Ferguson v. Wexford Health Sources, Inc. et al
ORDER GRANTING Defendants' Motion for Summary Judgment for Failure to Exhaust Remedies (Doc. 90 ). Summary judgment is hereby GRANTED in favor of Defendants Burrell and Naroditsky, and the claims against them are DISMISSED WITHOUT PREJUDICE. Signed by Judge Staci M. Yandle on 2/7/18. (bps)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WEXFORD HEALTH SOURCES,
INC, et. al.,
Case No. 3:15-cv-947-SMY-RJD
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff James Ferguson, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this action pursuant to 42 U.S.C. § 1983, alleging that his
constitutional rights were violated while he was incarcerated at Shawnee Correctional Center
(“Shawnee”). He asserts claims against Wexford Health Sources, Inc., Dr. Thomas Burrell,
D.D.S., Dr. Aldridge, D.D.S., Dr. Naroditsky, D.D.S., Beverly Rockwell, Kendra Seip and Kurtis
Hunter. In particular, Plaintiff alleges that Defendants were deliberately indifferent to his health
in failing to provide adequate dental care in violation of the Eighth Amendment.
proceeding on the following Counts:
Defendant Wexford Health Sources, Inc. exhibited deliberate indifference
toward Plaintiff’s dental needs in violation of the Eighth Amendment, by
maintaining a policy or practice to deliberately understaff Shawnee with an
insufficient number of licensed dentists to meet the serious medical needs
of the inmates and to refuse outside referral;
Defendants Dr. Burrell, Dr. Naroditsky, and Dr. Aldridge exhibited
deliberate indifference toward Plaintiff’s serious medical/dental needs in
violation of the Eighth Amendment when Defendants failed to timely treat
his dental needs;
Defendants Hunter, Rockwell and Seip exhibited deliberate indifference
toward Plaintiff’s serious dental need to have his decayed tooth extracted.
This matter is now before the Court on the Motion for Summary Judgment for Failure to
Exhaust Administrative Remedies filed by Defendants Dr. Burrell and Dr. Narodistky (Doc. 90).
Plaintiff filed a timely response (Doc. 97). For the following reasons, Defendants’ Motion for
Summary Judgment is GRANTED.
Defendants argue that Plaintiff failed to exhaust his administrative remedies prior to filing
suit. Specifically, Defendants assert that the two grievances Plaintiff filed relating to their
treatment, dated July 11, 2015 and June 18, 2015, were not exhausted, and that the only grievance
that was exhausted, Grievance #2015-06-39, makes no reference to Dr. Burrell or Dr. Naroditsky.
In Grievance #2015-06-39, Plaintiff complained that despite paying a $5.00 co-payment
for an April 28, 2015 dental visit, no dental work was performed (Id.). The grievance references
the “dental doctor” who examined and performed an x-ray on Plaintiff on April 28, 2015 (Id.).
With regard to Plaintiff’s June 18, 2015 grievance, the evidence before the Court indicates
the grievance was received by the Administrative Review Board (“ARB”) on June 24, 2015 (Doc.
97-1 at 4-7). There is no evidence that the grievance was sent to anyone other than the ARB.
The ARB denied the grievance on procedural grounds because it failed to include responses from a
counselor, grievance officer and the Chief Administrative Officer (“CAO”) (Id. at 4). The ARB
instructed Plaintiff to resubmit the grievance with the missing responses for further review on the
merits, if timely. (Id.). There is no other documentation concerning the June 18, 2015 grievance.
Plaintiff’s July 11, 2015 grievance was received by the ARB on July 15, 2015 (Doc. 97-1 at
2-3). There is no evidence before the Court to show the grievance was sent to anyone other than
the ARB. The ARB also denied this grievance on procedural grounds for failing to include
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responses from a counselor, grievance officer and the CAO. (Id. at 2). The ARB instructed
Plaintiff to resubmit the grievance with the missing responses for further review on the merits, if
timely. (Id.). There is no other documentation concerning the July 11, 2015 grievance.
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). In deciding a summary judgment motion, the district court views the
facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation
Exhaustion Requirements under the PLRA
The Prison Litigation Reform Act provides:
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
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42 U.S.C. § 1997e(a). The failure to exhaust administrative remedies is an affirmative defense
and the defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S.
199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006).
