The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Plaintiffs, present and former inmates of the Illinois Department of Corrections (IDOC) with Hepatitis C, filed their Complaint (#1) in this matter on September 29, 2008, claiming that, pursuant to 42 U.S.C. § 1983, Defendants Willard O. Elyea (former IDOC Medical Director), Michael Puisis (current IDOC Medical Director), and Wexford Corporation were deliberately indifferent to their serious medical needs in violation of the Eighth Amendment of the Constitution of the United States. On January 14, 2009, Defendant Elyea filed a Motion for Summary Judgment (#20). A Supplemental Motion for Summary Judgment (#84) was filed by Defendant Elyea on July 21, 2009. The other co-defendants also joined in this motion. Plaintiffs have filed their Response (#92) and Defendants have filed their Reply (#93). The motion is now ready to be ruled upon by this court. For the reasons that follow, Defendants' Motion for Summary Judgment (#20), (#84) is GRANTED in part and DENIED in part.
Plaintiffs filed their Complaint (#1) alleging that they are all inmates or former inmates of the IDOC whose civil rights were violated because Defendants were deliberately indifferent to Plaintiffs' medical condition in that they did not receive needed medical treatment for Hepatitis C. Defendant Elyea was the Agency Medical Director of the IDOC*fn1 and personally adopted the policy which denied medical treatment to Plaintiffs. Specifically, Plaintiffs were told that after receiving a diagnosis for Hepatitis C based on blood work, they had to wait one year before receiving a liver biopsy and beginning treatment. This meant that if they had less than a year to go on their IDOC sentence, they were denied treatment for Hepatitis C. Plaintiffs charged this was deliberate indifference on Defendants' part to the substantial risk of serious harm faced by Plaintiffs. Plaintiffs claim they have exhausted their administrative remedies and that "Defendants have adopted a policy that all grievances in this matter are to be denied without consideration making further administrative efforts futile."
Defendants filed their Supplemental Motion for Summary Judgment (#84) on July 21, 2009.*fn2 In the motion, Defendants assert that 150 of the 165 Plaintiffs involved have not exhausted their administrative remedies, contrary to the claim made in Plaintiffs' Complaint, and thus summary judgment is compelled in favor of Defendants against those Plaintiffs. Defendants attached to their motion the Affidavit of Terri L. Anderson.
Affidavit of Terri L. Anderson
Terri L. Anderson, an employee of the IDOC since 1985, is currently employed as a Public Service Administrator (Administrative Review Board Chairperson), who, as part of her duties, reviews the appeals of inmate grievances. Inmates may files grievances in accordance with department rules. They must first attempt to resolve grievances through their counselors. If the issue remains unresolved after such informal efforts, the inmate may submit a written grievance on a grievance form to the facility Grievance Officer. The Grievance Officer may personally interview the inmate and/or witnesses as deemed appropriate and obtain relevant documents to determine the merits of the inmate's grievance. After completing the investigation, the Grievance Officer's conclusions and possible recommended relief are forwarded to the Chief Administrative Officer (CAO). The CAO's decision is then submitted to the grieving inmate.
Following receipt of the CAO's decision, the inmate may appeal in writing to the Director of the Department by submitting the Grievance Officer's report and the CAO's decision. The Administrative Review Board (ARB), as the Director's designee, reviews the appeal and first determines whether the inmate's grievance can be handled without the necessity of a hearing. If so, then the inmate is so advised. Other matters are then scheduled for an in-person ARB hearing involving an interview of the grieving inmate, examining relevant documents, and, at the ARB's discretion, calling witnesses. The ARB then submits a written report of its findings and recommendations to the Director, who then reviews the report and makes a final determination on the grievances. A copy of the ARB's report and Director's final decision is sent to the grieving inmate. The originals of these documents remain in the ARB's files. Department Rule 504F, Grievance Procedures for Committed Persons, which governs the grievance process, provides no further means for review beyond this step.
