Fuerstenberg v. Zaruba et al

Filing 58

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/27/17.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEAN FUERSTENBERG,
Plaintiff,
v.
JOHN E. ZARUBA and JAMES
CORCORAN, M.D.,
Defendants.

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15 C 10469
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Dean Fuerstenberg has filed this lawsuit pursuant to 42 U.S.C. § 1983 against
Defendants Dr. James Corcoran, the Psychiatric Services Medical Director at DuPage County
Jail (the “Jail”), and John Zaruba, Sheriff of DuPage County, 1 alleging they violated his
constitutional rights under the Fourteenth Amendment. Specifically, Fuerstenberg claims that
Dr. Corcoran and Zaruba were deliberately indifferent to his medical needs, by failing to
adequately treat his clinical depression, including the circumstances that led up to his attempted
suicide on November 19, 2013. He has sued Dr. Corcoran in his individual capacity (Count I)
and has sued both Dr. Corcoran and Zaruba in their official capacities (Count II).
Defendants have moved for summary judgment, 2 arguing that Fuerstenberg failed to
exhaust his administrative remedies before filing his § 1983 claims as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Fuerstenberg has cross-moved for
1

The parties dispute whether Zaruba, as the elected sheriff, is employed by DuPage County, see
Defs.’ LR 56.1(b)(3)(B) ¶ 2, but this issue is not material to the current motions.

2

Although Defendants have styled their motion as a motion to dismiss, both parties have submitted
statements of facts under Local Rule 56.1, which applies to motions for summary judgment, as well as a
list of stipulated facts. Accordingly, the Court treats the motion as one for summary judgment. See Fed.
R. Civ. P. 12(d); see also Burrell v. Powers, 431 F.3d 262, 284 (7th Cir. 2005).

summary judgment regarding the same issue. For the reasons provided herein, Defendants’
motion is granted in part and denied in part, and Plaintiff’s motion likewise is granted in part and
denied in part.
Factual Background 3
Fuerstenberg was booked into the Jail on or about August 30, 2011. Stipulated Facts
(Stip.) ¶ 1, ECF No. 38. Upon his arrival at the Jail, Fuerstenberg received the DuPage County
Jail Inmate Rules and Regulations (Inmate Handbook). Id. ¶ 2.
The Inmate Handbook provides procedures for submitting a Health Service Request
(HSR). Id. ¶ 6. To submit an HSR for non-emergency care, inmates are directed to complete an
HSR form and deposit it in a white medical box bearing a Red Cross located in the housing unit.
Id. ¶ 6; see also Defs.’ Ex. 2, Health Care Requests and Services Policy, ECF No. 39-2.
In addition to instructing inmates on how to file an HSR, the Inmate Handbook provides
procedures for filing a grievance “relating to the conditions of their confinement,” including
complaints related to health services, medical care, and mental health concerns. Stip. ¶¶ 4, 8.
Under these procedures, an inmate must first attempt to resolve the grievance by contacting,
either in person or in writing, the appropriate Jail staff member, whose area of responsibility is
related to the grievance. Id. If that person is unable to resolve the grievance, then an inmate
must submit a written request 4 regarding his or her grievance in mailboxes that are installed and
maintained in the Jail or to the Special Services Manager or Chief of the Jail.

3

Id. ¶ 4.

Except where indicated, the following facts are undisputed.

4

Although the stipulated facts indicate that both HSR and grievance forms are available to inmates
at the jail, see id. ¶ 7, the parties dispute whether written grievances must be submitted on a specific form,
see Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 1, ECF No. 43. Because this motion turns on the availability of the
grievance procedure itself, this disputed fact also is not material to the motions.

