Cook v. Kerr et al

Filing 70

ORDER: For the reasons stated in the attached memorandum and order, Defendants' motion for summary judgment (Doc. 39 ) is GRANTED, and Cook's complaint is DISMISSED without prejudice on failure to exhaust grounds. The CLERK is DIRECTED to enter judgment consistent with this order. Signed by Chief Judge Michael J. Reagan on 9/7/2016. (wtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAYNE COOK,
Plaintiff,
vs.
SUSAN KERR, and
LOUIS SHICKER,
Defendants.

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Case No. 15-cv-0070-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
In January 2015, Dwayne Cook filed a pro se complaint against a number of prison
officials at the Robinson Correctional Center, alleging that they violated his rights during
his time at the prison by not providing him a working wheelchair and by failing to treat
injuries he sustained when he fell out of his wheelchair. Cook’s first complaint was
threadbare and his second lacked a request for relief, so those two complaints were
dismissed at threshold review. His third complaint fared better, and the undersigned
permitted Cook’s deliberate indifference claims against Susan Kerr, the prison’s health
unit administrator, and Louis Shicker, the prison’s medical director, through screening.
Kerr and Shicker have now moved for summary judgment, maintaining that
Cook did not exhaust his prison remedies before filing suit. Cook was given several
opportunities to respond to the motion and was warned of the risks of not doing so, but
despite those directives, Cook has still failed to file a response. For the following
reasons, the Court GRANTS Kerr and Shicker’s motion for summary judgment.

BACKGROUND
Cook’s second amended complaint (Doc. 14), the operative complaint in this case,
alleges that Defendants Kerr and Shicker were deliberately indifferent to his serious
medical needs. As narrowed by the Court’s threshold order (Doc. 16), Cook’s amended
complaint alleges that he was issued a used wheelchair at Robinson Correctional Center,
but by July 19, 2014, several parts of the wheelchair were either worn or broken (Doc. 16,
p. 3). Cook notified Susan Kerr, the health care unit administrator at Robinson, and
Kerr had an inmate repair the wheelchair for Cook (Id.). Cook described the inmate
repairman as “unqualified, untrained, and unsupervised” (Doc. 14, p. 4). At the lunch
the very next day after the repairs were made, Cook alleges that he leaned back in his
chair and it collapsed, causing him to fall (Doc. 16, p. 3). As a result, Cook suffered
multiple injuries, including a concussion and pain in his right shoulder, neck, hip, and
lower back (Id.). Cook complains that he continues to suffer from dizziness, slurred
speech, and headaches (Id.). He says that he wrote a letter to Louis Shicker, the prison’s
medical director, and requested an MRI and CT scan, but Shicker indicated that Plaintiff
was being seen by medical staff who indicated no need for imaging tests (Id.).
In response to Cook’s amended complaint, Kerr and Shicker filed the pending
motion for summary judgment (Docs. 39 and 40). They argue that they are entitled to
summary judgment on Cook’s deliberate indifference claims because Cook failed to
exhaust his remedies as to them. Cook’s complaint alleges that he filed three grievances
related to his claims here—an emergency one on July 31, 2014, an emergency one on
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August 18, 2014, and a non-emergency one on October 16, 2014. He received responses
to his first two grievances on October 2nd and 7th indicating that those grievances had
been received by “inmate issues” (Doc. 14, p. 5). Cook’s complaint says that he never
heard anything more about those grievances and that he tried to submit another one on
October 16, 2014, but received “no response” to that one, too (Doc. 14, p. 5-6).
According to Kerr and Shicker, Cook’s July 31, 2014 and August 18, 2014
grievances were received by the Illinois Administrative Review Board on August 8, 2014
and August 25, 2014, respectively (Doc. 40-1, p. 3-4, 5, 6, 11). Cook’s submissions to the
Board did not contain a response from the prison’s counselor, grievance officer, or chief
administrative officer, so the Board instructed Cook to follow up (Id. at p. 6, 11). The
Board issued its follow-up order to Cook’s July 31, 2014 grievance on October 2, 2014,
and to the August 18, 2014 grievance on October 7, 2014 (Id.). Robinson Correctional
Center itself has no record of receiving the July 2014 or August 2014 grievance on or
around the time that those grievances were dated by Cook. (Doc. 40-2, p. 1-2).
A copy of the August 18, 2014 grievance, however, was attached to a third
grievance Cook filed directly with the grievance officer at Robinson on October 16, 2014
(Doc. 40-2, p. 1-6; 40-3, p. 1-2). Cook’s October 2014 grievance complained that he asked
his former counselor about the status of his August 18, 2014 emergency grievance but
that the counselor would not speak with him (Doc. 40-2, p. 5). Per the October 2014
grievance, Cook also spoke with his current counselor about his August 2014 emergency
grievance, who told him there was no record of that emergency grievance (Id. at p. 6).
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The grievance officer that ruled on the October 2014 grievance found no record of the
August 2014 emergency grievance in the cumulative counseling summary or the
grievance logs at Robinson (Id. at p. 4). The grievance officer denied Cook’s request to
have his former counselor disciplined or have the August 2014 emergency grievance
retroactively heard through the October 2014 grievance, noting that it was Cook’s
obligation to ensure that the August 2014 emergency grievance was sent directly to the
chief administrative officer of Robinson by way of the prison’s mail system, and that
there was no evidence of wrongdoing on the counselor’s part (Id.). Robinson’s warden
concurred with that result (Id.), and the Administrative Review Board does not have a
record of Cook’s third grievance ever being appealed to the Board (Doc. 40-1, p. 5).
Cook has not filed a response to Kerr and Shicker’s exhaustion motion. The
defendants filed that motion on January 19, 2016 (Docs. 39 and 40), and Cook’s response
was initially due on February 22, 2016. Cook did not file a response by that deadline,
but on February 23, 2016, the Court appointed counsel for him (Doc. 48). In light of the
appointment, the Court gave Cook additional time, up to and including April 27, 2016,
in which to respond to the summary judgment motion (Doc. 59). Appointed counsel
asked for additional time to respond to the summary judgment motion and also sought
leave to file an amended complaint, and both of those requests were granted (Docs. 61
and 62).

