Bernard v. Illinois Department of Corrections et al

Filing 225

MEMORANDUM Opinion and Order written by the Honorable Lindsay C. Jenkins on 5/13/2024. Mailed notice. (jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Eric Bernard,
Plaintiff,

No. 20 CV 5383

v.

Judge Lindsay C. Jenkins

Illinois Department of Corrections, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Eric Bernard (“Bernard”), an inmate in the custody of the Illinois
Department of Corrections (“IDOC”), filed this civil rights action under 42 U.S.C. §
1983 against various IDOC employees and medical providers employed by IDOCcontracted health care services provider, Wexford Health Sources, Inc. (collectively,
“Defendants”). [Dkt. 45.] In the operative complaint, Bernard alleges that Defendants
violated his rights under the Eighth Amendment, the Americans with Disabilities Act
(“ADA”), and the Rehabilitation Act during his four-month period of confinement at
Stateville Correctional Facility (“Stateville”). [Id.]
Defendants previously moved for summary judgment based on Bernard’s
alleged failure to exhaust his administrative remedies under Seventh Circuit
precedent, Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (“Pavey I”). [Dkts. 130; 134.]
The Court granted in part and denied in part the motions, determining that a Pavey
hearing was necessary to resolve certain material disputes of fact presented by some

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of the grievances (Plaintiff’s Exh. A-4–A-46 and B-13). [Dkt. 190 at 19–20, 26–27.]1
The Court held a Pavey hearing in December 2023, and the parties submitted posthearing briefs. [Dkts. 217; 218; 221; 222.] For the reasons stated below, summary
judgment is denied.
I.

Background 2
A.

The Grievances: Plaintiff’s Exhibits A-4–A-46 and B-13

Bernard suffers from various disabilities: he has been diagnosed with mental
health illnesses, including schizoaffective bipolar disorder, posttraumatic stress
disorder, borderline disorder, and antisocial personality disorder. [Dkt. 182, ¶2.] In
addition to these preexisting disabilities, in March 2019, Bernard suffered a severe
medical event while incarcerated at Pontiac Correctional Center, and he was
subsequently hospitalized and later transferred to Schwab Rehabilitation Center
(“Schwab”) for rehabilitative therapy. [Dkt. 171, ¶6.] As a result, Bernard was
partially physically impaired and bedridden for months. [Dkt. 182, ¶¶1, 38.]
Upon his discharge from Schwab on May 3, 2019, Bernard was sent to
Stateville, where he was classified as “seriously mentally ill.” [Dkts. 171, ¶6; 182,
¶¶2–3, 35.] Bernard remained at Stateville until September 6, 2019, when he was
transferred to Dixon Correctional Facility (“Dixon”), where he currently resides. [Dkt.
182, ¶35.]

Citations to docket filings generally refer to the electronic pagination provided by
CM/ECF, which may not be consistent with page numbers in the underlying documents.
2
The Court provided a fulsome background of this case and an overview of the relevant
grievance procedures for IDOC inmates in its August 28, 2023 Order (“Order”) [Dkt. 190.]
Given the large number of grievances, the Court only includes facts needed for its exhaustion
analysis.
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While at Stateville, Bernard filed dozens of grievances concerning the lack of
reasonable accommodations under the ADA and the Rehabilitation Act, as well as his
treatment, conditions of confinement, and medical care. [Id., ¶¶3, 14.] At issue here
are forty-three emergency grievances, Plaintiff’s Exh. A-4–A-46, and one nonemergency grievance, Plaintiff’s Exh. B-13, all of which were filed between May 6 and
July 27, 2019. [Dkt. 190.]
As to the forty-three emergency grievances, all were denied by the Chief
Administrative Officer (“CAO”) at Stateville as non-emergencies, with an explanation
that each “emergency [was] not substantiated” and that Bernard “should submit this
grievance in the normal manner.” (Plaintiff’s Exh. A-4 3 –A-46). [Dkt. 182, ¶¶3, 5.]
Upon receiving the returned grievances, Bernard submitted thirty-three of them
(Plaintiff’s Exh. A-4–A-36) to the Administrative Review Board (“ARB”) rather than
to the Statesville Grievance Office. [Id., ¶6.] Bernard attached a cover letter to the
ARB dated July 22, 2019 explaining the situation was “an emergency because I am
not getting the medical and rehabilitative care I need.” [Dkt. 217-2 at 1–2.] On August
6 and August 18, 2019, the ARB marked Bernard’s grievances as received and
answered by sending Bernard a form entitled “Return of Grievance or
Correspondence,” that explained why each grievance “is being returned.” [See, e.g.,