2

Grievances must be filed within fourteen calendar days of the event giving rise to the grievance,
but “[c]onsideration will be given to legitimate delays in filing a grievance.” Id.
Upon receipt of an inmate’s grievance in writing, the Special Services Manager takes
whatever actions are needed to resolve the grievance. Id. ¶ 5. When the work is completed, the
Special Services Manager provides the inmate with a written resolution of the grievance. Id.
Fuerstenberg submitted an HSR form on October 26, 2011, seeking treatment from Dr.
Corcoran for depression. 5 Id. ¶ 10; Pl.’s Reply, Ex. A, 10/26/11 Health Services Request, ECF
No. 50-1. Dr. Corcoran evaluated Fuerstenberg on November 16, 2011, and prescribed an antidepressant. Stip. ¶ 11. Dr. Corcoran later increased the prescribed dosage of the anti-depressant
on December 17, 2011. Id. ¶ 12. Between December 17, 2011, and November 19, 2013,
Fuerstenberg was assessed by the Jail’s medical staff no less than twenty-six times, and Dr.
Corcoran authored, signed, and dated seventeen of Fuerstenberg’s “Progress Notes” during that
period. Id. ¶ 13.
On three separate occasions, Fuerstenberg was placed on “Emotional Watch” during
which he was transferred from his usual cell on the second floor of the Jail to the first floor. Id.
¶ 16. His third stint on Emotional Watch ran from October 7 to October 9, 2013. Id. On
October 7, mental health staff members at the Jail observed that Fuerstenberg’s “affect and mood
appear[ed] depressed” and that he “admit[ted] feeling sad with little regard for his life.” Id. ¶ 18.
When asked how he was feeling the next day, Fuerstenberg denied having suicidal thoughts. Id.
¶ 19. Dr. Corcoran and an unnamed Watch Commander indicated that Fuerstenberg could be
returned to “Open Administrative Segregation” on October 9, 2013, with psychiatric services to
follow up. Id. ¶ 20. He was then transported from a first floor receiving cell to the second floor.
5

Although it is undisputed that Fuerstenberg submitted four HSRs, see id. ¶ 10, only the HSR
submitted on October 26, 2011, is pertinent to this motion.

3

Id. ¶ 45. According to Fuerstenberg, the psychiatric follow up never occurred. Pl.’s Resp. Br. at
8–9.
On November 19, 2013, Fuerstenberg attempted suicide by jumping from the second
floor of the Jail. He landed on his neck and back on the concrete floor. Id. ¶¶ 21–22. He was
taken to Central DuPage Hospital for treatment of his injuries, which included complete
paraplegia from the waist down. Id. ¶ 23; Defs.’ Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 5, ECF
No. 51. According to Central DuPage Hospital records, Fuerstenberg had control of his upper
extremities and his speech was clear and appropriate on the day he was admitted. Stip. ¶ 26. He
was “deemed competent” by the hospital to provide informed consent and to make his own
medical decisions about his treatment on December 2, 2013, thirteen days after the incident. Id.
¶ 28.
Fuerstenberg remained at Central DuPage Hospital until his transfer to the University of
Illinois in Chicago Hospital’s Acute Care Center (UIC) for rehabilitation on December 6, 2013.
Id. ¶ 24. While at UIC, Fuerstenberg indicated that he was again having suicidal thoughts. Id. ¶
29.
Due to health complications related to a blood clot, fevers, and a urinary tract infection,
Fuerstenberg was transferred back to Central DuPage Hospital on December 18, 2013. Id. ¶ 30.
While being treated there, Fuerstenberg was sentenced in his criminal case on January 24, 2014.
Id. ¶ 29. The hospital then discharged Fuerstenberg to the custody of the Illinois Department of
Corrections (IDOC) on January 27, 2014, to serve his sentence. Id. ¶ 30. Fuerstenberg thus
never returned to the Jail, and he is currently incarcerated at Centralia Correctional Center
(Centralia). Id.; Defs.’ Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 1.

