United States District Court, N.D. Illinois, Western Division
G. Reinhard, Judge
regard to defendants' motion for summary judgment on the
limited basis of exhaustion , defendants are ordered to
indicate within 30 days if they wish to proceed with their
motion. If so, the parties are to appear before Magistrate
Judge Johnston to conduct an evidentiary hearing as required
by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008);
see also Smith v. Schwartz, 2012 WL 1600559 (S.D.
Ill. 2012) (district court may designate magistrate judge to
conduct Pavey hearing and prepare a report and
recommendation on exhaustion).
court explained in its order of March 30, 2017 , granting
in part and denying in part the defendants' motion to
dismiss, this matter arises out of plaintiff Juan
Gonzalez's claims that defendants were deliberately
indifferent to his medical needs when they repeatedly denied
him dentures because he could not pay for them. In its order,
the court allowed the case to proceed against Dr.
O'Brien, Wexford, and the Dixon Warden in his official
capacity. See id.
the court's order, on August 14, 2017, defendants
O'Brien and Wexford filed a motion for summary judgment
on the limited issue of plaintiff's failure to exhaust
his administrative remedies , along with a memorandum in
support  and a Rule 56.1 statement of undisputed facts.
Dr. Varga joined the motion and subsequent briefs. On
September 1, 2017, plaintiff filed a response , answer to
defendants' statement of facts , and statement of
additional facts . On September 15, 2017, defendants
filed a reply  and answer to plaintiff's statement of
additional facts . These matters are now ripe for the
summary judgment, the court construes all facts and draws all
inferences in the light most favorable to the non-moving
party. Schepers v. Commissioner, Indiana Dept. of
Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The
court does not weigh evidence or determine the credibility of
witness testimony. O'Leary v. Accretive Health,
Inc., 657 F.3d 625, 630 (7th Cir. 2011). Instead, the
court only grants summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). That said, Rule 56 “mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In evaluating the
motions and the undisputed facts located in the parties'
Local Rule 56.1 Statements of Material Fact with respect to
each motion, the court is cognizant of its obligation to
construe all disputed and undisputed facts in the light most
favorable to the plaintiff. See Schepers, 691 F.3d
at 913. This is particularly true where the court
contemplates ruling without the benefit of a Pavey
evidentiary hearing, which is designed to resolve contested
issues of fact surrounding exhaustion. See Hernandez v.
Dart, 814 F.3d 836, 840 (7th Cir. 2016).
court has explained much of the relevant factual background
of this case in its order regarding defendants' motion to
dismiss . Familiarity with those facts is assumed, and
the parties here focus on plaintiff's efforts to exhaust
his administrative remedies. For purposes of this motion, a
brief procedural summary will suffice.
relevant grievance here was filed by plaintiff on
approximately April 22, 2015, in which plaintiff described
defendants' refusal to provide him with free dentures.
See  at ¶ 19. Plaintiff submitted the
grievance directly to the Chief Administrative Officer as an
“emergency” grievance. Id. On April 24,
2015, the CAO determined that the grievance was not an
emergency and returned it to plaintiff with instructions to
submit it following the normal grievance procedures.
Id. at ¶ 20. According to plaintiff, he showed
this response to his counselor, who advised him to
“Send it to Springfield, ” meaning the
Administrative Review Board in Springfield. Id.
Plaintiff then appealed the decision to the Administrative
Review Board. Id.
28, 2015, Chairperson Knauer reviewed plaintiff's
grievance and determined that he had improperly appealed the
grievance rather than resubmit it in the normal fashion;
however, the parties dispute whether Knauer ever properly
sent a response to plaintiff or that he ever received it.
 at ¶ 21;  at ¶ 5. According to plaintiff,
he never received a response, and in fact he submitted follow
up correspondence to the ARB on June 25, 2015 requesting that
they rule on his appeal.  at ¶ 22;  at ¶ 4.
Plaintiff never received any response to his appeal or his
follow up correspondence.  at ¶ 6. The ARB never
ruled on the merits of plaintiff's grievance.
Id. at ¶ 24.
parties disagree as to whether plaintiff exhausted his
administrative remedies prior to brining suit in this action.
“A prisoner cannot bring a cause of action under
federal law regarding prison conditions ‘until such
administrative remedies as are available are
exhausted.'” Hernandez v. Dart, 814 F.3d
836, 841 (7th Cir. 2016) (quoting 42 U.S.C. § 1997e(a)).
“Federal courts strictly enforce this requirement, and
a prisoner fulfills this duty by adhering to ‘the
specific procedures and deadlines established by the
prison's policy.'” Hernandez, 814 F.3d
at 842 (quoting King v. McCarty, 781 F.3d 889, 893
(7th Cir. 2015)).
the parties extensively cite the court's reasoning in
Edens v. O'Brien, 2016 WL 4191756 (N.D. Ill.
2016), in which the court found that another plaintiff had
failed to properly exhaust his administrative remedies after
filing an emergency grievance, appealing the Warden's
denial of emergency status to the ARB, and then failing to
respond to the ARB's request for additional information.
As both parties point out, the court extensively discussed
much of the relevant and binding case law surrounding this
issue in the Edens case, which the court will not
repeat here. Because the parties both discuss Edens
at length, familiarity with that decision and the court's
reasoning is assumed.
summary, the court noted that the primary Seventh Circuit
opinion on the issue is Thornton v. Snyder, 428 F.3d
690 (7th Cir. 2005), in which the Seventh Circuit held that
“[t]here is nothing in the current regulatory text . .
. that requires an inmate to file a new grievance after
learning only that it will not be considered on an emergency
basis.” Id. In Bulmer v. Young, 160
F. App'x. 524 (7th Cir. 2005), the Seventh Circuit held
in similar circumstances “that [while] inmates must
exhaust only those remedies that are available . . . there
was a remedy available to [the plaintiff]: the grievance
liaison officer advised him to refile his February 2002
emergency grievance as a routine grievance, and he
did.” Id. at 527. Next, in Muhammad v.
McAdory, 214 F. App'x. 610 (7th Cir. 2007), the
Seventh Circuit cited Thornton for the proposition
that “an inmate who has requested that prison officials
handle a grievance on an emergency basis under Title 20,
§ 504.840, of the Illinois Administrative Code is not
required to resubmit that grievance through the standard
procedure after the warden-the official responsible for