Plaintiff’s Exhibit A-4 is also exhausted because it was re-filed as a non-emergency
grievance, Plaintiff’s Exhibit B-10, on June 19, 2019. [Dkt. 214 at 45–52 (McBee conceding at
the Pavey hearing that Plaintiff’s Exhibit A-4 and Plaintiff’s Exhibit B-10 are nearly
identical); compare Dkt. 172-2 at 17–29, with Dkt. 172-3 at 41–43.] The Court has already
determined that Plaintiff’s Exhibit B-10 was exhausted because it was properly filed at
Stateville, remained unresolved for months, and effectively required Bernard to “start over.”
[Dkt. 190 at 25.]
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Dkt. 172-2 at 33]. As for the other ten returned grievances, which were denied as
emergencies by the CAO on August 23, 2019, Bernard took no further action.
(Plaintiff’s Exh. A-37–A-46.)
On the non-emergency grievance (Plaintiff’s Exh. B-13), Bernard sent the
original grievance to the Stateville Grievance Office on July 17, 2019. [Dkt. 182, ¶14.]
The Grievance Office denied it on the merits, and the CAO subsequently concurred
with the denial on July 31, 2019. [Dkt. 172-3 at 54–76.] Bernard did not file an appeal
of this grievance with the ARB.
Bernard maintains that he never received the ARB’s responses to his
emergency grievances or the CAO’s denial of the non-emergency grievance because
he was on crisis watch or medical furlough during most of August and part of
September 2019. [Dkt. 170, ¶27.] This status, he argues, made the grievance process
unavailable because inmates on medical furlough generally do not have access to
their mail or an offsite grievance box, [see Dkts. 182, ¶¶32–34; 172-8 at 22; 218 at 9–
10; 221 at 6 n.2], and inmates on crisis watch are not allowed writing implements or
paper and are generally confined to their cell. [Dkt. 182, ¶¶33, 38.]
B.

The Hearing

To resolve the factual disputes surrounding exhaustion, the Court held a Pavey
hearing on December 13–14 and December 20, 2023. [Dkt. 190 at 19–20, 26–27.] The
Court received evidence on the following questions: (1) the dates in July, August, and
September of 2019 that Bernard was on crisis watch or medical furlough and how it
interfered with the grievance filing window; (2) what restrictions were in place
regarding Bernard’s access to the grievance process while on crisis watch or medical
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furlough; (3) whether Bernard or anyone else requested any correctional staff to aid
with the grievance process during this time; and (4) when, or if, Bernard received
responses from the ARB, CAO, and Stateville correctional counselor regarding these
grievances. [Id.] The Court heard testimony from: (1) Bernard, (2) Anna McBee
(“McBee”), a Stateville Counselor, (3) Sara Johnson (“Johnson”), a Dixon Counselor,
(4) Brett Wells (“Wells”), a Dixon Counselor and later a Dixon Grievance Officer, and
(5) Margaret Madole (“Madole”), ARB Chairperson. 4
II.

Analysis
A.

