Owens v. Duncan et al

Filing 62

ORDER: For the reasons set forth in the attached Memorandum and Order, the IDOC Defendants' Motion for Summary Judgment (Doc. 39 ) is GRANTED in part and DENIED in part. Plaintiff did not exhaust his administrative remedies as to Defendan t Dunlop. Summary judgment is GRANTED as to him, and Defendant Dunlop is DISMISSED without prejudice. Plaintiff did, however, exhaust two grievances regarding his lack of treatment from the healthcare unit as to the remaining IDOC defen dants. Plaintiff is deemed to have exhausted his administrative remedies as to Defendants Schoon, Duncan, and Strubhart, and summary judgment is DENIED as to them. Plaintiff's claims against Defendants Litherland, Duncan, Schoon, and Strubhart go forward. Signed by Chief Judge Michael J. Reagan on 3/13/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OWENS,
Plaintiff,
vs.
STEPHEN DUNCAN,
DR. LITHERLAND,
JEFFEREY STRUBHART,
SCHOON, and
C/O DUNLOP,
Defendants.

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Case No. 15-cv-1143-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
I.

INTRODUCTION
Proceeding pro se, Plaintiff James Owens brought the present lawsuit pursuant to

42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights. Plaintiff, an
inmate incarcerated at Lawrence Correctional Center (“Lawrence”) alleges that various
defendants at Lawrence were deliberately indifferent to his serious medical needs. This
matter is before the Court on a Motion for Summary Judgment (Doc. 39) filed by
Defendants Dunlop, Schoon, Duncan, and Strubhart (“IDOC Defendants”). In their
motion, the IDOC Defendants assert that they are entitled to summary judgment due to
Plaintiff’s failure to exhaust his administrative remedies as required by the Prison
Litigation Reform Act. A previous summary judgment motion based upon failure to
exhaust filed by Defendant Litherland, (Doc. 23), was denied. (Doc. 54). As to the IDOC

Defendants’ motion, Plaintiff filed a response, and the matter is ripe for disposition. As
more fully articulated below, the Court finds that Plaintiff failed to exhaust as to
Defendant Dunlop but exhausted as to the remaining IDOC Defendants. Therefore, the
IDOC Defendants’ Motion (Doc. 39) is GRANTED in part and DENIED in part.
II.

FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2015, Plaintiff filed the present lawsuit against, among other

individuals, the IDOC Defendants. (Doc. 1). Plaintiff’s has pain in his jaw due to bone
shards that were protruding from his gums. (Doc. 6, p. 3). Early on, Dr. Litherland
treated Plaintiff’s bone shards, but two months later in the beginning of June 2015,
Plaintiff discovered another shard in his gums. Id. Plaintiff placed a sick call request for
pain medication for the second bone shard, but he was informed over the PA system that
his sick call was canceled. (Doc. 1, p. 4-5). Plaintiff informed Defendant Dunlop, a
correctional officer, that it was recommended by healthcare personnel that Plaintiff
obtain medication via sick call, but Defendant Dunlop refused to contact the healthcare
unit or to otherwise help Plaintiff. (Doc. 6, p. 4).
On June 11, 2015, Plaintiff filed a grievance complaining, among other things,
about his lack of treatment and pain medication for the bone shard, the cancellation of
his sick call pass, and Defendant Dunlop’s failure to assist him. (See Doc. 44, p. 7). The
grievance was received by Defendant Schoon, Plaintiff’s counselor, on June 17, 2015, and
Schoon issued a response on June 23. Id. The response denied the grievance, and
Plaintiff appealed to the grievance office. Id. at 7, 8. The grievance office received the
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grievance on July 2, 2015, and Defendant Strubhart, the grievance officer, issued a
response on August 24, 2015, concurring with Defendant Schoon. Id. at 8. The warden,
who received the grievance on August 27, 2015, also concurred with the denial on the
same day. Id.

