United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
DONALD G. WILKERSON, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel 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 on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment filed by Defendant Gaetz (Doc. 23) be DENIED, and that the Court adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff, a chronic asthmatic who is currently incarcerated at Pinckneyville Correctional Center ("Pinckneyville"), brought this Section 1983 action alleging that Defendants were deliberately indifferent to his medical condition. After an initial screening pursuant to 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on one count against Defendants Gaetz and Shah for deliberate indifference to his serious medical needs (Doc. 10). The Court notes that Plaintiff was allowed to proceed against Defendant Gaetz only in his official capacity for purposes of injunctive relief.
Defendant Gaetz filed a Motion for Summary Judgment on the Issue of Exhaustion (Doc. 23). Based on the affidavit of Debbie Knauer, Chairperson of the Administrative Review Board ("ARB"), Defendant claims that the ARB responded to one grievance filed by Plaintiff regarding the confiscation of his inhaler and denial of a new inhaler. Ms. Knauer's affidavit states that the confiscation of Plaintiff's inhaler was beyond the timeframe for review and, therefore, the ARB only provided a final determination on the merits concerning Defendant Shah's refusal to issue an inhaler. Further, in his Motion, Defendant asserts that Plaintiff's grievance was inadequate because it failed to specifically address Defendant Gaetz, or any policy implemented by him. Plaintiff did not respond to Defendant's Motion for Summary Judgment. However, attached to Plaintiff's Complaint was the grievance he filed related to this lawsuit, as well as the ARB's response. These documents were also included as exhibits with Defendant's Motion for Summary Judgment.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on June 24, 2014. At the hearing, Defendant again asserted that Plaintiff's grievance regarding this lawsuit was deficient as to Defendant Gaetz. Specifically, Defendant argued that Plaintiff only exhausted his administrative remedies with regards to Defendant Shah's denial of an inhaler, not the confiscation of Plaintiff's inhaler. As to the denial of an inhaler, Defendant argued that Plaintiff's grievance was deficient as to Defendant Gaetz because Plaintiff did not specifically name Defendant Gaetz, or address a policy implemented by Gaetz or the Illinois Department of Corrections ("IDOC") in his grievance. This portion of the grievance states, in part, that "[e]ven after telling Dr. Shah that my inhaler was confiscated and that I was in need of one, he told me that I would have to wait six months for one... There's a 6-18 months waiting period for clothing reissue, is there also a 6 month waiting period for inhalers?" (Doc. 24-1, pp. 6-7). When questioned by the Court as to why Plaintiff's statements regarding a six month waiting period for an inhaler were not related to a policy of the IDOC, Defendant asserted that any policy mentioned in Plaintiff's grievance was a policy of Wexford Health Sources, Inc. ("Wexford"), the company under contract with the IDOC to provide health care services to inmates at Pinckneyville. Defendant was not able to articulate why a policy of Wexford is not imputed to the IDOC or Defendant Gaetz.
CONCLUSIONS OF LAW
Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and that the moving party 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). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment "is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535 (7th Cir. 1999) (stating that §1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit instructed District Courts to conduct a hearing to determine whether a Plaintiff has exhausted his remedies. Id. 544 F.3d at 742. If a Plaintiff has exhausted his remedies, the case will proceed on the merits. If, however, a Plaintiff has not exhausted, the Court may either allow Plaintiff to exhaust or terminate the matter.
Under the procedures set forth in the Illinois Administrative Code, an inmate must first attempt to resolve a complaint informally with his Counselor. ILL. ADMIN. CODE TIT. 20, § 504.810(a). If the complaint is not resolved, the inmate may file a grievance within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance. Id. §504.810(b). The grievance officer is required to advise the Chief Administrative Officer ("CAO" - usually the Warden) at the facility in writing of the findings on the grievance. Id. § 504.830(d). The CAO shall advise the inmate of the decision on the grievance within two months of it having been filed. Id. § 504.830(d). An inmate may appeal the decision of the CAO in writing within 30 days to the Administrative Review Board for a final decision. Id., § 504.850(a). See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). An inmate may request that a grievance be handled as an emergency by forwarding it directly to the CAO. If the CAO determines there exists a substantial ...