United States District Court, S.D. Illinois
FIRAS M. AYOUBI, #R66956, Plaintiff,
WEXFORD HEALTH SOURCES, INC., CHRSITINE BROWN, SCOTT THOMPSON, DR. ALBERTO BUTALID, DR. PERCY MEYERS, DR. STEPHEN RITZ, and ALISA DEARMOND, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL Chief U.S. District Judge
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.
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. (Doc. 105).
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).
does not name either Defendant Brown or Defendant Thompson in
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.
“[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).
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 ...