Barrow v. Wexford Health Sources, Inc. et al

Filing 115

ORDER REJECTING 90 Report and Recommendations and DENYING 57 Motion for Summary Judgment. Signed by Judge Nancy J. Rosenstengel on 8/24/15. (klh2)

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

)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES, INC.,
)
DR. ROBERT SHEARING,
)
KIMBERLY BUTLER,
)
GAILS WALLS, and DR. JOHN TROST, )
)
Defendants.
)

Case No. 14-CV-800-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson entered on April 23, 2015 (Doc. 90).
Magistrate Judge Wilkerson recommends that the motion for summary judgment on the
issue of exhaustion filed by Defendant John Trost on January 5, 2015 (Doc. 57) be
granted. Plaintiff Ronald Barrow filed a timely objection to the Report and
Recommendation on May 20, 2015 (Doc. 98). For the reasons stated below, the Court
sustains Plaintiff’s objections and denies the Report and Recommendation of Magistrate
Judge Wilkerson.
BACKGROUND
Plaintiff Ronald Barrow, an inmate at Menard Correctional Center (“Menard”),
brought this action alleging Defendants have deprived him of adequate medical care for
several chronic health conditions since 2005 (Doc. 31). One of the Defendants is Dr. John
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Trost, who became the medical director at Menard on November 25, 2013 (Doc. 58-1).
Following the Court’s threshold review of the complaint, Plaintiff was permitted to
proceed against Dr. Trost on claims that the doctor was deliberately indifferent to
Plaintiff’s serious medical needs by denying him access to prescription medications and
denying him adequate treatment for back pain, rectal bleeding, diverticulosis, knee pain,
and shoulder pain (Doc. 31).
Dr. Trost filed a motion for summary judgment arguing that Plaintiff failed to
exhaust his administrative remedies before filing suit as required by the Prison
Litigation Reform Act (Doc. 58). Specifically, Dr. Trost argues that Plaintiff did not
exhaust because he did not submit a grievance that named him or a grievance that
related to Plaintiff’s purported medical issues at any point after he became the medical
director (Doc. 58). In response, Plaintiff argued that because he is alleging a continuing
violation, he is not required to file grievances explicitly naming each and every official at
Menard who provided him with medical care (Doc. 66).
In accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on the issue of exhaustion on February 12, 2015
(Docs. 71, 78). Following the hearing, on April 23, 2015, Magistrate Judge Wilkerson
issued the Report and Recommendation currently before the Court (Doc. 90). Plaintiff
filed timely objections to the Report and Recommendation (Doc. 98).
THE REPORT AND RECOMMENDATION
In his findings of fact, Magistrate Judge Wilkerson found that Plaintiff has been
continually grieving his medical treatment since May of 2005 (Doc. 90, p. 3). He further

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found that the most recent, fully-exhausted grievance related to medical care was dated
July 11, 2013 (Doc. 90, p. 3). In his conclusions of law, Magistrate Judge Wilkerson agreed
with Plaintiff that, because he was grieving a continuing failure to provide adequate
medical care, he was not required to file “grievances as to each Defendant who provided
medical care, presumably from 2005 and the present” (Doc. 90, p. 6). Magistrate Judge
Wilkerson further concluded, however, that the July 11th grievance could not be
imputed to Dr. Trost because “a change in treatment provider necessarily changes the
conditions of the medical care provided, thus necessitating a new grievance.” (Doc. 90,
p. 7). Because Plaintiff did not file a grievance related to his medical care after Dr. Trost
became medical director on November 25, 2013, Magistrate Judge Wilkerson concluded
that he failed to exhaust his administrate remedies as to Dr. Trost (Doc. 90, p. 7).
PLAINTIFF’S OBJECTIONS
Consistent with his usual practice, Plaintiff has lodged a multitude of objections
to Magistrate Judge Wilkerson’s Report and Recommendation (Docs. 98). Because timely
objections were 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 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

