Watts v. Monroe

Filing 120

ORDER: For the reasons set forth in the attached Memorandum and Order, the Court GRANTS the Wexford Defendants' motion to dismiss (Doc. 103 ) as to Count III, DENIES their motion to dismiss (Doc. 103 ) as to Count IV, and DENIES their summary judgment motion (Doc. 105 ). Signed by Chief Judge Michael J. Reagan on 6/28/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMARCO WATTS,

)
)
Plaintiff,
)
)
v.
)
)
WESLEY MONROE,
)
MINH SCOTT,
)
DENNIS YOUNG,
)
KIM RICHARDSON,
)
TAMMY HARMON, and
)
WEXFORD HEALTH SOURCES, INC., )
)
Defendants.
)

Case No. 15-cv-0778-MJR-RJD

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.

INTRODUCTION
Plaintiff Damarco Watts, currently an inmate at Menard Correctional Center,

within the Illinois Department of Corrections (IDOC), brings this civil rights action
under 42 U.S.C. 1983, against various employees of the Illinois Department of
Corrections (IDOC) and Wexford Health Sources, Inc. (Wexford), a contractor that
provides healthcare services to IDOC inmates.
When he initially filed this lawsuit, Watts was confined at Pinckneyville
Correctional Center, he sued one Defendant, and his case was randomly assigned to
Judge J. Phil Gilbert, United States District Judge. In his Order on threshold review of
the pro se complaint under 28 U.S.C. 1915A, Judge Gilbert explained that Watts
complained of events that occurred while he was being transferred from Centralia
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Correctional Center to Pinckneyville Correctional Center. Judge Gilbert found that the
complaint stated cognizable Eighth Amendment claims for excessive force (Count 1)
and failure to provide medical care/deliberate indifference (Count 2) against
correctional officer Wesley Monroe. See Doc. 10. Discovery, motions, and amendments
followed.

Ultimately, counsel was recruited for Plaintiff Watts and filed a third

amended complaint on his behalf. See Doc. 99.
The operative complaint is Watts’ third amended complaint, filed in January
2017. It reasserts the excessive force and deliberate indifference claims against Monroe.
It also asserts deliberate indifference claims against five other Defendants – Minh Scott,
Dennis Young, Kim Richardson, Tammy Harmon, and Wexford – plus claims for
infliction of emotional distress and assault and battery against some of the named
Defendants.
In June 2016, the case was transferred from Judge Gilbert to the undersigned
District Judge via Administrative Order No. 188. Now before the Court is a motion to
dismiss portions of the third amended complaint for failure to state a claim (Doc. 103)
and an exhaustion-based summary judgment motion (Doc. 105). Both motions were
filed by Defendants Richardson, Harmon, and Wexford (collectively, “the Wexford
Defendants”).1 As explained below, the Court grants the dismissal motion as to Count
III, denies the dismissal motion as to Count IV, and denies the summary judgment
motion.

The three Wexford Defendants also filed an answer on June 2, 2017
(Doc. 102).
1

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II.

SUMMARY OF KEY ALLEGATIONS
The third amended complaint alleges the following. On July 30, 2014, Watts was

placed on a bus for transfer from Centralia Correctional Center to Pinckneyville
Correctional Center.

Doc. 99, ¶ 13.

While en route, the bus stopped at Lincoln

Correctional Center, where Watts was to change busses. Id. at ¶ 15. As Watts waited in
handcuffs to board the bus headed to Pinckneyville, Defendant Wesley Monroe
“grabbed plaintiff by the neck and slammed his face into the front of the bus and then
dragged him in between two buses, while threatening to do further harm to plaintiff.”
Id. at ¶ 16. During the altercation Watts injured his right eye. Id. at ¶ 18. Defendants
Minh Scott and Dennis Young (both correctional officers) observed the altercation but
failed to intervene. Id. at ¶ 21. After arriving at Pinckneyville Correctional Center,
Nurses Kim Richardson and Tammy Harmon examined Watts but declined to provide
treatment. Id. at ¶ 27. Watts was examined by an optometrist one week later, but he
continues to experience discomfort and impaired vision in his right eye. Id. ¶¶ 29-32.
III.