Counsel then asked for two more extensions of time to respond to the

summary judgment motion and to file an amended complaint (Docs. 63-65). Those
requests, too, were granted, and Cook was given until June 1, 2016 in which to respond
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to Kerr and Shicker’s exhaustion motion (Doc. 66). As of this date, Cook has not filed a
response or an amended complaint, nor has he asked for more time to do so.
LEGAL STANDARDS
A. The Prison Litigation Reform Act
Lawsuits filed by inmates are governed by the Prison Litigation Reform Act,
which states, in relevant part, 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.” 42 U.S.C. § 1997e(a). The Seventh Circuit
requires strict adherence to this exhaustion requirement, Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006), meaning that a prisoner “must file complaints and appeals in the
place, and at the time, the prison administrative rules require” before he can sue. Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). If a prisoner fails to follow that
process, “the prison authority can refuse to hear the case, and the prisoner’s claim can be
indefinitely unexhausted.” Dole, 438 F.3d at 809. All aspects of the administrative
process that are available to a prisoner must be exhausted before a prisoner sues—an
inmate can’t file a complaint before he completes the process and then let that process
finish while his suit is pending.

Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).

In Pavey v. Conley, 544 F.3d 739, 740-41(7th Cir. 2008), the Seventh Circuit held
that “debatable 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
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federal judge. Pavey contemplates a hearing by the judge to allow discovery, hear
testimony, and assess whether the inmate exhausted his remedies.

See id. at 742.

Although the Seventh Circuit in Pavey suggested that a hearing would take place to
determine whether the prisoner had satisfied the exhaustion requirement, “there is no
reason to conduct an evidentiary hearing” where there are no disputed, material facts
regarding exhaustion. Doss v. Gilkey, 649 F. Supp. 2d 905, 912 (S.D. Ill. 2009).
B. Exhaustion Requirements Under Illinois Law
As an inmate confined within the Illinois Department of Corrections, Plaintiff was
required to follow the regulations contained in the Department of Corrections’
Grievance Procedures to properly exhaust his claims. 20 ILL. ADMIN. CODE § 504.800 et
seq. For a non-emergency grievance, the procedures first require inmates to speak with
their counselor about their complaint. 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 sixty 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 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
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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’s response, he or she can file an appeal with the
Director through the Illinois Administrative Review Board. See 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).
The grievance procedures also allow an inmate to file an emergency grievance.
In order to file an emergency grievance, the inmate must forward the grievance directly
to the Chief Administrative Officer, 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 Chief Administrative Officer as
an emergency grievance, then the officer “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 officer has

