Allen v. Godinez et al

Filing 198

MEMORANDUM Opinion: The Court grants 168 the motion and enters judgment in Dr. Tolley's favor and against Allen. It is so ordered. Signed by the Honorable Charles P. Kocoras on 8/4/2017. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES EARL ALLEN,
Plaintiff,
v.
MARCUS HARDY, DR. PHYLLIS
TOLLEY, RALPH BURKYBILE,
ED BUTKLEWWICZ, ADA
JOHNSON, FRANCES SHIEVERS,
and CHARLES WOODS
Defendants.

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13-cv-89
Judge Charles P. Kocoras

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Before the Court is Defendant Dr. Phyllis Tolley’s (“Dr. Tolley”) motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56 and Northern
District of Illinois Local Rule 56.1 against Plaintiff James Earl Allen (“Allen”). For
the following reasons, the Court grants the motion.
BACKGROUND
The following facts taken from the record are undisputed, except where
otherwise noted.

On or around February 27, 2011, Allen was involved in an

altercation with his then cellmate, Eugene Logan (“Logan”), at Stateville Correctional
Center (“Stateville”). According to Allen, this incident caused him to have continued
fears and anxiety over another attack. In response to his fears, Allen sought mental

health treatment at Stateville beginning in September of 2011.

After an initial

evaluation, Allen was diagnosed with Post Traumatic Stress Disorder (PTSD) and
depression. During the relevant time period, there were two psychologists on staff at
Stateville, Dr. Tolley and former Defendant, Dr. Charles Woods (“Dr. Woods”). Dr.
Tolley and Dr. Woods divided inmate cases based on the inmate’s last name. Woods
examined inmates whose first letter of their last name fell in the first half of the
alphabet, while Dr. Tolley examined inmates whose first letter of their last name fell
in the second half of the alphabet. Therefore, Dr. Woods and psychiatrist, Jonathan
Kelly, (“Dr. Kelly”) managed Allen’s treatment.
Allen contends that during the fall of 2011 he wrote several letters directed to
the Mental Health Unit and Dr. Tolley1 requesting a designation of “vulnerable
status.” Vulnerable status is a mental health designation of an inmate who is deemed
vulnerable to attack or being taken advantage of by predatory inmates. A mental
health professional uses several different factors when assessing an inmate for
vulnerable status, including: physical stature, the types of crime an inmate was
incarcerated for, disciplinary history, sexual orientation, mental health history, and
current medical condition. Inmates designated as “vulnerable” are either assigned in a
single-cell,2 or are housed with inmates who are also designated with “vulnerable

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Dr. Tolley was the sole mental health professional allowed to evaluate inmates for vulnerable status.
Illinois Department of Corrections, not mental health professionals, determine whether an inmate receives a singlecell assignment.
2

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status.” According to Allen, Dr. Tolley ignored his repeated requests to be evaluated
for vulnerable status.
On or about November 21, 2011, Stateville inmate, Brodie Young (“Young”),
moved into Allen’s cell. Allen did not know Young before they became cellmates.
During their time as cellmates Young never directed any threats at Allen. However,
on November 25, 2011, Allen contends he filed a request to be transferred from the
cell he shared with Young due to Young’s odd behavior and gang affiliation. On
December 1, 2011, Allen claims he wrote to correction officials asking to speak with
them about Young. On December 3, 2011, Young allegedly assaulted Allen while he
was asleep. Allen claims he suffered injuries to his eye and face due to the attack
resulting in hospitalization and fourteen stitches on his face.
In response to the alleged assault, Allen brought this lawsuit against Dr. Tolley,
Marcus Hardy (“Hardy”), Ralph Burkybile (“Burkybile”), Ed Butklewicz
(“Butklewicz”), Ada Johnson (“Johnson”), Frances Shievers (“Shievers”), and Dr.
Woods alleging failure to protect (Counts I and II), and deliberate indifference to a
serious medical need (Count III). On August 8, 2016, all parties except for Dr. Tolley
reached a settlement with Allen. Dr. Tolley now moves for, and this Court grants,
summary judgment on Counts II and III.
LEGAL STANDARD
A motion for summary judgment requires the Court to construe all facts and to
draw all reasonable inferences in favor of the non-movant. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate “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 genuine issue of
material fact arises where a reasonable jury could find, based on the evidence of
record, in favor of the non-movant. Anderson, 477 U.S. at 248. In ruling on a motion
for summary judgment, the Court considers the whole record. See Id. at 255–56.
Northern District of Illinois Local Rule 56.1 requires the “party moving for
summary judgment to include with the motion ‘a statement of material facts as to
which the moving party contends there is no genuine issue and that entitles the
moving party to a judgement as a matter of law.’” Ammons v. Aramark Unif. Servs.,
Inc., 368 F.3d 809, 817 (7th Cir. 2004) (quoting N.D. Ill. R. 56.1(a)(3)). “The movant
bears the initial burden of showing that no genuine issue of material fact exists.”
Genova v. Kellogg, 2015 WL 3930351, at *3 (N.D. Ill. June 25, 2015). “The burden
then shifts to the non-moving party to show through specific evidence that a triable
issue of fact remains on issues on which the movant bears the burden of proof at
trial.” Id. The non-moving party must respond to the movant’s Local Rule 56.1(a)(3)
statement and may not rest upon mere allegations in the pleadings or upon conclusory
statements in affidavits. N.D. Ill. R. 56.1(b); see Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). The non-movant must support her contentions with documentary
evidence of specific facts that demonstrate that there is a genuine issue for trial.
Celotex, 477 U.S. at 324.
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DISCUSSION
I.

