Johnson v. Wexford Health Sources, Inc. et al
Filing
99
OPINION: Dr. Baker's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (d/e 88) is GRANTED. Plaintiff's Second Amended Complaint is dismissed without prejudice. Dr. Baker's Motion for Summary Judgment (d/e 96) is DENIED AS MOOT. This case is terminated, with the parties to bear their own costs. ll deadlines and settings on the Court's calendar are vacated. Entered by Judge Sue E. Myerscough on 7/6/2012. (CT, ilcd)
E-FILED
Friday, 06 July, 2012 08:13:27 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
GENE JOHNSON, #N62725
Plaintiff,
v.
DR. THOMAS BAKER,
Defendant.
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No. 11-3331
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Defendant Dr. Thomas Baker’s
Motion for Summary Judgment for Failure to Exhaust Administrative
Remedies (d/e 88) and Motion for Summary Judgment (d/e 96). For the
reasons that follow, Dr. Baker’s Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies is GRANTED.
I. BACKGROUND
In May 2010, Plaintiff filed a Complaint in the Northern District
of Illinois against Wexford Health Sources, Inc. (Wexford) and numerous
other individuals. Plaintiff alleged the defendants were deliberately
indifferent to his medical needs when they consistently failed to treat
Plaintiff’s chronic back pain and sexually transmitted disease. Compl. p.
3, ¶ 8 (d/e 1). The court appointed counsel for Plaintiff, dismissed the
Complaint, and gave counsel leave to file an Amended Complaint. See
d/e 6. On August 30, 2010, Plaintiff’s counsel filed a First Amended
Complaint against Wexford and other defendants alleging that Plaintiff
repeatedly sought care for his back pain and genital herpes but was
denied such care. See d/e 12.
In December 2010, Plaintiff voluntarily dismissed three defendants.
See d/e 26. In February 2011, the court granted the remaining
defendants’ Motions to Dismiss without prejudice and gave Plaintiff
leave to file a Second Amended Complaint. See d/e 44.
In July 2011, Plaintiff’s counsel filed a Second Amended
Complaint, pursuant to 42 U.S.C. § 1983, naming as defendants
Wexford and, for the first time, Dr. Thomas Baker. See d/e 58. The
Second Amended Complaint alleged that as early as April 2000, Plaintiff
suffered from a herniated disc in his lower back due to trauma and, as
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early as May 1999, suffered from genital herpes. Sec. Amd. Compl. ¶ 9.
Throughout the duration of his incarceration at Stateville Correctional
Center (June 12, 2001 to September 9, 2009) and Western Correctional
Center (September 10, 2009 to present), Plaintiff “has been repeatedly
denied or received belated and/or insufficient medical care for his back
pain and genital herpes.” Sec. Amd. Compl. ¶ 11.
In November 2008, a Magnetic Resonance Imaging examination
(MRI) revealed Plaintiff had degenerative joint disease of the lumbosacral
spine at L3, L4, L5, and S1. Sec. Amd. Compl. ¶ 21. The degenerative
joint disease causes painful spasms and arthritis in his back. Sec. Amd.
Compl. ¶ 22. On November 18, 2008, Plaintiff was prescribed
cyclobenzaprine to treat his muscle spasms and spinal arthritis and
prescribed gabapentin for his nerve damage. Sec. Amd. Compl. ¶ 23. On
November 3, 2009, Plaintiff was prescribed physical therapy for his back
pain but never received physical therapy. Sec. Amd. Compl. ¶¶ 24, 25.
Plaintiff further alleged he experiences painful breakouts due to his
genital herpes. Sec. Amd. Compl. ¶ 26. He experienced numerous delays
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in receiving treatment for his genital herpes and received inadequate
treatment of his genital herpes. Sec. Amd. Compl. ¶ 27. He was
prescribed no medication to treat his genital herpes from August 2001
until November 18, 2008, and he never received medication to prevent
the frequency and intensity of his breakouts. Sec. Amd. Compl. ¶ 28, 30.
Moreover, he never received a special shower permit to take a shower
more than once a week to clean the infected area during breakouts. Sec.
Amd. Compl. ¶ 29.
On June 14, 2011, Dr. Baker refused to continue prescribing
Plaintiff medication for his back pain and genital herpes. Sec. Amd.
Compl. ¶ 31. The Second Amended Complaint alleged that Plaintiff filed
many grievances and medical complaints seeking medical care for his
chronic back pain and his genital herpes, including: (1) an April 2, 2002
medical complaint, to which the Stateville Healthcare Medical Director
responded that back pain and herpes were not considered chronic
diseases; (2) a November 29, 2007 grievance, to which Plaintiff received
a response placing him on the in-house sick call list; (3) an August 28,
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2008 notice of intent; and (4) January and March 2009 grievances with
the Administrative Review Board (ARB) alleging denial and delay of
medical care. Sec. Amd. Compl. ¶ 32.