Exhaustion of Available Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their
facility’s administrative remedies before bringing civil rights suits concerning prison
conditions. 42 U.S.C. § 1997e(a); see also Miles v. Anton, 42 F.4th 777, 780 (7th Cir.
2022). “Failure to exhaust is an affirmative defense, so the defendants bear the
burden of proof and cannot shift it to require [the plaintiff] to show that
administrative remedies were unavailable.” Gooch v. Young, 24 F.4th 624, 627 (7th
Cir. 2022) (citation omitted); see Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018)
(holding that “[i]t was not [plaintiff’s] burden to establish that the grievance process
was unavailable”). “Courts analyze a prisoner’s exhaustion under the preponderance
of the evidence standard.” Price v. Fed. Bureau of Prisons, 2022 WL 972294, at *3
(N.D. Ill. Mar. 31, 2022) (collecting cases); Williams v. Baldwin, 239 F. Supp. 3d 1084,
1089 (N.D. Ill. 2017).
The Pavey hearing was conducted jointly with Case No. 23-cv-5368, a related case
filed by Bernard.
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The Court’s previous Order contained a fulsome discussion of the grievance
process outlined in the Illinois Administrative Code, Ill. Admin. Code tit. 20, §§
504.800 et seq. In sum, IDOC’s grievance procedures first require inmates to file their
grievance with a counselor within 60 days of the discovery of “the incident, occurrence
or problem that [gave] rise to the grievance.” § 504.810(a). A Grievance Officer must
“consider the grievance and report his or her findings and recommendations in
writing to the Chief Administrative Officer within two months after receipt of the
grievance, when reasonably feasible under the circumstances.” § 504.830(e). If the
inmate is not satisfied with the CAO’s response, he can file an appeal to the Director
of the IDOC through the ARB.
The PLRA exhaustion requirement “does not ‘demand the impossible.’”
Lanaghan v. Koch, 902 F.3d 683, 688 (7th Cir. 2018) (citation omitted). A prisoner is
not required to exhaust the administrative remedies if those remedies are not
“available.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). “An ‘available’ remedy
is one that is ‘capable of use for the accomplishment of a purpose’ and ‘is accessible
or may be obtained.’” Crouch v. Brown, 27 F.4th 1315, 1320 (7th Cir. 2022) (quoting
Ross v. Blake, 578 U.S. 632, 642 (2016)). Availability of a remedy is not solely “what
appears on paper, but, rather, whether the paper process was in reality open for the
prisoner to pursue.” Wilder v. Sutton, 310 F. App’x 10, 13 (7th Cir. 2009) (emphasis
added); see Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013) (explaining that for an
administrative remedy to be available, it must “be available in fact and not merely in
form.”).

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Broadly speaking, there are at least three circumstances when administrative
remedies can be considered unavailable under the PLRA. Ross, 578 U.S. at 643. First,
if an administrative procedure “operates as a simple dead end—with officers unable
or consistently unwilling to provide any relief to aggrieved inmates”—then it is not
available to inmates. Id. Second, if administrative rules are so opaque or confusing
that “no reasonable prisoner can use them,” they are not considered available. Id. at
644 (cleaned up). Third, if prison administrators or staff “thwart inmates from taking
advantage of a grievance process[,]” then the process is unavailable. Id. This can
happen through “affirmative misconduct,” such as refusing to provide or respond to
grievance forms or threatening inmates with negative consequences for grieving.
Hernandez v. Dart, 814 F.3d 836, 840, 842 (7th Cir. 2016); Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006) (“a remedy becomes ‘unavailable’ if prison employees do not
respond to a properly filed grievance.”).
B.

Findings of Fact

On the basis of the evidence introduced at the hearing, the Court determines
the following facts:
First, as it relates to the dates in 2019 when Bernard was on crisis watch or
medical furlough and how the time interfered with the grievance process, the Court
finds that Bernard was on continuous crisis watch from August 3 to September 5,
2019, including for a period of medical furlough from August 12 to August 15, 2019. 5

Because neither party presented evidence regarding the dates Bernard was on crisis
watch or medical furlough in July 2019, the Court lacks sufficient information to make a
finding for that month. [Dkts. 217; 218; 221; 222.]
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7