APPLICABLE LEGAL STANDARDS
A.

Motions to Dismiss

Rule 12(b)(6) governs motions to dismiss for failure to state a claim on which
relief can be granted.

The purpose of a Rule 12(b)(6) motion is to test the legal

sufficiency of a complaint. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012);
McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). A complaint
must state a claim that is facially plausible. Vinson v. Vermilion County, Il., 776 F.3d
924, 928 (7th Cir. 2015). To avoid Rule 12(b)(6) dismissal, it must contain “enough facts
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to state a claim for relief that is plausible on its face.” Scott v. Chuhak & Tecson, P.C.,
725 F.3d 772, 782 (7th Cir. 2013), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Accord Foster v. Principal Life Ins. Co., 806 F.3d 967, 971 (7th Cir. 2015).
A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 684 (7th Cir. 2013),
quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must “go beyond
mere labels and conclusions” and contain “enough to raise a right to relief above the
speculative level.” G&S Holdings, LLC v. Continental Cas. Co., 697 F.3d 534, 537-38 (7th
Cir. 2012).
In assessing a complaint under Rule 12(b)(6), the district court construes the
complaint in the light most favorable to the plaintiff, “accepting as true all well-pleaded
facts alleged, and drawing all possible inferences in her favor.” Hecker v. Deere & Co.,
556 F.3d 575, 580 (7th Cir. 2009), cert. denied, 558 U.S. 1148 (2010), quoting Tamayo v.
Blagoyevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
Rule 12(b)(6) motions must be decided based on the pleadings, the materials
attached thereto, and documents referred to in the complaint and central to the
plaintiff's claim or subject to proper judicial notice. If matters outside the pleadings are
presented to and considered by the court, the motion should be converted to a
summary judgment motion, with notice given and additional briefing permitted. See
Rogers v. Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015); Fed. R. Civ. P. 12(d);

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Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012); Geinosky
v. City of Chicago, 675 F.3d 743, 751 n.1 (7th Cir. 2012).
B.

Motions for Summary Judgment

Summary judgment is proper only if the admissible evidence considered as a
whole shows that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. Multi
Corp., 648 F.3d 506, 517 (7th Cir. 2011), citing FED. R. CIV. P. 56(a).
The party seeking summary judgment bears the initial burden of showing -based on the pleadings, affidavits, and/or information obtained via discovery -- the
lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). After a properly supported motion for summary judgment is made, the adverse
party “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), quoting FED R. CIV. P. 56(e)(2).
A fact is material if it is outcome determinative under applicable law. Anderson, 477
U.S. at 248; Ballance v. City of Springfield, Ill. Police Dep’t, 424 F.3d 614, 616 (7th Cir.
2005); Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004). A genuine
issue of material fact exists if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
On summary judgment, the district court construes the facts and draws the
reasonable inferences in favor of the non-moving party. Cole v. Board of Trustees of
Northern Illinois University, 838 F.3d 888, 895 (7th Cir. 2016). While generally a district
court’s role on summary judgment is not to evaluate the weight of the evidence,
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assess witness credibility, or determine the truth of the matter, but only to determine
whether a general issue of triable fact exists, a different standard applies to summary
judgment motions based on exhaustion in prisoner lawsuits.

Nat’l Athletic

Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).
A motion for summary judgment based upon failure to exhaust administrative
remedies typically requires a hearing to determine any contested issues regarding
exhaustion, and the judge may make limited findings of fact at that time. Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008).

In Pavey, 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
judge. Pavey, 544 F.3d at 740-41. In the case at bar, (a) the Wexford Defendants raised
the affirmative defense of failure to exhaust in their answer (Doc. 102, p. 8), and (b) the
question of exhaustion presents a purely legal question, so no hearing is required.
C.

