Ford v. Wexford Health Sources, Inc. et al

Filing 52

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 50 );OVERRULES Ford's objections (Doc. 51 );GRANTS the defendants' motion for summary judgment (Doc. 30 ); DISMISSES Counts 1, 2 and 3 without prejudice for failure to exhaust administrative remedies; and DIRECTS the Clerk of Court to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 3/1/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHAN G. FORD,
Plaintiff,
v.

Case No. 15-cv-342-JPG-DGW

WEXFORD HEALTH SOURCES, INC. and
DR. DAVID,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
50) of Magistrate Judge Donald G. Wilkerson. Following a hearing, Magistrate Judge Wilkerson
recommends that the Court grant the motion for summary judgment filed by defendants Wexford
Health Sources, Inc. and Dr. David on the grounds that plaintiff Jonathan G. Ford failed to exhaust
his administrative remedies as required by 42 U.S.C. § 1997e(a). Ford objects to the Report
(Doc. 51).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
This case stems from two injuries Ford suffered while housed at the Hardin County Work
Camp, a satellite of the Shawnee Correctional Center (“Shawnee”). Magistrate Judge Wilkerson
has accurately set forth the law on exhaustion of administrative remedies and on the Illinois

Administrative Code’s administrative remedies procedures, so the Court need not repeat them at
this time. He has also decided that, for exhaustion purposes, the Hardin County Work Camp and
Shawnee are the same institution. No party objects to these findings, and the Court adopts them
as not clearly erroneous or contrary to law.
Nose Injury
The first injury occurred in the summer of 2012 prior to August 2, 2012, when Ford’s nose
was broken. He was not happy with the treatment he received from Dr. David, a Wexford
employee working at Shawnee. Without attempting to work out the matter informally with his
counselor, Ford filed a grievance with the grievance officer dated September 21, 2012. The
grievance was returned to Ford without a grievance officer’s or warden’s response. Ford testified
that he then filed an emergency grievance with Shawnee’s warden, and when he received no
response within six months, sent his September 21, 2012, grievance to the Administrative Review
Board (“ARB”). The ARB received the September 21, 2012, grievance on March 25, 2014, and
rejected it because it did not contain a grievance officer’s or warden’s response.
Magistrate Judge Wilkerson concluded that Ford had not exhausted his administrative
remedies with his September 21, 2012, grievance because he did not attempt to resolve the matter
informally with his counselor before filing a grievance as required by 20 Ill. Admin. Code
504.810(a) and because he did not timely appeal his returned grievance to the ARB as required by
20 Ill. Admin. Code 504.850(a). He further found Ford’s testimony that he filed an emergency
grievance incredible, and that, even if he had filed an emergency grievance, it would have been
beyond the 60-day time limit for filing grievances.
In his objection, Ford cites Perez v. Wisconsin, 182 F.3d 532 (7th Cir. 1999), in support of

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his argument that he did not have available remedies for past, healed injuries like his broken nose.
His theory, noted but not decided by Perez, is that the only remedy for such injuries is money
damages, and money damages are not available from administrative remedy procedure, so a
remedy is unavailable. Id. at 538. Ford believes since his nose has already healed incorrectly, he
has no available administrative remedy and therefore need not complete the process required by
the Illinois Administrative Code.
This theory noted in Perez was squarely rejected in Booth v. Churner, 532 U.S. 731, 741
(2001), which held that exhaustion of administrative remedy procedures is required if there is any
possible relief available, even if it is not the type of relief requested by the inmate. This was
reinforced in Porter v. Nussle, 534 U.S. 516, 532 (2002), in which the Supreme Court explicitly
held the exhaustion requirement applies even to complaints about completed episodes of wrongful
conduct. Ford had administrative remedies available to him, and, as Magistrate Judge Wilkerson
noted, he failed to exhaust them in the manner provided by the Illinois Administrative Code.
The Court has reviewed the remaining rationale for recommending dismissal of Ford’s
claims with respect to treatment of his nose injury and finds it is not clearly erroneous or contrary
to law. For these reasons, the Court will adopt Magistrate Judge Wilkerson’s recommendation to
dismiss without prejudice Counts 1 and 2 for deliberate indifference to Ford’s medical need for
treatment of his broken nose.
Clavicle Injury
Ford’s second injury occurred in August 2013 when he injured his left clavicle. Again, he
was not happy with the treatment he received from Dr. David. He submitted two grievances
regarding this treatment.