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§ 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.
A. Objections to Findings of Fact
The Court first turns to Plaintiff’s objections related to Magistrate Judge
Wilkerson’s findings of fact. Plaintiff makes five objections (Doc. 98, ¶¶ 6–10), none of
which have any impact on the Court’s consideration of the Report and
Recommendation.
Plaintiff first objects to Magistrate Judge Wilkerson’s finding that he saw Dr. Trost
four times between November 23, 2013, and the Pavey hearing on February 12, 2015
(Doc. 98, ¶ 6). But Plaintiff does not indicate why that finding is inaccurate or offer any
evidence to support this objection. Furthermore, it is clear that this finding of fact is
based on Plaintiff’s own testimony at the Pavey hearing (Doc. 78, p. 4); when asked by
Magistrate Judge Wilkerson whether Dr. Trost ever saw him, Plaintiff responded, “I saw
Dr. Trost I believe on three occasions, and today would have been the fourth.” (Doc. 78,
p. 4).
Plaintiff’s second objection is to “the limited fact finding” regarding exhausted
grievances (Doc. 98, ¶ 7). Magistrate Judge Wilkerson discussed only one exhausted
grievance, but Plaintiff insists that he exhausted eleven grievances related to medical
issues (Doc. 90, p. 3; Doc. 98, p. 3). The exact number of fully-exhausted grievances,
however, is unimportant. The question before the Court is whether a grievance filed
prior to Dr. Trost’s employment at Menard can serve to exhaust Plaintiff’s claims against

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the doctor. Whether there was one or there was eleven fully exhausted grievances
simply does not matter.
Plaintiff’s third objection is to “the limited fact finding” regarding Dr. Trost’s
knowledge of his claims (Doc. 98, ¶ 8). Magistrate Judge Wilkerson stated that Dr. Trost
knew about Plaintiff’s complaints because the doctor had reviewed Plaintiff’s medical
records (Doc. 90, p. 3). Plaintiff claims that he also wrote Dr. Trost three letters, which
Magistrate Judge Wilkerson ignored (Doc. 98, p. 3). Again, the question before the Court
is whether a grievance filed prior to Dr. Trost’s employment at Menard can serve to
exhaust Plaintiff’s claims against the doctor. What is important is that after the grievance
was submitted, Dr. Trost became aware of Plaintiff’s complaints and allegedly did
nothing to address them. Whether Dr. Trost gained that knowledge in more than one
way is of little consequence.
Plaintiff’s fourth objection is to Magistrate Judge Wilkerson’s finding that Plaintiff
“speculate[d]” that the Administrative Review Board (ARB) contacted Dr. Trost
regarding the grievance dated July 11, 2013 (Doc. 90, ¶ 9). Plaintiff takes issue with the
use of the word “speculates” and claims that Magistrate Judge Wilkerson “ignore[d] the
facts of record.” (Doc. 98, p. 4 (citing Doc. 70, pp. 4–5)). Those “facts of record,” however,
are contained within document number 70, which has been stricken. Thus that
document is not considered part of the record in this matter, and the Court will not rely
on anything contained therein. As a result, Plaintiff has offered nothing other than his
own statements to support his objection. The Court will not simply accept Plaintiff’s
conclusory assertion, particularly because as far as the undersigned is aware, the ARB