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During his hospitalization at both Central DuPage Hospital and UIC, Fuerstenberg
remained in the custody of the DuPage County Sheriff’s Office, which provided sheriff’s
deputies to guard Fuerstenberg. Stip. ¶¶ 31–32. These deputies never informed Fuerstenberg
how to submit a grievance while in the hospital, and Fuerstenberg never asked about it. Id. The
deputies assert that they could have provided Fuerstenberg with a grievance form if Fuerstenberg
had asked for one, but he never did. Id. ¶ 32. The parties agree that Fuerstenberg was not
allowed any personal possessions while he was hospitalized. Defs.’ Resp. Pl.’s LR 56.1(b)(3)(C)
Stmt. ¶ 6.
Other than Fuerstenberg’s October 26, 2011, HSR seeking treatment from Dr. Corcoran
for depression and three HSRs unrelated to this litigation, it also is undisputed that Fuerstenberg
never submitted an oral or written grievance while at the Jail or in the hospital. Stip. ¶ 34. He
mailed the present complaint while he was incarcerated at Centralia on November 11, 2015; it
was received by the Court on November 19. Id. ¶ 33.
Legal Standard
Although Defendants styled their motion as a motion to dismiss, for the reasons discussed
supra n.2, the Court will treat the motion—as well as Plaintiff’s cross-motion—as motions for
summary judgment under Rule 56. Pursuant to that rule, “[t]he 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); see also Shell v. Smith,
789 F.3d 715, 717 (7th Cir. 2015). In reviewing a motion for summary judgment, the Court
gives the nonmoving party “the benefit of conflicts in the evidence and reasonable inferences
that could be drawn from it.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785,
794 (7th Cir. 2013). On cross-motions, each party bears its respective burden in establishing its

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right to summary judgment, Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017), and factual
inferences are viewed in the non-movant’s favor for each motion, see Hotel 71 Mezz Lender LLC
v. Nat'l Ret. Fund, 778 F.3d 593, 603 (7th Cir. 2015).
Under the PLRA, “no action shall be brought with respect to prison conditions . . . until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). It has long
been recognized that “[c]omplaints about medical treatment in prison are complaints about
‘prison conditions’” under the PLRA. Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004)
(quoting Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534 (7th Cir. 1999)) (internal quotation
marks omitted); see also Porter v. Nussle, 534 U.S. 516, 532 (2002). Furthermore, the failure to
exhaust administrative remedies is an affirmative defense for which the defendant carries the
burden of proof. Jones v. Bock, 549 U.S. 199, 216 (2007). Exhaustion is decided by the judge,
not a jury, because it is an issue of “judicial traffic control” rather than a verdict. Pavey v.
Conley, 544 F.3d 739, 741 (7th Cir. 2008).
For cases in which exhaustion is contested, the Seventh Circuit has outlined a three-step
process for the trial court to follow before reaching the merits of a case. Id. at 741–42. The first
step is to convene a Pavey hearing, where the court hears argument and the parties present
evidence on the issue of exhaustion. Id. at 742. At the second step, the court determines whether
the plaintiff exhausted his or her administrative remedies and whether any failure to exhaust was
“innocent” or “the prisoner’s fault.” Id. In conducting this analysis, the court considers whether
step three—pretrial discovery—is necessary. Id. That said, where neither party has requested a
Pavey hearing and exhaustion does not hinge on a resolution of a factual dispute, a Pavey
hearing is unnecessary. See Wagoner v. Lemmon, 778 F.3d 586, 588 (7th Cir. 2015). Here,
neither party has requested a Pavey hearing. Nor does the resolution of the cross-motions require