Exhaustion under the Prison Litigation Reform Act

Lawsuits brought by prisoners are governed by the PLRA, 42 U.S.C 1997e, which
requires 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 … administrative remedies as are available are
exhausted.” 42 U.S.C. 1997e(a).
Exhaustion is a condition precedent to suit in federal court, so the inmate must
exhaust before he commences his federal litigation. He cannot exhaust while his lawsuit
is pending. See Perez v. Wisconsin Department of Corr., 182 F.3d 532, 535 (7th Cir.
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1999); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). If the inmate fails to exhaust
before filing suit in federal court, the district court must dismiss the suit. See Jones v.
Bock, 549 U.S. 199, 223 (2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005).2
The law of this Circuit requires strict adherence to the PLRA’s exhaustion
requirement. “Unless a prisoner completes the administrative process by following
rules the state has established for that process, exhaustion has not occurred.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes the filing of “complaints
and appeals in the place, and at the time, the prison’s rules require.” Id. at 1025. See
also Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) ('This circuit has taken a strict
compliance approach to exhaustion”).

If the prisoner fails to comply with the

established procedures, including time restraints, the court may not consider the claims.
Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011); Jones, 549 U.S. at 211, citing Porter v.
Nussell, 534 U.S. 516, 524 (2002). But the PLRA’s plain language makes clear that an
inmate is required to exhaust only those administrative remedies that are available to
him. 42 U.S.C. 1997e(a).
The purpose of the exhaustion requirement is two-fold. First, it gives the prison
officials the chance to address the prisoner’s claims internally, before any litigation
becomes necessary. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Woodford v. Ngo,

Although dismissal is the procedural step the district court takes if a
plaintiff failed to exhaust prior to filing suit, the issue of exhaustion most
often is raised via summary judgment motion, so that the Court can
consider evidence “outside the pleadings,” such as affidavits, grievances,
responses, appeals, and related documentation. See FED. R. CIV. P. 12(d).
2

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548 U.S. 81, 89-90 (2006). Second, it “seeks to reduce the quantity and improve the
quality of prisoner suits.” Porter, 534 U.S. at 524. See also Booth v. Churner, 532 U.S.
731, 737 (2001) (exhaustion requirement will help “filter out some frivolous claims.”).
Because exhaustion is a prerequisite to filing a suit, a prisoner must wait to
commence litigation until he has completed the established process and may not file in
anticipation of administrative remedies soon being exhausted. Perez, 182 F.3d at 535,
citing 42 U.S.C 1997e(a); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A suit filed
prior to exhaustion of available remedies will be dismissed even if the remedies become
exhausted while the suit is pending. Perez, 182 F.3d at 535.

The affirmative defense of

failure to exhaust depends on whether a plaintiff has fulfilled the PLRA’s exhaustion
requirement, which in turn depends on the prison grievance procedures set forth by the
state. See Jones, 549 U.S. at 218.
D.

Exhaustion under Illinois Law

In Illinois, the process for exhausting administrative remedies is laid out in the
IDOC’s Grievance Procedures for Offenders. 20 Ill. Adm. Code 504.810. The inmate
must first speak with his counselor about the problem. 20 Ill. Admin. Code 504.810(a).
If unable to resolve a dispute with the counselor, the prisoner may file a written
grievance with the Grievance Officer within sixty days of discovery of the dispute. Id.
The grievance should include “factual details regarding each aspect of the offender’s
complaint, including what happened, when, where, and the name of each person who is
the subject of or who is otherwise involved in the complaint…[or] as much descriptive
information about the individual as possible.” 20 Ill. Admin. Code 504.810(b).
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The grievance officer shall review the grievance and report findings and
recommendations to the Chief Administrative Officer (CAO).

20 Ill. Adm. Code

504.830(d). The prisoner then has the opportunity to review the CAO’s response. Id. If
the prisoner is unsatisfied with the institution’s resolution of the grievance, he may file
an appeal to the Director through the Administrative Review Board within 30 days of
the CAO’s decision. 20 Ill. Adm. Code 504.850. Completion of this process exhausts a
prisoner’s administrative remedies.
The procedures also allow for an inmate to file an emergency grievance. To file
an emergency grievance, the inmate must forward the grievance directly to the CAO
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 CAO as an emergency grievance, the CAO “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 CAO has informed the inmate of his decision, the inmate may then appeal that
decision to the ARB on an expedited basis. 20 Ill. Admin. Code 504.850(g). A final
decision of the ARB will exhaust the grievance requirement.
IV.

