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Smith v. Asselmeier

United States District Court, S.D. Illinois

July 23, 2018

JOHN E. SMITH, Plaintiff,
ASSELMEIER, Dentist at Menard, Defendant.



         This 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.)

         I. BACKGROUND

         Plaintiff 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).

         Basically, 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.

         Asselmeier 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 novo review.


         The 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.

         III. ANALYSIS

         There 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 regulation reads:

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, ...

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