United States District Court, S.D. Illinois
JOHN E. SMITH, Plaintiff,
ASSELMEIER, Dentist at Menard, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
case asks whether a prisoner-in order to exhaust his
administrative remedies- must re-submit his grievance through
the standard non-emergency protocols after an administrative
officer has determined that the grievance is not an
emergency. Magistrate Judge Wilkerson has issued a Report and
Recommendation (“Report”) stating that the
prisoner is not required to do so. (ECF No. 22.) For the
following reasons, the Court REJECTS the
Report and GRANTS Asselmeier's motion
for summary judgment. (ECF No. 17.)
John E. Smith is incarcerated at Menard Correctional Center.
He has brought an Eighth Amendment deliberate indifference to
medical needs claim against Menard's dentist-
Asselmeier-but the merits of that claim are not yet ripe for
review. What is ripe, however, is whether Smith properly
exhausted his administrative remedies before filing suit: a
well-established requirement of the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a).
Smith bypassed the standard grievance process by filing an
emergency grievance directly with the Chief Administrative
Officer of Menard, pursuant to 20 Ill. Admin. Code §
504.840. (Def.'s Mot. Summ. J., Ex. A at 25-26, ECF No.
18-1.) That officer determined that the grievance was not an
emergency and told Smith that he instead “should submit
this grievance in the normal manner”-just as instructed
in § 504.840(c). (Id. at 25.) The normal manner
consists of attempting to resolve the complaint informally
with a counselor, 20 Ill. Admin. Code, § 504.810(a);
filing a non-emergent grievance that contains specific
factual details, 504.810(b); waiting for a grievance officer
and the Chief Administrative Officer to address that claim on
the merits, § 504.830(d); and appealing that decision-if
adverse to the prisoner-in writing to the Director of the
Administrative Review Board, § 504.850(a) But instead of
following the officer's instructions, Smith appealed the
officer's decision-that the petition did not constitute
an emergency-directly to the Administrative Review Board,
which promptly denied Smith's appeal. (Id. at
24-27.) Smith then filed this lawsuit against Asselmeier
under 42 U.S.C. §1983.
has since moved for summary judgment on the grounds that
Smith failed to exhaust his administrative remedies,
considering Smith did not re-submit his grievance using the
standard, non-emergency procedures. (ECF No. 17.) Magistrate
Judge Wilkerson later issued his Report rejecting that
argument, holding that the plain language of §
504.840(c) does not require a prisoner to re-submit his
grievance under the non-emergency system. (ECF No. 22.) The
Court may accept, reject, or modify-in whole or in part-that
Report. Fed R. Civ. Pro. 72(b)(3). The Court must review
de novo the portions of the Report to which
objections are made. Id. “If no objection or
only partial objection is made, the district court judge
reviews those unobjected portions for clear error.”
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th
Cir. 1999). Since Asselmeier has objected in full (ECF No.
23), the question comes before this Court for a de
Court must grant 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes
Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir.
2000). The Court must construe the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
are no disputed facts here, so the only question is whether
§ 504.840 requires an inmate to re-submit his grievance
through the non-emergency protocols. In its current form, the
An offender may request a grievance be handled on an
emergency basis by forwarding the grievance directly to the
Chief Administrative Officer.
a) If there is a substantial risk of imminent personal injury
or other serious or irreparable harm to the offender, the
grievance shall be handled on an emergency basis.
c) If the Chief Administrative Officer determines that the
grievance should not be handled on an emergency basis, the
offender shall be notified in writing that he or she may
resubmit the grievance as non-emergent, ...