Failure to Exhaust
To give corrections officials an opportunity to address complaints internally

before a federal suit is initiated, prisoners must exhaust their administrative remedies.
42 U.S.C. § 1997(e)(a) (the “PLRA”); Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
Accordingly, a plaintiff must pursue all administrative remedies no matter what relief
is sought, including monetary damages. Pozo v. McCaughtry, 286 F.3d 1022, 1024
(7th Cir. 2002). The exhaustion requirement applies to deliberate indifference claims.
Porter at 532. To exhaust administrative remedies, a prisoner “must file complaints
and appeals in the place, and at the time, the prison’s administrative rules require.”
Id. at 1025.
Illinois has created a three-step administrative process for inmates to follow.
Step one requires the prisoner to “first attempt to resolve incidents, problems, or
complaints ... through his ... counselor.” See Ill. Admin. Code, Title 20, § 504.810(a).
If the inmate is unable to resolve his problem through his counselor, the inmate must
proceed to step two, which requires him to “file a written grievance on a grievance
form ... within 60 days after the discovery of the incident” which must be addressed to
the “Grievance Officer” and “shall contain factual details ... including what happened,
when, where, and the name of each person who was the subject of or who is otherwise
involved in the complaint.” See Ill. Admin. Code, Title 20, § 504.810(a),(b). The
grievance officer and the chief administrative officer then consider properly submitted
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grievances.

Id.; § 504.830(d).

If the inmate is unsatisfied with the chief

administrative officer’s resolution, the inmate “may appeal in writing to the director
within 30 days after the date of the decision.” Id., § 504.850(a). If the director
determines that further review is required, the Administrative Review Board evaluates
the appeal. Id. § 504.850(b). Only after the director makes a final determination with
respect to the merits of the grievance is the inmate’s administrative remedy fully
exhausted. See 20 Ill. Admin. Code § 504.850(f).
Here, Dr. Tully argues, among other things, that Allen has “failed to exhaust
administrative remedies as to Dr. Tolley” and thus this Court should “enter summary
judgment in Dr. Tolley’s favor on this basis alone.” Allen argues that “when viewed
in the light most favorable to” him, the facts show he has exhausted all administrative
remedies. The evidence shows that following the December 3, 2011, incident with
Young, Allen filed three grievances relating to the incident. The first grievance, dated
December 6, 2011, described Allen’s written requests to Dr. Tolley for mental health
evaluations and classification under “vulnerable status” for single-cell placement and
Dr. Tolley’s failure to grant a mental health evaluation. On January 19, 2012, Allen
filed another grievance referencing the December 3rd attack, a failure to receive a
response from Butklewicz to his prior grievance, and Dr. Tolley’s failure to evaluate
leading to the December 3rd attack.

