United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Court Judge
Plaintiff, Robert Pollard, brings this action against Cook
County Sheriff Thomas Dart (in his official capacity) and
Wexford Health Services, among others, alleging that they
violated his Eighth Amendment rights by failing to provide a
timely response to his serious medical needs. Wexford Health
Services (“Wexford”) now moves this Court to
dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) and the Prisoner Litigation Reform Act.
Sheriff Dart (“Dart”) moves this Court to dismiss
the complaint for failure to state a claim on which relief
may be granted. For the reasons that follow, Wexford's
motion to dismiss is denied and Dart's motion to dismiss
is granted in part and denied in part.
following facts from Pollard's second amended complaint
are taken as true for the purpose of ruling on the present
motion. Plaintiff was taken into custody on August 3, 2014,
and incarcerated at the Cook County Jail. At the time,
Pollard was experiencing severe pain in his hand. Medical
staff in the Cook County Jail refused to treat Pollard.
Pollard ultimately obtained a court order requiring that the
Cook County Jail address his medical needs. Upon receiving
medical treatment, it was discovered that Pollard's pain
was caused by a bone growth that, if left untreated, could
cause Pollard to lose the use of his hand. A surgery to
remove the bone growth was scheduled for December 30, 2014.
The scheduled surgery, however, never occurred. Pollard was
subsequently transferred from the Cook County Jail to IDOC
Stateville on January 13, 2015.
arriving at Stateville, Pollard informed IDOC's medical
staff of his need for surgery. On April 1, 2015, Pollard
filed an emergency grievance inquiring about the status of
his surgery. It was determined that that grievance was not of
an emergency nature, and so it was returned to Pollard with a
notation that he should resubmit it as a normal grievance. On
April 26, 2015, Pollard filed a routine grievance, inquiring
“[w]hy I still have a medical hold if I am not
receiving medical treatment anymore plus this hold is
stopping my state pay or do I still get it, because
that's three month back pay if so.” That grievance
was returned a month later, with the response explaining that
Pollard was not eligible for state pay and was on a transfer
list. On August 24, 2015, Pollard was taken to an outside
hospital and seen by a physician, who stated that due to the
delay in treatment it would be necessary to fuse all of the
bones in Pollard's hand, thus depriving him of regular
mobility in that hand. In November 2015, Pollard finally
received the needed surgery, although as a result of the
delay in receiving it he lost full function in his left hand.
contends that Wexford, the entity responsible for providing
healthcare within the IDOC, has a policy, practice, or
procedure of denying inmates access to adequate medical care
at Statesville and of failing to ensure that inmates who
filed grievances received adequate medical care. Similarly,
Pollard contends that Dart has a policy, practice, or
procedure of denying inmates with serious medical conditions
access to adequate medical care. Pollard additionally
contends that Dart has a policy, practice, or procedure of
transferring inmates who required medical care in retaliation
for filing grievances or to avoid the costs associated with
their medical care. Both defendants move to dismiss
Pollard's complaint as previously set forth.
must dismiss any action which lacks subject matter
jurisdiction. The party asserting jurisdiction has the burden
of establishing it under Rule 12(b)(1). Apex Digital,
Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th
Cir. 2009). On a motion to dismiss for lack of subject matter
jurisdiction, “the court is not bound to accept the
truth of the allegations in the complaint, but may look
beyond the complaint and the pleadings to evidence that calls
the court's jurisdiction into doubt.” Bastien
v. AT & T Wireless Servs., Inc., 205 F.3d 983, 990 (7th
Cir. 2000); Hay v. Ind. State Bd. of Tax
Comm'rs, 312 F.3d 876, 879 (7th Cir. 2002). However,
when reviewing a defendant's Rule 12(b)(6) motion to
dismiss, the court accepts all well-pleaded factual
allegations in the complaint as true and draws all reasonable
inferences in the non-movant's favor. Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007). Detailed factual allegations are not required,
but the plaintiff must allege facts that when “accepted
as true . . . state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)).
Prisoner Litigation Reform Act (“PLRA”) provides
that no federal action concerning prison conditions may be
brought by a prisoner until all available administrative
remedies, including a prison grievance process, have been
exhausted. 42 U.S.C. § 1997e(a). “[U]nless the
prisoner completes the administrative process by following
the rules the state has established for that process,
exhaustion has not occurred.” Pozo v.
McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002).
Accordingly, a case may be dismissed on the pleadings if it
does not plead the exhaustion of all administrative remedies.
Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir.
initial matter, this Court notes that Wexford's motion is
brought under Rule 12(b)(1). Because the PLRA's
administrative exhaustion requirement is not jurisdictional
in nature, Pollard's failure to exhaust his
administrative remedies is not a proper basis for a motion
pursuant to Rule 12(b)(1). Id. Accordingly, this
Court treats Wexford's motion as one brought under Rule
Pollard submitted an emergency grievance addressing his
surgery. Pollard does not allege, however, that he refiled
that grievance once it was rejected as an emergency
grievance. Moreover, Pollard's second grievance entirely
failed to address the question of his surgery. Accordingly,
Pollard has not alleged that he exhausted his administrative
remedies. Pollard, however, contends that he was not required
to exhaust his administrative remedies because no remedy was
available to him. In some cases, courts have recognized
administrative remedies to be unavailable where the harm
caused by allegedly improper medical care cannot be rectified
via the grievance process. See, e.g., White v.
Bukowski, 800 F.3d 392, 395-96 (7th Cir. 2015)
(recognizing that an incarcerated plaintiff suing over
inadequate prenatal care was not required to exhaust her
administrative remedies because the inadequacy of the care
that she received was not discovered until she gave birth, by
which time additional prenatal care would have had no
impact). Pollard alleges in his response that he had already
lost full use in his left hand by the time he filed his
grievances and that therefore no remedy was available to him
through the administrative process. Although Pollard's
second amended complaint does not allege that he had lost
full use of his hand by April 2015, this Court considers that
allegation because it is not inconsistent with those in the
complaint. Sterling v. Kazmierczak, 983 F.Supp.
1186, 1189 (N.D.Ill. 1997).
response, Wexford argues that the evidence shows that Pollard
did not lose function in his hand. Because this Court is
limited to the pleadings in ruling on a motion to dismiss,
however, it must disregard Wexford's evidence to this
effect. Wexford also argues that Pollard “still had a
hand and still had a need for surgery” and so could
still be provided with a remedy. This argument is both crass
and unavailing; Pollard's allegation that the damage to
his hand was irreversible is sufficient at this stage in the
proceedings. This Court therefore concludes that Pollard was
not required to exhaust his administrative remedies because
filing further grievances would not have averted the harm
that the defendants' conduct caused him. White,
800 F.3d at 395-96. Accordingly, at this stage in the
proceedings Pollard's claim may continue despite his
apparent failure to exhaust his administrative remedies.
separate motion, Dart contends that the plaintiff's claim
against him must be dismissed for failure to state a valid
claim under 42 U.S.C. § 1983. An official capacity suit
is tantamount to a claim against the government entity
itself. Guzman v. Sheahan, 495 F.3d 852, 859 (7th
Cir. 2007). In order to state a viable section 1983 claim
against a municipality, a plaintiff must allege that their
injury was caused by (1) an express policy of the
municipality that, when enforced, causes a constitutional
deprivation, (2) a widespread practice that, although not
expressly authorized, is so permanent and well settled as to
constitute a custom or usage with the force of law, or (3) an
allegation that the constitutional injury was caused by a
person with final policymaking authority. Houskins v.
Sheahan, 549 F.3d 480, 493 (7th Cir. 2008). Section 1983
claims are not subject to any heightened ...