Burt v. Berner et al

Filing 102

ORDER FINDING AS MOOT 96 Report and Recommendations; ADOPTING 99 Amended Report and Recommendations; and GRANTING in part and DENYING in part 67 and 68 Motions for Summary Judgment on the issue of exhaustion. Joshua Berner, Angela Crain, Da niel Dunn, Vicki Payne, Fe Fuentes, Latanya Williams, John Doe #2, and John Doe #10 are TERMINATED as Defendants. This action will proceed only on Count 1 against Defendants Samuel Nwaobasi, Jane Doe #1, and Richard Harrington. Signed by Judge Nancy J. Rosenstengel on 4/14/15. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BURT,

)
)
Plaintiff,
)
)
vs.
)
)
JOSHUA BERNER,
)
RICK HARRINGTON, DANIEL DUNN, )
FE FUENTES, SAM NWAOBASI,
)
ANGELA CRAIN, VICKI PAYNE,
)
LATANYA WILLIAMS, JANE DOE 1,
)
JOHN DOE 2, and JOHN DOE 10,
)
)
Defendants.
)

Case No. 13-CV-794-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Amended Report and Recommendation of
United States Magistrate Judge Donald G. Wilkerson (Doc. 99), recommending that the
motions for summary judgment on the issue of exhaustion filed by Defendants Joshua
Berner, Angela Crain, Daniel Dunn, Richard Harrington, Vicki Payne, Samuel
Nwaobasi, Fe Fuentes, and Latanya Williams (Docs. 67, 68) be granted in part and
denied in part. The Amended Report and Recommendation was entered on February 25,
2015, and Plaintiff Ronald Burt filed a timely objection (Doc. 100).
Because a timely objection was filed, the undersigned must undertake a de novo
review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P.
72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill.
1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires
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the district judge to “give fresh consideration to those issues to which specific objections
have been made” and make a decision “based on an independent review of the evidence
and arguments without giving any presumptive weight to the magistrate judge’s
conclusion.” Harper, 824 F.Supp. at 788 (citing 12 Charles Alan Wright et al., Federal
Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part)); Mendez v.
Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept, reject or modify
the magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788.
For the reasons stated below, the Court overrules Burt’s objections and adopts the
Report and Recommendation of Magistrate Judge Wilkerson.
BACKGROUND
Plaintiff, Ronald Burt, is an inmate in the custody of the Illinois Department of
Corrections. He suffers degeneration of his cervical spine as a result of an unspecified
injury, which causes severe and chronic neck and back pain (Doc. 1, p. 3; Doc. 80-1). Burt
filed this action on August 5, 2013, alleging Defendants were deliberately indifferent to
his neck and back issues and engaged in a civil conspiracy to deny him adequate medical
treatment (Doc. 1; Doc. 13).
In his complaint, Burt alleges that he was denied adequate medical care on
various occasions from mid-2011 through August 2013 at both Stateville Correctional
Center and Menard Correctional Center (Doc. 1; Doc. 80, p. 2; Doc. 80-1; see Doc. 80-3). It
appears from the record that Burt was incarcerated at Stateville from February 2011 to
April 2012, at which time he was transferred to Menard, where he remained for most of