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the Court to decide a disputed issue of fact. Accordingly, the Court’s analysis for the purposes
of this motion begins and ends at step two.
Analysis
Defendants argue that Fuerstenberg failed to exhaust his administrative remedies prior to
filing suit as required by the PLRA. Defs.’ Br. Supp. Mot. Dismiss 1, ECF No. 40. In response,
Fuerstenberg advances two arguments to demonstrate that he has exhausted all available
remedies. First, he maintains that his HSR from October 26, 2011, operated as a grievance that
was never resolved and, thus, remained pending through the remainder of his detention at the
Jail. Pl.’s Mem. Opp’n Mot. Dismiss & Br. Supp. Partial Summ. J. 7–11, ECF No. 41. Second,
Fuerstenberg argues that, even if the Court holds that the HSR was not a grievance, the grievance
process was unavailable after his suicide attempt. Id. at 11–16.
It should be noted at the outset that, based upon a review of the complaint and Plaintiff’s
summary judgment briefs, the scope of Fuerstenberg’s deliberate indifference claim is not
entirely clear. At times, he characterizes his claim as one grounded in Defendants’ failure to
adequately treat his clinical depression generally. See, e.g., Pl.’s Resp. Mem. at 7, ECF No. 41.
At others, his claim seems to focus on the circumstances immediately preceding his attempted
suicide and the failure of Defendants to prevent it. See, e.g., id. at 4 (noting that the Amended
Complaint asserts that Defendants failed to provide “better treatment for his depression . . . when
he attempted suicide at the Jail”); Am. Compl. ¶ 51, ECF No. 17 (“Defendants knew that Mr.
Fuerstenberg faced a substantial risk that [he] may commit suicide, and they disregarded that risk
by placing him on the second floor of the Jail and/or otherwise failed to take reasonable
measures to prevent Mr. Fuerstenberg from attempting suicide by jumping from the second floor
of the Jail.”). As will be seen, the distinction matters.

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I.

HSR as a Grievance
On October 26, 2011, Fuerstenberg submitted an HSR seeking treatment for his

depression.

Fuerstenberg argues that this HSR qualifies as a grievance that satisfied his

exhaustion obligation under the PLRA.
The Supreme Court has held that the PLRA requires “proper exhaustion” for all
complaints about prison conditions.

Woodford v. Ngo, 548 U.S. 81, 93 (2006).

“Proper

exhaustion,” a concept from administrative law, “means using all steps that the agency holds out,
and doing so properly.” Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)). The standard is a strict one. King v. McCarty, 781 F.3d 889, 893 (7th Cir.
2015). Failure to make timely use of the administrative remedies can result in the prisoner’s
claim becoming “indefinitely unexhausted.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006) (citing Pozo, 286 F.3d at 1025).
Fuerstenberg attempts to characterize his HSR filed on October 26, 2011, as a grievance
because it “related to the treatment of his depression.” Pl.’s Mem. at 7–8.

To this end,

Fuerstenberg argues that the Inmate Handbook “does not preclude the use of a written request for
medical attention as a grievance.” Pl.’s Reply Br. Supp. Partial Summ. J. 4, ECF No. 52.
Fuerstenberg also contends that because the HSR sought treatment for depression, the HSR put
Dr. Corcoran and the Jail on notice that the treatment for his depression was inadequate at the
time. Pl.’s Mem. at 7–8; see Stip. ¶ 10 (stating that HSR sought treatment for depression).
Defendants respond that, even if the Jail’s grievance process permits an inmate to file a
written grievance for medical attention, the undisputed facts show that filing an HSR is not the
equivalent of filing a grievance.

See Defs.’ Reply & Resp. Br. at 6–7. Because the Inmate

Handbook treats the filing of HSRs and grievances as two separate and distinct processes, the
Court agrees. See Stip. ¶¶ 4–6; see also Defs.’ Ex. 2, Health Care Requests and Services Policy
8

First, Jail detainees are instructed to deposit HSR forms and written grievances in two
different places. HSRs are to be placed in a white “medical box” bearing the Red Cross, Stip.
¶ 6, while grievances, if not resolved directly with the appropriate person with the relevant area
of responsibility, are to be submitted in mailboxes managed by the Administrative Commander
to the Chief of Corrections, id. ¶ 4. Second, the two processes are managed by different
personnel at the Jail. Id. Medical staff members address and respond to HSRs, while the Special
Services Manager is the person who addresses and responds to grievances. Compare id. ¶ 6,
with id. ¶ 4. There is nothing in the record to indicate that an HSR form directed exclusively to
medical staff members would provide notice to, or prompt action by, the Special Services
Manager in charge of grievances. Accordingly, the Court finds that Fuerstenberg’s filing of the
HSR on October 26, 2011, was not equivalent to the filing of a grievance and does not constitute
an exhaustion of his administrative remedies.