ANALYSIS
The Wexford Defendants seek dismissal of Counts III and IV of the third

amended complaint under Rule 12(b)(6), contending that these counts fail to state a
claim against them upon which relief can be granted (Doc. 104, p. 1). In Count III,
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Watts alleges a claim against Wexford for violation “of the Eighth Amendment to the
Federal Constitution for Inadequate Access to Medical Care Under the Doctrine of
Respondeat Superior.”
It is true that 42 U.S.C. 1983 does not authorize vicarious liability under the
common-law doctrine of respondeat superior.

Glisson v. Indiana Department of

Corrections, 849 F.3d 372, 383 (7th Cir. 2017). In the case at bar, the Wexford Defendants
correctly note that respondeat superior is inapplicable to claims filed pursuant to § 1983.
Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978) (vicarious
liability not applicable to § 1983 claims against municipalities); Iskander v. Village of
Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (extending Monell’s holding to § 1983
suits against private corporations). Accord Collins v. Al-Shami, 851 F.3d 727, 734 (7th
Cir. 2017) (“Under existing precedent, neither public nor private entities may be held
vicariously liable under § 1983.”).
In Shields v. Illinois Department of Corrections, 746 F.3d 782, 791 (7th Cir. 2014),
the Seventh Circuit remarked that, at some point, courts may want to reexamine
whether respondeat superior should be a source of liability for § 1983 claims filed against
private corporations that provide government services.

But the Court declined to

reverse the established precedent that respondeat superior is inapplicable to § 1983 claims
against private corporations like Wexford. Id. at 796. Accord Collins, 851 F.3d at 734
(“we again leave that question for another day”). As such, Watts’ respondeat superior
theory of liability at Count III fails to state a claim upon which relief may be granted.
Wexford is entitled to dismissal of Count III.
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In Count IV, Watts asserts a state law intentional infliction of emotional distress
claim against Defendants Harmon and Richardson. Defendants Harmon and
Richardson (both nurses) seek dismissal of Count IV on the basis that Watts failed to file
an affidavit of merit pursuant to the Illinois Healing Art Malpractice statute, 735 ILCS
5/2-622 (West 2014). That Illinois law requires a plaintiff alleging medical malpractice
to file an affidavit stating that he has obtained a statement from a health care
professional opining that there is a “reasonable and meritorious cause” to file the
lawsuit. In his response opposing this motion, Watts argues that an affidavit of merit is
not required for intentional infliction of emotional distress claims.
Counsel have not identified, and the undersigned has not located, any Illinois
cases squarely addressing the issue of whether a plaintiff asserting an intentional
infliction of emotional distress claim against a healthcare provider (like the nurses here)
must provide a certificate of merit.

Clearly, “compliance with section 2–622 [is

required] if the alleged conduct involved questions about the medical standard of care
or issues that were otherwise so complicated that laypersons would not be able to
assess it without expert testimony.” Fiala v. Bickford Senior Living Group, LLC, 43
N.E.3d 1234, 1242 (Ill. App. 2015).
But Watts’ intentional infliction of emotional distress claim is not so much
premised on allegations that Defendants’ course of treatment deviated from the
appropriate standard of care (thereby requiring expert testimony), as it is based on the
argument that Defendants did not provide any treatment at all (i.e., they denied him
access to medical care).
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These assertions are more analogous to a deliberate

indifference claim, where expert testimony is not necessarily required. See, e.g., Berry v.
Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (in Eighth Amendment deliberate
indifference context, “a non-trivial delay in treating serious pain can be actionable
even without expert medical testimony showing that the delay aggravated the
underlying condition”). Viewing Watts’ intentional infliction of emotional distress
claim in this framework, the Court finds that the claim does not fall within the scope of
the Illinois Healing Art Malpractice statute. Defendants’ motion to dismiss will be
denied as to Count IV.
Turning to the summary judgment motion, the Wexford Defendants maintain
that Watts failed to exhaust all administrative remedies before commencing this suit.
As noted above, the Seventh Circuit takes a strict compliance approach to the
exhaustion issue, and as IDOC inmate, Watts was required to use the IDOC
administrative remedies process. The Wexford Defendants do not dispute that Watts
submitted at least one grievance after the excessive force incident. They argue that he
did not specifically exhaust administrative remedies as to his complaints regarding
inadequate medical care.
The IDOC grievance forms direct inmates to: “Provide information including a
description of what happened, when and where it happened, and the name or
identifying information for each person involved[.]” 20 Ill. Admin. Code 504.810(c).
Plaintiff Watts submitted two grievances on August 12, 2014 – one a regular grievance,
the other marked as an emergency grievance. See Doc. 106-1.