Plaintiff alleged that Wexford and Dr. Baker exhibited deliberate
indifference to Plaintiff’s serious medical conditions by denying Plaintiff
sufficient access to the Illinois Department of Corrections’ (IDOC)
medical facilities, failing to prescribe Plaintiff adequate medication to
treat his back, failing to provide Plaintiff his prescribed physical therapy,
and failing to adequately treat Plaintiff’s genital herpes. Sec. Amd.
Compl. ¶ 40. Plaintiff sought compensatory damages, punitive damages,
costs, attorney fees, and other relief that the Court deems equitable and
just. Sec. Amd. Compl.
In July 2011, Wexford filed a Motion to Dismiss (d/e 64), which
the Northern District of Illinois Court granted. In August 2011, Dr.
Baker filed a Motion to Dismiss or Transfer, asserting that venue was not
proper in the Northern District of Illinois. See d/e 67. The court granted
the Motion to Transfer and transferred the case to the Central District of
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Illinois. See d/e 70. The court also granted counsel leave to withdraw
their appearances on behalf of Plaintiff, and counsel did so. Id.
On October 18, 2011, Dr. Baker answered the Second Amended
Complaint. See d/e 79. Dr. Baker’s answer raised two affirmative
defenses: qualified immunity and failure to exhaust administrative
remedies.
On April 5, 2012, Dr. Baker filed a Motion for Summary Judgment
for Failure to Exhaust Administrative Remedies (d/e 88). Plaintiff has
not responded to the Motion, despite this Court granting him additional
time to do so. See May 17, 2012 Text Order granting Plaintiff until June
8, 2012 to respond to the Motion for Summary Judgment for Failure to
Exhaust Administrative Remedies.
On May 30, 2012, Dr. Baker filed a Motion for Summary
Judgment on the merits (d/e 96). Plaintiff has failed to respond to that
Motion for Summary Judgment as well.
II. LEGAL STANDARD
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"The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A
movant may demonstrate the absence of a material dispute through
specific cites to admissible evidence, or by showing that the nonmovant
“cannot produce admissible evidence to support the [material] fact.”
Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the nonmovant
may not simply rest on his or her allegations in the complaint, but
instead must point to admissible evidence in the record to show that a
genuine dispute exists. Id.; Harvey v. Town of Merrillville, 649 F.3d 526,
529 (7th Cir. 2011). At the summary judgment stage, evidence is viewed
in the light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Here, Dr. Baker filed a Motion for Summary Judgment for Failure
to Exhaust Administrative Remedies. In the context of exhaustion of
administrative remedies, if issues of fact exist, a judge– not a jury– holds
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a hearing and resolves the factual disputes. See Pavey v. Conley, 544
F.3d 739, 742 (7th Cir. 2008). No evidentiary hearing is required,
however, if there are “no disputed facts regarding exhaustion” and “only a
legal question” is presented. Doss v. Gilkey, 649 F. Supp. 2d 905, 912
(S.D. Ill. 2009).
III. ANALYSIS
Dr. Baker moves for summary judgment on the basis that Plaintiff
failed to exhaust his administrative remedies.
The Prison Litigation Reform Act requires an inmate to exhaust the
available administrative remedies before filing a § 1983 lawsuit. 42
U.S.C. § 1997e(a) ("[n]o action shall be brought with respect to prison
conditions . . . by a prisoner . . . until such administrative remedies as are
available are exhausted."); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th
Cir. 2000); Perez v. Wisconsin Dept of Corrections, 182 F.3d 532,
535-38 (7th Cir. 1999). There is no futility, sham, or substantial
compliance exception to this requirement, and a plaintiff seeking only
monetary damages for ongoing conditions must still utilize the grievance
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procedure in place before filing suit. Booth v. Churner, 121 S.Ct. 1819,
1823 (2001) (PLRA requires administrative exhaustion even where
grievance process does not permit award of money damages, if "some
action" in response to a grievance can be taken); Massey v. Helman, 259
F.3d 641, 646 (7th Cir. 2001) (inmate alleging failure to repair hernia
timely must exhaust administrative remedies, even though surgery
performed and only money damages sought). Exhaustion means properly
and timely taking each step in the administrative process established by
state procedures. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002) (failure to file timely administrative appeal constitutes failure to
exhaust administrative remedies and bars § 1983 suit). A dismissal for
failure to exhaust is without prejudice, so reinstatement is not barred
unless the time for exhaustion has expired. Walker v. Thompson, 288
F.3d 1005, 1009 (7th Cir. 2002).
The grievance procedures available to Plaintiff are set forth in 20
Ill. Adm. Code 504.800 et seq. A prisoner must first file a complaint
through his or her counselor. If the complaint is not resolved through the
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counselor, the prisoner may file a written grievance with the Grievance
Officer. 20 Ill. Adm. Code 504.810. The Grievance Officer reports his
or her findings and recommendations to the Chief Administrative Officer
(CAO), and the CAO advises the prisoner of the CAO’s decision. Ill.
