United States District Court, S.D. Illinois
Adam Rodriguez, Plaintiff, Pro Se.
Krank, Defendant, represented by Timothy P. Dugan, Sandberg,
Phoenix et al., Alexander B. Bean, Sandberg, Phoenix et al. &
Alexander Brewster Chosid, Wiedner & McAuliffe, Ltd..
REPORT AND RECOMMENDATIONS
M. FRAZIER, Magistrate Judge.
Jose Adam Rodriguez is an inmate with the Illinois Department
of Corrections ("IDOC") at Shawnee Correctional
Center ("Shawnee"). Rodriguez asserts in this
lawsuit that defendant Loral Krank, a nurse at Shawnee,
violated his rights under the Eighth Amendment by failing to
properly treat a staph infection. Krank now seeks summary
judgment on the basis that Rodriguez failed to properly
exhaust administrative remedies prior to filing suit. (Doc.
26). Rodriguez opposed the motion. (Doc. 29). A
Pavey evidentiary hearing was held on June 28, 2016
with the plaintiff in attendance pro se from Shawnee
via videoconference. See Pavey v. Conley, 544 F.3d
739 (7th Cir. 2008). For the following reasons, it is hereby
RECOMMENDED that Krank's motion for summary judgment
(Doc. 26) be DENIED.
incidents that give rise to this litigation occurred at
Shawnee. On May 22, 2015 Rodriguez went to the Shawnee Health
Care Unit ("HCU") because he was experiencing pain,
breathing problems and swelling in the left side of his nose.
(Doc. 1, p. 5). Defendant Krank examined Rodriguez and noted
in his medical chart that there was "pimple like"
swelling in his left nostril. (Doc. 1, p. 9). Krank offered
Rodriguez some mild painkillers and sent him on his way.
Id. The symptoms persisted, and Rodriguez returned
to the HCU on May 26, 2015 where he was diagnosed as having a
staph infection. (Doc. 1, pp. 10-11). Rodriguez later filed
this lawsuit on August 13, 2015, asserting that Krank's
actions at the May 22nd examination violated his Eighth
Amendment rights. (Doc. 1).
moves for summary judgment on the basis that Rodriguez failed
to exhaust administrative remedies prior to filing suit.
Pursuant to 42 U.S.C. Â§ 1997e, inmates are required to
exhaust administrative remedies before filing conditions of
confinement lawsuits in federal court. Exhaustion is not a
jurisdictional requirement, but a defendant may raise the
failure to exhaust as an affirmative defense. Jones v.
Bock, 549 U.S. 199, 212 (2007). Although the Seventh
Circuit has taken a "strict compliance" approach to
exhaustion, Dole v. Chandler, 438 F.3d 804, 808 (7th
Cir. 2006), a prisoner is only required to exhaust
"available" administrative remedies. Administrative
remedies will be deemed unavailable if prison officials take
unfair advantage of the grievance process or "use
affirmative misconduct to prevent a prisoner from
exhausting." Id. at 809.
alleged misconduct occurred on May 22, 2015 and Rodriguez
filed suit on August 13, 2015. Both parties agree that
Rodriguez did not properly exhaust during this period. For
normal non-emergency grievances, proper exhaustion is a three
step process that involves (1) informal attempts at
resolution with the prisoner's counselor, (2) submitting
a grievance to the prison grievance office and finally (3)
appealing the institution's decision to the IDOC
Administrative Review Board in Springfield. See Ill. Admin.
Code tit. 20, Â§ 504.870, et seq. The parties agree
that proper exhaustion did not occur, but Rodriguez argues
that administrative remedies were not available because he
submitted a grievance at Shawnee but never received a
response. In his response to Krank's motion for summary
judgment, Rodriguez attached a copy of the grievance he
filed. (Doc. 29, p. 6).
there was a dispute as to whether the administrative remedies
process was available to Rodriguez, the Court held a
Pavey evidentiary hearing on June 28, 2016. See
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
Rodriguez testified via videoconference from Shawnee. He
stated that on May 26, 2015 he drafted a grievance and placed
it in the designated grievance box, which was then located in
the Shawnee chow hall. After not receiving a response from
his counselor for over two months, Rodriguez decided to file
suit. Rodriguez also testified that he did not have a very
good relationship with his counselor, Kendra Seip. Counseling
records show that in August 2014 Seip had a heated
conversation with Rodriguez's wife after she was denied a
prison visit. (Doc. 27-2, p. 1). Additionally, in February
2015 Rodriguez filed a grievance against Seip alleging that
she was improperly handling a prison transfer request. (Doc.
29, p. 5). However, the counseling records also show that
Rodriguez met with Seip on May 27, 2015, June 22, 2015, and
August 4, 2015, and in all three instances Rodriguez declined
to mention his grievance problem or defendant Krank.
review, the Court finds that Rodriguez has provided credible
testimony that he made a reasonable attempt at exhausting
administrative remedies but the process was not available to
him. Rodriguez testified that he submitted a grievance on May
26, 2015 but never received a response. Rodriguez could have
perhaps made a more engaged effort to follow up on the
grievance with Shawnee staff, but IDOC regulations do not
provide any guidance for prisoners when this occurs (despite
the fact that the "missing grievance" problem is a
common occurrence in IDOC prisoner civil rights lawsuit, see,
e.g., Dole v. Chandler, 438 F.3d 804 (7th Cir.
2006). Defendant Krank's motion for summary judgment
should thus be denied.
RECOMMENDED that defendant Krank's motion for ...