The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
On July 25, 2007, Plaintiffs filed a two-count complaint pursuant to 42 U.S.C. § 1983. In Count I, Plaintiffs contend that Defendants Dr. Willard Elyea ("Elyea"), Dr. Lawrence Ngu ("Ngu"), Kary Sheridan ("Sheridan"), and Nedra Chandler ("Chandler") violated Plaintiff Montell Johnson's ("Johnson") constitutional rights by failing to render adequate medical care in violation of the 8th and 14th Amendments. In Count II, Plaintiffs allege that Defendant Chandler violated Plaintiff Gloria Johnson-Ester's ("Johnson-Ester") First and Fourteenth Amendment rights when she prevented Johnson-Ester from visiting and communicating with Johnson (who is Johnson-Ester's son) while he was held in Dixon Correctional Center.
All of the Defendants contend, inter alia, that they are entitled to judgment as a matter of law under the Prisoner Litigation Reform Act ("PLRA") because Plaintiffs failed to exhaust their administrative remedies before filing this lawsuit. The Seventh Circuit recently held in Pavey v. Conley, 544 F.3d 739, 741-42 (2008), that exhaustion is a threshold issue that must be resolved by the district judge prior to addressing the merits of the case. Because of the serious physical and mental impairments from which Plaintiff Johnson suffers, the exhaustion issue in this case is far from straightforward, but at the end of the day the Court concludes that Defendants have not carried their burden of establishing that Plaintiffs failed to exhaust available administrative remedies. Accordingly, this case will proceed on the merits.
In 1999, Plaintiff Montell Johnson was convicted of murder and sentenced to a forty-year term of imprisonment. Since his conviction, Johnson has been in the custody of the Illinois Department of Corrections ("IDOC").*fn1 The undisputed facts of record in this case*fn2 establish that on various occasions Johnson has been made aware of the grievance procedures during orientation sessions and through materials contained in an orientation handbook. The record also shows that on various occasions in 1995, 2001, and 2003, Johnson filed grievances through the appropriate channels and exhausted his administrative remedies on those occasions.
Johnson was diagnosed with multiple sclerosis in 2001, after his incarceration period began. Although Johnson has spent time in several facilities during his period of incarceration, the facts giving rise to this complaint and relevant for the disposition of the exhaustion issue currently before the Court for decision occurred while Johnson was incarcerated at the Dixon Correctional Center ("Dixon").
Johnson was transferred to Dixon around April 17, 2006. At that point, he had been diagnosed as a paraplegic with advanced secondary progressive multiple sclerosis. When Johnson entered Dixon, he was placed in the infirmary, where he remained for all relevant periods. Johnson required "heavy care" from the staff at Dixon, including assistance with "feeding and all ADLs" (activities of daily life).
The medical records that have been provided to the Court over the course of this action confirm that Johnson's condition continued to deteriorate while he was housed at Dixon. Several months after Johnson entered Dixon, on September 22, 2006, he executed a Health Care Power of Attorney in favor of his mother, Gloria Johnson-Ester. By October 2006, Johnson's speech was "garbled," and by February 2007, he had difficulty verbalizing his needs and experienced episodes of "incoherent communication." A May 2007 entry in Johnson's records similarly notes "unintelligible communication," "unintelligible muttering," and "[m]umbling," and states that Mr. Johnson was "hard to understand." Other entries around the same time period indicate that Mr. Johnson required assistance with feeding and repositioning on his bed, could not ambulate, and was "fully dependent on others" for all activities of daily life. Some entries even suggest that Mr. Johnson was "irrational" and moved in and out of lucidity during his conversations.
As noted above, in this lawsuit Plaintiffs allege that Defendants violated Johnson's constitutional rights by failing to render adequate medical care at Dixon in violation of the 8th and 14th Amendments. As such, Plaintiffs' complaint states a Section 1983 claim by a prisoner that is subject to the PLRA's exhaustion requirements. It is clear that Johnson himself never filed a formal grievance regarding his medical care. It also appears from the record that he never asked his inmate porter, his counselor, or anyone else to assist him in filing a formal grievance relating to his health care at Dixon during the relevant time frame.*fn3
It is equally clear, however -- as Defendants acknowledge -- that Ms. Johnson-Ester and Plaintiffs' attorneys "agitated for better care through correspondence and by inciting others to write on [Mr. Johnson's] behalf." [150, at 3.] In fact, it is undisputed that between April 20 and June 12, 2007, several letters were sent on Mr. Johnson's behalf addressed to each of the Defendants (and others in the DOC chain of command) setting forth concerns about Mr. Johnson's medical condition and complaining about a lack of "appropriate medical care." The record also clearly reflects the fact that the letters were received, that various IDOC personnel discussed and even prepared draft responses, but that no formal responses ever were sent.
The critical question is whether Defendants can carry the burden of showing that Plaintiffs did not exhaust all available administrative remedies prior to bringing this lawsuit. All of the Defendants contend that because the specific grievance procedures set forth in the pertinent regulations were not properly invoked by Johnson or anyone else within 60 days of the discovery of the incident, occurrence, or problem that gave rise to his grievance (see 20 Ill. Admin Code § 504.810), Plaintiffs did not exhaust their administrative remedies and cannot now go back to pursue any unexhausted remedies that they may have had. Plaintiffs counter that as a result of his physical and mental debilities, Johnson was unable to pursue exhaustion of his administrative remedies on his own and cannot be faulted for not exhausting remedies that were unavailable to him in his condition. Plaintiffs also submit that the letters sent to the Warden and others at the IDOC on Johnson's behalf appropriately exhausted the available administrative remedies and thus satisfied the exhaustion requirement.
B. Administrative Grievance Procedures
IDOC regulations set out the procedures that "offenders" must follow for the "Filing of Grievances" in Ill. Admin. Code § 504.810. Those procedures first require an inmate to attempt to resolve grievances through his counselor. Ill. Admin. Code § 504.810(a). If that step is unsuccessful, the inmate may file a written grievance on a specified form within 60 days of discovery of the incident or problem giving rise to the grievance unless good cause can be shown for extending that period. Id. The grievance form must be addressed to the Grievance Officer ("GO") and "deposited in the living unit mailbox or other designated ...