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His first was a grievance to his counselor dated August 29, 2013. On September 20, 2013,
his counselor responded that he would receive a repeat x-ray and follow-up treatment. Ford took
no further action on this grievance. Magistrate Judge Wilkerson found that Ford did not exhaust
his administrative remedies with respect to this grievance because he did not appeal the matter to
the grievance officer, the warden or the ARB.
His second grievance was an emergency grievance dated January 7, 2014. He sent this
grievance directly to the ARB, which received the grievance on January 10, 2014. The ARB
rejected it because it did not contain a grievance officer’s or warden’s response. Magistrate Judge
Wilkerson found that Ford did not exhaust his administrative remedies with respect to this
grievance because he did not attempt to resolve the matter informally with his counselor before
beginning the formal grievance process and did not file the grievance with the grievance officer as
required by 20 Ill. Admin. Code 504.810(a).
In his objection, Ford argues that he thought his August 29, 2013, grievance had worked
because he was sent to see a surgeon in October 2013. It was only after Dr. David did not follow
through on the surgeon’s recommendation for a follow-up visit in six to eight weeks that Ford
again became dissatisfied with his treatment. Rather than starting the grievance process anew, he
states picked up where he left off in the grievance process and sent his January 7, 2014, grievance
directly to the ARB. He reasoned that since his complaints were essentially the same as those in
the August 29, 2013, grievance, there was no reason to start the process over again. He suggests
that these two grievances combined amount to exhaustion of his administrative remedies.
The Illinois Administrative Code does not provide for combining grievances and sets forth
procedures and time limits for each individual grievance. Ford does not really contest that he did

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not pursue his August 29, 2013, grievance to the final step by filing a formal grievance with the
grievance officer, waiting for the warden’s decision, and then appealing that decision to the ARB.
Therefore, he did not exhaust his remedies as to that grievance.
By January 7, 2014, Ford was aware he was not receiving the recommended follow-up and
was free to try to resolve the issue with his counselor and then file a new grievance – emergency or
not – based on that alleged deficiency in his treatment. However, he failed to contact his
counselor as required by 20 Ill. Admin. Code 504.810(a), failed to file a normal grievance with the
grievance officer pursuant to 20 Ill. Admin. Code 504.810(a), and failed to send an emergency
grievance straight to the warden pursuant to 20 Ill. Admin. Code 504.840.1 Instead, he sent his
emergency grievance straight to the ARB, which is only allowed if he is complaining about events
at an institution in which he is not housed, which was not the case. Ford did not follow the proper
exhaustion procedure and therefore failed to exhaust his administrative remedies with his January
7, 2014, grievance.
Ford also raises an argument with respect to his incorrectly healed clavicle injury based on
Perez that the Court has already explained and rejected.
For these reasons, the Court will adopt Magistrate Judge Wilkerson’s recommendation to
dismiss without prejudice Count 3 for deliberate indifference to Ford’s medical need for treatment
of his clavicle.
Accordingly, the Court hereby:


ADOPTS the Report in its entirety (Doc. 50);



OVERRULES Ford’s objections (Doc. 51);

Magistrate Judge Wilkerson faulted Ford for not filing his grievance with the grievance officer.
Actually, since it was an emergency grievance, he should have forwarded it directly to the warden.
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

GRANTS the defendants’ motion for summary judgment (Doc. 30);



DISMISSES Counts 1, 2 and 3 without prejudice for failure to exhaust administrative
remedies; and



DIRECTS the Clerk of Court to enter judgment accordingly.

IT IS SO ORDERED.
DATED: March 1, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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