At the hearing, Bernard testified that he spent “the whole month” of August
2019 at Stateville on crisis watch. [Dkt. 215 at 62 (Tr. 300:16–23).] The timeline
outlined in Bernard’s crisis care records reveals that he was on continuous crisis
watch at Stateville from August 3 to September 5, 2019 (minus three days in August
of medical furlough), a fact that McBee did not dispute. [Dkts. 172-12 at 4; 214 at 54
(Tr. 54:2–10).] Although Defendants have argued that Bernard was on crisis watch
for far less time, [Dkt. 182, ¶¶32, 36], they did not present any evidence—at the
hearing or in post-hearing briefing—to rebut this time frame.
Regarding what restrictions were in place while Bernard was on crisis watch
or medical furlough, the Court finds that Bernard did not have access to writing
implements (i.e., pens, pencils, and paper), institutional mail, or the grievance box
while on crisis watch or on medical furlough. At the hearing, Bernard testified that
he did not have access to these items, and only had a safety blanket and a safety
smock. [Dkt. 215 at 62–63 (Tr. 300:24–301:13); id. at 78–79 (Tr. 316:21–317:8).] He
testified similarly regarding his medical furlough at an outside facility. [Id. at 64–65
(Tr. 302:23–303:11).] Johnson, a counselor at Dixon, acknowledged that inmates on
crisis watch do not have access to paper or writing implements and thus cannot
physically write grievances themselves. [Dkt. 214 at 188–89 (Tr. 188:18–189:11) (“If
he wanted to write a grievance, he would have to ask his counselor to request
permission from mental health or he would have to ask the counselor to write it.”).]
Likewise, McBee acknowledged that inmates on medical furlough have their mail

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held, and inmates on crisis watch do not have access to institutional mail until they
are taken off crisis watch. [Id. at 59–60 (Tr. 59:15–60:18).]
Defendants argue that the grievance process was nevertheless available to
Bernard during this period because he could have dictated a grievance or a response
to a counselor who was required to assist him upon request. [Dkt. 214 at 26–29; 217
at 4–5; Dkt. 222 at 2–3.] But the Court agrees with Bernard that this argument relies
on testimony concerning what should happen when an inmate on crisis requires
access to the grievance process—not what in fact occurred.
McBee testified she was not personally aware of whether other counselors
agreed to assist or tried to assist Bernard with filing grievances or responses while
he was on crisis watch, nor did she personally assist him. [Id. at 57 (Tr. 57:17–24).]
She also explained that before a counselor could assist an inmate on crisis watch,
mental health staff must first determine if the inmate is “stable enough” to file a
grievance. [Dkt. 214 at 26–27 (Tr. 26:22–27:21); id. at 72–73 (Tr. 72:12–73:14); id. at
189 (Tr. 189:3–17).] Finally, Bernard testified that while on crisis watch, he asked
staff members whom he came in contact with for help—including mental health staff
and a counselor named Barea Miggins—but no assistance was provided. 6 [Dkt. 215
at 63–64 (Tr. 301:14–302:12, Tr. 302:2–8); id. at 58–59 (Tr. 296:24–297:18).]
Considering the record as a whole, the Court finds that, to the extent Bernard

Bernard also testified that he was unaware if he could request assistance with
grievances while offsite on medical furlough, and that no one offered him any assistance
during this time. [Dkt. 215 at 65 (Tr. 303:12–21).]
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requested correctional staff assist with the grievance process during this time, those
requests for assistance went unanswered.
Regarding the fourth inquiry, the emergency grievances were initially denied
and returned to Bernard by the CAO with an explanation that they had been
improperly filed as emergencies and had to be resubmitted “in the normal manner.”
[Dkt. 182, ¶¶3, 5.] Bernard did not resubmit these grievances to the Stateville
Grievance Office. Instead, he resubmitted thirty-three of them to the ARB with a
letter explaining why the circumstance was “an emergency.” [Dkt. 217-2 at 1-2.] 7 By
the time the ARB responded on August 6 and August 18 explaining why the
grievances were being returned, Bernard was on crisis watch or medical furlough
without access to mail, pens or paper. [Dkt. 214 at 54, 59–60, 188–89.] The same is
true for the ten returned grievances denied as emergencies by the CAO on August 23.
Plaintiff’s Exh. A-37–A-46. Bernard took no further action on these grievances
because he was on crisis watch without access to writing materials.
The Seventh Circuit has addressed the question of “what happens when a
response to a grievance does not reach the prisoner, and so he does not know when to

