United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE UNITED STATES DISTRICT COURT JUDGE
10, 2016, Plaintiff Robert Williams, by counsel, brought a
one-count First Amended Complaint against Defendants Dr.
Jonathan Kelly (“Dr. Kelly”) and Wexford Health
Source, Inc. (“Wexford”) alleging deprivations of
his Eighth Amendment rights in relation to his medical care
while he was incarcerated at Stateville Correctional Center
(“Stateville”), which is part of the Illinois
Department of Corrections (“IDOC”). See
42 U.S.C. § 1983. Before the Court is Defendants'
motion for summary judgment brought pursuant to Federal Rule
of Civil Procedure 56(a). For the following reasons, the
Court grants Defendants' motion for summary judgment.
who is 56-years-old, is currently incarcerated at Pontiac
Correctional Center (“Pontiac”), although during
the relevant time period, he was incarcerated at Stateville.
(R. 69, Defs.' Rule 56.1 Stmt. Facts ¶ 3; R. 74,
Pl.'s Rule 56.1 Stmt. Facts ¶ 1.) Defendant Wexford
employed Dr. Kelly as a Stateville correctional psychiatrist
from 2011 through August 2016. (Defs.' Stmt. Facts
¶¶ 4, 5; Pl.'s Stmt. Facts ¶ 4.) Williams
alleges that at least eleven IDOC mental health care
providers prescribed him Risperdal (Risperidone), but none of
them advised him of certain potential side effects of the
medication until March 2014. (Defs.' Stmt. Facts ¶
7.) Risperdal is an antipsychotic drug and Williams' IDOC
mental health care providers prescribed Risperdal to treat
his schizophrenia and bipolar disorder. (Pl.'s Stmt.
Facts ¶¶ 5, 14; Defs.' Stmt. Facts ¶ 8.)
In this lawsuit, Williams asserts that he has developed
gynecomastia as a result of taking Risperdal. (Defs.'
Stmt. Facts ¶ 9.) In general, gynecomastia is increased
breast tissue, that can be painful, and Risperdal's side
effects include both glandular gynecomastia and
pseudo-gynecomostia. (Pl.'s Stmt. Facts ¶ 19;
Defs.' Stmt. Facts ¶ 33.)
Williams' Treatment at Stateville
December 19, 2012 - after Williams was transferred from
Menard Correctional Center to Stateville - he had his initial
visit with Dr. Kelly. (Defs.' Stmt. Facts ¶ 25.) At
that time, Dr. Kelly documented that Williams was under the
care of Dr. Kartan at Menard prior to his transfer and that
Williams was taking Risperdal. (Id. ¶ 26.) Dr.
Kelly continued to prescribe Williams Risperdal after this
initial visit. (Pl.'s Stmt. Facts ¶ 17.) Also on
December 19, 2012, Williams signed a form entitled
“Mental Treatment Plan” in which he accepted the
medical plan. (Defs.' Stmt. Facts ¶ 27.) Williams
denies that Dr. Kelly informed him that gynecomastia is a
potential side effect of taking Risperdal. (Pl.'s Stmt.
Facts ¶ 33.) Dr. Kelly testified that it was his
standard procedure to orally inform patients of common
potential risks and side effects when prescribing
medications. (Id. ¶ 20.) Also, Dr. Kelly
testified that he began informing patients about gynecomastia
as a potential side effect of Risperdal once the connection
was supported by outside studies, which was around 2006.
(Id. ¶ 24; R. 69-2, Kelly Dep., at 99.)
March 5, 2014, when Dr. Kelly asked Williams about his
medications' side effects, Williams showed Dr. Kelly his
swollen breasts. (Id. ¶ 31; Pl.'s Stmt.
Facts ¶ 26.) After Dr. Kelly observed Williams'
gynecomastia on that date, he discontinued prescribing
Williams Risperdal, and instead prescribed Depakote.
(Defs.' Stmt. Facts ¶ 30; Pl.'s Stmt. Facts
¶¶ 27, 28.) Dr. Kelly's response to
Williams' concerns about his increased breast tissue was
to discontinue Risperdal and monitor for changes. (Defs.'
Stmt. Facts ¶ 35.) It is undisputed that the only time
Williams mentioned his swollen breasts to Dr. Kelly was on
March 5, 2014. (Id. ¶ 31.) Prior to March 2014,
various Stateville medical personnel asked Williams if he was
experiencing any side effects from his medications, to which
he answered no. (Id. ¶ 29.) IDOC transferred
Williams to Pontiac in April 2015. (Pl.'s Stmt. Facts
judgment is appropriate “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). A genuine dispute as to any material fact
exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining
summary judgment motions, “facts must be viewed in the
light most favorable to the nonmoving party only if there is
a ‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769,
167 L.Ed.2d 686 (2007). The party seeking summary judgment
has the burden of establishing that there is no genuine
dispute as to any material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). After “a properly supported motion for
summary judgment is made, the adverse party ‘must set
forth specific facts showing that there is a genuine issue
for trial.'” Anderson, 477 U.S. at 255
(quotation omitted). If the non-moving party
“‘fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial, ' summary judgment must be granted.”
Blow v. Bijora, Inc., 855 F.3d 793, 797-98 (7th Cir.
2017) (citation omitted).
first argue that Williams has failed to exhaust his available
administrative remedies as required by the Prison Litigation
Reform Act (“PLRA”). See 42 U.S.C.
§ 1997e(a). The “benefits of exhaustion …
include allowing a prison to address complaints about the
program it administers before being subjected to suit,
reducing litigation to the extent complaints are
satisfactorily resolved, and improving litigation that does
occur by leading to the preparation of a useful
record.” Jones v. Bock, 549 U.S. 199, 219
(2007); see also Porter v. Nussle, 534 U.S. 516,
524-25 (2002) (“Congress enacted § 1997e(a) to
reduce the quantity and improve the quality of prisoner
suits; to this purpose, Congress afforded corrections
officials time and opportunity to address complaints
internally before allowing the initiation of a federal
case.”). Failure to exhaust under the PLRA is an
affirmative defense that Defendants must prove, see Davis
v. Mason, 881 F.3d 982, 985 (7th Cir. 2018), and
“[u]nexhausted claims are procedurally barred from
consideration.” Pyles v. Nwaobasi, 829 F.3d
860, 864 (7th Cir. 2016); see also Woodford v. Ngo,
548 U.S. 81, 88, 93 (2006). “The PLRA does not,
however, demand the impossible, ” and thus,
“[r]emedies that are genuinely unavailable or
nonexistent need not be exhausted.” Pyles, 829
F.3d at 864; see also Weiss v. Barribeau, 853 F.3d
873, 875 (7th Cir. 2017) (“Obviously prisoners
can't be required to exhaust remedies that are
unavailable to them[.]”).
state sets its own prison grievance system, see
Jones, 549 U.S. at 218, and “[a] prisoner must
comply with the specific procedures and deadlines established
by the prison's policy.” King v. McCarthy,
781 F.3d 889, 893 (7th Cir. 2015). “Illinois has
created a three-stage process for its inmates.”
Pyles, 829 F.3d at 864; see also 20 Ill.
Admin. Code § 504.800, et seq. “Step one
requires the inmate to attempt to resolve the problem through
his or her counselor.” Pyles, 829 F.3d at 864.
“If that does not resolve the problem, the inmate must
invoke step two, which involves the filing of a written
grievance with a grievance officer … within 60 days
after discovery of the problem.” Id.; see
also Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014)
(“a grievance shall be filed within 60 days after the
discovery of the incident, occurrence, or problem that gives
rise to the grievance.”). If the grievance officer
denies the grievance and the ...