Admin. Code 504.830. If the complaint is still not resolved to the
prisoner's satisfaction, he or she may appeal to the Director of the IDOC.
20 Ill. Adm. Code 504.850. The Director reviews the grievance and
determines if the grievance requires a hearing before the Administrative
Review Board (ARB). Id. If a hearing is held, the ARB submits to the
Director a written report of its findings and recommendations. Id. The
Director makes the final determination of the grievance. Id. A prisoner
may file an emergency grievance directly with the CAO, but the CAO
determines whether the grievance will be handled as an emergency. 20
Ill. Adm. Code 504.840.
In support of the Motion for Summary Judgment, Dr. Baker
submitted the affidavit of Jackie Miller, who is employed within the
Office of Inmate Issues for IDOC and is the chairperson of the ARB,
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which is a subdivision of the Office of Inmate Issues. Miller Aff. ¶ 1.
Miller stated that she searched the ARB records for grievances filed by
Plaintiff from May 17, 2008 through the present that referenced a
medical condition, genital herpes, a herniated disc in his lower back, or
Dr. Thomas Baker. Miller Aff. ¶ 8 (the affidavit was dated December 8,
2011). Miller attached to her Affidavit the two documents she located.
The first document attached to Miller’s Affidavit was an Offender’s
Grievance form dated March 13, 2010. Plaintiff completed the form,
indicating that on March 9, 2010, he was taken off his pain medication
(Tramadol) and his muscle spasm medication (Flexoril), without warning.
Plaintiff asked Correctional Officer Willing to put Plaintiff on the inmate
sick call list. On March 11, 2010, Plaintiff saw the nurse, who explained
he “would be place[d] on the doctor call line.” The requested relief was
reimbursement of the $2.00 co-payment and “[s]top delaying my medical
care etc. [sic]” The counselor responded on April 13, 2010 as follows:
HCU [(health care unit)] response states chronic
back pain is not considered chronic clinic illness &
patient had to be re-evaluated often with his
request & NSC [(Nurse Sick Call)] process. His
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medication was ordered for 6 months & he was
informed many times to go to NSC if he wants to
continue his medication.
The second document attached to Miller’s Affidavit was the ARB
Return of Grievance or Correspondence document. This document,
dated May 14, 2010 indicates:
The attached grievance or correspondence is being
returned for the following reasons:
Additional information required:
Use the Committed Person’s Grievance
Report, DOC 0047 (formerly
DC5657), including the Grievance
Officer’s and Chief Administrative
Officer’s response, to appeal.
In the Motion for Summary Judgment, Dr. Baker asserts that after
Plaintiff received the response from the counselor, Plaintiff should have
appealed the counselor’s response to the Grievance Officer. According to
Dr. Baker, there is no record that Plaintiff performed this step. Instead,
Plaintiff sent the counselor’s response directly to the ARB, as evidenced
by the documents attached to Miller’s Affidavit, instead of to the
Grievance Officer, which is improper. Dr. Baker therefore asserts that
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Plaintiff failed to properly exhaust his administrative remedies. Dr.
Baker further asserts that there is no evidence Plaintiff ever grieved the
care he received for his genital herpes.
As noted above, “[t]o exhaust remedies, a prisoner must file
complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025. The evidence in
the record demonstrates that Plaintiff did not exhaust his claim regarding
treatment for his back condition because he did not appeal the
counselor’s response and did not exhaust his claim regarding his genital
herpes because he did not submit a grievance for that claim at all.
Further, the record shows that Dr. Baker did not begin treating Plaintiff
until April 2011 (see d/e Dr. Baker’s Aff., p. 3 ¶ 13 (d/e 96-2)) and no
evidence establishes that Plaintiff filed a grievance with respect to Dr.
Baker’s treatment decisions.
Further, as noted above, Plaintiff has not responded to Dr. Baker’s
Motion to Dismiss for Failure to Exhaust Administrative Remedies,
despite being given additional time to do so by this Court. With no
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refutation of Dr. Baker’s evidence of Plaintiff’s failure to exhaust, this
Court must find that there is no genuine issue of fact whether Plaintiff
failed to exhaust his administrative remedies. Therefore, Dr. Baker is
entitled to summary judgment. See Walker, 288 F.3d at 1009
(“Dismissal for failure to exhaust is without prejudice and so does not bar
the reinstatement of the suit unless it is too late to exhaust”).
IV. CONCLUSION
For the reasons stated, Dr. Baker’s Motion for Summary Judgment
for Failure to Exhaust Administrative Remedies (d/e 88) is GRANTED.
Plaintiff’s Second Amended Complaint is dismissed without prejudice.
Dr. Baker’s Motion for Summary Judgment (d/e 96) is DENIED AS
MOOT. This case is terminated, with the parties to bear their own costs.
All deadlines and settings on the Court’s calendar are vacated.
ENTER: July 5, 2012.
FOR THE COURT:
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s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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