Loving v. Gomez, et al

Filing 148

MEMORANDUM Opinion and Order: This Court denies Defendant's motion for summary judgment. 128 . Signed by the Honorable Mary M. Rowland on 8/1/2022. (See attached Order for further detail.) Mailed notice. (dm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRYANT LOVING,
Plaintiff,

Case No. 19-cv-00029

v.
DAVID GOMEZ, KRISTA TORRES,
DEBRA DUFFEL, in their individual
capacities, and WEXFORD HEALTH
SOURCES, INC.,

Judge Mary M. Rowland

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Bryant Loving required services for his medical needs while
incarcerated at Sheridan Correctional Center. He sues David Gomez, Krista Torres,
and Debra Duffel in their individual capacities, and Wexford Health Sources, Inc.
under 42 U.S.C. § 1983, claiming that they displayed deliberate indifference to his
medical needs. Defendant Wexford has moved for summary judgment on the basis
that Plaintiff failed to exhaust his administrative remedies. [128]. For the reasons
explained below, this Court denies Wexford’s motion.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “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 Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A genuine dispute as to any material fact exists if “the evidence is such

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that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court “consider[s] all of the evidence in the record in the light most
favorable to the non-moving party, and [] draw[s] all reasonable inferences from that
evidence in favor of the party opposing summary judgment.” Skiba v. Ill. Cent. R.R.
Co., 884 F.3d 708, 717 (7th Cir. 2018) (quotation omitted). The Court “must refrain
from making credibility determinations or weighing evidence.” Viamedia, Inc. v.
Comcast Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255).
In ruling on summary judgment, the Court gives the non-moving party “the benefit
of reasonable inferences from the evidence, but not speculative inferences in [its]
favor.” White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations
omitted). The “controlling question is whether a reasonable trier of fact could find in
favor of the non-moving party on the evidence submitted in support of and opposition
to the motion for summary judgment.” Id.
BACKGROUND
As a preliminary matter, Wexford has moved to strike some of Plaintiff’s
statements of additional fact, arguing that they fail to comply with the Federal Rules
of Evidence and this district’s Local Rules. This Court maintains broad discretion to
enforce the local rules governing summary judgment motions, Petty v. City of
Chicago, 754 F.3d 416, 420 (7th Cir. 2014); Judson Atkinson Candies, Inc. v. LatiniHohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008), and addresses Wexford’s
motion to strike before turning to the merits of Wexford’s motion.

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First, this Court denies Wexford’s motion to strike Plaintiff’s additional facts
7–13, 16–20, and 22–26 on the basis that they are duplicative of Wexford’s own facts.
[140] at 3. The Court can disregard any redundancies on a fact-by-fact basis and need
not strike the facts wholesale.
Wexford next requests that this Court strike paragraphs 3 and 4 of Plaintiff’s
additional facts. See [140] at 3. This Court grants this request because neither
paragraph is properly supported by admissible evidence. In paragraph 3, Plaintiff
states that upon arrival at Sheridan, “the facilities medical staff was informed of [his]
chronic medical conditions, including but not limited to[,] genital lesions and kidney
failure.” PSAF ¶ 3. Plaintiff’s only support for this fact comes from the declaration of
his attorney, Joseph Mulherin. Id.; see [135-1] at 2. However, Plaintiff’s attorney is
not a witness with personal knowledge, and his opinion is “no substitute for evidence.”
Hunter v. WirelessPCS Chicago LLC, No. 18 CV 980, 2022 WL 864533, at *5 n.5 (N.D.
Ill. Mar. 23, 2022). This Court strikes paragraph 3 for failure to cite to admissible
evidence.
Paragraph 4 is also deficient. It states: “During his time at Sheridan, [Plaintiff]
suffered from penile herpes lesions, a chronic viral skin condition.” PSAF ¶ 4. Plaintiff
attempts to support this assertion by citing Mulherin’s declaration, as well as
progress notes produced by Wexford in discovery. See id.; [131-1] at 5. Again,
Mulherin’s declaration does not constitute admissible evidence, as he lacks personal
knowledge to testify on Plaintiff’s condition at Sheridan. Moreover, the Court has
reviewed the progress notes that Plaintiff cites to and determines that they do not