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does not contact officials from the prison in reaching its decision. Instead, the ARB
simply relies on the grievance officer’s report and the warden’s decision that the
prisoner is required to submit with his appeal. And again, the ways in which Dr. Trost
gained knowledge of Plaintiff’s medical complaints is not important.
Plaintiff’s final objection is that “[t]he limited fact findings” in the Report and
Recommendation “ignored the extensive facts submitted by Plaintiff as to Trost’s failure
to meet the burden of establishing that there are no genuine dispute [sic] as to any
material facts” (Doc. 98, p. 4). This does not constitute specific objections to the Report
and Recommendation as contemplated by Rule 72(b) or Local Rule 73.1(b).
Accordingly, all of Plaintiff’s objections to Magistrate Judge Wilkerson’s findings
of fact are overruled.
B. Objections to Conclusions of Law
Plaintiff’s objections regarding Magistrate Judge Wilkerson’s conclusions of law
can be boiled down to two main arguments: (1) that Magistrate Judge Wilkerson erred
by failing to address his argument that there were no administrative remedies available
to him, and (2) that Magistrate Judge Wilkerson erred in concluding that the July 11th
grievance did not cover Dr. Trost.
With respect to the first argument, Plaintiff apparently believes that Menard
applies the grievance procedures within the Illinois Administrative Code in an uneven,
inconsistent, and unconstitutional fashion, which renders the grievance procedure
unavailable (see Doc. 98, ¶ 13; see also ¶ 15). Magistrate Judge Wilkerson did not ignore
this argument; he clearly stated that it would be addressed in a separate order, and it

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was (Doc. 90, p. 7 n.3; Doc. 91). In that subsequent order, Magistrate Judge Wilkerson
chose to strike the argument because Plaintiff did not make it in his original response to
the motion for summary judgment (Doc. 91; see Doc. 66). Instead, Plaintiff tried to sneak
it in through other submissions entitled “Motion as Relates to Pavey Hearing [Scheduled
for February 12, 2015]” (Doc. 65), “Motion for Clarification and Supplement of Record as
Relates to Pavey Hearing” (Doc. 70), and “Supplement to Plaintiff’s Motion for
Clarification and Supplement of Record as Relates to Pavey Hearing“ (Doc. 74).
Magistrate Judge Wilkerson construed these documents as supplements or sur-replies to
Plaintiff’s response brief, and explained that under the Local Rules, supplements are not
permitted without leave of Court (which Plaintiff did not seek), and sur-replies are never
permitted (Doc. 91). Accordingly, Magistrate Judge Wilkerson struck Plaintiff’s
submissions.
Plaintiff argues that striking his submissions that contained his argument
regarding the constitutionality of the grievance process deprives him of access to the
court and due process of law (Doc. 98, p. 6). That argument is incorrect. District courts
have discretion whether to allow amended or supplemental briefs to be filed. See
SDIL-LR 7.1(c), (g). And it is not an abuse of discretion to disallow a supplemental brief
when it raises duplicative arguments or arguments that could and should have been
presented in the original response. See Lyerla v. AMCO Ins. Co., 536 F.3d 684, 693 (7th Cir.
2008) (striking supplement brief was not abuse of discretion where it discussed case law
available at the time original response brief was filed); Pulliam v. Zimmer, Inc., 17
Fed.Appx. 456, 460 (7th Cir. 2001) (refusing to permit amended brief was not abuse of

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discretion where proposed brief “merely rehashed arguments he had made earlier or
raised issues that could and should have been presented in his original response”).
Simply put, Plaintiff should have presented all of his relevant arguments in his
initial response to Dr. Trost’s motion for summary judgment. Instead, he spread them
out amongst multiple long-winded submissions. This is a recurring problem with
Plaintiff. Plaintiff must learn to present his arguments at the appropriate time and in a
concise, non-duplicative manner. SDIL-LR 7.1(d). Magistrate Judge Wilkerson was well
within his discretion in striking Plaintiff’s submissions containing his argument
regarding the constitutionality of the grievance process (Doc. 91).
As for the second argument, the Court must determine whether the July 11th
grievance was in fact sufficient to exhaust Plaintiff’s administrative remedies as to Dr.
Trost. The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their
administrative remedies before bringing a civil rights lawsuit. 42 U.S.C. § 1997e(a); Porter
v. Nussle, 534 U.S. 516, 524 (2002). The goal of the exhaustion requirement is to provide
notice to prison administrators of a problem so that they have an opportunity to address
it without litigation. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013) (“The exhaustion
requirement’s primary purpose is to ‘alert [ ] the state’ to the problem ‘and invit[e]
corrective action.’” (quoting Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004)).
Exhaustion is not intended to provide individual notice to each prison official who
might later be sued. See Jones v. Bock, 549 U.S. 199, 219 (2007) (“[Providing] early notice to
those who might later be sued . . . has not been thought to be one of the leading purposes
of the exhaustion requirement.”) (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir.

