Bryant v. Nwaobasi et al

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATIONS, the Court overrules Plaintiffs' objections, ADOPTS in its entirety Judge Williams Report and the findings contained therein (Doc. 44 ), GRANTS Defendants summary judgment motion (Doc. 31 ), and DISMIS SES without prejudice, for failure to exhaust prior to filing suit, all of Plaintiffs' deliberate indifference claims herein. No claims remaining herein, the Clerk of Court shall enter judgment and close this case. Signed by Judge Michael J. Reagan on 02/12/14. (dkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDWARD BRYANT,
Plaintiff,
vs.
DR. SAMUEL NWAOBASI,
DR. FE FUENTES,
DR. JOHN SHEPHERD,
and DR. ROBERT SHEARING,
Defendants.

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Case No. 13-cv-0411-MJR-SCW

MEMORANDUM and ORDER
REAGAN, District Judge:
I.

Procedural Overview
Edward Bryant, an inmate at Menard Correctional Center, filed the above-

captioned suit alleging that four physicians at Menard violated his right, secured by the
Eighth Amendment to the United States Constitution, to be free from cruel and unusual
punishment.

The complaint alleged that Drs. Nwaobasi, Fuentes, Shepherd, and

Shearing (collectively, Defendants) were deliberately indifferent to Plaintiff’s serious
medical condition – an allergy to oatmeal, which Plaintiff was diagnosed with before
his November 2011 arrival at Menard. More specifically, Plaintiff alleged that if he eats
oatmeal he will go into anaphylactic shock, that Defendants have refused to document
and treat this allergy, that they have refused to give him a special food permit, that he
continues to receive food trays containing oatmeal, and that he can eat nothing on the
entire tray and thus fails to receive meals satisfying nutritional requirements.
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The complaint survived threshold review under 28 U.S.C. 1915A in May 2013,
Defendants were served, and in July 2013 Magistrate Judge Stephen C. Williams
entered a trial practice schedule herein. The case comes now before the Court on
Defendants’ September 26, 2013 motion for summary judgment based on exhaustion,
which was fully briefed (Plaintiff filed two responses to the motion) and on which
Judge Williams conducted an evidentiary hearing on December 17, 2013.
On December 19, 2013, Judge Williams submitted a Report and Recommendation
(Report) recommending that the undersigned District Judge grant Defendants’ motion
and dismiss without prejudice all of Plaintiffs’ claims for deliberate indifference (Doc.
44, p. 9). Plaintiff timely filed 26-page objections to the Report (Doc. 45). Defendants
failed to respond to the Objections by the January 23, 2014 deadline to do so (see Doc.
48), and the issue is ripe for determination.
Timely objections having been filed, the District Judge undertakes de novo
review of the portions of the Report to which Plaintiff Bryant specifically objected. 28
U.S.C. 636(b)(1); FED. R. CIV. P. 72(b); SOUTHERN DIST. OF ILLINOIS LOCAL RULE 73.1(b).
The undersigned can accept, reject, or modify the recommendations made by Judge
Williams, receive further evidence, or recommit the matter to Judge Williams with
instructions. Id.
For the reasons stated below, the Court overrules Plaintiff’s objections, adopts
Judge Williams’ Report in its entirety, and dismisses Plaintiffs’ claims against
Defendants.

The Court’s analysis begins with reference to the applicable legal

standards.
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II.

Applicable Legal Standards
A.

SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56 governs motions for summary judgment.
Summary judgment should be granted 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.” Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012), citing FED. R. CIV. P. 56(a).
A genuine issue of material fact remains “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Serednyj v. Beverly Healthcare, LLC,
656 F.3d 540, 547 (7th Cir. 2011), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In assessing a summary judgment motion, the district court views the facts in
the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Anderson, 699 F.3d at 994; Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir.
2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
B.

PLRA’S EXHAUSTION REQUIREMENT

Lawsuits filed by inmates are governed by the provisions of the Prison Litigation
Reform Act (PLRA), 42 U.S.C. 1997e(a). That statute states that “no action shall be
brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” Id.
Thus, under the PLRA, exhaustion of administrative remedies is mandatory, and
unexhausted claims cannot be brought in court. Jones v. Bock, 549 U.S. 199, 211 (2007).

