O'Quinn v. Gaetz et al

Filing 157

ORDER GRANTING Motions for Summary Judgment 94 105 : The Court Grants the Motions for Summary Judgment 94 105 . Signed by Judge Nancy J. Rosenstengel on 9/22/15. (ceg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHESTER O’QUINN,
Plaintiff,
vs.
JAMES BLADE, JODY GOETTING,
DONALD GAETZ, SALVADOR
GODINEZ, DARIN OLMSTEAD,
THOMAS SPILLER, JANET
DAUGHERTY, ABBY ELDER, ANGEL
RECTOR, VIPIN SHAH, and AMY
FLOWERS,
Defendants.

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Case No. 13-CV-1342-NJR-PMF

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
BACKGROUND
Two motions for summary judgment are pending before the Court (Docs. 94, 105).
Defendants move for summary judgment on the basis that Plaintiff failed to exhaust his
administrative remedies, and Plaintiff filed timely objections to both motions (Docs. 114,
116). The case was previously assigned to Judge J. Phil Gilbert, but it was transferred to
the docket of the undersigned pursuant to an Administrative Order entered on July 20,
2015 (Doc. 153).
Plaintiff Chester O’Quinn is challenging many of the conditions he experienced
while confined at Pinckneyville Correctional Center (“Pinckneyville”). Plaintiff’s
original complaint (Doc. 1) was filed on December 27, 2013, but dismissed without
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prejudice and with leave to amend by Judge J. Phil Gilbert on January 28, 2014 (Doc 8).
Plaintiff filed his amended complaint (Doc. 10), the operative complaint in this matter,
on February 28, 2014. Plaintiff is proceeding against eleven defendants on an assortment
of claims pursuant to 42 U.S.C. § 1983, based on allegations of Eighth Amendment
deprivations through deliberate indifference to medical needs. 1 He also asserts
Americans with Disabilities/Rehabilitation Act violations (“ADA”). Plaintiff has seven
claims against Defendants, which can be summarized as follows:
Count 1: Defendants Shah and Rector never completed a full
medical examination of Plaintiff “from head to toe.”
Count 2: Defendants Shah, Elder, and Rector repeatedly ignored
Plaintiff’s requests for a front cuff permit, which Plaintiff needs
for the administration of insulin among other reasons. Because of
this, Plaintiff was routinely denied insulin shots, resulting in
twelve episodes of dangerously low blood sugar.
Count 3: Defendants Blade, Goetting, Shah, and Rector ignored
Plaintiff’s complaints that he was denied access to the gym for
more than ninety days. Plaintiff was denied access to the gym
because of disabilities he sustained from a car accident and work
related injuries. Plaintiff was permitted to move forward with this
claim against Godinez under the ADA.
Count 5: Defendants Shah, Rector, Goetting, and Gaetz ignored
Plaintiff’s four requests in September 2013 for a pillow, which
Plaintiff needed to prevent aggravation of a prior neck and back
injury.
Count 6: Defendants Daugherty, Flowers, and Olmstead denied
Plaintiff his insulin shots for 3-4 weeks and would not allow
Plaintiff to lift his shirt to receive these shots when he did receive
them.

Because Plaintiff is seeking injunctive relief, the Court reinstated Defendant Warden Spiller as
a defendant in the case for that purpose only (Doc. 16).

1

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Count 7: Plaintiff was not adequately treated for a spider bite that
he received in June 2013. He was required to see a nurse three
times before being referred to a doctor. Defendants Shah and
Rector ignored his spider bite complaints for 5-6 months before
giving him antibiotics. Even then, Plaintiff continued to suffer
from a rash, boils, bleeding, and cysts, which he attributes to the
bite.2
Defendants in this case, James Blade, Jody Goetting, Donald Gaetz, Salvador
Godinez, Darin Olmstead, Thomas Spiller, Janet Daugherty, Abby Elder, Angel Rector,
Vipin Shah, and Amy Flowers, collectively filed two motions for summary judgment on
the issue of exhaustion (Docs. 94, 105), arguing that Plaintiff failed to exhaust his
administrative remedies prior to filing suit. Based on a review of the grievance record
maintained at Pinckneyville and the Administrative Review Board (“ARB”), Defendants
contend that Plaintiff failed to grieve, or failed to exhaust his grievances, as to every
claim against each Defendant prior to filing this lawsuit. Plaintiff responded to
Defendants’ Motions for Summary Judgment (Docs. 94, 105), on October 16, 2014 (Doc.
114) and on October 22, 2014 (Doc. 116).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the moving party can demonstrate “that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603,
607 (7th Cir. 2005); Black Agents &Brokers Agency, Inc., v. Near North Ins. Brokerage, Inc., 409
F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no
2

Plaintiff also blames the cancerous ingredients in his toothpaste for these cysts.