Plaintiff signed and dated his appeal of the grievance to the

Administrative Review Board (“ARB”) on September 4, 2015, and the ARB received it on
September 10, 2015. Id. at 8, 9. Plaintiff filed this lawsuit on October 15, 2015 (Doc. 1).
On February 10, 2016, the ARB denied his appeal. (Doc. 44, p. 9).
Defendant filed another grievance on August 21, 2015 (“August Grievance 1”).
Id. at 10. Plaintiff grieved various issues relating to his bone shards in this grievance,
including, again, not receiving pain medication. Id. Specifically, Plaintiff begins this
grievance by stating:
On 6-1-15 I had a bone spur come through my lower right gum at tooth
socket # [illegible]….[O]n 6-2-15 I put in a request for dental care. On
6-4-15 I requested Sick Call for pain meds for the protruding bone spur.
On 6-6-15 I put in another request for dental care. On 6-8-15 I put in
another request for Sick Call for interim pain meds. On 6-10-15 I was seen
at dental and the bone spur was removed but I was given no pain meds for
the pain.
Id. Plaintiff goes on to complain about not receiving pain medication, and complains
about “the dentist” and the dentist’s actions at a visit. Id. at 10-11. No IDOC Defendants
are specifically named in the grievance narrative.

It is unnecessary to recite the

procedural steps Plaintiff took in regards to this grievance, as this Court has already
ruled that Plaintiff properly exhausted his claims against Defendant Litherland with
respect to this August 21, 2015 grievance. (See Doc. 54).
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There are six other grievances in the record before the Court, including four
others dated August 21, 2015. (See Doc. 40-1, p. 15-26). Only one of the other grievances
involves issues relating to Plaintiff’s lawsuit (“August Grievance 2”). In that grievance,
Plaintiff complains that his sick call passes had not been honored for eleven weeks, and
he specifically mentions June incidents where his sick call passes were canceled. Id. at 19.
Plaintiff does not mention any Defendants by name, and he does not discuss Defendant
Dunlop’s failure to contact the healthcare unit. Id. August Grievance 2 was submitted
by Plaintiff on an emergency basis and was denied and determined to be a
non-emergency by the warden on August 26, 2015. Id. August Grievance 1 and August
Grievance 2 were appealed to the ARB. The ARB received the grievances on September
4, 2015, and denied them on September 14, 2015. Id. at 15.
Plaintiff’s alleges two counts against the IDOC Defendants. First, Plaintiff claims
that Defendant Dunlop violated Plaintiff’s Eighth Amendment rights when he refused to
seek assistance for Plaintiff after being informed that Plaintiff was instructed to obtain
pain medication via sick call. (Doc. 6, p. 6). Second, he claims Defendants Schoon,
Strubhart, and Duncan violated his Eighth Amendment rights when they failed to act on
his grievances. Id.
III.

LEGAL STANDARDS
a. Summary Judgment Standard
A motion for summary judgment based upon failure to exhaust administrative

remedies typically requires a hearing to determine any contested issues regarding
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exhaustion, and a judge may make limited findings of fact at that time. Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008). The case may proceed on the merits only after any
contested issue of exhaustion is resolved. Pavey, 544 F.3d at 742. Generally, the Court’s
role on summary judgment is not to evaluate the weight of the evidence, to judge
witness credibility, or to determine the truth of the matter. Instead, the Court is to
determine whether a genuine issue of triable fact exists. Nat’l Athletic Sportwear Inc. v.
Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, however, 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. Here, the question of exhaustion is
a purely legal question, and no hearing is required.
b. PLRA’s Exhaustion Requirement
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 Illinois Department of Corrections. See Jones v.
Bock, 549 U.S. 199, 218 (2007). To properly exhaust administrative remedies under the
PLRA, a Plaintiff is required to comply with prison grievance procedures. Id. The
PLRA provides that “no action shall be brought [under federal law] with respect to
prison conditions…by a prisoner…until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Under the PLRA, exhaustion of administrative
remedies is mandatory, and unexhausted claims cannot be brought in court. Jones, 549
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U.S. at 211. The case may proceed on the merits only after any contested issue of
exhaustion is resolved by the court. Pavey, 544 F.3d at 742.
The Seventh Circuit takes a strict compliance approach to exhaustion by requiring
inmates to follow all grievance rules established by the correctional authority. Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). A prisoner must therefore “file complaints
and appeals in the place, and at the time, the prison’s rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). 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). Where a prisoner fails to follow the proper
procedure, however, the grievance will not be considered exhausted. Pavey v. Conley,
663 F.3d 899, 903 (7th Cir. 2011). The purpose of exhaustion is to give prison officials an
opportunity to address the inmate’s claims internally, prior to federal litigation. Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
Additionally, exhaustion is a precondition to filing suit; a prisoner may not file
suit in anticipation that his administrative remedies will soon become exhausted. Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Rather, a prisoner must wait to bring a suit
until after he completes the exhaustion process. Perez v. Wisconsin Dept. of Corrections,
182 F.3d 532, 535 (7th Cir. 1999) (citing 42 U.S.C. § 1997e(a)). A suit that is filed prior to
the exhaustion of remedies must be dismissed, even if a plaintiff’s administrative
remedies become exhausted during the pendency of the suit. Id.