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2012 and 2013.1 Two of the remaining Defendants are employees at Stateville: Latanya
Williams is a physicians’ assistant, and John Doe #10 was the Medical Director/Doctor
at Stateville between February 2011 and April 2012 (Doc. 1, pp. 2, 5). The other nine
Defendants are employees at Menard. Richard Harrington is the warden. Samuel
Nwaobasi and Fe Fuentes are physicians. Angela Crain is a nurse. Vicki Payne is a
correctional counselor. Joshua Berner and Daniel Dunn are correctional officers. Jane
Doe #1 is the intake nurse who examined Burt in April 2012 when he was transferred to
Menard (Doc. 1, pp. 2, 5). 2 And John Doe #2 was the Medical Director/Doctor at
Menard during October and November 2012 (Doc. 1, pp. 2, 6).
In April 2014, Defendants, with the exception of the Jane and John Does, filed
motions for summary judgment arguing that Burt failed to exhaust his administrative
remedies prior to filing suit (Docs. 67, 68). As required by Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on the issue of
exhaustion on June 27, 2014 (Doc. 90). At the hearing, Burt’s attorney stipulated to the
dismissal of Dr. Fe Fuentes and Latanya Williams (Doc. 92, p. 76–77).
Following the hearing, Magistrate Judge Wilkerson issued a Report and
Recommendation (Doc. 96). Five days later, he issued the Amended Report and
Recommendation currently before the Court (Doc. 99). Magistrate Judge Wilkerson
Neither party provided the Court with an exact history of where Burt was housed at all times
relevant to this lawsuit. The Court was able to piece together a timeline, however, using his
grievances and medical records. In August 2010, Burt was housed at Menard (see Doc. 80-3). In
February 2011, he was transferred to Stateville (see Doc. 69-11, p. 12). Approximately fourteen
months later, in April 2012, he was transferred back to Menard (Id. at p. 6). In June 2013 and
September 2013, he was housed at Stateville for a couple of weeks but then sent back to Menard
(Id. at pp. 23, 24, 32, 33).
2 Based on the relevant medical records, it appears that the intake nurse is not a woman, but a
man by the name of Chad Frierdich (Doc. 69-11, p. 6).
1

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found, and the parties agreed, that there were two grievances relevant to Burt’s
surviving claims: one dated August 23, 2010, and another dated October 23, 2012 (Doc.
99, p. 3). In short, Magistrate Judge Wilkerson concluded that the August 23rd grievance
was insufficient to exhaust Burt’s deliberate indifference claim as to any of the named
Defendants, and the October 23rd grievance was sufficient to exhaust only Burt’s
deliberate indifference claim as to Defendants Samuel Nwaobasi and Jane Doe #1 (Id. at
pp. 14–15, 16). He further concluded that neither grievance was sufficient to exhaust the
conspiracy claim (Id. at pp. 14, 15).
Burt objects to the conclusion that the August 23rd grievance was insufficient to
cover any of the named Defendants, and he argues that Magistrate Judge Wilkerson
misapplied the law regarding exhaustion and the continuing violation doctrine (Doc.
100, p. 8). Burt also objects to the conclusion that the October 23rd grievance was
sufficient to cover only two of the named Defendants (Id. at p. 11). Finally, Burt objects to
the conclusion that neither grievance was sufficient to exhaust his conspiracy claim (Id.
at pp. 3, 4, 15–16).
Below, the Court discusses with more depth the findings of fact, conclusions of
law, and Burt’s objections as they pertain to each grievance.
DISCUSSION
A. August 23, 2010 Grievance
This grievance was submitted while Burt was incarcerated at Menard. It generally
complains of excessive lockdowns in the previous months and how these lockdowns
affected prison life and living conditions (Doc. 80-3). In the last few sentences of the
grievance, Burt also complained that he was not receiving his pain medication or the
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movement required for his health conditions as a result of the lockdowns (Id.). It is
undisputed that Burt properly followed every step in the grievance process with respect
to this grievance (see Doc. 99, p. 4).
Magistrate Judge Wilkerson concluded, in pertinent part, that the August 23rd
grievance was sufficient to put prison officials on notice of Burt’s complaint that he had
been denied pain medication for his neck and back (Doc. 99, pp. 10, 13). He further
concluded that the failure to provide medication to Burt was a continuing violation, and
therefore Burt did not have to continuously submit new grievances for each day that he
was denied his medication (Id. at p. 13). Accordingly, the August 23rd grievance was
sufficient to exhaust Burt’s deliberate indifference claim against any Defendant who
failed to provide medication to Burt between June 23 and August 23, 2010, 3 and did so
again at some point thereafter (Id. at p. 14). It was not sufficient to exhaust as to any
Defendant who began treating Burt after August 23, 2010 (Id.).
Magistrate Judge Wilkerson then analyzed which Defendants fell within those
parameters. He concluded that the subjects of the grievance had to be employed at
Menard; thus Defendant Williams and John Doe #10 were excluded because they were
employees of Stateville (Doc. 99, p. 14). Defendants Berner, Payne, and Dunn were also
excluded because they did not deprive Burt of his medication until April 2012, at the
earliest (Id. at pp. 14–15). As for the other five Defendants—Warden Harrington, Dr.
Fuentes, Dr. Nwaobasi, Angela Crain, Counselor Payne, and John Doe #2—nothing that
Burt submitted to the Court indicated that they were responsible for the denial of
The Illinois Administrative Code requires inmates to file a grievance within sixty days of the
complained of event or incident. ILL. ADMIN. CODE tit. 20, § 504.810(a). Therefore, Magistrate
Judge Wilkerson determined that the grievance covered complaints going back to June 23, 2010.
3

