United States District Court, S.D. Illinois
REPORT & RECOMMENDATION
GILBERT C. SISON United States Magistrate Judge
Marlon L. Watford alleges that Defendant Susan Kirk was
deliberately indifferent to his medical needs by failing to
treat adequately intestinal symptoms he experienced in March
2015 and June 2016. Before the Court is Kirk's motion for
summary judgment on the issue of exhaustion (Doc.
The matter has been referred to the undersigned by District
Judge Staci M. Yandle pursuant to 28 U.S.C. § 636(b)(1)
and Federal Rule of Civil Procedure 72(b). For the reasons
delineated below, it is RECOMMENDED that the
Court grant Defendant Kirk's motion for summary judgment.
Findings of Fact
to an April 5, 2015 grievance, Watford experienced severe
stomach pain and IBS symptoms on March 18, 2015, which he
complained were due to a severe case of H. Pylori. Officer
Hess escorted him to the healthcare unit where he saw a
nurse. According to the grievance, an unnamed nurse told him
that a test of H. Pylori was negative, but Watford told her
the test was wrong. Watford alleged that the nurse refused to
let him see the doctor without paying a $5 co-payment.
Watford further alleged that he left the healthcare unit
without seeing the doctor because the nurse would not bother
the doctor while he was eating his lunch. The grievance went
on to raise complaints against other individuals at later
dates and to request an endoscopy, an ulcerative colitis
test, an IBS breath test and the reimbursement of the $5
than one year later, on June 16, 2016, Watford again
consulted healthcare staff regarding his stomach issues. He
saw Defendant Susan Kirk, a nurse, and told her that he had
recurring stomach pain and burning. Watford also indicated
that he had stomach and bowel spasms and had begun to have
blood in his stool. He requested a referral to Dr. Trost, but
he did not receive one.
April 5, 2015 grievance that Marlon attached to his complaint
shows that the emergency grievance box is checked. On April
23, 2015, the Chief Administrator Officer signed the
emergency review section of Watford's grievance and found
that the grievance was not an emergency and should be
submitted in the normal manner. Watford did not appeal the
grievance to the Administrative Review Board. Watford denies
checking the emergency grievance box and claims the prison
officials made the system unavailable to him by checking the
box for him. He also posits that Defendant Kirk is not named
in any grievance because of actions she took on June 16,
2016, and later that were deceptive, which led Watford to
believe she would schedule him to see Dr. Trost. While
Watford filed other grievances and appeals between June 2016
and the date in 2018 when he filed this action, none of the
grievances or appeals related to Defendant Kirk or the claims
in this action.
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 Court's role on summary judgment is not to evaluate
the weight of the evidence, to judge witness credibility or
to determine the truth of the matter. Instead, the Court is
to determine whether a genuine issue of triable fact exists.
See Nat'l Athletic Sportwear Inc. v. Westfield Ins.
Co., 528 F.3d 508, 512 (7th Cir. 2008). In
Pavey, however, 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 but are to be determined by
the judge. Pavey v. Conley, 544 F.3d 739, 740-741
(7th Cir. 2008). Here, the question of exhaustion
is a purely legal question, and no hearing is required.
Seventh Circuit requires strict adherence to the PLRA's
exhaustion requirement. See, e.g., 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. See Ford v. Johnson, 362 F.3d 395, 398 (7th
Cir. 2004). Plaintiff cannot file suit and 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). Consequently, if a prisoner fails to use a
prison's grievance process properly, “the prison
administrative authority can refuse to hear the case, and the
prisoner's claim can be indefinitely unexhausted.”
Dole, 438 F.3d at 809.
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 but are to be determined by the judge. See
Pavey, 544 F.3d at 741. Thus, where failure to exhaust
administrative remedies is raised as an affirmative defense,
the Court set forth the following procedures:
(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.
inmate confined within the Illinois Department of
Corrections, Watford was required to follow the regulations
contained in the Illinois Department of Correction's
Grievance Procedures for Offenders (“grievance
procedures”) to exhaust his claims properly.
See 20 Ill. Admin. Code §504.800, et
seq. The grievance procedures first require inmates to
file their grievance with the counselor ...