Dixon v. Schaefer et al
Filing
132
MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 3/11/2013.Mailed notice(sct, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAMONTE DIXON, JR., #K-96013,
Plaintiff,
v.
RONALD SCHAEFER, et al.,
Defendants.
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11 C 6860
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Now before the Court is Defendants’ Ronald Schaefer’s (“Schaefer”), Brenda
Thigpen’s (“Thigpen”), Wendy Olsen-Foxon’s (“Olsen-Foxon”), Nwadivtor Ifezue’s
(“Ifezue”) and Tiffany Utke’s (“Utke”) (collectively “Defendants”) motion for
summary judgment under Federal Rule of Civil Procedure 56 on the limited issue of
exhaustion. For the following reasons, the motion is granted as to all Defendants
save Schaefer.
BACKGROUND
Plaintiff, Lamonte Dixon (“Dixon”) is an Illinois state prisoner. He has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, claiming that
Defendants, health care providers at the Stateville Correctional Center (“Stateville”),
violated his constitutional rights by acting with deliberate indifference to his medical
needs. Specifically, Dixon alleges that needed care for an injured finger was unduly
delayed. Schaefer was Stateville’s medical director and staff physician. Thigpen
and Olsen-Foxon were medical technicians, and Ifezue and Utke were nurses at the
facility.
The following facts are taken from the parties’ respective statements made
pursuant to Northern District of Illinois Local Rule 56.1. On January 30, 2011, while
housed at Stateville, Dixon slipped and fell while jumping into his top bunk. He
struck his right hand against the toilet as he fell, injuring his middle finger. Over the
next few days and weeks, Dixon claims, he showed his swollen hand to Schaefer and
requested medical treatment during multiple health care appointments. Schaefer was
dismissive of Dixon’s concerns, telling Dixon to “give it time.” Schaefer refused to
provide any medical attention even though Dixon insisted that he had a broken bone.
Dixon asked nurses and medical technicians to schedule an appointment on his
behalf with a physician other than Schaefer, but they ignored his request. Dixon
continued to see Schaefer, who did nothing for his hand. On March 15, 2011, a
physician’s assistant arranged for x-rays to be taken of Dixon’s hand. An orthopedist
determined on March 17, 2011 that Dixon’s middle finger was fractured. Reparative
surgery was performed on March 21, 2011.
On March 10, 2011, Dixon filed an emergency grievance regarding Schaefer’s
failure to treat his hand and his continuing need for treatment (“March 10th
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grievance”). On March 17, 2011, Stateville’s warden Marcus Hardy (“Hardy”) issued
a decision declining to treat the March 10th grievance as an emergency. Evidently,
the grievance was then routed to Dixon’s counselor for further consideration. Dixon
filed no appeal, and denies that he ever received notice that the March 10th grievance
was declined. In light of the surgery, Dixon’s counselor informed him in her April
11, 2011, response to the March 10th grievance that she considered his medical
concerns to have been resolved.
On June 8, 2011, Dixon filed a grievance regarding the need for physical
therapy (“June 8th grievance”). On June 14, 2011, a Stateville counselor responded
that there was a waiting list for physical therapy. Dixon concedes that the June 8th
grievance is immaterial to this lawsuit.
Dixon was transferred to the Pontiac Correctional Center on October 19, 2011.
On October 24, 2011, he filed a third grievance regarding Schaefer’s alleged refusal
to treat the injured finger or hand (“October 24th grievance”). In the grievance,
Dixon reported that he had never received a response to his original grievance the
previous March. Dixon filed the grievance directly with the Administrative Review
Board (“ARB”). The ARB rejected the grievance without rendering a decision
because Dixon did not file the grievance at the institutional level first.
Defendants now move for summary judgment on the limited issue of
exhaustion.
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LEGAL STANDARD
Summary judgment is appropriate when the pleadings, discovery, disclosures,
and affidavits establish that there is no genuine issue of material fact, such that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Winsley v.
Cook Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009). A genuine issue of material fact
exists when, based on the evidence, a reasonable jury could find in favor of the nonmoving party. Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir.
2010). A genuine factual dispute must be supported with citations to the evidence in
the record. Leibforth v. Belvidere Nat’l Bank, 337 F.3d 931, 934 (7th Cir. 2003). In
considering a motion for summary judgment, a court construes all facts and draws all
reasonable inferences in favor of the non-moving party. Smith v. Hope Sch., 560 F.3d
694, 699 (7th Cir. 2010).
DISCUSSION
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires
that prisoners exhaust all available administrative remedies before bringing a Section
1983 lawsuit. Porter v. Nussle, 534 U.S. 516, 524 (2002). In order to satisfy the
PLRA’s exhaustion requirement, a prisoner “must take all steps prescribed by the
prison’s grievance system.” Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2001). If a
prisoner fails to properly avail himself of the prison’s grievance process, he may lose
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his right to sue. Id. Exhaustion is an affirmative defense, and the burden of proof is
on the defendant. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
The Illinois Department of Corrections (“IDOC”) has established a grievance
procedure that typically requires a prisoner to first attempt to resolve his problems
with a counselor. See 20 Ill. Admin. Code § 504.810(a). If the prisoner is unable to
resolve his issue this way, he may file a written grievance.