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medication at any time from June 23 to August 23, 2010 (Id. at p. 14). Accordingly, the
August 23rd grievance did not exhaust Burt’s claim for deliberate indifference as to any
of the named Defendants (Id. at p. 15).
Burt objects to the conclusion that the August 23rd grievance was insufficient to
cover any of the named Defendants (Doc. 100, p. 8). He argues that Magistrate Judge
Wilkerson misapplied the continuing violation doctrine to the facts of this case. Burt
contends that due to the continuing nature of the violation, the August 23rd grievance
served to exhaust his claims against all prison personnel who deprived him of medical
care from June 23, 2010, until the continuing violation ended (Id. at p. 9). Because all of
the named Defendants denied him medical care within that time period, the August
23rd grievance was sufficient to exhaust his claims against every Defendant (Id.). In
other words, Burt argues that the August 23rd grievance was sufficient to cover every
prison official at every institution who purportedly denied him any type of medical care
for his neck and back pain at any time over the course of more than three years.
The Court disagrees with Burt; the continuing violation doctrine cannot be
stretched that far. It is true that in the event of a continuing violation, an inmate “need
not file multiple, successive grievances raising the same issue” so long as the first
grievance gave the prison “notice of, and an opportunity to correct, [the] problem.”
Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013); Parzyck v. Prison Health Servs., Inc., 627
F.3d 1215, 1219 (11th Cir. 2010); Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008);
Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004). But that principle of law has
boundaries, and contrary to Burt’s suggestion, it does not support “a blanket policy of

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allowing previously submitted grievances to exhaust remedies for all similar and
subsequent events.” Pinson v. St. John, No. 1:10-CV-01832-RBP, 2013 WL 765639, at *1 n.4
(N.D. Ala. Feb. 25, 2013); accord Johnson, 385 F.3d at 521 n.13 (“We pause to observe that
we do not here hold that a grievance filed in response to one particular incident
automatically exhausts claims that arise from future incidents of the same general
type.”); Garrett v. Stephens, No. 2:13-CV-70, 2014 WL 8272281, at *4-5 (S.D. Tex. Oct. 1,
2014) (“[I]n Johnson, the Fifth Circuit specifically rejected the idea that a previously filed
grievance could remain in perpetuity to exhaust future claims[.]”)
Instead, relevant case law demonstrates that a previously submitted grievance
will suffice to exhaust remedies for future events only if the prisoner remained in the
same situation. That is, the exact same problem continued to reoccur where the staff had
already been made aware of and given the opportunity to correct the problem. See
Howard v. Wade, 534 F.3d at 1244 (where inmate filed a grievance complaining that he
was at risk of sexual assault in the unit in which he was housed, it was sufficient to
exhaust his administrative remedies for each incident where he was, in fact, assaulted up
until his transfer out of the prison); Parzyck, 627 F.3d at 1218, 1219–20 (where plaintiff
filed a grievance complaining that he had been denied a promised orthopedic
consultation, he did not need to file a new grievance each time his subsequent requests
were denied by a new official at the same prison while he was in the process of fully
exhausting the first grievance).
Here, Burt is attempting to rely on a grievance submitted on August 23, 2010,
during his first stint at Menard, in order to exhaust his remedies with respect to all