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reflect that Plaintiff experienced a chronic condition. The notes show only that upon
entry at Sheridan on July 2, 2017, a screening revealed that Plaintiff had a “current
genital herpes outbreak.” [135-1] at 5. Because the progress notes do not support
paragraph 4’s assertion, this Court will strike paragraph 4 for lack of admissible
evidence.
This Court also grants Wexford’s request to strike paragraph 12 of Plaintiff’s
statement of additional facts. [140] at 4. Plaintiff fails to support this fact with
citations to admissible evidence (beyond the pleadings), as Plaintiff must. See Loc.
705 Int’l Bhd. of Teamsters Pension Fund v. Gradei’s Express Co., No. 18 CV 6893,
2020 WL 1530737, at *3 (N.D. Ill. Mar. 31, 2020) (observing that “the nonmoving party cannot rest on bare pleadings alone but must designate specific
material facts showing that there is a genuine issue for trial”), aff’d sub nom. Loc.
705 Int’l Bhd. of Teamsters Pension Fund v. Pitello, 3 F.4th 949 (7th Cir. 2021)).
With those evidentiary issues resolved, this Court summarizes the pertinent
facts, which it takes from Defendant’s statement of facts (DSOF) [126], Plaintiff’s
response to Defendant’s statement of facts (PRSOF) [135], Plaintiff’s statement of
additional facts (DSAF) [135], and Defendant’s response to Plaintiff’s additional facts
(DRSAF) [139].
I. Parties
At all relevant times, Plaintiff was an inmate in the custody of the Illinois
Department of Corrections (IDOC) at Sheridan Correctional Center. DSOF ¶ 3.

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Wexford, a private corporation, provides medical services to inmates at Sheridan. Id.
¶ 4.
II. Grievance History
Defendant moves for summary judgment on the basis that Plaintiff failed to
exhaust his administrative remedies before filing suit. This Court therefore details
Plaintiff’s grievance history below.
Plaintiff filed his first grievance on November 25, 2017, writing that:
when I got here to Sheridan in July 18th I was suppose to go to Stroger
in Chicago for my follow up appointment, but Sheridan never sent me,
as a result my condication [sic] got worst [sic]. My doctor told me on Oct
27th that I must return on Nov 3th for a emergency IV to stop the
infection. But Sheridan never sent me. I’m very concerned for my health
and I need this issue taken care of A.S.A.P.
[126-2] at 3; DSOF ¶ 11. It is undisputed that Plaintiff exhausted this grievance up
to the level of IDOC’s Administrative Review Board (ARB). DSOF ¶ 11. The ARB
denied Plaintiff’s grievance, finding this issue was “appropriately addressed by
facility Administration.” [126-2] at 1.
Plaintiff filed a second grievance on December 20, 2017, which he later fully
exhausted up to the level of the ARB. DSOF ¶ 14. In this second grievance, Plaintiff
requested that a doctor, “Mrs. Gail,” be “disciplined for failing to treat his boil and
swollen lymph node.” [126-3] at 7. Plaintiff also requested to be “seen A.S.A.P.” for
his “medical issues.” Id. Plaintiff’s counselor denied this grievance as moot, DSOF ¶
15, and on February 6, 2018, the ARB denied the grievance stating that “offender was
seen by NP . . . cultures were taken [and] pain meds prescribed,” [126-3] at 1.

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Plaintiff filed a third grievance on April 23, 2018, which he also exhausted up
to the ARB. DSOF ¶ 17. In this April 23 grievance, Plaintiff complained that, while
in medical observation on February 13, 2018, he heard two correctional officers
discussing Plaintiff’s private medical information “out loud” which Plaintiff felt was
“very unprofessional.” [126-4] at 2. The ARB denied this grievance as untimely. Id. at
1.
On May 21, 2018, the ARB responded to two of Plaintiff’s grievances, filed on
January 9, 2018, and March 14, 2018. DSOF ¶ 20. 1 The January 9 grievance requests
“testing to [determine if Plaintiff still needs] antibiotics and IV antibiotics if
necessary,” and “[f]ollow-up visits to outside hospitals to be scheduled as directed [by]
outside doc.” [126-5] at 6. The March 14 grievance requests that his treatment be
“monitored as the doctor ordered.” Id. at 3. On June 4, 2018, the ARB denied both
grievances as untimely. DSOF ¶ 22; [126-5] at 1.
Plaintiff submitted two grievances on July 3, 2018. In the first of the July 3
grievances, Plaintiff requests “medical treatments” and for his “medical needs and
appointments to stop being neglected.” [126-6] at 5. Plaintiff also states: “I guess
H.C.U. or Mrs. Krista Torres or Wexford didn’t follow proper policies and they are
still billing me” for a treatment he previously received. Id. at 6. While the record
indicates that the ARB received this first July 3 grievance on September 6, 2018,

