Gonzalez v. O'Brien et al
ORDER : With regard to defendants' motion for summary judgment on the limited basis of exhaustion 82 , defendants are ordered to indicate within 30 days if they wish to proceed with their motion. If so, the parties are to appear before Magistr ate Judge Johnston to conduct an evidentiary hearing as required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008); see also Smith v. Schwartz, 2012 WL 1600559 (S.D. Ill. 2012) (district court may designate magistrate judge to conduct Pavey hearing and prepare a report and recommendation on exhaustion). [See STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 11/21/2017. Electronic notice (jp, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
JOHN O’BRIEN, et al.,
16 C 50023
Judge Philip G. Reinhard
With regard to defendants’ motion for summary judgment on the limited basis of
exhaustion , defendants are ordered to indicate within 30 days if they wish to proceed with
their motion. If so, the parties are to appear before Magistrate Judge Johnston to conduct an
evidentiary hearing as required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008); see also Smith
v. Schwartz, 2012 WL 1600559 (S.D. Ill. 2012) (district court may designate magistrate judge to
conduct Pavey hearing and prepare a report and recommendation on exhaustion).
As this court explained in its order of March 30, 2017 , granting in part and denying
in part the defendants’ motion to dismiss, this matter arises out of plaintiff Juan Gonzalez’s
claims that defendants were deliberately indifferent to his medical needs when they repeatedly
denied him dentures because he could not pay for them. In its order, the court allowed the case
to proceed against Dr. O’Brien, Wexford, and the Dixon Warden in his official capacity. See id.
After the court’s order, on August 14, 2017, defendants O’Brien and Wexford filed a
motion for summary judgment on the limited issue of plaintiff’s failure to exhaust his
administrative remedies , along with a memorandum in support  and a Rule 56.1
statement of undisputed facts. Dr. Varga joined the motion and subsequent briefs. On
September 1, 2017, plaintiff filed a response , answer to defendants’ statement of facts ,
and statement of additional facts . On September 15, 2017, defendants filed a reply  and
answer to plaintiff’s statement of additional facts . These matters are now ripe for the
On summary judgment, the court construes all facts and draws all inferences in the light
most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of
Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine
the credibility of witness testimony. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th
Cir. 2011). Instead, the court only grants 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). That said, Rule 56 “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
evaluating the motions and the undisputed facts located in the parties’ Local Rule 56.1
Statements of Material Fact with respect to each motion, the court is cognizant of its obligation
to construe all disputed and undisputed facts in the light most favorable to the plaintiff. See
Schepers, 691 F.3d at 913. This is particularly true where the court contemplates ruling without
the benefit of a Pavey evidentiary hearing, which is designed to resolve contested issues of fact
surrounding exhaustion. See Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016).
A. Factual Background.
The court has explained much of the relevant factual background of this case in its order
regarding defendants’ motion to dismiss . Familiarity with those facts is assumed, and the
parties here focus on plaintiff’s efforts to exhaust his administrative remedies. For purposes of
this motion, a brief procedural summary will suffice.
The relevant grievance here was filed by plaintiff on approximately April 22, 2015, in
which plaintiff described defendants’ refusal to provide him with free dentures. See  at ¶ 19.
Plaintiff submitted the grievance directly to the Chief Administrative Officer as an “emergency”
grievance. Id. On April 24, 2015, the CAO determined that the grievance was not an emergency
and returned it to plaintiff with instructions to submit it following the normal grievance
procedures. Id. at ¶ 20. According to plaintiff, he showed this response to his counselor, who
advised him to “Send it to Springfield,” meaning the Administrative Review Board in
Springfield. Id. Plaintiff then appealed the decision to the Administrative Review Board. Id.
On May 28, 2015, Chairperson Knauer reviewed plaintiff’s grievance and determined
that he had improperly appealed the grievance rather than resubmit it in the normal fashion;
however, the parties dispute whether Knauer ever properly sent a response to plaintiff or that he
ever received it.  at ¶ 21;  at ¶ 5. According to plaintiff, he never received a response,
and in fact he submitted follow up correspondence to the ARB on June 25, 2015 requesting that
they rule on his appeal.  at ¶ 22;  at ¶ 4. Plaintiff never received any response to his
appeal or his follow up correspondence.  at ¶ 6. The ARB never ruled on the merits of
plaintiff’s grievance. Id. at ¶ 24.
The parties disagree as to whether plaintiff exhausted his administrative remedies prior to
brining suit in this action. “A prisoner cannot bring a cause of action under federal law regarding
prison conditions ‘until such administrative remedies as are available are exhausted.’”
Hernandez v. Dart, 814 F.3d 836, 841 (7th Cir. 2016) (quoting 42 U.S.C. § 1997e(a)). “Federal
courts strictly enforce this requirement, and a prisoner fulfills this duty by adhering to ‘the
specific procedures and deadlines established by the prison's policy.’” Hernandez, 814 F.3d at
842 (quoting King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015)).
Here, the parties extensively cite the court’s reasoning in Edens v. O’Brien, 2016 WL
4191756 (N.D. Ill. 2016), in which the court found that another plaintiff had failed to properly
exhaust his administrative remedies after filing an emergency grievance, appealing the Warden’s
denial of emergency status to the ARB, and then failing to respond to the ARB’s request for
additional information. As both parties point out, the court extensively discussed much of the
relevant and binding case law surrounding this issue in the Edens case, which the court will not
repeat here. Because the parties both discuss Edens at length, familiarity with that decision and
the court’s reasoning is assumed.
