, 2021 WL 793994, at *3 (S.D. Ill. Mar. 2, 2021).
Based on the foregoing, the Court finds that the grievance process was available to Plaintiff but he failed to exhaust grievances 571-11-17, 358-11-17, 122-11-17, 31-7-18, 388-7-19 and 219-3-19.
In conclusion, the exhausted grievances in the record address the ADA/RA claim in Count 6 against IDOC and the Eighth Amendment claim in Count 4 against Dr. Siddiqui. There are no exhausted grievances in the record that address the claim in Count 3 against Lang and Skidmore or the claim in Count 4 as it pertains to Skidmore, Shah, Crain, Lang, or Hawkins. Further, Plaintiff's testimony does not support a finding that he attempted to exhaust grievances on any of those claims but administrative remedies were not available to him.
Recommendation
For the reasons stated, it is RECOMMENDED that the Court ADOPT the foregoing findings of fact and conclusions of law, GRANT in part and DENY in part the IDOC Defendants' Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 41), GRANT in part and DENY in part the Wexford Defendants' Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 43), and DISMISS without prejudice the claims in Count 3 against Defendants Lang and Skidmore and Count 4 against Defendants Skidmore, Shah, Crain, Lang, and Hawkins.
“[A]ll dismissals under § 1997e(a) should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
The claims remaining, as modified in accordance with the factual and legal findings, are as follows:
Count 4: Eighth Amendment deliberate indifference to serious medical needs claim against Siddiqui for ignoring Plaintiff's complaints that his pain medication was no longer effective to relieve his severe pain.
Count 6: ADA and/or RA claim against the IDOC for failing to accommodate Plaintiff's mobility-related medical conditions and pain as it relates to access to his quad cane and cell location.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Report and Recommendation within 14 days of service (see attached Notice). 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).