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Torres v. Shah

United States District Court, S.D. Illinois

May 3, 2017

PABLO TORRES, Plaintiff,
v.
VIPIN SHAH, SUZANN BAILEY, JACQUELINE LASHBROOK, and JOHN BALDWIN, Defendants.

          MEMORANDUM AND ORDER

          MICHAEL J. REAGAN United States District Judge

         Introduction

         Pursuant to 42 U.S.C. § 1983, pro se Plaintiff filed his complaint against Defendants Vipin Shah, Suzann Bailey, Jacqueline Lashbrook, and John Baldwin, alleging that Bailey, Lashbrook, and Baldwin violated his rights by serving him soy meals which were nutritionally inadequate (Count 1) and that Shah was deliberately indifferent to Plaintiff's concerns regarding a soy diet (Count 2) (Doc. 9). Defendants Bailey, Lashbrook, and Baldwin have filed a summary judgment motion on the basis that Plaintiff failed to exhaust his administrative remedies (Docs. 35 and 36), as has Defendant Shah (Docs. 38 and 39). Plaintiff was provided notice of both motions and was given until October 20, 2016, to file a response (Docs. 37 and 40). Plaintiff has failed to respond. The Court considers Plaintiff's failure to respond an admission of the facts of Defendants' motions. SDIL Local Rule 7.1(c). See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (a failure to respond constitutes an admission that there are no undisputed material facts).

         Factual Background

         As narrowed by the Court's threshold order, Plaintiff brings his claims against Defendants regarding the soy diet he was served while incarcerated at Pinckneyville Correctional Center. (Doc. 9, p. 2). Plaintiff alleges that John Baldwin (as the Director of IDOC), Suzann Bailey, Jaqueline Lashbrook, and Vipin Shah endangered his health by serving him a diet with high amounts of soy. As a result of this soy-based diet, Plaintiff alleges he suffers constipation, stomach pains, gas, and a torn anus. Id. Plaintiff alleges that Baldwin, Bailey, and Lashbrook refuse to alter the soy diet despite knowledge of these effects. Id. Further, Plaintiff alleges that Shah is deliberately indifferent to the diet, as he only instructs Plaintiff to drink more water and refuses to test his thyroid function. Id. Plaintiff alleges that he has made requests to Bailey that she direct Shah to provide Plaintiff with a soy free diet, but instead she told Plaintiff to buy more food from the commissary. Id. He alleges that he has written numerous grievances to no avail. Id.

         In response to Plaintiff's complaint, both the IDOC officials and Shah filed motions for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies against them. Plaintiff's complaint alleges that he filed two grievances on January 20, 2015, which Plaintiff acknowledges were filed before he was transferred to Pinckneyville Correctional Center. (Doc. 1, p. 4-5). He alleges that he filed a later grievance in 2015, but he does not indicate the date when the grievance was filed. Id. He also states that after having issues with his stool in March 2015, he spoke with his counselor and the warden, but Lashbrook told him to buy more commissary food. Id. Plaintiff did not attach any copies of grievances to his complaint. Defendants note that there are no grievances on record with the ARB. (Doc. 36-2, p. 3; Doc. 39-3). A review of Plaintiff's master grievance file indicates that one grievance was received from Plaintiff, but it was filed in June 2013 while he was housed at Western Illinois Correctional Center and dealt with treatment for grass pollen allergies. (Doc. 39-1). Defendants point out that there is not a record of any grievances regarding a soy diet.

         Defendants also have produced a copy of Plaintiff's cumulative counseling summary. (Doc. 39-4, p. 1-3; Doc. 36-1, p. 1-3). A review of that record shows that Plaintiff was not housed at Pinckneyville in January 2015, the month during which he claims he filed grievances about his diet. (Doc. 36-1, p. 1). During that time, Plaintiff was housed at Western Illinois Correctional Center. Id. at 2. He did not arrive at Pinckneyville Correctional Center until approximately July 10, 2015. Id. at 1. There is evidence that Plaintiff spoke with his counselor on numerous occasions between July 2015 and January 2016, prior to filing this lawsuit. Id. The majority of those interactions note that Plaintiff had no issues to address with his counselor. Id. There are three instances when his counselor provided him with grievance forms, but there are no entries suggesting that Plaintiff filed any completed grievances. Further, the counselor noted on two of the three occasions, September 9, 2015, and September 17, 2015, that Plaintiff sought to file grievances related to missing property. Id.

         Legal Standards

         “Summary judgment is proper if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that [Defendants are] entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467 (7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. §1997e(a). That statute states, in pertinent part, that “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.” Id. The Seventh Circuit requires strict adherence to the PLRA's exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that ‘[t]his circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit then exhaust his administrative remedies while the suit is pending. Id. Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). If a prisoner fails to properly utilize a prison's grievance process, “the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.

         Under Pavey, the Seventh Circuit held that “debatable factual issues relating to the defense of failure to exhaust administrative remedies” are not required to be decided by a jury and are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-41(7th Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, the Court set forth the following recommendations:

The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, the judge will then determine whether (a) the plaintiff has failed to exhaust his administrative remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3)If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.

Id. at 742.

         A. Illinois Exhaustion Requirements

         As an inmate confined within the Illinois Department of Corrections, Plaintiff was required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures for Offenders (“grievance procedures”) to properly exhaust his claims. 20 Ill. Administrative Code §504.800 et seq. The grievance procedures first require inmates to speak with the counselor about their complaint. 20 Ill. Admin. Code ยง504.810(a). If the counselor does not resolve the ...


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