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material facts are in genuine dispute; any doubt as to the existence of a genuine issue
must be resolved against the moving party. Adickes v. S.H. Kress &Co., 398 U.S. 144, 160
(1970); See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving
party is entitled to judgment as a matter of law where the non-moving party “has failed
to make a sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.” Id. The Seventh Circuit has stated that summary judgment “is
the put up or shut up moment in a lawsuit, when a party must show what evidence it
has that would convince a trier of fact to accept its version of events.” Steen v. Myers et. al,
486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d
852, 859 (7th Cir. 2005) (other citations omitted)).
DISCUSSION
In Plaintiff’s amended complaint (Doc. 10), Plaintiff suggests that he filed or
attempted to file grievances on all issues and confronted delays and other obstacles
along the way, including limited access to grievance forms. He is certain that most of his
concerns were exhausted before his summary judgment response was filed (Doc. 114).
Because the materials on file permit analysis of the arguments without further factual
development, an evidentiary hearing has not been held.
The Court has carefully reviewed the exhibits on file and elects to discuss
Plaintiff’s access to grievance forms before considering the manner in which prison
administrators handled the particular grievances and appeals linked to Plaintiff’s claims.
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I.

Plaintiff’s Access to Grievance Forms

On occasion, Plaintiff mailed correspondence to an assortment of individuals,
reporting that he was having trouble obtaining access to grievance forms.
Correspondence of this nature was mailed on May 27, June 21, July 18, August 14,
September 6, September 20, and November 7, 2013.
Inmates are not required to exhaust all administrative remedies – only those that
are available to them. Woodford v. Ngo, 548 U.S. 81, 102 (2006). The “availability” of a
remedy is not a matter of what appears to be on paper, but whether the process was in
reality open for use. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
After conducting a complete review of the extensive materials on file, the Court is
satisfied that Plaintiff had reasonable access to grievance forms throughout the periods
at issue in this case. In particular, he had access to forms and prepared formal grievances
on the following dates:
5/1/2013
5/10/2013
5/11/2013 (two)
5/22/2013
6/2/2013
6/11/2013(two)
6/28/2013
7/12/2013
7/18/2013
8/7/2013
8/14/2013
9/4/2013
9/21/2013
9/22/2013
10/2/2013

11/2/2013
11/13/2013
11/18/2013
11/20/2013
11/30/2013
12/3/2013
12/4/2013
12/11/2013
12/12/2013
12/13/2013
12/18/2013
12/23/2013 (three)

Because these records exist, it can be concluded that any delay in obtaining access to
grievance forms was temporary and did not, in reality, deprive Plaintiff of access to the
administrative remedy procedure.
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II.