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subsequent incidents of deliberate indifference. In that grievance, Burt complained
about the deprivation of pain reliever due to lockdowns at Menard prior to that date.
Accordingly, the grievance was sufficient to alert Menard officials to the problem and to
provide them the opportunity to resolve it, and Burt was not required to submit
additional grievances each subsequent time he was denied pain reliever at Menard.
Once he was transferred out of Menard to Stateville on February 18, 2011, however, he
no longer remained in the same situation.
At that point, the prison officials at Menard who purportedly denied him pain
reliever ceased to have any control over (or say in) Burt’s treatment. 4 See Heard v.
Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (holding that a continuing violation runs only
for as long as the defendant has “the power to do something about [the inmate’s]
condition.”); Jones v. Feinerman, No. 09 C 3916, 2011 WL 4501405, at *4 (N.D. Ill. Sep. 28,
2011) (“The series of violations Jones alleges against Feinerman terminated when
Feinerman no longer had the power to do something about Jones’s condition . . . [which]
occurred in late 2005, when Jones was transferred to another IDOC facility and out of
Feinerman’s care.”) Ozoroski v. Maue, No. 1:08-CV-82, 2011 WL 1304607, at *14 (M.D. Pa.
Feb. 14, 2011), report and recommendation adopted in part, rejected in part 2011 WL 1304603
(Mar. 31, 2011), aff’d, 460 Fed. App’x 94 (3d Cir. 2011) (“[W]e do not believe that the
Court of Appeals would find that the [continuing violation] doctrine should reasonably
be applied to discrete defendants, operating at different times and in different places,
and—in particular—to periods during which defendants were in no position to provide
It appears that the only communication between the institutions was through notes in Burt’s
medical record. There is nothing in the record that suggests Menard and Stateville prison
officials coordinated a treatment plan for Burt or reached any agreement about how to treat him.
4

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the requested medical services to an inmate.”); Gonzalez v. Wright, 665 F. Supp. 2d 334,
350 (S.D.N.Y. 2009) (finding no continuing violation for denial of adequate medical
treatment when defendants were at three different correctional facilities and there was
no evidence of a coordinated plan).
Furthermore, the undersigned cannot fathom how the August 23rd grievance,
which was initiated and fully exhausted while Burt was at Menard and only involved
the denial of medical care at that institution, could have possibly put Stateville officials
on notice that Burt was allegedly receiving inadequate medical care at their facility. In
fact, Burt did not cite to, and the Court is unaware of, any case where a previously filed
and completely exhausted grievance was sufficient to exhaust future incidents that
occurred at a different institution. Simply put, Burt cannot rely on the August 23rd
grievance to exhaust his claims for the denial of medical care that occurred at a wholly
different location and involved completely different individuals operating under
different circumstances.5 See Pinson v. St. John, No. 1:10-CV-01832-RBP, 2013 WL 765639,
at *1 (N.D. Ala. Feb. 25, 2013); Sanders v. Williams, No. CIV 08-0895 JB/WPL, 2010 WL
1631767, at *14 (D.N.M. Mar. 20, 2010). In sum, the August 23rd grievance was
insufficient to exhaust Burt’s administrative remedies regarding the denial of medical
care he allegedly experienced at Stateville between February 2011 and April 2012.
The same is true for the denial of medical care that Burt allegedly experienced
after he returned to Menard in April 2012. By that time, it had been at least nineteen
months since the August 23rd grievance was initiated, approximately fifteen months

There is no indication in the record that the denial of medical care Burt allegedly experienced
at Stateville was in any way related to lockdowns.
5

