Pendegraft v. Kreke et al

Filing 119

ORDER ADOPTING 105 Report and Recommendations, DENYING 80 and 82 Motions for Summary Judgment on the issue of exhaustion filed by Defendants Brandi Beasley, Jeanne Campanella, Cecil Polley, Penny George, and Kevin Murphy, and DENYING the oral motion for summary judgment made by Dr. Alberto Butalid. However, for other reasons explained in the attached order, Defendants Cecil Polley and Jeanne Campanella are DISMISSED with prejudice from this action. Signed by Judge Nancy J. Rosenstengel on 9/26/16. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CURTIS PENDEGRAFT,
Plaintiff,
vs.
DR. ALBERTO BUTALID,
MIKE ARNOLD, MARK ETTER,
LUKE BRANDMEYER, KYLE THOLE,
MICHELLE NORDIKE,
JAYCE FAULKNER, PENNY GEORGE,
KEVIN MURPHY, BRANDI BEASLEY,
CECIL POLLEY,
JEANNE CAMPANELLA, and
DR. FRANCIS KAYIRA,
Defendants.

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Case No. 15-CV-816-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 (Doc. 105), which recommends denying
the Motions for Summary Judgment on the issue of exhaustion filed by Defendants
Brandi Beasley, Jeanne Campanella, Cecil Polley, Penny George, Kevin Murphy, and
Dr. Alberto Butalid (Docs. 80, 82). Only Defendant Beasley filed an objection to the
Report and Recommendation (Doc. 105). For the reasons explained below, the Court
adopts Magistrate Judge Wilkerson’s Report and Recommendation and denies the
motions for summary judgment.
BACKGROUND
Plaintiff Curtis Pendegraft, an inmate currently incarcerated at the East Moline
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Correctional Center filed this pro se lawsuit pursuant to 42 U.S.C. § 1983 on July 28,
2015, alleging that he received inadequate medical care in violation of the Eighth
Amendment while he was incarcerated at the Clinton County Jail, Graham Correctional
Center, and Vienna Correctional Center (Doc. 1). Following a threshold review of the
complaint under 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on a claim of
deliberate indifference against Defendants Michelle Nordike, Mike Arnold, Kyle Thole,
Dr. Alberto Butalid, Jacey Faulkner, Mark Etter, Luke Brandmeyer, Penny George,
Kevin Murphy, Brandi Beasley, and a John Doe who was later identified as Dr. Francis
Kayira (Doc. 11). He also was permitted to proceed on a First Amendment claim of
retaliation against Kyle Thole (Doc. 11; Doc. 95; Doc. 104). The warden at Graham, Cecil
Polley, was named as a defendant in his official capacity for the sole purpose of
assisting with the identification of the John Doe defendant (Doc. 11). The warden at
Vienna, Jeanne Campanella, was named as a defendant in her official capacity only for
the purpose of injunctive relief (Doc. 11).
In January 2016, Defendant Brandi Beasley filed a motion for summary judgment
arguing Plaintiff failed to exhaust his administrative remedies prior to filing suit as
required by the Prison Litigation Reform Act (Doc. 80). A couple weeks later,
Defendants Jeanne Campanella, Cecil Polley, Penny George, and Kevin Murphy also
moved for summary judgment on the issue of exhaustion (Doc. 82). 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 June 21, 2016 (Doc. 110). At the
hearing, Defendant Alberto Butalid orally moved to join in the Motions for Summary

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Judgment. Two days after the hearing, Magistrate Judge Wilkerson issued the Report
and Recommendation that is currently before the Court (Doc. 105). He recommended
denying summary judgment for all of the moving defendants (Doc. 105). Defendant
Beasley is the only defendant who filed an objection to the Report and
Recommendation (Doc. 108). Plaintiff did not file a response to Beasley’s objection.
THE REPORT AND RECOMMENDATION & DEFENDANT BEASLEY’S OBJECTION
Magistrate Judge Wilkerson found that there were only two potentially relevant
grievances: one dated March 7, 2015, and one dated June 3, 2015 (Doc. 105). He
concluded that the March grievance was, in fact, related to Plaintiff’s claims against the
moving defendants, but the June grievance was completely unrelated (Doc. 105, p. 7).
Magistrate Judge Wilkerson found that the March grievance was marked as an
emergency, and the warden determined that it was not, in fact, an emergency on March
13 (Doc. 105, p. 3; Doc. 81-1, pp. 1–2). A counselor then responded to the merits of the
grievance on May 29, 2015 (Doc. 81-1, p. 1). Plaintiff testified that he attempted to
submit the grievance to the grievance officer three different times, but each time it was
returned to him with no response (Doc. 105, p. 4). Plaintiff then submitted the grievance
to the Administrative Review Board (“ARB”), who received it on August 3, 2015, six
days after Plaintiff filed this lawsuit (Doc. 105, p. 4; Doc. 81-2, p. 1).
Defendants’ sole argument with respect to the March grievance was that Plaintiff
failed to appeal to the ARB in a timely manner (Doc. 105, p. 7). Consequently, that is the
only aspect of the March grievance that Magistrate Judge Wilkerson addressed (Id.).
Magistrate Judge Wilkerson found Plaintiff credible in his assertions that he submitted