informed the inmate of his decision, the inmate may appeal that decision to the
Administrative Review Board on an expedited basis. 20 ILL. ADMIN. CODE § 504.850(g).
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ANALYSIS
The Court notes that Cook has not filed a response, so under the Court’s Local
Rules, the Court will deem the facts as presented by Defendants to be uncontroverted.
See SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 7.1(c); see also Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995).
Based on the evidence presented by Kerr and Shicker and left undisputed by
Cook, the Court finds that Cook did not properly exhaust his administrative remedies
for any of his three grievances. As to Cook’s first grievance, Cook marked that one as
an emergency and says that he “submitted” it on July 31, 2014. The rub is that all of the
evidence shows that Cook sent that grievance directly to the Illinois Administrative
Review Board rather than tender it to Robinson’s chief administrative officer first, as he
was required to do by the Illinois administrative rules. For one, there’s no record that
anyone at Robinson received the first grievance; the grievance appears nowhere in
Plaintiff’s counseling summary or the grievance logs. Once more, the Board received
the July 31, 2014 grievance on August 8, 2014.

It would have been borderline

impossible for Cook to send the emergency grievance to Robinson’s warden, receive a
denial or allow enough time to pass for Cook to presume that Robinson’s warden was
ignoring it, and then send the emergency grievance to the Board for it to receive it in that
timeframe—the only reasonable explanation for the Board’s quick receipt was that Cook
sent the grievance straight to the Board.

In addition, Cook says in his amended

complaint that he received the first and only response to his initial grievance on October
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7, 2014. That response didn’t come from anyone at Robinson but instead from the
Board, yet another piece of evidence showing that the grievance’s first and only stop was
at the Board. Putting the proverbial nail in the coffin, Cook seems to admit in his
second emergency grievance that he sent the first emergency grievance directly to the
Board, stating that he wrote “an emergency grievance to the Administrative Review
Board over a month ago.” To exhaust, Cook must follow the process set forth by
Illinois, Pozo, 286 F.3d at 1023, and the undisputed facts here show that Cook didn’t—he
sent the first grievance straight to the Board rather than to Robinson’s warden.
Cook’s third, October 2014 non-emergency grievance has a similar flaw. That
grievance skipped his counselor and was sent straight to the grievance officer, but that
failure wouldn’t necessarily preclude exhaustion, as the grievance officer addressed the
grievance on its merits.

Ford, 362 F.3d at 398.

The problem with the October

grievance, rather, was Cook’s failure to appeal. After the prison’s grievance officer
denied his October 2014 grievance, Cook asked Robinson’s chief administrative officer to
review the grievance. That officer did, affirming the finding of the grievance officer,
and there’s nothing to indicate that Cook ever appealed that finding to the
Administrative Review Board—the Board has no record of receiving anything from
Cook on the third grievance, and Cook has offered nothing in response to Kerr and
Shicker’s motion for summary judgment to say that he sent it to the Board. Illinois rules
require an appeal for a grievance, and the undisputed facts here show that Cook didn’t
appeal. His third grievance, then, must be deemed unexhausted. E.g., Hudson v.
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Corizon Med. Servs., 557 F. App’x 573, 575 (7th Cir. 2014); Hoeft v. Wisher, 181 F. App’x
549, 551 (7th Cir. 2006); Dixon v. Page, 291 F.3d 485, 488-89 (7th Cir. 2002).
That leaves Cook’s second emergency grievance, and while it’s a slightly closer
call, the Court is still of the view that it was unexhausted, as it suffers from the same
defect as Cook’s first grievance. Robinson’s records show no receipt of that grievance
by the facility’s warden or anyone else, and the fact that the Board received it a scant
seven days after it was dated leaves no real room for doubt that Cook sent the grievance
straight to the Board.