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The case may proceed on the merits only after any contested issue of exhaustion is
resolved by the district court. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
The purpose of exhaustion is to give prison officials an opportunity to address
the inmate’s claims internally, prior to federal litigation. Kaba v. Stepp, 458 F.3d 678,
684 (7th Cir. 2006). The United States Court of Appeals for the Seventh Circuit takes a
strict compliance approach to exhaustion, requiring inmates follow all grievance rules
established by the correctional authority. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006). A prisoner must “file complaints and appeals in the place, and at the time, the
prison’s rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
An inmate is required to exhaust only those administrative remedies that are
available to him. 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative
remedies become “unavailable” when prison officials fail to respond to inmate
grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002).

However, if the

prisoner fails to follow the proper procedure, the grievance will not be considered
exhausted. Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).
Additionally, exhaustion is a condition precedent to suit in federal court, so the
inmate must exhaust before he commences his federal litigation. He cannot exhaust
while his lawsuit is pending, or file suit in anticipation of his remedies soon being
exhausted. See Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 535 (7th
Cir. 1999); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002); Ford v. Johnson, 362 F.3d 395,
398 (7th Cir. 2004).
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If the inmate fails to exhaust before filing suit in federal court, the district court
must dismiss the suit. See Jones, 549 U.S. at 223; Burrell v. Powers, 431 F.3d 282, 284-85
(7th Cir. 2005). Although dismissal is the procedural step the district court takes if a
plaintiff failed to exhaust prior to filing suit, the issue of exhaustion most often is raised
via summary judgment motion, allowing the Court can consider evidence “outside the
pleadings,”

such

as

affidavits,

grievances,

responses,

appeals,

and

related

documentation. See FED. R. CIV. P. 12(d). And exhaustion-based dismissals are made
without prejudice. Burrell, 431 F.3d at 285, citing Walker v. Thompson, 288 F.3d 1005,
1009 (7th Cir. 2002)(“Dismissal for failure to exhaust is without prejudice…”), and
Ford, 362 F.3d at 401 (“all dismissals under § 1997e(a) should be without prejudice”).
“[D]ebatable factual issues relating to the defense of failure to exhaust
administrative remedies” are not required to be decided by a jury but are to be
determined by the judge. Pavey, 544 F.3d at 740-41.

When

failure

to

exhaust

administrative remedies is raised as an affirmative defense in a prisoner civil rights suit,
the district court is to resolve the issue via the procedure delineated in Pavey, 544 F.3d
at 742.
The sequence to be followed in a case in which exhaustion is contested is
therefore as follows:
(1) The … judge conducts a hearing on exhaustion and permits whatever
discovery relating to exhaustion he deems appropriate.
(2) If the judge determines that the prisoner did not exhaust his
administrative remedies, the judge will then determine whether (a) the
plaintiff has failed to exhaust his administrative remedies, and so he must
go back and exhaust; (b) or, although he has no unexhausted
administrative remedies, the failure to exhaust was innocent (as where
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prison officials prevent a prisoner from exhausting his remedies), and so
he must be given another chance to exhaust (provided that there exist
remedies that he will be permitted by the prison authorities to exhaust, so
that he’s not just being given a runaround); or (c) the failure to exhaust
was the prisoner’s fault, in which event the case is over.
(3) If and when the judge determines that the prisoner has properly
exhausted his administrative remedies, the case will proceed to pretrial
discovery, and if necessary a trial, on the merits; and if there is a jury trial,
the jury will make all necessary findings of fact without being bound by
(or even informed of) any of the findings made by the district judge in
determining that the prisoner had exhausted his administrative remedies.
Although the court in Pavey included a hearing as one of the steps in
determining whether the plaintiff had satisfied the exhaustion requirement, “there is no
reason to conduct an evidentiary hearing” in a “situation [where] there are no disputed
facts regarding exhaustion, only a legal question.” Doss v. Gilkey, 649 F.Supp.2d 905,
912 (S.D. Ill. 2009).
C.