Id.
The prison’s
grievance officer may interview the prisoner or witnesses and further investigate the
matter. Id. § 504.830(c). The grievance officer must then report her findings to the
Chief Administrative Officer, the prison’s warden, who renders a decision within two
months after receipt of the grievance. Id. § 504.830(d). If the prisoner disagrees with
the decision, he may appeal in writing to the Director of IDOC. Id. § 504.850(a).
The ARB, as the IDOC Director’s designee, determines whether a hearing is
necessary to resolve the matter, or may issue a final determination. Id. § 504.850(f).
At this point, the administrative process is complete.
However, the regulations also provide that an offender may request that a
grievance be handled on an emergency basis by forwarding the grievance directly to
the warden. Id. § 504.840. If the warden determines there is a substantial risk of
imminent harm to the offender, the grievance is to be handled on an emergency basis.
Id. § 504.840(a).
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Dixon failed to exhaust his administrative remedies with respect to the June 8th
grievance, as he failed to carry the process beyond filing the initial grievance to the
Stateville counselor. Nor may Dixon’s lawsuit proceed on the basis of the October
24th grievance, since the IDOC grievance procedure does not permit direct review by
the ARB for the matters that Dixon complained of. See id. § 504.870.
Defendants also argue that Dixon failed to exhaust his administrative remedies
with respect to the March 10th grievance. As Dixon concedes, this is true with
respect to Defendants Thigpen, Olsen-Foxon, Ifezue, and Utke, as their names are not
found anywhere in the March 10th grievance. See id. § 504.810(b) (“The grievance
shall contain . . . the name of each person who is the subject of or who is otherwise
involved in the complaint.”). Hence, Dixon failed to exhaust his administrative
remedies with respect to these Defendants. Their motion for summary judgment is
therefore granted.
The same cannot be said of Schaefer, who was identified in the March 10th
grievance. Instead, Schaefer argues that Dixon was required to proceed with the
IDOC grievance procedure upon Hardy’s denial, and that his failure to do so
precludes this lawsuit.
This argument is unpersuasive for two reasons.
First,
although the IDOC grievance procedure clearly sets forth a roadmap for prisoners to
exhaust their administrative remedies, “[t]here is nothing in the current regulatory text
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. . . that requires an inmate to file a new grievance after learning only that it will not
be considered on an emergency basis.” Thornton v. Snyder, 428 F.3d 690, 694 (7th
Cir. 2005). Further, an inmate who files an emergency grievance “has no obligation
to resubmit the grievance through normal channels, even if the warden concluded that
expedited review was unnecessary.” Glick v. Walker, 385 Fed. App’x 579, 583 (7th
Cir. 2010); Muhammad v. McAdory, 214 Fed. App’x 610, 612-613 (7th Cir. 2007);
see also Johnson v. Ghosh, No. 10 C 6897, 2011 WL 2604837, *4 (N.D. Ill. Jun. 30,
2011). Although the grievance form directed inmates to submit a regular grievance if
no emergency had been substantiated, the governing regulations themselves do not
dictate such a requirement. See Ruiz v. Tillman, No. 06 C 1975, 2009 WL 528680, at
*5 (N.D. Ill. Feb. 25, 2009) (holding that inmate was not obligated to follow
grievance procedures established by the prison, but rather those set forth in the Illinois
Administrative Code). Schaefer fails to cite to any authority that requires prisoners to
pursue any further action beyond filing an emergency grievance in order to exhaust
his administrative remedies.
Second, even if Dixon were required to further pursue administrative remedies
after filing his emergency grievance, a genuine issue of fact exists as to whether
Dixon actually had notice of Hardy’s denial of the March 10th grievance. A prison
official’s failure to respond to an inmate’s grievance renders administrative remedies
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“unavailable” and excuses the prisoner from pursuing them further.
Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002). Here, Dixon claims that he never
received notice of the March 17th denial of the grievance. Schaefer produces no
evidence establishing otherwise. Because the record does not establish that Dixon
was aware that Hardy denied the March 10th grievance, we cannot definitively state
that the prison’s administrative remedies were “available” to Dixon. Porter, 534 U.S.
at 524. Summary judgment is not appropriate under these circumstances.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment on the
limited issue of exhaustion is granted in part and denied in part. Thigpen, OlsenFoxon, Utke, and Ifezue are dismissed as defendants pursuant to 42 U.S.C.
§ 1997e(a). The plaintiff may proceed only against defendant Schaefer, and only with
respect to his claim that the doctor denied or delayed needed medical care for several
weeks.
___________________________________
Charles P. Kocoras
United States District Judge
Dated:
March 11, 2013
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