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the March grievance to the grievance officer on three occasions after he received a
response from his counselor, but it was returned each time without a response (Id. at
pp. 7–8). Based on this finding, Magistrate Judge Wilkerson concluded that the
grievance officer’s failure to respond rendered the grievance process unavailable to
Plaintiff, and therefore Plaintiff is deemed to have exhausted (Id. at p. 8). Consequently,
Magistrate Judge Wilkerson recommended denying the motions for summary judgment
for all of the moving defendants (Id.).
Defendant Beasley objects to Magistrate Judge Wilkerson’s conclusion that the
grievance process was rendered unavailable to Plaintiff when the grievance officer
failed to respond to the grievance (Doc. 108). According to Beasley, “this determination
directly contradicts well-established precedent of the Seventh Circuit that an inmate
who receives a decision from the CAO that his grievance is not an emergency need not
re-submit the grievance through the normal channels, and may appeal the decision of
the CAO in writing within 30 days to the Administrative Review Board for a final
decision.” (Doc. 108, p. 4).
DISCUSSION
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

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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 § 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.
Based on Defendant Beasley’s objection, the Court must decide whether Plaintiff
irretrievably screwed up his attempt to exhaust the March grievance by resubmitting it
through the normal grievance process, instead of appealing directly to the ARB, after
the warden determined the grievance was not an emergency.
As an inmate confined in the Illinois Department of Corrections, Plaintiff was
required to follow the grievance process outlined in the Illinois Administrative Code
(“the Code”) to properly exhaust his claims. Pertinent to this case is the regulation
regarding emergency procedures. ILL. ADMIN. CODE, tit. 20, § 504.840. Under § 504.840, a
prisoner can request a grievance be handled on an emergency basis by forwarding the
grievance directly to the warden. Id. The warden then reviews the grievance to
determine if it is truly an emergency. See Id. If the warden determines there is “a
substantial risk of imminent personal injury or other serious or irreparable harm,” the
warden “shall expedite processing of the grievance and respond to the offender,
indicating what action shall be or has been taken.” Id. On the other hand, if the warden
determines that the grievance is not based on an emergency, the regulation does not
indicate how things are supposed to proceed. See id. Another regulation provides,
however, that if, after receiving the response of the warden, the inmate still feels that his

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grievance is unresolved, the inmate can the inmate may appeal to the ARB within thirty
days of receiving the warden’s response. ILL. ADMIN. CODE, tit. 20, § 504.850(a), (g).
Based on the regulations, the only thing Plaintiff had to do after the warden
determined that Plaintiff’s grievance was not an emergency was appeal to the ARB
within thirty days. But the warden confused the situation by instructing Plaintiff to
resubmit the grievance “in the normal manner” (Doc. 81-1, p. 2), even though it is wellestablished that Plaintiff had no obligation to do so. See, e.g., Thorton v. Snyder, 428 F.3d
690 (7th Cir. 2005); Glick v. Walker, 385 F. App’x 579 (7th Cir. 2010). Plaintiff chose to
follow the warden’s instructions, and amusingly, Defendant Beasley now seeks to
penalize him for it.
While Plaintiff was undoubtedly not required to resubmit his grievance through
the normal process, Defendant Beasley does not cite to any case law that holds it was
wholly improper for him to do so. And the Court has no reason to believe that Plaintiff
was forbidden by the Illinois Administrative Code from choosing this route. It seems to
the Court that this choice simply obligated Plaintiff to follow the procedures for the
non-emergency grievance process and to file his grievances and appeals in the time,
place, and manner required by the regulations.
Plaintiff did follow those procedures. He submitted his grievance to his
counselor, who received it on March 16, 2015, and responded on May 29, 2015 (Doc. 811, p. 2). After Plaintiff received his counselor’s response, he repeatedly attempted to
submit the grievance to the warden. But each time he submitted it, the grievance was
returned to him without a response. Because the warden failed to respond to the

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grievance, Plaintiff’s administrative remedies became “unavailable,” and he is therefore
deemed to have exhausted. Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005); Lewis
v. Washington, 300 F.3d 829, 833 (7th Cir. 2002).
Accordingly, Defendant Beasley’s objection is overruled. The Court adopts the
Report and Recommendation and denies the motions for summary judgment on the
issue of exhaustion as to Defendants Brandi Beasley, Jeanne Campanella, Cecil Polley,
Penny George, Kevin Murphy, and Alberto Butalid.
That being said, the Court believes that Defendants Polley and Campanella can
be dismissed from this action for other reasons. Cecil Polley, the warden of Graham
Correctional Center, was named as a defendant for the sole purpose of identifying the
John Doe Defendant (Doc. 11). That individual has been identified as Dr. Francis Kayira
(Doc. 95). Because Polley has accomplished his task, and Plaintiff has no other claims
pending against him, Polley can now be dismissed from this action.
As for Jeanne Campanella, the warden of Vienna Correctional Center, she was
named as a defendant in this action for the purpose of carrying out any injunctive relief
that may be granted to Plaintiff (Doc. 11). A portion of Plaintiff’s claims related to the
medical care he received at Vienna, which is where he was incarcerated at the time he
filed his complaint. Plaintiff is no longer housed at Vienna, however. He is currently
housed at the East Moline Correctional Center. Thus, Plaintiff no longer has any need
for injunctive relief related to Vienna, and Jeanne Campanella should be dismissed from
this action.

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CONCLUSION
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 105) and DENIES the motions for summary judgment on the issue of exhaustion
of administrative remedies (Docs. 80, 82).
For the reasons set forth above, Defendants Cecil Polley and Jeanne Campanella
are DISMISSED with prejudice from this action.
IT IS SO ORDERED.
DATED: September 26, 2016
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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