The Court rejects Defendants argument that Bernard failed to exhaust his
administrative remedies because he was required to resubmit the emergency grievances to
the grievance office and only to the grievance office. [Dkt. 217 at 10.] At the hearing, McBee
testified that when an emergency grievance is denied as a non-emergency, “[i]t wouldn't
necessarily be considered improper” to resubmit the grievance directly to the ARB. [Dkt. 214
at 23 (Tr. 23:18–24).] According to McBee, “DR 504, which is the Department Rule that
governs grievances, states that if an individual feels like he would not receive a fair hearing,
he can send those grievances directly to the ARB.” [Id.] Thus, the CAO’s response—directing
Bernard to re-submit the grievances “in the normal manner”—is, put simply, “a vague
instruction that effectively required [Bernard] to start over.” See Summary Judgment Order,
Bernard v. Does, No. 20 C 1367, at 7 (C.D. Ill. Sept. 13, 2021), ECF. No. 66.
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move along to the next step?” Pyles v. Nwaobasi, 829 F.3d 860, 868 (7th Cir. 2016).
Failure to provide evidence of a “timely and accurately transmitted [ ] response”
means that the defendant does not “enjoy a presumption of receipt.” Id.
Here, as in Pyles, Defendants have not come forward with competent evidence
establishing that Bernard received responses from the ARB and CAO after his crisis
watch began on August 3. Madole testified that once the ARB responds to a grievance,
it is sent to the inmate’s facility for delivery, and the ARB retains no information
about what happens to the mail at the facility level, including for an inmate on crisis
watch. [Dkt. 214 at 98–99 (Tr. 98:5–99:7).] No witness testified to delivering any
responses to Bernard once the crisis watch ended on September 5, or at any time prior
to his transfer to Dixon on September 6. Therefore, Defendants have not met their
burden of establishing that Bernard failed to exhaust his available administrative
remedies as to the emergency grievances Plaintiff’s Exhibits A-4–A-46.
The Court reaches the same conclusion as to Exhibit B-13, the non-emergency
grievance dated July 22 that was denied by the Stateville Grievance Office on July
31. The next step would have been for Bernard to file a written appeal to the ARB
within thirty days, but the record contains no evidence that Bernard actually received
the denied grievance before his crisis watch began on August 3. 8 Because Bernard
never received the counselor’s response, Defendants have not met their burden of

Even if Bernard had promptly received the July 31 response, his crisis watch began
on August 3 and continued for more than 30 days. Without access to a pen or the grievance
box, it would have been nearly impossible for him to timely appeal to the ARB.
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establishing that Bernard failed to exhaust his available administrative remedies as
to Plaintiff’s Exhibit B-13. Pyles, 829 F.3d at 868–69.
Accordingly, Defendants motions for summary judgment for failure to exhaust
administrative remedies is denied. 9
III.

Conclusion
For the reasons stated above, Defendants’ motion for summary judgment for

failure to exhaust administrative remedies is denied.
Enter: 20-cv-5383
Date: May 13, 2024

__________________________________________
Lindsay C. Jenkins
United States District Judge

The Wexford Defendants seek to rehash their argument that Bernard failed to provide
them with proper notice and thus failed to exhaust his administrative remedies as to eleven
grievances the Court already determined were exhausted (Plaintiff’s Exh. A-1–A-3, B-1, B3–B-10, B-11–B-12). [Dkts. 217 at 12–15; 222 at 4–5.] The Court already explained that
Plaintiff’s Exh. A-1–A-3, B-1, B-3–B-4 put the Wexford Defendants on notice of Bernard’s
alleged concerns about deficient medical care with a fair opportunity to respond. With respect
to the other exhausted grievances (Plaintiff’s Exh. B-5–B-10, B-11–B-12), Wexford’s failure
to raise this argument in its original motion for summary judgment constitutes waiver.
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