See Pozo, 286 F.3d at 1025 (“To exhaust

remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.”).

Thus, Fuerstenberg’s failure to exhaust his administrative

remedies would preclude him from pursuing his deliberate indifference claim.
But this is only true to the extent that Fuerstenberg’s deliberate indifferent claim is based
upon the general theory that Defendants failed to adequately treat his clinical depression from
2011, until approximately October 9, 2013, when Fuerstenberg was returned to “Open
Administrative Segregation” on the second floor of the Jail, and provided no follow-up
psychiatric services. See Stip. ¶ 20. To the extent that Fuerstenberg’s claim is directed at
Defendants’ alleged deliberate indifference immediately leading up to his suicide attempt on
November 19, 2013, it is difficult to see how he could have filed a grievance complaining about
Defendants’ failure to prevent his suicide attempt before November 19, when the attempt itself is

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the event that would have triggered the grievance. 6

Accordingly, the Court finds that

Fuerstenberg’s failure to fail a grievance before November 19 does not preclude him from
pursuing this more limited claim. See Collins v. Seeman, No. 02 C 4493, 2004 WL 406773, at
*2 (N.D. Ill. Feb. 26, 2004) (“[I]t goes without saying that it would be nonsensical to read the
PLRA as requiring a prisoner to pursue administrative remedies with respect to his imminent
suicide . . . before . . . its occurrence.”).
II.

Whether the Grievance Process Was Unavailable After November 19
Defendants additionally argue that Fuerstenberg could have filed a grievance regarding

this more limited claim after his suicide attempt on November 19 but failed to do so. In
response, Fuerstenberg contends that the grievance process was unavailable to him after he was
transferred to the hospital on November 19 and that his failure to file a grievance should be
excused.

After all, a plaintiff is not obligated to exhaust administrative remedies that are

unavailable. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016); Pavey, 544 F.3d at 742.
Remedies are unavailable when there are “omissions by prison personnel, particularly [in] failing
to inform the prisoner of the grievance process.” Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir.
2016).
In this case, Fuerstenberg asserts that the Jail never informed him of the grievance
process that applies to detainees hospitalized off-site.

“Prisoners are required to exhaust

grievance procedures they have been told about, but not procedures they have not been told
about.” King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015). Thus, a remedy is unavailable if
the inmate has no way of knowing the proper procedure. Hernandez, 814 F.3d at 843 (jail failed
6

To the extent that Defendants would argue that Fuerstenberg should have filed a grievance
between October 9 and November 19, there is no evidence that Fuerstenberg had suicidal ideations prior
to the time that he jumped. See generally Stip. ¶¶ 1–34; Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 1–7; Pl.’s LR
56.1(b)(3)(C) Stmt. ¶¶ 1–6.