EXHAUSTION REQUIREMENTS UNDER ILLINOIS LAW

As an inmate confined within the Illinois Department of Corrections (IDOC),
Plaintiff Bryant was required to follow the regulations contained in the IDOC’s
Grievance Procedures for Offenders to properly exhaust his claims.

20 Ill.

Administrative Code 504.800, et seq.
The grievance procedures first require inmates to speak with the counselor about
their complaints. 20 Ill. Admin. Code 504.810(a). Then, if the counselor does not
resolve the issue, the inmate must file a grievance form directed to the Grievance
Officer within 60 days of the incident. Id. The grievance form must:
contain factual details regarding each aspect of the offender’s complaint,
including what happened, when, where, and the name of each person
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who is subject of or who is otherwise involved in the complaint. The
provision does not preclude an offender from filing a grievance when the
names of individuals are not known, but the offender must include as
much descriptive information about the individual as possible.
20 Ill. Admin. Code 504.810(a)(b).
“The Grievance Officer shall [then] consider the grievance and report his or her
findings and recommendations in writing to the Chief Administrative Officer ... [who]
shall advise the offender of the decision in writing within 2 months after receipt of the
written grievance, where reasonably feasible under the circumstances.” 20 Ill. Admin.
Code 504.830(d).
If the inmate is not satisfied with the Chief Administrative Officer (CAO)’s
response, he can file an appeal with the Director through the Administrative Review
Board (ARB).

And, “[i]f after receiving the response of the Chief Administrative

Officer, the offender still feels that the problem, complaint or grievance has not been
resolved to his or her satisfaction, he or she may appeal in writing to the Director within
30 days after the date of the decision. Copies of the Grievance Officer’s report and the
CAO’s decision should be attached.” 20 Ill. Admin. Code 504.850(a).
“The Administrative Review Board shall submit to the Director a written report
of its findings and recommendations.” 20 Ill. Admin. Code 504.850(e). “The Director
shall review the findings and recommendations of the Board and make a final
determination of the grievance within 6 months after receipt of the appealed grievance,
where reasonably feasible under the circumstances. The offender shall be sent a copy of
the Director’s decision.” 20 Ill. Admin. Code 504.850(f).

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The grievance procedures do allow for an inmate to file an emergency grievance.
To file an emergency grievance, the inmate must forward the grievance directly to the
CAO who may “[determine] that there is a substantial risk of imminent personal injury
or other serious or irreparable harm to the offender” and thus the grievance should be
handled on an emergency basis. 20 Ill. Admin. Code 504.840(a).
If an inmate forwards the grievance to the CAO as an emergency grievance, the
CAO “shall expedite processing of the grievance and respond to the offender”
indicating to him which course he has decided is necessary after reading the grievance.
20 Ill. Admin. Code 504.840(b). Once the CAO informs the inmate of the decision, the
inmate may appeal that decision to the ARB on an expedited basis. Id., 504.850(g).
IV.

Analysis
In the case sub judice, Plaintiff provided two grievances with his complaint (filed

on April 29, 2013) – an October 12, 2011 grievance and a January 8, 2013 grievance.
On the October 12, 2011 grievance, Plaintiff checked the boxes for “dietary” and
“medical treatment” and complained that he had been served oatmeal, despite having
advised medical personnel when he arrived (six days earlier) that he was allergic to
oatmeal. This grievance was filed while Plaintiff was housed at the Northern Reception
and Classification Center (NRC), before he was transferred to Menard. NRC is a male
intake processing unit for Illinois prisoners who are awaiting transfer to a permanent
institution. It is located at Stateville Correctional Center, in Joliet, Illinois.
The counselor responded on October 28, 2011 (Doc. 1-1, p 6) noting: “A copy of
this grievance has been forwarded to the HCU for review and response, and the
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original forwarded to the grievance officer.” Grievance Officer Anna McBee (at
Stateville) received the grievance on November 1, 2011. She issued a report on January
5, 2012, recommending that the issue be referred to Menard Correctional Center,
because Plaintiff had been transferred to Menard on November 2, 2011. On January 13,
2012, CAO Marcus Hardy concurred with the grievance officer recommendation. 1
There is no evidence in the record before the Court that Menard took action on this
grievance filed by Plaintiff at NRC.
At the Pavey hearing before Judge Williams, Plaintiff testified that he forwarded
this grievance to the ARB and the executive office of the IDOC and got no response.
Plaintiff’s testimony regarding when he took this action was inconsistent and vague (he
pinned down the date only to a period of roughly a year).

