United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN United States District Judge
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).
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.
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
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.
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
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.
Illinois Exhaustion Requirements
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
§504.810(a). If the counselor does not resolve the