Blakes v. Baker et al
Filing
52
OPINION: Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies is DENIED 39 . Pursuant to this ruling, discovery on the merits is no longer stayed. Discovery on the merits shall be completed by February 23, 20 15. Dispositive Motions shall be filed by March 23, 2015. Plaintiff's Motion to Strike Extension of Time is DENIED as moot 48 . Plaintiff renews his Motion to Request Counsel 34 . The Plaintiff has no constitutional or statutory right to cou nsel in this case. However, for the reasons stated in the Court's text order dated June 13, 2014, Plaintiff appears competent to litigate the case himself. Furthermore, Plaintiff's response to the present motion included relevant references to fact and law, and coherently argued his legal position. 34 is DENIED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 1/22/2015. (MJ, ilcd)
E-FILED
Thursday, 22 January, 2015 10:36:58 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL BLAKES,
Plaintiff,
v.
DR. THOMAS BAKER, et al.
Defendants.
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13-3307
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and incarcerated in Western Illinois
Correctional Center, pursues claims for deliberate indifference to a
serious medical need in violation of the Eighth Amendment. The
case is before the Court for ruling on Defendants’ Motion for
Summary Judgment for Failure to Exhaust Administrative
Remedies. Failure to exhaust is an affirmative defense, and
therefore the burden of proof lies with the defendants. Turley v.
Rednour, 729 F.3d 645, 650 (7th Cir. 2013). The Court must hold
an evidentiary hearing if a disputed issue of material fact exists, see
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), but where none
is present, an evidentiary hearing is unnecessary and the issue of
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exhaustion may be decided as a matter of law. Doss v. Gilkey, 649
F. Supp. 2d 905, 912 (S.D. Ill. 2009).
BACKGROUND
Plaintiff alleges deliberate indifference to a serious medical
need in that officials at Western Illinois Correctional Center failed to
provide medical treatment for fractures sustained to both of his
wrists. At the time of filing suit, Plaintiff had filed several
grievances related to this issue, with each at various stages of the
grievance process. Unless otherwise noted, the Court finds the
following to be undisputed with respect to these grievances.
September 12, 2011 Grievance
Plaintiff filed a grievance dated September 12, 2011. (Doc. 1-1
at 22-23; Doc. 40-1). In this grievance, Plaintiff alleged he was
denied medical treatment for pain resulting from a wrist injury
suffered at another facility. On October 6, 2011, Plaintiff’s
counselor denied the grievance. Plaintiff appealed. The grievance
office received Plaintiff’s appeal on November 10, 2011, ultimately
ruling against Plaintiff on February 8, 2012. (Doc. 40-6). During
this process, and prior to the grievance officer’s decision, Plaintiff
submitted this grievance to the Administrative Review Board
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(“ARB”) on two occasions: first, in September 2011, around the time
he filed the original grievance (Doc. 40-3); and, in January 2012.
(Doc. 1-1 at 4). With the January 2012 submission, Plaintiff
included a letter stating that he had not heard back from the Chief
Administrative Officer (“CAO”). (Doc. 1-1 at 7). Both times, the
ARB denied the grievance stating that Plaintiff had not included the
necessary copies of decisions from the counselor and CAO. (Doc.
40-4; Doc. 1-1 at 4). Plaintiff submitted the necessary decisions
and grievance to the ARB in May 2013. (Doc. 1-1 at 20). Plaintiff’s
grievance was subsequently denied on the grounds that it was not
timely filed. (Doc. 1-1 at 20; Doc. 40-7).
July 12, 2012 Grievance
Plaintiff filed a grievance on July 12, 2012, alleging that a
shakedown at the prison caused pain in his shoulders and wrists,
and that several requests to see a doctor had been denied. (Doc.
40-8). Though he checked the box indicating he was grieving “Staff
Conduct,” Plaintiff indicated that the remedy he sought was “to see
a doctor.” Pursuant to the proper procedures, the grievance was
ultimately denied by the ARB on September 17, 2013. (Doc. 40-10).
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September 25, 2012 Grievance
Plaintiff filed a grievance on September 25, 2012, alleging that
he had been refused access to a doctor concerning the pain in his
wrists. (Doc. 40-11). Plaintiff’s counselor denied the grievance on
October 30, 2012. Plaintiff submits a Proof of Service stating he
sent an appeal to the Grievance Office on November 14, 2012.
(Doc. 49-1 at 15). Plaintiff sent a copy of the grievance to the ARB,
which replied that Plaintiff had not included the prerequisite
paperwork. (Doc. 40-12).
