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White v. Bukowski

United States District Court, C.D. Illinois, Urbana Division

April 22, 2014

WENONA WHITE, Plaintiff,


COLIN S. BRUCE, District Judge.

This case is before the court for ruling on Defendants' Motion for a Pavey Hearing (#36).[1] This court has carefully considered Defendants' Motion, Plaintiff's Memorandum in Response (#40), and Defendants' Reply (#42). After careful consideration, this court concludes that a Pavey hearing should be held in this case. Accordingly, Defendants' Motion (#36) is GRANTED. This case is scheduled for a telephone status conference on April 28, 2014, at 9:30 a.m. so the case can be set for a Pavey hearing.


On September 19, 2011, Plaintiff, Wenona White, filed a Complaint (#1) pursuant to 42 U.S.C. § 1983 against Defendants, Timothy F. Bukowski, Lt. Michael Downey, Heather Gill, Timothy J. Menard, Clyde W. Dayhoff, and Charee Sangster. Plaintiff alleged that she was booked into the Kankakee County Detention Center as an inmate on September 11, 2009. She alleged that she was in the late stages of pregnancy. She alleged that, on September 22, 2009, she went into labor and was eventually transported to the hospital. She alleged that a C-section was performed and the baby girl delivered was born with serious, nearly fatal birth defects caused by oxygen deprivation due to a condition known as placenta previa. Plaintiff alleged that the serious and substantial birth defects could have been prevented had Defendants provided her with proper medical care and attention while she was incarcerated at the Kankakee County Detention Center from September 11, 2009, until the birth of the baby on September 22, 2009. Defendants filed their Answer and Affirmative Defenses (#16) on November 3, 2011. One of the affirmative defenses was that Plaintiff failed to exhaust the grievance procedure available to her at the Kankakee County Detention Center prior to filing her federal lawsuit. Discovery orders were entered in this case, and discovery has proceeded.


On March 6, 2014, Defendants filed a Motion for a Pavey Hearing (#36), with attached exhibits, including excerpts from the transcript of Plaintiff's deposition. Defendants argued that this court should conduct a Pavey hearing to determine whether Plaintiff has exhausted her administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Defendants stated that the key players in Plaintiff's case had recently been deposed and it was clear that the issue of exhaustion was now ripe for consideration by the court.

Defendants argued that Plaintiff was detained at the Jerome Combs Detention Center (JCDC) from September 11, 2009 through September 30, 2009, except for a 96-hour window (between September 22 and 26) during which time she gave birth at Provena St. Mary's Hospital to a daughter, Johnay. Defendants stated that Plaintiff did not receive any prenatal care in July, August or September 2009 before her arrest. When she was seen by an intake officer on September 11, 2009, Plaintiff did not have any complaints in connection with her pregnancy and did not identify any special medical issues or problems. Defendants further stated that, on September 18, 2009, Physician's Assistant Timothy Menard attempted to examine and assess Plaintiff. Plaintiff refused to be seen and signed a Treatment Refusal Form after telling a nurse she did not want to go down to the jail's medical pod. Plaintiff testified at her deposition that she did not want to go to the medical pod because she was feeling sick, however, she also testified that she did not advise anyone when she signed the Treatment Refusal Form that she was feeling sick.

Four days later, at or shortly before 5:10 a.m. on September 22, 2009, Plaintiff woke up in pain, believing she was going into labor. She rang the buzzer for assistance and a female first responder came to her cell to check on her. Plaintiff told the first responder that she believed she was going into labor and that she wanted an ambulance. An ambulance was called shortly thereafter by JCDC personnel. According to their report, paramedics were called to the scene at 5:13 a.m. and began to assess Plaintiff at 5:22 a.m. Paramedics were in the ambulance with Plaintiff by 5:32 a.m. and left the JCDC with Plaintiff at 5:42 a.m., arriving at Provena St. Mary's Hospital at 5:52 a.m. The report also stated that Plaintiff told the paramedics that she had no complications with this pregnancy, and that she had regular doctor appointments during the pregnancy.

The JCDC's Inmate Handbook outlines the policies and procedures at the jail, including the grievance procedures. Each inmate is given a copy of the Inmate Handbook at the time of his or her admittance. The grievance procedures set out in the Inmate Handbook state, in relevant part:

Inmate Grievance Forms are provided by jail administration. Any grievance that you may have must be written on an Inmate Grievance Form and submitted to a staff member for proper delivery. You may submit grievances or complaints regarding any incident, condition, treatment, or other matters pertaining to the facility rules and regulations.
If your grievance is not answered to your satisfaction, you may submit a letter to the Illinois Department of Corrections Jail and Detention Standards Unit.

Plaintiff never submitted any grievances about any of the conditions or events complained about in her federal lawsuit.

On March 28, 2014, Plaintiff filed a Memorandum in Opposition to Defendants' Motion for a Pavey Hearing (#40). Plaintiff did not contest that JCDC had a grievance procedure or that she did not file a grievance. Plaintiff argued, however, that an inmate need not exhaust administrative remedies before filing a lawsuit if: (a) the administrative remedy is not "available" to the prisoner; (b) "special circumstances" exist which excuse the prisoner from the exhaustion requirement; or (c) the facility is equitably estopped ...

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