In summary, the court noted that the primary Seventh Circuit opinion on the issue is
Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005), in which the Seventh Circuit held that “[t]here
is nothing in the current regulatory text . . . that requires an inmate to file a new grievance after
learning only that it will not be considered on an emergency basis.” Id. In Bulmer v. Young, 160
F. App’x. 524 (7th Cir. 2005), the Seventh Circuit held in similar circumstances “that [while]
inmates must exhaust only those remedies that are available . . . there was a remedy available to
[the plaintiff]: the grievance liaison officer advised him to refile his February 2002 emergency
grievance as a routine grievance, and he did.” Id. at 527. Next, in Muhammad v. McAdory, 214
F. App’x. 610 (7th Cir. 2007), the Seventh Circuit cited Thornton for the proposition that “an
inmate who has requested that prison officials handle a grievance on an emergency basis under
Title 20, § 504.840, of the Illinois Administrative Code is not required to resubmit that grievance
through the standard procedure after the warden-the official responsible for acting on emergency
grievances-concludes that the grieved condition is not an emergency.” Id. at 612-13. The most
recent case to significantly confront the issue of exhaustion in the context of emergency
grievances was Glick v. Walker, 385 F. App’x. 579 (7th Cir. 2010), where the Seventh Circuit
The defendants' position that [the plaintiff] was required to go back to the
grievance officer and start over after his emergency grievance had been rejected
by the warden and the ARB is at odds with 20 Ill. Admin. Code. § 504.840 and
Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir.2005). In Thornton, which the
defendants fail to acknowledge, we explained that an inmate who seeks
emergency review under § 504.840 has no obligation to resubmit the grievance
through normal channels, even if the warden concluded that expedited review was
unnecessary. The defendants cannot use the exhaustion requirement to demand
that an inmate do more than what administrative rules require.
Id. at 583.
The facts in Edens were similar to those here up to the point that the plaintiff appealed
the Warden’s denial of emergency status to the ARB. The court reasoned in Edens that:
As with Bulmer, here there is plausible evidence that plaintiff was not following proper
prison procedures when he appealed the warden’s denial of emergency status. On the
other hand, given the somewhat contradictory holding in Glick, along with the ambiguous
nature of the Code, the court is hesitant to find that plaintiff failed to exhaust simply
because appealed the warden’s denial of emergency status.
Edens, 2016 WL 4191756, at *9. Further, the court noted that “plaintiff was arguably entitled to ignore
[the Warden’s] directive to resubmit his grievance by filing his appeal.” Id. at *10. As such, the court
did not and would not have found failure to exhaust merely based on the plaintiff’s appeal of the
emergency grievance denial to the ARB.
The dispositive factor for the court in Edens was that the undisputed fact that the plaintiff in that
case was given explicit instructions by the ARB to proffer additional information, which the plaintiff
refused to do or even to explain that additional information was not forthcoming. The court analogized
the case to Seventh Circuit decisions holding that plaintiffs may abandon grievances by refusing to
comply with instructions from prison officials. See Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004);
Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005); Dole v. Chandler, 438 F.3d 804, 811 (7th
Cir. 2006) (recognizing that the plaintiff in Cannon had failed to exhaust because after his initial
procedural error, “he did not follow the ARB's explicit instructions to rectify his original mistake”);
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (“Prisons are unlikely to entertain many
appeals . . . by prisoners who . . . thumb their noses at the specified procedures.”).
Here, in contrast, there is a disputed fact as to whether the ARB sent a response to plaintiff’s
grievance, and thus whether plaintiff ignored anything. Moreover, according to plaintiff, he filed
additional materials requesting an answer and was met with only silence. The Seventh Circuit has held
that “Prison officials may not take unfair advantage of the exhaustion requirement . . . and a remedy
becomes ‘unavailable’ if prison employees do not respond to a properly filed grievance or otherwise use
affirmative misconduct to prevent a prisoner from exhausting.” Dole, 438 F.3d at 809; see also Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002) (noting that “[t]he Eighth and Fifth Circuits have deemed
administrative remedies exhausted when prison officials fail to respond to inmate grievances because
those remedies had become ‘unavailable’” and deciding to “join the Eighth and Fifth circuits on this
issue because we refuse to interpret the PLRA ‘so narrowly as to . . . permit [prison officials] to exploit
the exhaustion requirement through indefinite delay in responding to grievances’”); Winder v. Sheahan,
52 F. App’x. 833, 834 (7th Cir. 2002) (holding that “an inmate may file a lawsuit if it becomes apparent
that the prison refuses to respond to a grievance”).
The court finds that this is sufficient to conclude that a material issue of disputed fact exists as to
exhaustion. The court’s attempt to parse the tensions between various Seventh Circuit holdings
notwithstanding, if Glick stands for anything, it is that a plaintiff’s action cannot be dismissed for failure
to exhaust simply because he appealed the denial of an emergency grievance to the ARB instead of
following the CAO’s instructions to refile it as a normal grievance. This is particularly true in a case
such as this, where according to plaintiff he showed the CAO’s ruling to his counselor and the counselor
advised him to simply appeal it. Moreover, the instant case points in the opposite direction of Edens.
Instead of the plaintiff ignoring a request from the ARB, here under plaintiff’s version the ARB ignored
plaintiff’s repeated requests for a ruling, such that plaintiff was arguably entitled to conclude that it had
“become apparent that the prison refuse[d] to respond to [his] grievance.” See Winder, 52 F. App’x. at
As such, the court finds that there is at minimum a material issue of disputed fact. In light of the
court’s analysis, defendants are ordered to respond within 30 days if they wish to proceed with their
summary judgment motion . If so, the parties are to appear before Magistrate Judge Johnston to
conduct an evidentiary hearing before this court as required by Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008); see also Smith v. Schwartz, 2012 WL 1600559 (S.D. Ill. 2012) (district court may designate
magistrate judge to conduct Pavey hearing and prepare a report and recommendation on exhaustion).
United States District Court Judge
Electronic Notices. (LC)
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