The Supreme Court has interpreted the PLRA to require “proper exhaustion” prior to filing
suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means “using all steps that the agency
holds out, and doing so properly (so that the agency addresses the issues on the merits).” Id. at 90,
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). If a plaintiff has exhausted
his remedies, the case will proceed on the merits. If, however, the plaintiff has not exhausted, the
Court may either allow him or her to exhaust or terminate the matter.
Exhaustion Requirements under Illinois Law
Under the procedures set forth in the Illinois Administrative Code, an inmate must first
attempt to resolve a complaint informally with his Counselor. ILL. ADMIN. CODE
504.810(a). If the complaint is not resolved, the inmate may file a grievance within 60 after the
discovery of the incident, occurrence, or problem that gives rise to the grievance.
504.810(b). The grievance officer is required to advise the CAO at the facility in writing of the
findings on the grievance. Id. § 504.830(d). The CAO shall advise the inmate of the decision on
the grievance within two months of it having been filed. Id. § 504.830(d). An inmate may
appeal the decision of the CAO in writing within 30 days to the ARB for a final decision. Id. §
504.850(a). See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). An inmate’s
administrative remedies are not exhausted until the appeal is ruled on by the ARB. See Id. The
ARB shall make a final determination of the grievance within six months after receipt of the
appealed grievance, where reasonably feasible under the circumstances. Id. § 504.850(f).
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An inmate may also request that a grievance be handled as an emergency by forwarding it
directly to the CAO. If the CAO determines that a substantial risk of imminent personal injury or
other serious or irreparable harm exists, the grievance shall be handled on an emergency basis,
which allows for expedited processing of the grievance by responding directly to the offender
indicating what action shall be taken. Id. § 504.840. If, after receiving a response from the
CAO, an offender feels the grievance has not been resolved, he may appeal in writing to the ARB
within 30 days after the date of the CAO’s decision. Id. § 504.850(a).
An inmate is required to exhaust only those administrative remedies available to him. See
42 U.S.C. § 1997e(a). Administrative remedies become “unavailable” when prison officials fail
to respond to inmate grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002);
Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). The availability of a remedy does not
depend on the rules and regulations as they appear on paper, but on “whether the paper process was
in reality open for the prisoner to pursue.” Wilder v. Sutton, 310 Fed.Appx. 10, 13 (7th Cir.
2009). If further remedies are unavailable to the prisoner, he is deemed to have exhausted. Id.
Inmates are required only to provide notice to “responsible persons” about the complained
of conditions. See Wilder, 310 Fed.Appx. at 15 (citing Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.
2006)). An inmate forfeits the grievance process, however, when he causes the unavailability of a
remedy by not filing or appealing a grievance. See Kaba, 458 F.3d at 684. 1
Grievance #2015-06-39 was fully exhausted using administrative remedies. That said, the
reference to the “dental doctor” who evaluated Plaintiff on April 28, 2015 cannot be to Dr. Burrell
After a careful review of the arguments and evidence set forth in the parties’ briefs, the Court determined that an
evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was not necessary.
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or Dr. Naroditsky as neither evaluated Plaintiff on that date. Plaintiff admits in his Amended
Complaint that he was not seen by Dr. Naroditsky until June 13, 2015 and by Dr. Burrell until July
11, 2015. Because Plaintiff did not see Dr. Narodistky or Dr. Burrell until more than a month
after Grievance #2015-06-39 was filed (April 28, 2015), this grievance cannot exhaust Plaintiff’s
administrative remedies with respect to these defendants.
Plaintiff contends that the June 18, 2015 and July 11, 2015 grievances were filed as
emergency grievances with the ARB; that the IDOC Regulations did not require the grievances to
be re-submitted for general review; and that therefore, he exhausted the administrative remedies.
An inmate may request that a grievance be handled as an emergency.
Administrative Code requires that the emergency grievance be filed directly with the CAO, not the
ARB. If, after receiving a response from the CAO, the inmate feels the grievance has not been
resolved, he may then appeal in writing to the ARB.
Plaintiff failed to file either emergency grievance with the CAO as required. In fact, the
ARB sent both grievances back to the Plaintiff so that he could remedy the failure to properly
submit the grievances. Plaintiff failed to follow up with either grievance and the ARB did not rule
on the merits. Thus, Plaintiff failed to exhaust the administrative remedies available with regard
to the June 18, 2015 and July 11, 2015 grievances relating to Defendants Burrell and Naroditsky.
The Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed
by Defendants Burrell and Naroditsky (Doc. 90) is GRANTED and these defendants are
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
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DATED: February 4, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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