Cementing things even further is Cook's statement in his

amended complaint that he received his first and only response to that grievance on
October 7, 2015, but that response came from the Review Board, a point that strongly
suggests that the grievance’s first and only stop was at the Board. That evidence, left
completely undisputed by Cook, is enough to show that Cook didn’t tender the
grievance to Robinson’s warden before moving to the Board, as required by the Illinois
administrative rules. And that means that the second grievance wasn’t exhausted.
To be sure, there are exceptions to the exhaustion requirement, and there is a hint
in Cook’s submissions that the second grievance might fall into one of those exceptions
here. An inmate’s failure to follow the correct procedural path to exhaust his prison
remedies can be forgiven if prison officials blocked his way, Lewis v. Washington, 300
F.3d 829, 833 (7th Cir. 2002), and there is a suggestion in Cook’s third grievance, which
was attached to his operative complaint, that he gave his second emergency grievance to
his counselor at some point and that the counselor did nothing with it. The rub is that a
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prisoner who wants to take advantage of an exception to exhaustion, like incapacitation
or obstruction, bears the burden to assert the exception, Moore v. Feinerman, 515 F.
App’x 596, 598-99 (7th Cir. 2013), and thus must at least respond to an exhaustion
motion with an obstruction-related argument to create the kind of disputed issue of fact
that necessitates a hearing. See Hurst v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011).
Cook never filed any response to Kerr and Shicker’s motion for summary judgment to
raise the obstruction point, and that failure to offer anything in an area where Cook bore
the burden means that he must lose. Hurst, 634 F.3d at 412. At the least, Cook needed
to offer verified evidence or sworn testimony to tee up a disputed fact for obstruction,
McSwain v. Schrubbe, 382 F. App’x 500, 502-03 (7th Cir. 2010), and he didn’t do that
either. The suggestions in the third grievance don’t go that far: the third grievance isn’t
verified or sworn, and either way it only says that Cook “filed” the second emergency
grievance and that he “gave” it to the counselor at some unspecified point, without
going so far as to say that Cook gave the second grievance to his counselor when he
drafted it and that the counselor obstructed its delivery to the warden. Maybe Cook
declined to submit an affidavit or other evidence on that front to avoid perjury or
sanctions problems—it would be quite a tough pill for this Court to swallow that Cook
gave the August 18, 2014 grievance to his counselor when he drafted it, that his
counselor gave him the runaround on it, and that Cook then sent the emergency
grievance to the Board, as the Board received the second grievance a mere seven days
after it was dated.

But either way, Cook didn’t offer any sworn evidence on
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obstruction, meaning that the argument must fail.

E.g., Hurst, 634 F.3d at 412;

McSwain, 382 F. App’x at 502-03; Owens v. Hinsley, 635 F.3d 950, 954-55 (7th Cir. 2011). 1
Even if the Court fully credited the suggestions in Cook’s third grievance as
evidence and assumed that the mere presence of the third grievance in the record
sufficed to tee up an obstruction argument, there still wasn’t the kind of obstruction here
that would excuse a failure to exhaust by Cook.

Obstruction exists only when a

prisoner “follow[s] procedure” and was blocked by a prison official regardless of his
diligent efforts, Dole, 438 F.3d at 811, and Cook didn’t follow all the rules here. At best,
the third grievance suggests that Cook involved his counselor in the second emergency
grievance, but Illinois Administrative Code § 504.840 didn’t permit him to do so—Cook
was required to forward emergency grievances directly to Robinson’s warden.

In

addition, Cook was also invited by the Board to follow up with it concerning his second
emergency grievance, and he failed to do that as well. E.g., Steiskal v. Lewitzke, 553 F.
App’x 611, 616 (7th Cir. 2014); Dole, 438 F.3d at 811; Cannon v. Washington, 418 F.3d
714, 719 (7th Cir. 2005). On these facts, the exhaustion-related problems for the second
grievance are ultimately ones of Cook’s own making, meaning that it was unexhausted.

Cook’s failure to contest exhaustion in this Court incidentally means that Cook likely
can’t challenge the undersigned’s exhaustion ruling on appeal. E.g., Canady v. Davis,
376 F. App’x 625, 626-27 (7th Cir. 2010); Mark v. Gustafson, 286 F. App’x 309, 312-13 (7th
Cir. 2008). Whether the Seventh Circuit would hold as much is up to that Court; the
undersigned only flags the point as a warning to Cook, who may be assessed a strike by
the Seventh Circuit under the Prison Litigation Reform Act if he files a frivolous appeal.
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1

CONCLUSION
Defendants’ motion for summary judgment (Doc. 39) is GRANTED, and Cook’s
complaint is DISMISSED without prejudice on failure to exhaust grounds.
CLERK is DIRECTED to enter judgment consistent with this order.
IT IS SO ORDERED.
DATED: September 7, 2016
/s/ Michael J. Reagan
Chief Judge Michael J. Reagan
United States District Court

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