United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. GETTLEMAN UNITED STATES DISTRICT JUDGE.
Andre Lewis is a prisoner in the custody of Stateville
Correctional Center, Illinois. He sued Stateville's
former warden-Randy Pfister-and Stateville's current
warden, Walter Nicholson. Plaintiff claims that Pfister and
Nicholson deprived him of his constitutional rights, 42
U.S.C. § 1983, by subjecting him to unsanitary living
this court recruited counsel, plaintiff amended his
complaint. In his amended complaint, he adds section 1983
claims against Wexford Health Sources, Inc., and two
physician's assistants employed by Wexford-Michelle Doe
and Lydia Doe. He claims that Michelle and Lydia gave him
unconstitutionally deficient medical care. Michelle allegedly
refused to treat his ear pain over several days. Lydia
allegedly examined his left ear and extracted a dead
cockroach. Ten she allegedly offered neither medication nor a
referral to a doctor for further treatment. Plaintiff alleges
that as a result, he permanently lost hearing in his left
move for summary judgment. They argue that plaintiff failed
to exhaust his administrative remedies. Under the Prison
Litigation Reform Act, prisoners must exhaust administrative
remedies “as are available” before suing about
prison conditions. 42 U.S.C. § 1997e(a). Lack of
exhaustion is an affirmative defense that defendants must
prove. Jones v. Bock, 549 U.S. 199, 216 (2007).
Whether a defendant has proven lack of exhaustion is a
question for the court. Wagoner v. Lemmon, 778 F.3d
586, 592 (7th Cir. 2015), discussing Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008). When material
facts are genuinely disputed, the court must hold an
evidentiary hearing. Roberts v. Neal, 745 F.3d 232,
234 (7th Cir. 2014).
argue that plaintiff failed to exhaust his administrative
remedies because: (1) plaintiff did not timely grieve his
living conditions; (2) plaintiff's living conditions
grievance named neither defendant Pfister nor defendant
Nicholson; and (3) plaintiff's living conditions
grievance did not complain about Wexford's medical care.
Each argument fails.
Has plaintiff failed to exhaust because he untimely grieved
his living conditions?
“boundaries of proper exhaustion” are defined by
the prison's grievance procedure. Jones, 549
U.S. at 218. Because Stateville is an Illinois Department of
Corrections facility, its grievance procedure is governed by
Illinois's Administrative Code. 20 Ill. Admin. Code
§ 504.800. Under the administrative code, once a
prisoner discovers the facts giving rise to a grievance, the
prisoner has 60 days to file. Id. at §
was transferred to his housing unit in February 2017. In
October-eight months later-he grieved his living conditions.
He wrote that as a result of spiders in his bed, dust and
spiderwebs on his cell walls, bird droppings in the chow
hall, and cockroaches in the water supply, “I have
begun to have headaches and chest pains . . . .” Those
“hazardous conditions, ” plaintiff wrote,
“are [a]ffecting me in bad way.”
argue that plaintiff untimely grieved his living conditions.
As discussed below, plaintiff's October 2017 living
conditions grievance exhausted his administrative remedies
for two independent reasons: (1) he grieved a continuing
violation of his rights; and (2) his grievance was, in fact,
timely filed-or at least defendants (who have the burden of
proof) offer no evidence to the contrary.
plaintiff grieved a continuing violation of his rights. He
wrote in the present continuous tense: his living conditions
“are [a]ffecting” him. Those conditions had
“begun” to cause “headaches” and
“chest pains.” As this court has held before, a
prisoner's grievance about a continuing violation
“reach[s] not only forward, but also backwards for
exhaustion purposes, to conduct that technically occurred
outside the grievance procedure's deadline.”
Loza v. Josephson, No. 16 C 8111, 2018 WL 4095097,
at *4 (N.D. Ill. Aug. 28, 2018) (Gettleman, J.) (applying the
continuing violation doctrine and denying summary judgment
for lack of exhaustion), discussing Turley v.
Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (holding that
an Illinois prisoner's February 2009 grievance “was
likely sufficient to exhaust all [his] complaints”
about excessive lockdowns, including lockdowns that happened
in November 2008). Under Turley, plaintiff exhausted
his administrative remedies-even if his grievance was
it clear that plaintiff's grievance was even untimely.
His grievance suggests that his medical problems began within
60 days of fling. Stateville's grievance officer and
administrative review board assumed that the 60-day clock
started running when plaintiff arrived in his housing unit.
They apparently thought that if Stateville's conditions
were grotesque, they were grotesque on day one.
understandably offer no evidence for that disturbing
assumption. And even if it were true, the administrative code
starts the clock only when plaintiff “discovered”
his medical issues. 20 Ill. Admin. Code § 504.810(a).
Plaintiff wrote in his grievance that, “I have
begun to have headaches and chest pains” (emphasis
added). Medical issues that “have ...