Plaintiff’s surviving grievances

Inmates who are unhappy with aspects of their prison confinement are required
to exhaust available administrative remedies before turning to the Court. 42 U.S.C.
§1997(e)(a); Woodford, 548 U.S. at 84. Failure to exhaust is an affirmative defense that the
defendants must prove. Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). The state’s
procedural rules establish the contours of the exhaustion requirement. Jones v. Bock, 549
U.S. 199, 218 (2007). In other words, to exhaust, inmates must have filed complaints and
appeals in the place and at the time the prison’s administrative rules require. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Grievances are intended to give prison
administrators an opportunity to address a concern. They do not need to place
individual defendants on notice of an impending lawsuit. Jones, 549 U.S. at 218.
Defendants may not demand that inmates take steps beyond those that the
administrative rules require. Kaba, 458 F.3d at 684. Similarly, inmates are not required to
complete procedural steps that are effectively unavailable. Id. A remedy becomes
unavailable when prison employees do not respond to a properly filed grievance or
subvert the process with affirmative misconduct. Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006).
In support of their motions, Defendants submit records maintained by the
Administrative Review Board (ARB). The ARB handles the prisoner’s grievance after he
appeals it to the Illinois Department of Corrections. As this is the last step in the
grievance procedure, the ARB’s records are sufficient to allow the Court to determine
whether a final decision was made. Defendants suggest that the ARB received several
grievance appeals. Some appeals were rejected due to procedural deficiencies; while
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other appeals did not pertain to the particular disputes giving rise to Plaintiff’s claims in
this case (Doc. No. 95, p. 7; Doc. No. 106, pp. 6-7).
A. Count 1 – lack of a full medical examination
Plaintiff prepared a grievance regarding deficient physical examinations on May
10, 2013 (Doc. No. 106-1, pp. 5-6). A counselor prepared a response on June 6, 2013. The
grievance office received the grievance on June 27, 2013, and assigned No. 111-13. A
decision was made at the institutional level on August 19, 2013. The ARB received the
appeal on September 9, 2013. The appeal was not resolved until August 21, 2014 (Doc.
No. 106-3, pp. 27-28).
Plaintiff prepared another grievance regarding incomplete physical examinations
on June 11, 2013 (Doc. No. 106-1, pp. 7-8). A counselor prepared a response on June 19,
2013. The grievance office received the grievance on June 27, 2013, and assigned No.
109-13. A decision was made at the institutional level on August 19, 2013. The ARB
received the appeal on September 9, 2013. The appeal was not resolved until August 21,
2014 (Doc. No. 106-3, pp. 27-28).
Plaintiff prepared another grievance regarding deficient physical examinations
on November 20, 2013 (Doc. No. 106-1, pp. 27-28). A counselor prepared a response on
December 9, 2013.
Plaintiff filed this action on December 27, 2013. This was less than four months
after he appealed the May 10 and June 11 grievance decisions, and shortly after he
received a counselor’s response to his November 20 grievance. All three grievances were
being processed, but the review process was not complete prior to the date of filing.
While there was a delay at the ARB level, the delay was not unreasonable under the
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circumstances and did not interfere with Plaintiff’s effort to obtain an administrative
remedy. In short, Plaintiff did not properly exhaust his available remedies. Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004)(exhaustion rules are routinely enforced by
dismissing suits that begin too soon, even if plaintiff exhausts while the litigation is
pending). Plaintiff filed this suit while an administrative remedy was still available,
without giving the process a chance to work. See Worthem v. Boyle, 404 Fed. Appx. 45 (7th
Cir 2010).
B. Count 2 – lack of a front cuff permit
Plaintiff prepared a grievance regarding a front cuff permit on May 10, 2013 (Doc.
No. 106-1, pp. 5-6). A counselor prepared a response on June 6, 2013. The grievance
office received the grievance on June 27, 2013, and assigned No. 111-13. A decision was
made at the institutional level on August 19, 2013. The ARB received the appeal on
September 9, 2013. The appeal was resolved on August 21, 2014 (Doc. No. 106-3, pp.
27-28).
Plaintiff prepared another grievance regarding a front cuff permit on May 11,
2013 (Doc. No. 106-1, pp. 9-10). A counselor prepared a response on June 6, 2013. The
grievance office received the grievance on June 27, 2013, and combined it with No.
111-13. A decision was made at the institutional level on August 19, 2013. The ARB
received the appeal on September 9, 2013. The appeal was resolved on August 21, 2014
(Doc. No. 106-3, pp. 27-28).
Plaintiff prepared another grievance regarding a front cuff permit on June 11,
2013 (Doc. No. 106-1, pp. 7-8). A counselor prepared a response on June 19, 2013. The

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grievance office received the grievance on June 27, 2013, and assigned No. 109-13. A
decision was made at the institutional level on August 19, 2013. The ARB received the
appeal on September 9, 2013. Part of the appeal was resolved on June 26, 2014 (Doc. No.
106-2, p. 19). The remainder was resolved on August 21, 2014 (Doc. No. 106-3, pp. 27-28).
Plaintiff prepared another grievance regarding a front cuff permit on August 7,
2013 (Doc. No. 106-1, pp, 16-17). A counselor prepared a response on September 25, 2013.
The grievance office received the grievance on October 3, 2013. A decision was made at
the institutional level on October 18, 2013. On June 17 and 24, 2014, the ARB declined to
consider the appeal, finding procedural errors (Doc. No. 106-2, p. 16; Doc. No. 106-3, p.
6).3
Plaintiff prepared additional grievances regarding a front cuff permit on
September 22, 2013 (Doc. No. 106-3, pp. 21). A counselor responded on October 15, 2013.
A decision was made at the institutional level on November 25, 2013. The ARB reached
its decision on August 21, 2014.
Plaintiff filed this action on December 27, 2013. Plaintiff did not wait the
appropriate amount of time before filing this suit because he waited only four months, as
opposed to the six months prescribed by statute. ILL. ADMIN. CODE TIT. 20, § 504.850(f);
Mlaska v. Shah, 428 Fed. Appx. 642, 645 (7th Cir. 2011) (“When Mlaska filed suit, he had not
allowed the prison a reasonable time to respond to his grievances, and thus we agree that he
had not yet exhausted his available remedies); Bentz v. Qualls, No. 14-CV-0562-MJR-SCW,
2015 WL 5062775, at *5 (S.D. Ill. Aug. 26, 2015) (holding that because plaintiff filed suit

