United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN Chief Judge
pro se, Plaintiff James Owens brought the present
lawsuit pursuant to 42 U.S.C. § 1983 alleging violations
of his Eighth Amendment rights. Plaintiff, an inmate
incarcerated at Lawrence Correctional Center
(“Lawrence”) alleges that various defendants at
Lawrence were deliberately indifferent to his serious medical
needs. This matter is before the Court on a Motion for
Summary Judgment (Doc. 39) filed by Defendants Dunlop,
Schoon, Duncan, and Strubhart (“IDOC
Defendants”). In their motion, the IDOC Defendants
assert that they are entitled to summary judgment due to
Plaintiff's failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act. A
previous summary judgment motion based upon failure to
exhaust filed by Defendant Litherland, (Doc. 23), was denied.
(Doc. 54). As to the IDOC Defendants' motion, Plaintiff
filed a response, and the matter is ripe for disposition. As
more fully articulated below, the Court finds that Plaintiff
failed to exhaust as to Defendant Dunlop but exhausted as to
the remaining IDOC Defendants. Therefore, the IDOC
Defendants' Motion (Doc. 39) is GRANTED in part and
DENIED in part.
Factual and Procedural Background
October 15, 2015, Plaintiff filed the present lawsuit
against, among other individuals, the IDOC Defendants. (Doc.
1). Plaintiff's has pain in his jaw due to bone shards
that were protruding from his gums. (Doc. 6, p. 3). Early on,
Dr. Litherland treated Plaintiff's bone shards, but two
months later in the beginning of June 2015, Plaintiff
discovered another shard in his gums. Id. Plaintiff
placed a sick call request for pain medication for the second
bone shard, but he was informed over the PA system that his
sick call was canceled. (Doc. 1, p. 4-5). Plaintiff informed
Defendant Dunlop, a correctional officer, that it was
recommended by healthcare personnel that Plaintiff obtain
medication via sick call, but Defendant Dunlop refused to
contact the healthcare unit or to otherwise help Plaintiff.
(Doc. 6, p. 4).
11, 2015, Plaintiff filed a grievance complaining, among
other things, about his lack of treatment and pain medication
for the bone shard, the cancellation of his sick call pass,
and Defendant Dunlop's failure to assist him.
(See Doc. 44, p. 7). The grievance was received by
Defendant Schoon, Plaintiff's counselor, on June 17,
2015, and Schoon issued a response on June 23. Id.
The response denied the grievance, and Plaintiff appealed to
the grievance office. Id. at 7, 8. The grievance
office received the grievance on July 2, 2015, and Defendant
Strubhart, the grievance officer, issued a response on August
24, 2015, concurring with Defendant Schoon. Id. at
8. The warden, who received the grievance on August 27, 2015,
also concurred with the denial on the same day.
Id.Plaintiff signed and dated his appeal of the
grievance to the Administrative Review Board
(“ARB”) on September 4, 2015, and the ARB
received it on September 10, 2015. Id. at 8, 9.
Plaintiff filed this lawsuit on October 15, 2015 (Doc. 1). On
February 10, 2016, the ARB denied his appeal. (Doc. 44, p.
filed another grievance on August 21, 2015 (“August
Grievance 1”). Id. at 10. Plaintiff grieved
various issues relating to his bone shards in this grievance,
including, again, not receiving pain medication. Id.
Specifically, Plaintiff begins this grievance by stating:
On 6-1-15 I had a bone spur come through my lower right gum
at tooth socket # [illegible]….[O]n 6-2-15 I put in a
request for dental care. On 6-4-15 I requested Sick Call for
pain meds for the protruding bone spur. On 6-6-15 I put in
another request for dental care. On 6-8-15 I put in another
request for Sick Call for interim pain meds. On 6-10-15 I was
seen at dental and the bone spur was removed but I was given
no pain meds for the pain.
Id. Plaintiff goes on to complain about not
receiving pain medication, and complains about “the
dentist” and the dentist's actions at a visit.
Id. at 10-11. No IDOC Defendants are specifically
named in the grievance narrative. It is unnecessary to recite
the procedural steps Plaintiff took in regards to this
grievance, as this Court has already ruled that Plaintiff
properly exhausted his claims against Defendant Litherland
with respect to this August 21, 2015 grievance. (See
are six other grievances in the record before the Court,
including four others dated August 21, 2015. (See
Doc. 40-1, p. 15-26). Only one of the other grievances
involves issues relating to Plaintiff's lawsuit
(“August Grievance 2”). In that grievance,
Plaintiff complains that his sick call passes had not been
honored for eleven weeks, and he specifically mentions June
incidents where his sick call passes were canceled.
Id. at 19. Plaintiff does not mention any Defendants
by name, and he does not discuss Defendant Dunlop's
failure to contact the healthcare unit. Id. August
Grievance 2 was submitted by Plaintiff on an emergency basis
and was denied and determined to be a non-emergency by the
warden on August 26, 2015. Id. August Grievance 1
and August Grievance 2 were appealed to the ARB. The ARB
received the grievances on September 4, 2015, and denied them
on September 14, 2015. Id. at 15.
alleges two counts against the IDOC Defendants. First,
Plaintiff claims that Defendant Dunlop violated
Plaintiff's Eighth Amendment rights when he refused to
seek assistance for Plaintiff after being informed that
Plaintiff was instructed to obtain pain medication via sick
call. (Doc. 6, p. 6). Second, he claims Defendants Schoon,
Strubhart, and Duncan violated his Eighth Amendment rights
when they failed to act on his grievances. Id.
Summary Judgment Standard
motion for summary judgment based upon failure to exhaust
administrative remedies typically requires a hearing to
determine any contested issues regarding exhaustion, and a
judge may make limited findings of fact at that time.
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
The case may proceed on the merits only after any contested
issue of exhaustion is resolved. Pavey, 544 F.3d at
742. Generally, the Court's role on summary judgment is
not to evaluate the weight of the evidence, to judge witness
credibility, or to determine the truth of the matter.
Instead, the Court is to determine whether a genuine issue of
triable fact exists. Nat'l Athletic Sportwear Inc. v.
Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).
In Pavey, however, the Seventh Circuit held that
“debatable factual issues relating to the defense of
failure to ...