An inmate may request a grievance be handled on an emergency basis by forwarding the grievance directly to the CAO and, if the CAO determines that there is a substantial risk of imminent personal injury or serious irreparable harm to the inmate, the CAO may choose to handle the emergency. In such a situation the CAO's decision may be appealed to the ARB.
Anderson then discussed the offender tracking system (OTS), which is a database where various information about inmates in the IDOC is stored and made accessible to IDOC employees. Information in the OTS includes offender movement history as well as particulars such as an offender's incarceration status. Anderson, through the course of her duties, is familiar with the OTS and regularly uses it. During May and June 2009, in conjunction with this litigation, she searched the ARB records for each of the named Plaintiffs and Intervenors in this case, Orr v. Elyea, 08-CV-2232, for grievances filed and appealed to the ARB at any time during an offender's incarceration up to and including June 17, 2009, involving medical care for Hepatitis C. During July 2009 she searched the OTS records for each of the 165 named Plaintiffs and Intervenors to ascertain their incarceration status as of the date of the lawsuit's filing: September 29, 2008.
Anderson's search resulted in the following regarding the Hepatitis C issue:
1) Inmates who exhausted their administrative remedies with the ARB as of the date of the filing of the lawsuit, September 29, 2008:
Everado Alegria, John Beeson, Lewis C. Henry, Ronald Lee, John L. Markiewicz, Robert Quinn, Deborah Weaver, David Williams, Jacalyn Arati, Kevin Dean, Fernando Hernandez, Guadalupe Lopez, Philip McVitty, Lavertis Stewart, and Claxton Williams.
2) Inmates who exhausted their administrative remedies with the ARB as of May and June 2009 but did not exhaust prior to the filing of the lawsuit on September 29, 2008:
Ernest Blossom (12/11/08), Stacy Bock (1/27/09), Robert Cook (6/1/09), Chase Copelen (3/18/09), Gary L. Daily (6/30/09), Donald Dawson (12/22/08), Terry Dibble (4/28/09), Cleveland Garner (1/7/09), Robert Garrett (1/15/09), Willie Adkins (6/8/09), Timothy Giancana (3/30/09), Ronnie Johnson (4/15/09), Clarence R. Jones (2/19/09), William Horton (4/16/09), Bobby Phillips (1/7/09), Luis Reyes (1/12/09), LeAnn Vaughn (6/11/09), Jerome Zamp (4/21/09), Daniel Duane (6/30/09), Geoffrey Truss (4/13/09).
3) The following inmates are no longer incarcerated in the IDOC: Jeffrey Armstrong, Linda Armstrong, Greg Bashares, Vito Basile, Kenneth Bauza, Brian Bennett, Debra Blanchard, Joseph Carillo, Paul Carter, Robert Cook, Michael E. Denning, Phillip Day, David Dickson, Joseph Dilts, Ronald Dooley, Serafin Flores, Jay C. Frame, Nancy Gray, John Gouyd, Chansouk Haksasila, Michael Hayes, Harold Higgens, Richard Jackson, Sturgis Jones, Raymond Kasper, Ronald Lee, Terrence (Terry) Lee, Raymond Locke, Philip McVitty, Lawrence Moye', Jeffrey Orr, Ronnie F. Ortiz-Stookey, Scott Padrick, Ernesto Perez, Robert Quinn, Mason Reid, Jesse Rice, Daniel Rohlfs, Wendell Ross, Michael D. Roy, Donald R. Rutherford, Forrest Sanders, Miquel Santos, Michael Sheehan, Daniel Sims, John Small, Michael D. Smith, and Quinten B. Smith, Anthony Stewart-Bey, David Walker, Edward Walker, Stephen William, Michael Wippert, Darryl Wooding, David Workman, and Herbert Zachary.
4) Anderson's search of the ARB records indicated that the following inmates did not exhaust their administrative remedies with the ARB in that they have not filed grievances or did not follow proper procedure when filing a ...