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Ayoubi v. Wexford health Sources, Inc.

United States District Court, S.D. Illinois

January 14, 2020

FIRAS M. AYOUBI, #R66956, Plaintiff,


          NANCY J. ROSENSTENGEL Chief U.S. District Judge

         Pursuant to 42 U.S.C. § 1983, pro se Plaintiff Firas Ayoubi, an inmate in the Illinois Department of Corrections (“IDOC”), filed a Complaint for deprivations of his constitutional rights that occurred at Pinckneyville Correctional Center. After conducting the preliminary review of Ayoubi's complaint pursuant to 28 U.S.C. § 1915A, the following claim survived:

Count 1: Eighth Amendment claim against Wexford Health Sources, Inc., Christine Brown, Scott Thompson, Dr. Alberto Butalid, Dr. Percy Meyers, Dr. Stephen Ritz and Alisa Dearmond for exhibiting deliberate indifference to Ayoubi's serious medical needs (worsening neurological symptoms associated with pain).

(Doc. 4). As to Thompson, Brown, and Wexford, the Court found that Ayoubi stated a viable claim against them “to the extent that he is alleging these defendants implemented and/or maintained cost-cutting policies aimed at denying inmate access to expensive treatment (by delaying or denying referrals to specialists outside the prison) (see Doc. 1, p. 11, 13-14, 18-19). See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Del Raine v. Williford, 32 F.3d 1024, 1047 (7th Cir. 1994) (noting that personal involvement can take the form of formulating and directing an unconstitutional policy).” (Doc. 4, p. 4).

         This matter is now before the Court on a motion for summary judgment on the issue of exhaustion of administrative remedies filed by Defendants Christine Brown and Scott Thompson. (Docs. 93, 94). Ayoubi opposes the motion.[1] (Doc. 105).


         On May 23, 2018, and May 27, 2018, Ayoubi filed two grievances for single housing classification and for medical treatment and low gallery due to his neurological issues. (Doc. 94-1, pp. 4-7). The relief requested in both grievances is similar: to be housed in a single cell until symptoms regress and to see a neurologist for diagnosis and treatment and low gallery/bunk classification (and possibly single housing as requested in a previous grievance). (Id.). On June 4, 2018, in response to both grievances, Counselor Hess stated: “Per C. Brown, HCUA: ‘He arrived at IDOC 12/2017 with this nervous tick is what mental health has documented. He has been seen by a few different healthcare providers with no consistency in this behavior. Wexford denied a neurology consult in the past. He has been referred back to the Physician for a follow up on this condition. He should be seen this week.'” (Doc. 94-4, p. 2). Ten days later, Grievance Officer Hale issued a report that recommended Ayoubi's grievance be denied, and Defendant Thompson concurred with Officer Hale on June 21, 2018. (Doc. 94-1, p. 3). Ayoubi appealed the grievance to the Administrative Review Board (“ARB”) on July 10, 2018. (Id.). On August 13, 2018, Patty Sneed with the ARB denied Ayoubi's grievance finding that the issue was appropriately addressed by the facility administration, and John Baldwin concurred with that decision the next day. (Doc. 94-1, p. 2).

         Ayoubi does not name either Defendant Brown or Defendant Thompson in his grievances.

         Legal Standards

         “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. Vill. 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 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). In other words, 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 prison's grievance process, “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. The purpose of exhaustion is to give prison officials an opportunity to address the inmate's claims internally, prior to federal litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

         Under 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. Pavey v. Conley, 544 F.3d 739, 740-741 (7th Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, the Court set forth the following procedures:

The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (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 ...

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