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c. Exhaustion Requirement under Illinois Law
IDOC’s process for exhausting administrative remedies is laid out in the Illinois
Department of Corrections Grievance Procedures for Offenders. 20 Ill. Adm. Code §
504.810. If unable to resolve dispute with a counselor, a prisoner may file a written
grievance with a grievance officer within sixty (60) 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.” Id. The grievance officer shall review the
grievance and report findings and recommendations to the Chief Administrative Officer.
20 Ill. Adm. Code § 504.830(d). The prisoner will then have 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. The ARB is
required to make a final determination of the grievance within six months after receiving
it. Id. Completion of this process exhausts a prisoner’s administrative remedies.
In emergencies, the Illinois Administrative Code also provides that a prisoner
may request his grievance handled on an emergency basis by forwarding the grievance
directly to the CAO. 20 Ill. Adm. Code § 504.840. The grievance may be handled on an
emergency basis if the CAO determines that there exists a substantial risk of imminent
personal injury or other serious or irreparable harm to the offender. Id. The request to
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have a grievance handled on an emergency basis may also be appealed to the ARB. 20
Ill. Adm. Code § 504.850.
IV.

ANALYSIS
Plaintiff took the appropriate procedural steps to exhaust August Grievances 1

and 2. This Court previously ruled that Plaintiff did all he could to exhaust August
Grievance 1 and that the grievance was exhausted as to Defendant Litherland. (See Doc.
54). August Grievance 2 was handled in the same manner. Like August Grievance 1,
August Grievance 2 was sent on an emergency basis, was responded to by the CAO on
the same day, and was received and responded by the ARB on the same dates.
Therefore, for the reasons already stated by this Court regarding August Grievance 1 in
its Order of September 27, 2016, the Court now finds Plaintiff exhausted the procedural
steps required of him in as to August Grievance 2.
Plaintiff filed suit on October 15, 2015, well before the ARB responded on
February 10, 2016, to the grievance he filed June 11, 2015. The June 11 grievance did not
exhaust Plaintiff’s administrative remedies. Plaintiff attempts to get around this fact by
complaining that the grievance officer and warden did not respond quickly enough,
arguing that the grievance process became unavailable to him on August 10, 2015. The
Court does not buy Plaintiff’s argument, and, regardless, even if the grievance officer
and warden were inexcusably tardy in their responses, Plaintiff undertook an appeal
after receiving their responses then filed suit well before the ARB’s deadline to timely
respond. Since Plaintiff undertook an appeal and filed suit while the appeal was still
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pending, he did not exhaust the June 11, 2015 grievance. See generally, Ford v. Johnson,
362 F.3d 395, 398 (7th Cir. 2004)(an inmate may not file suit during the time period
allowed for the ARB to respond to a pending appeal).
None of the other grievances were specific enough to allow Plaintiff to exhaust as
to Defendant Dunlop.