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to inform detainee of grievance process or give him the handbook during his hospitalization). “It
is not incumbent on the prisoner ‘to divine the availability’ of grievance procedures.” Id.
(quoting King, 781 F.3d at 896); see Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (stating that
remedies are unavailable if the “facts on the ground demonstrated that no such potential” of
relief exists).
For their part, Defendants contend that the grievance procedure operates in the same way
whether a detainee is housed at the Jail or at an outside hospital. Defs.’ Reply & Resp. Br. at 12.
A review of the record indicates that Fuerstenberg had received a copy of the Inmate Handbook
outlining the grievance procedure when he arrived at the Jail. Stip. ¶¶ 2–3. It is also undisputed
that he did not have a copy of the Inmate Handbook during his hospitalization. Defs.’ Resp. Pl.’s
LR 56.1(b)(3)(C) Stmt. ¶ 6. But even assuming that Fuerstenberg had committed the Handbook
to memory before the incident, the Handbook does not provide any procedure by which a
detainee who is housed off-site can comply with the grievance requirements. See Stip. ¶¶ 3–5, 8.
The Jail’s grievance procedure requires an inmate to resolve a grievance by “contacting
in person or in writing, the appropriate jail staff member.” Id. The procedure also requires an
aggrieved inmate to submit a written request to the internal mailboxes maintained by the
Administrative Commander to the Chief of Corrections for that purpose, which is then directed
to the Special Services Manager. Id. But these procedures are directed exclusively at detainees
who reside within the confines of the Jail. It does not state that the same procedures would apply
to an aggrieved detainee who is housed at an off-site facility such as a hospital.
Additionally, Defendants argue that an alternative grievance procedure was available to
Fuerstenberg during his hospitalization.

Defs.’ Reply & Resp. Br. at 12.

According to

Defendants, Fuerstenberg could have submitted a written grievance to the deputies guarding his

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hospital room. Id. The Inmate Handbook, however, does not provide for such an alternative
procedure. See Stip.. ¶¶ 3–5, 8. What is more, it is undisputed that the deputies guarding
Fuerstenberg during his hospitalization did not inform him of an alternative grievance process or
how Fuerstenberg might submit a grievance from the hospital. Id. ¶ 32. 7 And Defendants have
failed to point to a single instance in which a detainee has filed a written grievance while
hospitalized to support their position that a grievance procedure was available to Fuerstenberg.
Similarly, Defendants have not adduced any evidence of a procedure by which Fuerstenberg
could have submitted a grievance with Jail personnel once he was transferred to Centralia.

In

short, Defendants cannot expect Fuerstenberg to “divine the availability” of such procedures,
even if they were to exist. See King, 781 F.3d at 896. Nor does it matter that Fuerstenberg did
not ask for a grievance form, because he cannot be expected to inquire about a procedure of
which he has no knowledge. Accordingly, based on the uncontroverted facts in the record, the
Court finds that there were no alternative grievance processes available to Fuerstenberg after
November 19, 2013.
Conclusion
For the reasons stated herein, Defendants’ motion for partial summary judgment [40] and
Plaintiff’s cross-motion for partial summary judgment [47] are granted in part and denied in part.
Defendants are granted summary judgment as to Plaintiff’s claim that Defendants were
deliberately indifferent to his medical needs by failing to treat his clinical depression from 2011

7

Defendants rely on the affidavit of Sergeant John Mondelli to assert that Fuerstenberg could have
obtained a grievance form from the deputies guarding him—a procedure, by the way, that is nowhere
contained in the Inmate Handbook. Id. at 12. Compare Defs.’ Ex. 1, Mondelli Aff. ¶¶ 7–8, ECF No. 391, with Stip. ¶¶ 4–5. Putting aside the fact that this alternative procedure was never explained to
Fuerstenberg, there is no evidence in the record that Fuerstenberg would have had access to a pen or
pencil to fill out a form, given the undisputed fact that Fuerstenberg was not allowed any personal
belongings during his hospitalization. See Defs.’ Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 6.

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to approximately October 9, 2013. As to Plaintiff’s claim that Defendants were deliberately
indifferent during the days immediately leading up to November 19, 2013, by failing to take
steps to monitor him and prevent him from attempting to commit suicide, Defendant’s motion is
denied, and Plaintiff’s cross-motion for summary judgment is granted. The more limited claim
may proceed.
IT IS SO ORDERED.

ENTERED 9/27/17

__________________________________
John Z. Lee
United States District Judge

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