Although the statement of fact states that the ARB’s report is dated May 14, 2018, the actual date of
the report—as reflected in [126-5]—is March 14, 2018.
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there is no record of the ARB responding to this particular grievance. See generally
[126-6].
In the second July 3, 2018 grievance, Plaintiff requests “the medication the
outside doctor prescribed to me.” [126-7] at 4. On October 25, 2018, the ARB
responded to this second July 3 grievance and another filed on September 11, 2018.
DSOF ¶¶ 26–28; see generally [126-7]. In the latter grievance, Plaintiff requests his
“antibiotic cream prescription” and an end to the “malicious acts against” him. [1267] at 5. The ARB response stated that the medication Plaintiff requested is not within
the jurisdiction of the officers and must be “ordered by the attending physician.” [1267] at 1.
Plaintiff submitted another grievance on August 30, 2018, writing to “show
that Sheridan C.C. officials are lying about . . . [following] all proper policies.” [1266] at 2. In a September 21, 2018 ARB response to this grievance, the ARB claimed
that Plaintiff provided “no justification” for “additional consideration.” [126-6] at 1.
IV. Plaintiff’s Federal Claim
In his amended complaint, Plaintiff alleges that at Sheridan, he suffered from
various ailments including genital herpes lesions, chronic kidney disease, kidney
failure, a staph infection, and boils on both buttocks. [76] ¶¶ 2, 14, 15, 24. He sues
Wexford, as well as various individuals, for exhibiting deliberate indifference to his
medical issues. [76]. Relevant here, Plaintiff asserts that Wexford maintains an
unconstitutional “policy, practice or custom of denying or delaying medical treatment
to prisoners in an effort to save money.” [76] ¶ 35.

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Wexford moves for summary judgment on the basis that Plaintiff failed to
exhaust his administrative remedies before filing his claim in federal court. [128].
ANALYSIS
I.

Exhaustion Requirements
The Prison Litigation Reform Act (PLRA) requires inmates to exhaust all

available administrative remedies before filing a lawsuit in federal court. 42 U.S.C. §
1997e(a). Proper exhaustion “demands compliance with an agency’s deadlines and
other critical procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.” Crouch v.
Brown, 27 F.4th 1315, 1320 (7th Cir. 2022) (quoting Woodford v. Ngo, 548 U.S. 81,
90–91 (2006)). For decades, the Seventh Circuit has “taken a strict compliance
approach to exhaustion.” Id. (quoting Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006)). The PLRA prohibits an inmate from suing over prison conditions under
Section 1983 “until such administrative remedies as are available are exhausted.”
Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020) (quoting 42 U.S.C. § 1997e(a)).
Exhausting administrative remedies requires inmates to follow each step
prescribed by the state’s administrative rules governing prison grievances. Chambers
v. Sood, 956 F.3d 979, 983 (7th Cir. 2020). Illinois maintains a multi-step grievance
process: First, a prisoner may file, within 60 days, of an incident, a complaint to a
counselor or grievance officer. 20 Ill. Admin. Code § 504.810(a)–(b). The counselor or
officer

reports

factual

findings

and

recommendations

the

facility’s

chief

administrative officer (typically the warden), who provides a decision to the prisoner.

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Id. § 504.830(d). If the prisoner remains unsatisfied, he can then appeal to the ARB
within 30 days of the decision. Id. § 504.850(a)–(f). The ARB then makes a final
determination of the grievance and sends a copy of its decision to the prisoner. Id. §
504.850(e).
II.

Plaintiff Adequately Exhausted Administrative Remedies
In moving for summary judgment, Wexford’s sole argument posits that

Plaintiff failed to adequately exhaust his administrative remedies because he did not
specifically name “Wexford” in any of his grievances. See generally [127]; [140].
Wexford’s argument is unpersuasive for two reasons.
First, Wexford’s argument is not factually accurate. In Plaintiff’s first July 3,
2018 grievance, Plaintiff complains about not receiving medical treatment and asks
for his “medical needs and appointments to stop being neglected.” [126-6] at 5.
Plaintiff then specifically names Wexford as a party responsible for his alleged
deprivations, stating: “I guess H.C.U. or Mrs. Krista Torres or Wexford didn’t follow
proper policies. . . .” Id. at 6 (emphasis). While Wexford suggests that Plaintiff did not
procedurally exhaust this grievance because there is no record that the ARB
responded to it, [140] at 11, it is undisputed that Plaintiff submitted the grievance to
the ARB, which satisfies the Illinois procedural requirements. Indeed, the Seventh
Circuit has “rejected the notion that prisoners absolutely cannot file suit until the
ARB’s decision is issued,” Woods v. Forehand, No. 13-CV-1130-NJR-DGW, 2015 WL
1188326, at *3 n.1 (S.D. Ill. Mar. 12, 2015) (citing Lewis v. Washington, 300 F.3d 829,
833 (7th Cir. 2002)). A “non-response to a properly filed grievance can render an