The ARB’s decision indicates that the appeal was received on September 9, 2013, before
O’Quinn had received a decision at the institutional level.
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before the ARB had a chance to respond, he had not exhausted all of his remedies). The May

10, May 11, June 11, August 7, and September 22, 2013 grievances were being processed,
but final decisions were not completed prior to the date of filing. While there was some
delay at the ARB level, the delay was not unreasonable under the circumstances. Thus,
this claim was not properly exhausted.
C. Count 3- denial of gym access
Plaintiff did not prepare a grievance pertaining to his concerns about ADA gym
access prior to filing this action. These claims have not been exhausted. Plaintiff is
required to exhaust all of his administrative remedies before being permitted to proceed
on an ADA claim against Godinez. Cobb v. Weyandt, 359 Fed. Appx. 285, 287 (3rd Cir.
2009)(rejecting Cobb’s argument that he was not required to exhaust all of his
administrative remedies before moving forward with his ADA claim); See O’Guinn v.
Lovelock Corr. Ctr., 502 F.3d 1056, 160-61 (9th Cir. 2007).
D. Count 4- denial of pillow
Plaintiff prepared a grievance pertaining to his need for a pillow on August 7,
2013 (Doc. No. 106-1, pp. 16-17). A counselor prepared a response on September 25, 2013.
The grievance office received the grievance on October 3, 2013. A decision was made at
the institutional level on October 18, 2013. On June 17 and 24, 2014, the ARB declined to
consider Plaintiff’s appeal, finding procedural errors (Doc. No. 106-2, p. 16; Doc. No.
106-3, p. 6).
Plaintiff prepared another grievance pertaining to his need for a pillow on
November 20, 2013 (Doc. No. 106-1, pp, 27-28). A counselor provided a response on
December 7, 2013. The grievance office received the grievance in January 2014, after this
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action had been filed.
Plaintiff did not exhaust his available administrative remedies regarding this
claim before he filed this litigation because he did not wait the appropriate amount of
time before filing this suit.
E. Count 5 – denial of insulin
Plaintiff prepared a grievance pertaining to his diabetes medication on September
21, 2013 (Doc. No. 106-1, pp. 19-20). A counselor prepared a response on October 15,
2013. The grievance office received the grievance on October 31, 2013. A decision was
made at the institutional level on November 25, 2013. The ARB reached a decision on
August 21, 2014 (Doc. Nos. 106-3, pp. 13, 17).
Plaintiff prepared another grievance pertaining to insulin on November 13, 2013
(Doc. No. 106-1, pp. 25-26). A counselor responded on December 4, 2013. A decision was
made at the institutional level on July 15, 2014.
Plaintiff prepared another grievance pertaining to medication on December 23,
2013 (Doc. No. 106-3, pp. 15-16). A counselor prepared a response on January 15, 2014.
The grievance office received the grievance on January 23, 2014. A decision was made at
the institutional level on May 14, 2014 (Doc. No. 106-3, p. 14). The ARB reached a
decision on August 21, 2014 (Doc. Nos. 106-3, pp. 13, 17).
Plaintiff filed this action on December 27, 2013. The statutorily prescribed amount
of time, six months, had not passed before Plaintiff filed suit. . ILL. ADMIN. CODE TIT. 20, §
504.850(f); Mlaska, 428 Fed. Appx. at 645; Bentz, No. 14-CV-0562-MJR-SCW, 2015 WL
5062775, at *5. Further, the September 21, November 13, and December 23, 2013,

grievances were being processed but the process was not completed prior to the date of
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filing. Accordingly, this claim was not properly exhausted.
F. Count 6- denial of medical care for spider bite complaints
Plaintiff prepared a grievance regarding a rash on October 2, 2013 (Doc. No.
106-3, p. 22-23). A counselor provided a response on October 11, 2013. The grievance
office received the grievance on October 31, 2013. A decision was made at the
institutional level on November 25, 2013. The ARB made a decision on August 21, 2014.
Therefore, this claim was not exhausted prior to the initiation of this litigation.
CONCLUSION
Plaintiff failed to exhaust his available administrative remedies prior to filing this
action on December 27, 2013. While Plaintiff initiated the grievance process, he did not
give the prison administrative process an opportunity to work. Plaintiff acted
prematurely by filing this case before exhausting all of his administrative remedies. The
motions for summary judgment (Doc. Nos. 94, 105) are GRANTED, and all claims for
relief are DISMISSED without prejudice. Because no claims remain for a decision, the
Clerk is DIRECTED to close this case.
IT IS SO ORDERED.
DATED: September 22, 2015
s/ _Nancy J. Rosenstengel__
NANCY J. ROSENSTENGEL
United States District Judge

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