Other Grievances
Plaintiff also provided a copy of a grievance dated November 4,
2011, alleging an unidentified nurse refused to treat his wrist pain
or allow him to see a doctor. (Doc. 49-1 at 4). Other than a proof of
service document dated August 13, 2012 (Doc. 49-1 at 5),
indicating that the grievance was sent to the ARB, the results of
this grievance are unknown.
ANALYSIS
The Prison Litigation Reform Act requires that prisoners
exhaust all available administrative remedies prior to filing suit
under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a). The purpose of
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this requirement is to “alert the state to the problem and invite
corrective action.” Turley, 729 F.3d at 649 (internal citations
omitted). The Seventh Circuit has adopted a strict compliance
standard to exhaustion, and to exhaust remedies “a prisoner must
properly use the prison’s grievance process.” Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006). In other words, “a prisoner must file
complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002). If the prisoner fails to follow the grievance
procedures, “the prison administrative authority can refuse to hear
the case, and the prisoner's claim can be indefinitely unexhausted.”
Id.; see Dole, 438 F.3d at 809 (quoting same). A prisoner, however,
may satisfy the requirements of § 1997e if administrative remedies
become unavailable, such as when a prison official fails to respond
to a properly filed grievance. See Lewis v. Washington, 300 F.3d
829, 833 (7th Cir. 2002) (“[W]e refuse to interpret the PLRA ‘so
narrowly as to . . . permit prison officials to exploit the exhaustion
requirement through indefinite delay in responding to grievances.’”
(quoted cite omitted)).
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The Illinois Administrative Code establishes the grievance
procedures for IDOC inmates. Inmates unable to resolve their
issues informally with prison staff may file a written grievance on a
form provided by the prison. 20 ILL. ADMIN. CODE § 504.810(a). The
grievance must be filed “within 60 days after the discovery of the
incident, occurrence, or problem that gives rise to the grievance.”
Id. § 504.810(a). A grievance officer considers each grievance and
submits a recommendation to the Chief Administrative Officer, who
notifies the inmate of his decision. Id. § 504.830(d). An inmate may
appeal the CAO’s decision to the Administrative Review Board
(“ARB”), but must do so within 30 days of the decision. Id. §
504.850(a).
With respect to the grievances filed September 25, 2012 and
November 11, 2011, the Court cannot determine if Plaintiff properly
exhausted or if the grievance process was unavailable. The July 12,
2012 grievance was properly exhausted, but not until after Plaintiff
filed the present lawsuit, and cannot be used to satisfy the
requirements of § 1997e. See Ford v. Johnson, 362 F.3d 395, 398
(7th Cir. 2004) (holding dismissal is proper, “even if the plaintiff
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exhausts his administrative remedies while the litigation is
pending.”). The remaining grievance is discussed below.
The parties agree the September 12, 2011 grievance was
properly filed with the Grievance Officer pursuant to §§ 504.810(a)(b). After more than 60 days had passed without a response from
the CAO,1 Plaintiff filed an appeal with the ARB and included with it
a letter stating that the CAO had failed to respond to his grievance.
In the letter, Plaintiff states that he did this because the CAO had
failed to respond within 60 days as required by rule. (Doc. 1-1 at
7). Nonetheless, the ARB denied this appeal and indicated that
Plaintiff needed to provide a copy of the CAO’s response. (Doc. 1-1
at 4). The response from the ARB did not include any further
instructions.
Defendants contend that Plaintiff had no basis for filing an
appeal after the expiration of 60 days from the filing of the
grievance. Defendants cite to § 504.830(a), which provides that “[a]
Grievance Officer shall review grievances at least weekly, provided
that one or more grievances have been filed.” 20 ILL. ADMIN. CODE §
1
According to file stamps on the exhibits provided by the parties, the Grievance Officer received Plaintiff’s
September 12, 2011 grievance on November 10, 2011. (Doc. 40-1). The ARB received Plaintiff’s appeal on
January 24, 2012. (Doc. 1-1 at 4). Thus, a minimum of two and one-half months had passed without a
response from the CAO. Arguably, Plaintiff waited close to four (4) months as a Proof of Service provided
indicates that Plaintiff sent his grievance to the Grievance Officer on October 8, 2011. (Doc. 49-1 at 2)
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504.830(a). Outside of that provision, defendants assert, no such
60-day time limit exists. This is incorrect.