Plaintiff also claimed to

have written the grievance officer, the ARB, and the executive office about this October
2011 grievance.
The October 2011 grievance (filed while Plaintiff was housed in NRC at
Stateville) cannot satisfy his exhaustion duty as to the allegations of his complaint
before this Court (which are directed at Menard officials).

In other words, the

undersigned District Judge concludes (as did Judge Williams) that the October 2011
grievance does not exhaust Plaintiff’s administrative remedies as to the named
Defendants herein (who all work at Menard), because it was filed before Plaintiff was
incarcerated at Menard.
1

Marcus Hardy appears to have been the Warden (and CAO) at
Stateville Correctional Center at the time of Plaintiff’s October 2011
grievance filing.
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Furthermore, the record shows that Plaintiff failed to appeal this grievance to the
ARB. Judge Williams has found Plaintiff’s testimony to the contrary not credible (Doc.
44, p. 8), and -- as Defendants argued in their summary judgment motion -- Plaintiff’s
complete IDOC grievance file contains no document indicating that Plaintiff appealed
to the ARB.
In his objections to Judge Williams’ Report, Plaintiff maintains that the counselor
at Stateville told Plaintiff that the grievance would “follow” him and “still be good”
when he got transferred. Plaintiff also asserts that no matter where he was housed, “this
has always been a ‘medical issue’” (Doc. 45, p. 4). These arguments miss the mark. The
Court finds that Plaintiff did not appeal this grievance to the ARB, so he did not
complete the IDOC exhaustion process.

Moreover, the October 12, 2011 grievance

(complaining of events at Stateville/NRC) could not and did not satisfy the exhaustion
requirements for the instant lawsuit (filed against officials working at Menard).
Also attached to Plaintiff’s complaint was a January 8, 2013 grievance (Doc. 1-1,
pp. 8-10). On the January 8, 2013 grievance, Plaintiff notes that he filed a grievance
roughly four months before (which would have been September 2012), and after
sending it to the grievance officer had received nothing back, had followed up with
Counselor Hamilton, and has not heard anything back from him either. Plaintiff further
explains that the matter he is attempting to raise “is about me being allergic to
oatmeal.” He states that contact with oatmeal gives him serious headaches, ingestion to
oatmeal could cause anaphylactic shock, and without a dietary/meal substitution for

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oatmeal, he lacks the required daily caloric intake (Doc. 1-1, p. 8, 10). 2
The January 8, 2013 grievance (to which Counselor Jay Hamilton responded on
February 26, 2013; Doc. 1-1, p. 9) does not name any of the Defendants from the instant
case. This grievance does not ask for a physical examination. It does not allege that an
allergic reaction occurred or went without prompt medical treatment.

As Judge

Williams concluded, the January 8, 2013 grievance implicates the dietary department at
Menard, not the health care unit, since Plaintiff was requesting meal substitutions in
place of oatmeal (not medical treatment). Plaintiff’s complaint in this grievance – that
he is being given meal trays containing oatmeal – is not conduct which cannot be
ascribed to the four physicians named as Defendants in this lawsuit. The prison doctors
are not alleged to have put the items on Plaintiff’s meal tray, and they are not alleged to
have failed to treat Plaintiff following an allergic reaction.

The January 8, 2013

grievance did not exhaust Plaintiff’s administrative remedies as to the four doctors he
named as Defendants in this lawsuit.
That accounts for the two grievances submitted with Plaintiff’s complaint. But
what of the mention of other grievances filed at Menard? The records before the Court
indicate that Plaintiff also filed a September 23, 2012 grievance.

