United States District Court, C.D. Illinois, Springfield Division
SUMMARY JUDGMENT OPINION ON THE ISSUE OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
COLIN S. BRUCE, District Judge.
Plaintiff, proceeding pro se, and incarcerated in Western Illinois Correctional Center, brought the present civil rights suit pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights. Plaintiff alleges two claims related to his diagnosed soy allergy: (1) deliberate indifference to a serious medical need against defendants Baker, Hazelrigg, Flesnor, Johnson, Feigt, and Mills (collectively, the "Medical Professional defendants") for delay in diagnosing the soy allergy and prescribing a soy-free diet; and, (2) an Eighth Amendment claim against the remaining defendants ("Food Service defendants") for failure to serve Plaintiff a nutritionally adequate soy-free diet after the diet was prescribed. Matter is before the Court for the Medical Professional defendants' Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 32).
Plaintiff filed this lawsuit on July 23, 2013. (Doc. 1). According to records, Plaintiff filed fourteen (14) grievances with the Administrative Review Board (ARB) that were decided between January 1, 2012 and the filing of the present lawsuit. (Doc. 32-1 at 2). Of those grievances, only two (2) were related to Plaintiff's medical care. The sole grievance relating to the Medical Professional defendants and the alleged constitutional violations in this lawsuit was filed on June 22, 2012, and, for the purposes of this Opinion, is the only grievance discussed.
June 22, 2012 Grievance
Plaintiff filed a four-page grievance on June 22, 2012 against Dr. Thomas Baker, a gastrointestinal specialist, and John and Jane Does for inadequate medical treatment. (Doc. 32-2). Plaintiff also mentions Nurses Hazelrigg and Johnson and Nurse Practitioner Mills in the body of the grievance. Id. Plaintiff describes the symptoms he experienced after ingesting food that contained soy. Id. Plaintiff alleges in the grievance that his complaints regarding the ingestion of soy food and requests for a soy-free diet were consistently ignored by medical staff for a period of time from March 2012 until June 2012. According to the handwritten notation on the grievance form, Plaintiff's counselor received this grievance on June 28, 2012. (Doc. 32-2, at 3). Plaintiff's counselor responded to the grievance on September 10, 2012. (Doc. 32-2, at 5). The Grievance Office received Plaintiff's grievance on September 20, 2012 (Doc. 32-2, at 2-3). On November 26, 2012, the Grievance Officer recommended Plaintiff's grievance be denied as moot, and November 27, 2012, the Chief Administrative Officer (CAO) concurred in the recommendation. Id. at 2. Plaintiff appealed to the Administrative Review Board, and the appeal was received by the ARB on December 27, 2012. Id. The ARB ultimately denied Plaintiff's appeal on July 22, 2013 on the basis that Plaintiff did not comply with the 60-day timeframe outlined in Department Rule 504.810. Id. at 1.
Failure to exhaust is an affirmative defense, and therefore the burden of proof lies with the defendants. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). The Court must hold an evidentiary hearing if a disputed issue of material fact exists, see Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), but where none is present, an evidentiary hearing is unnecessary and the issue of exhaustion may be decided as a matter of law. Doss v. Gilkey, 649 F.Supp.2d 905, 912 (S.D. Ill. 2009).
The Prison Litigation Reform Act (PLRA) 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) (2013). The purpose of this requirement is to "alert the state to the problem and invite corrective action." Turley, 729 F.3d at 649 (internal citations omitted). The Seventh Circuit has adopted a strict compliance standard to exhaustion, and to exhaust remedies "a prisoner must properly use the prison's grievance process." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). In other words, "a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). If the prisoner fails to follow the grievance procedures, "the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted." Id. ; see Dole, 438 F.3d at 809 (quoting same). "The applicable procedural rules' that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself." Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)).
The Illinois Administrative Code establishes the grievance procedures for Illinois Department of Corrections inmates. Inmates unable to resolve their issues informally with prison staff may file a written grievance on a form provided by the prison. 20 ILL. ADMIN. CODE § 504.810(a). The grievance must be filed "within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance." Id. § 504.810(a). A grievance officer, however, shall consider a grievance filed outside of the 60-day time period if the inmate "can demonstrate that a grievance was not timely filed for good cause...." Id. A grievance officer considers each grievance and submits a recommendation to the Chief Administrative Officer, who notifies the inmate of his decision. Id. § 504.830(d). An inmate may appeal the CAO's decision to the Director, but must do so within 30 days of the decision. Id. § 504.850(a). Once an appeal is received, the Administrative Review Board reviews the appeal and provides the Director with a written report of its findings and recommendations. Id. § 504.850(e).
Defendants argue that Plaintiff did not properly exhaust his administrative remedies for his claims against the Medical Professional defendants. Specifically, Defendants point out that "the only grievance alleging deliberate indifference or any medical wrongdoing against any of the Defendants was filed on June 22, 2012." (Doc. 32 at 7, ¶ 22). Defendants argue that Plaintiff failed to exhaust remedies with respect to this grievance because the ARB denied Plaintiff's appeal on the grounds that Plaintiff failed to file a grievance within the 60-day timeframe, as required by § 504.810(a). The denial on procedural grounds, Defendants assert, is not a final judgment on the merits, and therefore, does not constitute full exhaustion. In his response, Plaintiff points out that his June 22, 2012 grievance was held at the counselor level for nearly three months. (Doc. 38 at 15, ¶ 1).
A prisoner is not required to exhaust all remedies, only those available to him. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) ("If administrative remedies are not available' to an inmate, then the inmate cannot be required to exhaust."). "Availability" does not mean that the remedy exists on paper, but whether the process was open to the prisoner in reality. Id. Stated differently, administrative remedies become unavailable when, though a grievance system is in place, prison officials effectively prevent a prisoner from availing himself of it. See id. (remedies have been found to be unavailable when prison officials fail to provide grievance forms, erroneously tell an inmate he must wait for an investigation to conclude, fail to respond to a properly filed grievance, or engage in affirmative misconduct (citations omitted)). Administrative remedies, however, remain available under the PLRA as long as the prison officials have the ability to take some action in response to a complaint. Dole, 438 F.3d at 809 (citing ...