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Lewis v. Pfister

United States District Court, N.D. Illinois, Eastern Division

October 29, 2019

ANDRE LEWIS, Plaintiff,



         Plaintiff 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 conditions.

         After 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 ear.

         Defendants 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).

         Defendants 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.

         1 Has plaintiff failed to exhaust because he untimely grieved his living conditions?

         The “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 § 504.810(a).

         Plaintiff 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.”

         Defendants 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.

         1.1 Continuing violation

         First, 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 untimely.

         1.2 Timeliness

         Nor is 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.

         Defendants 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 ...

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