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since it had been fully exhausted, and fourteen months since Burt had last been at
Menard. Given the remoteness in time, it simply cannot be said that the inadequate
treatment Burt received after he returned to Menard was part of the same series of
events as the inadequate treatment he received during his first stint there.6 It also cannot
be said that prison officials were already on notice of the issue; too much time had gone
by for the August 23rd grievance to alert Menard officials that inadequate treatment
might occur in the future once Burt returned to their facility. See Howard v. Wade, 534 F.3d
at 1244–45 (holding plaintiff’s earlier grievances regarding risks to his safety in one
section of the prison were not sufficient to “put prison officials on notice” of intimidation
that occurred in another part of the prison some months later); Johnson, 385 F.3d at 521 n.
13 (“Thus, an inmate who claims to have been beaten by guards (or, for that matter, not
protected by guards) once one month and again the next month can rightfully be
expected to grieve both incidents.”); Guzman v. Vatani, No. CIV.A. H-12-2031, 2013 WL
2482910, at *4 (S.D. Tex. June 10, 2013).
In sum, the August 23rd grievance exhausted only Burt’s claims for deliberate
indifference up to February 18, 2011, the date he was transferred to Stateville. In order to
exhaust his administrative remedies for any incident of deliberate indifference that
That is particularly true because the medical records indicate that Burt received the exact
treatment that he claimed he was denied during his first stint at Menard—a prescription for pain
reliever—on at least four occasions thereafter. Jervis v. Mitcheff, 258 Fed.App’x. 3, 5 (7th Cir. 2007)
(instructing that a continuing violation for deliberate indifference to a serious medical need ends
“when treatment is provided.” (citing Heard, 253 F.3d at 318–19)). Burt was given a three-month
prescription for Motrin on August 24, 2011, while he was housed at Stateville (Doc. 69-11, p. 2).
After he returned to Menard, he received a three-week prescription for Motrin on November 3,
2012 (Doc. 69-11, p. 17); a two-month prescription for Motrin on December 1, 2012 (Id. at p. 18);
and a four-month prescription for Motrin on July 17, 2013 (Id. at p. 30; see also p. 31). His
predominant complaint regarding the denial of adequate medical treatment during his second
stint at Menard was not that he was denied pain reliever, but that he was denied a referral to a
specialist and surgery (see Doc. 1).
6

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occurred after his transfer to Stateville, Burt was required to file a separate grievance.
Unfortunately for Burt, even if some of the named Defendants were responsible for the
deliberate indifference covered by the August 23rd grievance, those claims are
time-barred.7 Consequently, the August 23rd grievance gets him nowhere.
Accordingly, the undersigned adopts Magistrate Judge Wilkerson’s conclusion
that the August 23, 2010 grievance is insufficient to exhaust Burt’s claims of deliberate
indifference as to any of the Defendants.
B. October 23, 2012 Grievance
In this grievance, Burt complained that he was repeatedly deprived of his pain
reliever at Menard. Burt’s counselor responded on January 14, 2013. There is no response
in the record from either the warden or the Administrative Review Board. Burt,
however, asserted that he submitted the grievance to the grievance officer within a few
days of receiving his counselor’s response on January 14, 2013, but he never received a
response. Magistrate Judge Wilkerson found Burt’s assertion credible (Doc. 99, p. 5). He
concluded that the warden’s failure to respond rendered the grievance process
unavailable to Burt, and thus Burt was deemed to have fully exhausted the October 23rd
grievance (Id. at p. 15). Magistrate Judge Wilkerson further concluded, however, that the
October 23rd grievance only covered Defendants Samuel Nwaobasi and Jane Doe #1.
Burt objects to the conclusion that the grievance only covered two Defendants.
Burt contends that Magistrate Judge Wilkerson’s analysis should have ended with his

The Administrative Review Board responded to Burt’s August 23rd grievance on January 3,
2011 (Doc. 80-3), and he had to file suit within the two year statute of limitations (by January 3,
2013). But Burt did not file suit until August 5, 2013, which was seven months after the period of
limitations expired.
7