On January 27, 2012, Allen filed his final

grievance relating to the incident with Young. In this grievance Allen noted the

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December 3rd attack, damage to his flat screen TV, his prior grievance filed about the
assault, and his subsequent transfer to Pontiac.
On February 14, 2012, a grievance officer reviewed Allen’s grievances. The
grievance officer stated that he could not determine whether “Stateville staff was
delinquent in their efforts to quell inmate Young’s violence by placing him in a single
cell”. With regard to Allen’s grievance regarding damage to his TV set, the grievance
officer recommended that the grievance be considered moot. Finally, the grievance
officer recommended that Allen send the grievance officer’s response to the
Administrative Review Board. On April 6, 2012, the chief administrative officer
concurred with the grievance officer’s determination. Allen subsequently appealed
these grievances to the Administrative Review Board.
On October 16, 2012, the Director of the Illinois Department of Corrections,
along with the Administrative Review Board, reviewed “Allen’s combined
grievances” and issued their ruling. While the Administrative Review Board did not
award Allen any relief for his grievances, they did not reject any grievances on
procedural grounds. In matters where prison officials address an inmate’s grievance
on the merits without rejecting it on procedural grounds, the grievance has served its
function of alerting the state and inviting corrective action, and prevents defendants
from relying on the defense of failure to exhaust. Riccaro v. Rausch, 375 F.3d 521,
524 (7th Cir. 2004). Therefore, viewed in the light most favorable to Allen, this Court
determines he has exhausted his administrative remedies.
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II.

42 U.S.C. § 1983 – Failure to Protect
The Eighth Amendment imposes a duty on prison officials to take reasonable

steps to protect prisoners from attacks by other prisoners. Farmer v. Brennan, 511
U.S. 825, 833 (1994). However, not every inmate-on-inmate attack is a constitutional
violation. Luttrell v. Nickel, 129 F.3d 933, 935 (7th Cir. 1997). To succeed on a
“failure to protect” claim Allen must prove that (i) “he is incarcerated under
conditions posing a substantial risk of serious harm,” and (ii) Dr. Tolley acted with
“deliberate indifference” to that risk.
“Deliberate indifference” means recklessness in a criminal, subjective sense;
that is, disregarding a risk of danger so substantial that knowledge of the danger can
be inferred. James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir.), cert. denied,
506 U.S. 818 (1992). “Such disregard is tantamount to intending that the injury
occur.” Id. Any act with a state of mind less than intent or criminal recklessness,
such as negligence or gross negligence, does not amount to punishment. Salazar v.
City of Chicago, 940 F.2d 233, 238-39 (7th Cir.1991); see also Tesch v. County of
Green Lake, 157 F.3d 465, 474 (7th Cir.1998).
Dr. Tolley argues that Allen “failed to show [she] had actual knowledge of a
specific threat, or of a substantial risk of harm.” Allen contends that Dr. Tolley was
aware of the substantial risk of harm Allen faced based on “multiple grievance
requests” he filed. According to Allen, “[i]n these requests, [he] highlighted the
imminent fears he faced of assault, and attempted to . . . pursue options to protect his
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life.” After reviewing the parties’ briefs and evidence, this Court determines that
Allen has failed to demonstrate that Dr. Tolley had actual knowledge of a specific
threat, or of a substantial risk of harm to Allen.
While Allen claims he made several requests for single-cell placement out of
fear for his safety, it is undisputed that Dr. Tolley never reviewed any of Allen’s
grievances. Allen also attempts to establish that Dr. Tolley had knowledge of a
substantial risk of harm to him based upon requests he made to IDOC correctional
personnel Shievers, Johnson, and Butkiewicz for placement in a single-cell. However,
Allen offers no factual support to explain how his interactions with IDOC correctional
personnel placed Dr. Tolley on notice of his alleged requests for single-cell
placement, or that Young posed a threat to Allen. Furthermore, Allen alleges he
wrote several letters directed to the Mental Health Unit and Dr. Tolley prior to the
December 3, 2011 attack.

However, it is undisputed that these letters never

referenced Young, never mentioned a threat of violence, and never referenced
concerns regarding Allen’s safety or security.

It is also undisputed that Dr. Tolley

never reviewed any letters, written requests, or any other correspondence from Allen.
Therefore, Allen has failed to prove Dr. Tolley was aware of a substantial risk of harm
to him through his grievances.
Allen next attempts to establish knowledge on the part of Dr. Tolley based
upon the contention that she was Young’s treating mental health professional. As Dr.
Tolley notes, this argument is flawed for two reasons. First, Dr. Tolley denies she
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ever treated Young as a patient, and Allen offers no evidence to prove otherwise.
Second, Allen fails to present evidence that even if Dr. Tolley did offer mental health
treatment to Young, how that fact alone would “apprise her of the threat he posed to
Allen.” Dr. Tolley correctly contends that Allen “fail[ed] to come forth with any
evidence indicating Young advised Dr. Tolley he posed a risk to [Allen’s] safety, or
that Young even mentioned Allen to Dr. Tolley at all.” Allen argues that Dr. Tolley
was made aware of the potential threat Young posed to Allen based upon previous
threats Young allegedly made towards another inmate, Dennis Glick (“Glick”).
However, Allen has not established that these threats were documented in Young’s
IDOC prison records, or that Dr. Tolley reviewed these records. Moreover, this Court
agrees with Dr. Tolley’s contention that even if she was aware of purported threats
made by Young to Glick, Allen has failed to establish how threats directed at another
inmate indicated that Young posed a specific risk to Allen. While Young’s alleged
threats may demonstrate a propensity for violence, as this Court noted in Birch v.
Jones, most inmates at Stateville, a maximum security prison, have a propensity to
commit violent acts, and prison officials cannot be held liable for unanticipated
attacks. 2003 WL 21210107, at *3 (N.D. Ill. May 21, 2003).
Allen’s final attempt to establish knowledge on the part of Dr. Tolley is based
upon alleged interactions Dr. Tolley had with her colleagues, Dr. Kelly and Dr.
Woods. As the evidence shows, Allen began receiving mental health treatment in
September of 2011.