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inmate exempt from further exhaustion requirements.” Daniels v. Lawrence, No. 20CV-96-DWD, 2022 WL 562603, at *4 (S.D. Ill. Feb. 24, 2022).
Moreover, although Wexford is correct that Plaintiff’s other grievances do not
mention Wexford by name, omitting Wexford does not render a grievance
unexhausted. While the Illinois Administrative Code generally requires that
grievances “contain factual details . . . including the name of each person . . .
involved,” Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (quoting 20 Ill. Admin.
Code § 504.810(b)), the law does not require detailed specificity when Wexford is the
defendant because “grievances that complain of medical failures clearly invoke
Wexford and its employees, who are charged with providing medical care to Illinois
inmates,” Daval v. Zahtz, No. 3:19-cv-50147, 2021 WL 2072127, at *5 n.5 (N.D. Ill.
May 24, 2021). It is thus “well-settled that an inmate does not need to name Wexford
in order to exhaust administrative remedies against it.” Buck v. Knauer, No. 18-CV4195, 2021 WL 794979, at *4 (N.D. Ill. Mar. 2, 2021); see also, e.g., Nicholl v.
Wexford Health Care Sources, Inc., No. 16-CV-50151, 2019 WL 4894566, at *2 (N.D.
Ill. Oct. 4, 2019) (finding grievances that “do not specifically mention Wexford and do
not detail problems with its policies or practices” nevertheless satisfy exhaustion
requirement because they “put administrators on notice of the alleged problem with
a fair opportunity to respond”); Orozco v. Wexford Health Sources, Inc., No. 16-CV995, 2018 WL 306923, at *4 (S.D. Ill. Jan. 5, 2018) (holding that because “the plaintiff
is claiming a broad denial of proper treatment by the health care unit as a whole, he
will not be found at fault for failing to name Wexford itself”); Williams v. Carter, No.

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12 C 50140, 2012 WL 4815476, at *2 (N.D. Ill. 2012) (denying motion to dismiss “on
the grounds of non-exhaustion” despite the “plaintiff’s failure to expressly name
Wexford in his grievances”). Instead, when a Wexford policy or practice is at issue,
“grieving activities for which Wexford was responsible and/or involved in the
decision-making process are generally sufficient to put the prison on notice that the
plaintiff was grieving a Wexford policy or practice.” Diaz v. Baldwin, No. 18-CV1426-RJD, 2021 WL 1401463, at *3 (S.D. Ill. Apr. 14, 2021). This is because the
grievance process serves the purpose of providing prison officials a “fair opportunity”
to address an inmate’s complaint. Maddox, 655 F.3d at 713.
Despite not naming Wexford in his other grievances, Plaintiff gave Wexford a
“fair opportunity” to address his concerns over delayed or denied medical treatment.
For example, Plaintiff’s November 25, 2017 grievance, which he undisputedly
exhausted up to the ARB, complained that his condition worsened because he was
not taken to his follow-up appointment at Stroger Hospital to receive an emergency
IV for an infection. [126-2] at 3; DSOF ¶ 11. As another example, Plaintiff complained
in his second July 3, 2018 grievance about not receiving medication that his outside
doctor had prescribed; he then undisputedly grieved this complaint up to the level of
the ARB. [126-7] at 1, 4. These grievances put Wexford on notice that Plaintiff was
experiencing inadequate medical treatment for which Wexford is responsible as the
medical care provider at Sheridan. They fulfill the PLRA’s purpose of providing prison
officials a “fair opportunity” to address an inmate’s complaint. Maddox, 655 F.3d at
713.

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For those reasons, Plaintiff has exhausted his administrative remedies. This
Court therefore denies Wexford’s motion for summary judgment [128].
CONCLUSION
For the stated reasons, this Court denies Defendant’s motion for summary
judgment. [128].
E N T E R:
Dated: August 1, 2022
MARY M. ROWLAND
United States District Judge

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