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determination that the grievance process was unavailable to Burt (Doc. 100, p. 14–15). He
claims that once the exhaustion process becomes unavailable, the contents of a plaintiff’s
grievance, including the identities of those involved, are unimportant (Id.).
Burt is incorrect. A finding that the grievance process was unavailable, and
therefore the grievance was deemed exhausted, does not mean that all of Burt’s claims as
to all Defendants are automatically exhausted, as Burt seemingly implies. Rather, only
the claims implicated by the grievance are exhausted. Therefore, Magistrate Judge
Wilkerson had to determine which Defendants and/or claims the October 23rd
grievance covered. Burt did not argue or provide an explanation as to why Magistrate
Judge Wilkerson was wrong in concluding that the October 23rd grievance implicated
only Samuel Nwaobasi and Jane Doe #1. Accordingly, the undersigned adopts the
findings of fact and conclusions of law contained in the Report and Recommendation
regarding the October 23, 2012 grievance.
C. Conspiracy Claim
Magistrate Judge Wilkerson concluded that neither the August 23, 2010 grievance
nor the October 23, 2012 grievance exhausted Burt’s conspiracy claim (Doc. 99, pp. 14,
16). He stated that “there must be enough information provided [in the grievance] to put
the institution on notice that several of its employees were conspiring together to
prevent Plaintiff from receiving adequate medical treatment” (Id. at p. 14). Magistrate
Judge Wilkerson found that neither grievance alluded to, much less outright asserted,
the existence of a conspiracy.
Burt objected to this conclusion, arguing that Defendants never raised any

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challenge to the conspiracy claim, directly or indirectly, in the motions for summary
judgment or at the Pavey hearing (Doc. 100, pp. 3, 4). Burt claims that he has been
“blindsided by this issue” (Id. at p. 16).
While Defendants did not argue that the conspiracy claim should be dismissed
for failure to exhaust, the Court can still grant summary judgment on that issue after
giving Burt notice and a reasonable time to respond. FED. R. CIV. P. 56(f). The Report and
Recommendation did just that—it alerted Burt to the possibility that summary judgment
may be granted against him on the conspiracy claim, and he had sufficient time to
respond to Magistrate Judge Wilkerson’s recommendation. And Burt, in fact, took the
opportunity to object to that recommendation. He points out that the October 23, 2012
grievance alleges “the staff is deliberately and blatantly denying me my medication,”
which he implies is sufficient to put Menard on notice of a conspiracy (Id.).
Burt’s argument is unavailing. His grievance needed to alert prison officials to the
“nature of the wrong.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Merely stating
that “the staff is deliberately and blatantly denying me my medication,” did not give
sufficient notice to prison officials that Burt was contending correctional officers and
medical staff at Menard were working together with Stateville staff members to achieve
the express goal of denying him medical care. At most, the grievance alerts officials that
Burt was denied care by more than one member of the medical staff. But it does nothing
to induce the reader to consider that the denial of medical care was perhaps the result of
a premediated, multi-institution plan involving both correctional officers and medical
staff. A review of Burt’s other correspondence to the healthcare unit further convinces

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the undersigned that Burt failed to give notice of his conspiracy claim. For two weeks
prior to the October 23rd grievance, and six months afterwards, Burt sent at least six
letters to the doctor and Angela Crain (Doc. 1, pp. 15, 19–23). He never once mentioned
or implied the existence of a conspiracy (see id.).
Accordingly, the undersigned adopts the findings of fact and conclusions of law
contained in the Report and Recommendation regarding Burt’s conspiracy claim. That
claim will be dismissed for failure to exhaust.
CONCLUSION
Plaintiff Ronald Burt’s objections to the Amended Report and Recommendation
(Doc. 164) are OVERRULED, and the Court ADOPTS Magistrate Judge Wilkerson’s
Amended Report and Recommendation (Doc. 158). The motions for summary judgment
on the issue of exhaustion (Docs. 122, 132) are GRANTED in part and DENIED in part.
Defendants Joshua Berner, Angela Crain, Daniel Dunn, Vicki Payne, John Doe #2, and
John Doe #10 are DISMISSED without prejudice. Count 4 for civil conspiracy is
DISMISSED without prejudice. Defendants Fe Fuentes and Latanya Williams are also
DISMISSED without prejudice based on Burt’s stipulations at the Pavey hearing.
This action will proceed only on Count 1 against Defendants Samuel Nwaobasi,
Jane Doe #1, and Richard Harrington.
IT IS SO ORDERED.
DATED: April 14, 2015
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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