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2004) (“We are mindful that the primary purpose of a grievance is to alert
prison officials to a problem, not to provide personal notice to a particular official that he
may be sued; the grievance is not a summons and complaint that initiates adversarial
litigation.”)).
Thus it follows 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); accord 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). Relevant case law demonstrates that a
previously submitted grievance will suffice to exhaust remedies for future events so long
as 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, 534 F.3d at 1244; Parzyck, 627 F.3d at
1218, 1219–20.
The undersigned disagrees with Magistrate Judge Wilkerson that a change in
treatment provider always necessitates a new grievance. That may be true when the
change in treatment providers is caused by the prisoner’s transfer to another institution.
See Burt v. Berner, Case No. 13-cv-794-NJR-DGW, 2015 WL 1740044, at *4, 5 (S.D. Ill. April
14, 2015) (prisoner needed to file a new grievance for incidents of deliberate indifference
that occurred after he was transferred to a different institution); Jones v. Feinerman, No. 09
C 3916, 2011 WL 4501405, at *4 (N.D. Ill. Sep. 28, 2011) (continuing violation ended when

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prisoner was transferred to a different institution). But it is not true when the prisoner
remains at the same institution. See Parzyck, 627 F.3d at 1218, 1219. In Parzyck, the
prisoner filed a grievance complaining about the denial of a promised orthopedic
consultation. 627 F.3d at 1218. While the prisoner was in the process of exhausting the
grievance, a new Chief Health Officer (“CHO”) was appointed at the prison. Id. The
prisoner again requested an orthopedic consultation, which the new CHO denied. Id.
The Eleventh Circuit held that the grievance filed before the CHO was appointed was
still sufficient to exhaust with respect to him because “it accomplished § 1997e(a)’s
purpose by alerting prison officials to the problem and giving them the opportunity to
resolve it before being sued.” Id. at 1219. The prisoner was not required “to file new
grievances addressing every subsequent act by a prison official that contributes to the
continuation of a problem already raised in an earlier grievance.” Id. at 1219.
The similarities between Parzyck and Plaintiff’s situation are obvious. Plaintiff
filed a grievance on July 11, 2013, complaining in part about the lack of medical care for
his chronic medical conditions, including back pain, rectal bleeding, diverticulosis, knee
pain, and shoulder pain (Doc. 58-2, pp. 58–62; Doc. 58-9, pp. 66–68). Before that
grievance was fully exhausted, Dr. Trost was appointed Medical Director at Menard.1
While Plaintiff was in the process of exhausting the grievance, or sometime shortly
thereafter, Dr. Trost became aware of Plaintiff’s requests for medical care for his chronic
conditions but did nothing about them. Therefore, even though the July 11th grievance
was filed before Dr. Trost was appointed, it was still sufficient to exhaust with respect to
The grievance was fully exhausted when Plaintiff received the ARB’s response on April 28,
2014 (Doc. 58-9, p. 58). Dr. Trost was appointed medical director on November 25, 2013 (Doc.
58-1).
1

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him because it alerted prison officials at Menard to the problem and gave them the
opportunity to resolve it without litigation. Parzyck, 627 F.3d at 1218. Plaintiff did not
need to file a new grievance each time his subsequent requests were denied by a new
official at Menard. As the Fifth Circuit stated, “It would make little sense to require a
prisoner being subjected to a frigid cell to continue to file grievances stating that the cell
remains frigid[.]” Johnson, 385 F.3d at 521. The same principle applies here.
Accordingly, the Court REJECTS Magistrate Judge Wilkerson’s Report and
Recommendation (Doc. 90) and DENIES Defendant John Trost’s motion for summary
judgment on the issue of exhaustion (Doc. 57).
IT IS SO ORDERED.
DATED: August 24, 2015
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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