On September 20, 2011, Allen underwent a mental health
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evaluation by Dr. Kelly. After diagnosing Allen with “Depressive Disorder,” Dr.
Kelly referred Allen to Dr. Woods for psychotherapy. It is undisputed that Dr. Tolley
never provided Allen with any treatment. While Allen concedes he never received
treatment from Dr. Tolley, he argues that Dr. Tolley’s day-to-day interactions with Dr.
Kelly and Dr. Allen would have provided her with sufficient knowledge that Allen
faced a serious risk of harm from his cellmate. Allen’s contention is unsupported by
the evidence presented.
It is undisputed that neither Dr. Kelly nor Dr. Woods were aware of a specific
threat from Young. Furthermore, neither Dr. Woods nor Dr. Kelly documented that
Allen reported a specific threat posed by any inmates, including Young, in their
clinical notes. Moreover, Dr. Woods specifically testified that Allen never reported
any threats from other inmates prior to December 3, 2011.

Lastly, and most

detrimental to Allen’s claim, is his own admission at his deposition that he never
made any written or oral complaints regarding Young to Dr. Kelly and Dr. Woods.
Since Allen failed to establish that Dr. Tolley had subjective knowledge of any threat
to his safety, her motion for summary judgment on Count II is granted.
III.

42 U.S.C. § 1983 – Deliberate Indifference to Serious Medical Need
To claim a constitutional violation under § 1983 for denial of medical care

Allen must meet both an objective and a subjective component. First, he must show
that his medical condition was objectively serious. Second, he must show that Dr.
Tolley was subjectively aware of, and consciously disregarded, Allen’s medical needs
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or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). This latter element requires
that Dr. Tolley knew of and disregarded “an excessive risk to [Allen’s] health or
safety.” Id. Dr. Tolley “must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and [s]he must also draw that
inference.” Id. The test of deliberate indifference is a significantly high burden for a
plaintiff to overcome and the burden is on the prisoner to demonstrate deliberate
indifference. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
Dr. Tolley does not dispute that Allen suffered from a serious medical
condition. Instead, Dr. Tolley argues that Allen has failed to present evidence that she
disregarded an excessive risk to his health or safety. Specifically, Dr. Tolley argues
that she never received or denied a request to examine Allen for vulnerable status. In
response, Allen argues Dr. Tolley’s refusal to evaluate him for vulnerable status
constituted a refusal to exercise medical judgment, which constitutes deliberate
indifference. However, Allen’s assertion is contrary to the evidence before the Court,
including his own admission.
Summary judgment is “the put up or shut up moment in a lawsuit, when a party
must show the evidence it has that would convince a trier of fact to accept [his]
version of events.” Springer v. Durflinger, 518 F.3d 479,484 (7th Cir. 2008). Allen
has failed to offer any facts that would support his claim of medical indifference
against Dr. Tolley. Besides failing to provide evidence to support his own account,
Allen has presented this Court with evidence that confirms Dr. Tolley’s narrative. In
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response to Dr. Tolley’s statement of facts, Allen admits that “Dr. Tolley never
refused a request to evaluate an inmate for vulnerable status while at Statesville,”
including himself. Therefore, Allen’s contention that Dr. Tolley “intentionally [and]
recklessly disregarded his needs” by failing to evaluate him for vulnerable status is
wholly without merit.

Because Allen cannot show that Dr. Tolley consciously

disregarded his medical needs, her motion for summary judgment on Count III is
granted.
CONCLUSION
For the aforementioned reasons, the Court grants the motion and enters
judgment in Dr. Tolley’s favor and against Allen. It is so ordered.

Dated: 8/4/2017

_____________________________________
Charles P. Kocoras
United States District Judge

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