Pursuant to subsection (d) of § 504.830, the Grievance Officer
must report his or her findings to the Chief Administrative Officer
and the CAO must “advise the offender of the decision in writing
within 2 months after receipt of the written grievance, where
reasonably feasible under the circumstances.” Id. § 504.830(d)
(emphasis added). Although the section does not provide a right to
appeal, the Illinois Administrative Code does not contain
instructions regarding an inmate’s course of action should prison
officials fail to respond. See id. §§ 504.800-504.870.
The Defendants have not provided any evidence that the CAO
was prohibited from issuing a decision within the 60-day time
period. Though Plaintiff could have taken different steps to inquire
about the CAO’s lack of response, Plaintiff was never instructed to
do so. The Court cannot find that Plaintiff’s attempts to avail
himself of the next step in the administrative process (rather than
filing a lawsuit at that point) were unreasonable, especially given
the rulebook’s silence and the ARB’s lack of instruction of the next
step.
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Plaintiff eventually complied with the ARB’s instructions.
Thirteen (13) months after the CAO’s decision had been issued,2
Plaintiff provided a copy of the CAO’s decision in an appeal filed
May 1, 2013. The ARB denied this appeal as untimely. (Doc. 40-7).
The relevant portion of the Illinois Administrative Code
regarding time limits for appeal provides:
If, after receiving the response of the Chief Administrative
Officer, the offender still feels that the problem, complaint
or grievance has not been resolved to his or her
satisfaction, he or she may appeal in writing to the
Director within 30 days after the date of the decision.
Copies of the Grievance Officer's report and the Chief
Administrative Officer's decision should be attached.
20 ILL. ADMIN. CODE § 504.850(a) (emphasis added). According to
this section, an inmate cannot file an appeal without first receiving
the response of the CAO. The appeal must thereafter be filed within
30 days of the date of decision. Logically, then, the CAO must
provide the written notice of its decision required by § 504.850(d)
within 30 days of the decision for the inmate to have an opportunity
to file a timely appeal. If the CAO failed to do so, an inmate would
be precluded from filing a timely appeal, and therefore could not
fully exhaust administrative remedies. As the Seventh Circuit said
2
The CAO issued a decision on February 8, 2012. (Doc. 40-6). Six days prior, on February 2, 2012, the ARB ruled
on Plaintiff’s January 2012 appeal. (Doc. 40-5).
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in Dole v. Chandler, when an inmate follows procedure and prison
officials are responsible for the mishandling of a grievance, “it
cannot be said that [the inmate] failed to exhaust his remedies.”
See Dole, 438 F.3d at 811.
Once Plaintiff alleges he received the CAO’s response, he filed
an appeal within 30 days. The Defendants failed to provide any
exhibit, affidavit, or other evidence to refute Plaintiff’s allegation
that he did not receive it until April 2013. In addition, the
Defendants remained silent on the issue in their Reply brief, even
after Plaintiff raised the argument in his response to the initial
Motion for Summary Judgment. Thus, Plaintiff’s contention goes
undisputed. The only inference the Court may draw based on the
evidence provided is that prison officials failed to give Plaintiff an
opportunity to file a timely appeal by not providing notice of the
CAO’s decision. Therefore, the grievance process became
unavailable to Plaintiff. In that case, pursuant to Dole, the Court
cannot find that Plaintiff failed to exhaust his remedies. As no
disputed issue of material fact exists, the Court finds that a hearing
pursuant to Pavey v. Conley, 544 F.3d 739, is unnecessary.
Accordingly, Defendants’ Motion for Summary Judgment is denied.
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IT IS THEREFORE ORDERED:
1)
Defendant’s Motion for Summary Judgment for Failure to
Exhaust Administrative Remedies is DENIED [39]. Pursuant to this
ruling, discovery on the merits is no longer stayed. Discovery on
the merits shall be completed by February 23, 2015. Dispositive
Motions shall be filed by March 23, 2015.
2)
Plaintiff’s Motion to Strike Extension of Time is DENIED
as moot [48].
3)
Plaintiff renews his Motion to Request Counsel [34]. The
Plaintiff has no constitutional or statutory right to counsel in this
case. In considering the Plaintiff’s motion, the court asks: (1) has
the indigent Plaintiff made a reasonable attempt to obtain counsel
or been effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent to litigate
it himself? Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007),
citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). Plaintiff
provided letters from attorneys declining representation, and thus
the Court finds that Plaintiff made a reasonable attempt to obtain
counsel. However, for the reasons stated in the Court’s text order
dated June 13, 2014, Plaintiff appears competent to litigate the
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case himself. Furthermore, Plaintiff’s response to the present
motion included relevant references to fact and law, and coherently
argued his legal position. [34] is DENIED.
ENTERED:
January 22, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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