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In the first grievance, Watts details the altercation that occurred with correctional
officer Monroe on July 30, 2014. Doc. 106-1, pp. 1-2. Watts also mentions the medical
care he received since the July 30th excessive force incident. Id. Although the grievance
is somewhat unclear as to whether Watts is complaining that he is receiving inadequate
medical treatment, about half of the grievance is devoted to the injuries he suffered and
the medical treatment he is receiving. Id. Watts mailed this grievance to the ARB. The
ARB’s Office of Inmate Issues received the grievance on August 18, 2014. Id.
Watts drafted a second, similarly worded grievance on August 12, 2014,
describing how during the bus transfer: “Out of nowhere, Officer Monroe .. came up to
me, grabbed the back of my neck, and forcefully slammed my face into the front of the
transfer bus, causing me to lose vision in my right eye….” Doc. 106-2, pp. 3-4. Watts
submitted the second grievance as an emergency grievance directly to the Pinckneyville
warden. On September 22, 2014, the warden denied the grievance as an emergency and
directed Watts to submit it via the normal procedure. Id., p. 3.
On May 18, 2015, Watts mailed a letter to the ARB inquiring as to the status of
the first grievance he submitted in August 2014. Doc. 106-3, pp. 1-2. Along with the
letter, Watts appears to have attached the second grievance, the one that was denied as
an emergency by the warden. Doc. 106-2, pp. 3-4.
The ARB issued a decision on Watts’ first grievance on June 22, 2015. Doc. 106-4.
The ARB decision discusses Watts’ allegations regarding the excessive force incident
and the medical care he received. It states that the ARB contacted Healthcare staff at
Pinckneyville Correctional Center who indicated that Watts was seen on July 31, 2014
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for an alleged assault by the transfer officer. Id. The ARB also contacted staff at Lincoln
Correctional Center, the Internal Affairs office at Pinckneyville Correctional Center, and
Internal Affairs at Menard Correctional Center. Id. The ARB opinion concludes (id.):
Based on a total review of all available information, it is recommended the
grievance be ruled mixed action. This office is unable to substantiate
Offender Watts allegations [sic] of staff misconduct, therefore this portion
of the grievance is denied. However, Warden Butler and Warden Spiller
are to ensure proper documentation is completed in accordance with AD
01.12.105, Reporting of Unusual Incidents.
The document is signed by Sarah Johnson, “Administrative Review Board, Office of
Inmate Issues” and Gladyse Taylor, Acting IDOC Director. Id.
Although Watts’ grievance could have been more specific in identifying which
aspects of his medical treatment he found unsatisfactory, the ARB investigated Watts’
medical history by contacting the Pinckneyville Health Care Unit. Because the ARB
reviewed Watts’ grievance on the merits, including the allegations regarding medical
treatment, the Court cannot find that Watts did not exhaust administrative remedies.
The Seventh Circuit has noted, “[w]here prison officials address an inmate's grievance
on the merits without rejecting it on procedural grounds, the grievance has served its
function of alerting the state and inviting corrective action, and defendants cannot rely
on the failure to exhaust defense.” Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011).
Furthermore, Watts filed the August 12, 2014 grievance approximately two
weeks after he arrived at Pinckneyville Correctional Center. It is not unreasonable that
at that point in time, he would not have known the names of all of the individuals
working in the Pinckneyville Health Care Unit. On the record before the Court, the

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undersigned cannot conclude that Watts failed to exhaust administrative remedies.
Accordingly, the Wexford Defendants’ motion for summary judgment merits denial.
V.

CONCLUSION
For the reasons explained above, the Court GRANTS the Wexford Defendants’

motion to dismiss (Doc. 103) as to Count III, DENIES their motion to dismiss (Doc. 103)
as to Count IV, and DENIES their summary judgment motion (Doc. 105).
IT IS SO ORDERED.
DATED June 28, 2017.

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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