United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, Chief U.S. District Judge.
Zachary Watts, an inmate of the Illinois Department of
Corrections (“IDOC”), filed this suit pursuant to
42 U.S.C. § 1983 alleging that, while he was
incarcerated at Pinckneyville Correctional Center, Defendant
Kyle Williams, a correctional officer, and Defendant Tracy
Peek, a nurse, were deliberately indifferent to his serious
medical needs in violation of his Eighth Amendment rights.
According to Watts, both Williams and Peek denied his
requests for clean, new colostomy bags and medical supplies.
before the Court are Defendants’ motions (Docs. 27, 30)
arguing that Watts failed to exhaust his administrative
remedies prior to filing suit. For the reasons explained
below, the Court grants Defendants’ motions for summary
filed his complaint on June 28, 2018, alleging deliberate
indifference to his serious medical needs by Defendants
Williams and Peek. Watts is confined to a wheelchair and has
a colostomy bag. He claims that he did not receive his needed
medical supplies, namely new colostomy bags, on November 13,
2016. He told the nurse in charge of distributing supplies
that day that he needed the bags, but the nurse did not have
any. As a result, Watts alleges that he was forced to wear a
diaper around his open stomach wound for two weeks while the
healthcare unit failed to provide him with his much-needed
to Watts, on June 11, 2017, Peek informed him that she did
not have any colostomy bags. When Watts asked her what to do
because he was using his last bag, Peek allegedly told him to
reuse it or to use the clear garbage bag that his diapers and
wipes came in. He also claims that she told him to write a
grievance if he “didn’t like it.” (Doc. 1,
p. 11). Watts alleges that he also spoke with Williams about
his medical needs and asked him to ask the healthcare unit
about Watts’s supplies, particularly his colostomy
bags, but Williams did not help him.
to his claims in this action, Watts filed two grievances. The
first, dated November 14, 2016, complained that he was out of
colostomy bags and that he did not receive his weekly supply
from the healthcare unit. (Doc. 28-2, p. 10-16). The
grievance mentioned a nurse, but it did not mention a
correctional officer’s involvement. A grievance
counselor responded to the grievance on December 7, 2016,
stating that Health Care Unit Administrator Brown spoke with
Watts on several occasions and explained that he did not need
to use a new bag each day. Brown also told the grievance
counselor that when Watts was shaken down in September, he
had ten bags in his cell, and that the need for additional
supplies was addressed with Wexford.
grievance officer denied the grievance on January 5, 2017,
and the Chief Administrative Officer (CAO) concurred in the
decision on January 25, 2017. While Watts signed and dated
the appeal section on the grievance response on February 7,
2017, it was not received by the Administrative Review Board
(ARB) until March 10, 2017, two weeks after his appeal
deadline lapsed. The ARB offered no further redress on March
22, 2017, finding that Watts did not submit his appeal within
the timeframe outline in Department Rule 504. (Doc. 28-2, p.
filed a second grievance about not receiving sufficient
numbers of colostomy bags on June 13, 2017. (Doc. 28-1, p.
25-27). In it, he complains that on June 11, 2017, Tracy Peek
passed out medical supplies. Watts told her that he needed
bags and was in desperate need of a colostomy bag dressing
change. Peek allegedly told him to use the same bag he had on
or to use the bag that his medical supplies came in. The
grievance does not mention a correctional officer by name or
marked the grievance as an emergency, and the CAO agreed that
it was an emergency on June 30, 2017. A grievance officer
reviewed the grievance on July 7, 2017, and recommended that
it be denied because the colostomy bags are reusable, and
Watts was found to keep a stockpile of bags hidden in his
cell in the past. The CAO concurred in the response on July
18, 2017. (Doc. 28-1, p. 25-27). There is no record of an
appeal of the June 2017 grievance in the ARB’s records.
Summary 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”). See 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. (emphasis added).
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, 740-41
(7th Cir. 2008). Here, the question of exhaustion
does not rely on weighing debatable factual issues and
involves only a question of law.
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). A 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