2

The January 8, 2013 grievance also complained that Plaintiff had
not been receiving his “psych meds” for about three weeks (Doc. 1-1, p.
10). The above-captioned lawsuit, however, does not raise a claim for
denial of psychiatric medication or treatment. As explained in the
threshold review Order, Plaintiff’s lawsuit presents an Eighth
Amendment deliberate indifference claim based on Defendants’ refusal to
treat Plaintiff’s oatmeal allergy and denial of a special food/dietary
permit that would require meal substitutes for oatmeal (Doc. 6, p. 1).
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As noted above, the September 2012 grievance is referenced in the January 8,
2013 grievance documentation. The record before the Court does not contain a copy of
the September 23, 2012 grievance itself.

We know that Jay Hamilton, Plaintiff’s

Counselor at Menard, returned this grievance on October 4, 2012. The cumulative
counseling summary furnished with Defendants’ summary judgment brief (at Doc. 322, p. 3) states: “HAMILTON, JAY E., Correctional Counselor II. Answered offender’s
grievance about an oatmeal allergy … dated 9/23/12 and … received on 10/2/12. The
HCU, medical records was contacted and advised that there is no documentation about
an allergy to oatmeal in his record…. Grievance returned to the offender.” 3
Apparently Plaintiff’s January 8, 2013 grievance was a “follow-up” to the
September 23, 2012 grievance. Magistrate Judge Williams rejected as inconsistent and
not credible Plaintiff’s testimony that he named the four Defendants from this lawsuit
in the September 23, 2012 grievance.
Even if the undersigned District Judge had reason to differ with Judge Williams’
credibility determination (which he does not), the record before the Court contains no
evidence that Plaintiff continued the exhaustion process any further after getting the
September 23, 2012 grievance back from Counselor Hamilton on October 4, 2012. This
was confirmed by testimony from Terri Anderson of the ARB at the December 2013
Pavey hearing. Therefore, the September 23, 2012 grievance did not exhaust Plaintiff’s
administrative remedies as a prerequisite to this lawsuit.
3

This summary also discloses that Plaintiff was seen in his cell on 12/15/11
by Counselor Hamilton and advised that, per HCU, there are no special diets for
food allergies at Menard (Doc. 32-2, p. 4).
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In objecting to Judge Williams’ Report, Plaintiff offered the affidavit of Sean
Wilson, an inmate who was housed with and near Plaintiff at Menard during various
times. Wilson attests that Plaintiff showed him several grievances he wrote, that the
inmates “are always asking Counselor Hamilton about when they are going to get their
grievances back from him,” and that it seems Hamilton is “holding on to” the
grievances longer than necessary to prevent inmates proceeding to the next stage of the
exhaustion process (Doc. 45, pp. 23-24). Wilson also states that he “always got strange
vibes from Counselor Hamilton that he was given Inmate Bryant [Plaintiff] the runaround before Inmate Bryant filed suit on those doctors” (Doc. 45, p. 24).
This testimony does not assist Plaintiff in the case sub judice, because (a) the fact
that Plaintiff filed several grievances is not dispute and not dispositive; and (b) as to
Hamilton allegedly dragging his feet in returning grievances to inmates, the records in
this particular case show that the counselors timely responded to Plaintiff’s grievances,
and it was Plaintiff who failed to take the required next step in the exhaustion process.
Finally, in opposing Defendants’ summary judgment motion, Plaintiff attached
an August 26, 2013 grievance which does name one of the Defendants herein (Defendant
Shearing) and relates to failure to treat a medical condition, something other than the
oatmeal allergy (see Doc. 36, pp. 12-15). Clearly the August 2013 grievance was filed
after Plaintiff commenced the above-referenced lawsuit. So although it may be relevant
to another or future lawsuit, it cannot satisfy the requirement that Plaintiff exhaust his
administrative remedies on his deliberate indifference claim against the named
Defendants herein before filing this suit in federal court.
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V.

Conclusion
For all these reasons, the Court overrules Plaintiffs’ objections, ADOPTS in its

entirety Judge Williams Report and the findings contained therein (Doc. 44), GRANTS
Defendants’ summary judgment motion (Doc. 31), and DISMISSES without prejudice,
for failure to exhaust prior to filing suit, all of Plaintiffs’ deliberate indifference claims
herein. No claims remaining herein, the Clerk of Court shall enter judgment and close
this case.
IT IS SO ORDERED.
DATED February 12, 2014.
s/Michael J. Reagan
Michael J. Reagan
United States District Judge

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