IDOC’s grievance procedure plainly states that an inmate’s

grievance “shall contain factual details regarding each aspect of the offender’s
complaint…[including] the name of each person who is the subject of or who is
otherwise involved in the complaint.” Ill. Admin. Code § 504.810. When the offender
does not know the name of the individual, then he is required to “include as much
descriptive information about the individual as possible.” Id. In his grievances after
June 11, 2015, Plaintiff did not comply with this aspect of the IDOC’s grievance
procedure because he failed to name Defendant Dunlop. Plaintiff knew the identity of
the guard who refused to obtain assistance for him from the healthcare unit, because he
named him as Dunlop in the June 11, 2015 grievance. In his grievances after June 11,
2015, by failing to name Defendant Dunlop, Plaintiff failed to comply with the plain
requirements of the grievance procedure.
The Court is well aware of case law stating that “[g]rievances are intended to give
prison administrators an opportunity to address a shortcoming, not to put individual
defendants on notice of a lawsuit.” See Glick v. Walker, 385 Fed.Appx. 579, 582 (7th
Cir. 2010) (citing Jones, 549 U.S. at 218). Nonetheless, neither August Grievance 1’s nor
August Grievance 2’s content would put Lawrence administrators on notice that a
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correctional officer had refused to seek assistance for Plaintiff from the healthcare unit.
The only grievance discussing the specific incident with Defendant Dunlop is the June 11
grievance, but Plaintiff did not exhaust that grievance.
The Court is also cognizant of the fact that it recently denied summary judgment
on exhaustion grounds in another one of Plaintiff Owens’ (many) cases, and that the
Court rejected an argument that summary judgment should be granted because two
nurse defendants had not been named in Plaintiff’s grievances. See Owens v. Duncan,
15-cv-1169-MJR-SCW, (Doc. 70)(March 7, 2017). That ruling is distinguishable on two
grounds, however. First, in 15-1169, Plaintiff did not know the names of the two nurse
defendants until after he filed suit (15-1169, Doc. 57, p. 1), and, as a result, IDOC
grievance procedures did not require him to list the nurses’ names in his grievances.
Second, Plaintiff’s suit involved a continuing problem with the healthcare unit where he
was not getting certain prescribed medication from them, and this Court held that,
pursuant to Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013), Plaintiff was not required to
continually file grievances with each new instance of a continuing problem. (15-1169,
Doc. 57).

Here, however, Plaintiff did know the name of Defendant Dunlop, was

required by the grievance procedures to name him, and did not other than in the June 11
grievance that was not exhausted. Further, Defendant Dunlop’s alleged actions are not
part of a continuing condition that would excuse Plaintiff from re-grieving, but, rather,
constituted a single discrete incident. Though Plaintiff does allege a continuing
condition of receiving treatment and medication from the healthcare unit, Dunlop’s
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alleged conduct is distinct from that ongoing condition.

Though the allegations

regarding the healthcare unit allege ongoing conditions stemming from the healthcare
unit itself, and from the refusal of Schoon, Duncan, and Strubhart to do anything about
this ongoing condition, the allegations against Defendant Dunlop involve a single
incident of refusal to get Plaintiff to or in touch with the healthcare unit. Since Plaintiff
failed to exhaust the only grievance which could place Lawrence officials on notice of
this alleged single incident with Dunlop, summary judgment is proper as to Defendant
Dunlop.
The two relevant August 21, 2015 grievances exhausted Plaintiff’s claims as to
Defendants Schoon, Duncan, and Strubhart. While these defendants are not mentioned
by Plaintiff in his grievances, the nature of his claim against them renders the analysis
different than when examining exhaustion as to the claim against Defendant Dunlop.
The claim against Schoon, Duncan, and Strubhart is that they were deliberately
indifferent to Plaintiff’s issues after reviewing Plaintiff’s grievances and doing nothing.
August Grievances 1 and 2 put Lawrence officials on notice that Plaintiff was not
receiving treatment and medicine from the healthcare unit for his issues with bone
shards.

Plaintiff’s claim is that Schoon, Duncan, and Strubhart, who knew about

Plaintiff’s problem because they reviewed and responded to his grievances, did nothing
about it. With Schoon, Duncan, and Strubhart responding to the grievances about
Plaintiff’s healthcare woes, it would be pointless to require Plaintiff to grieve, to those
three defendants, that the three defendants themselves are doing nothing about
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Plaintiff’s problems. As previously mentioned, the purpose of the grievance process is
to put the facility on notice of an inmate’s problem. August Grievances 1 and 2, which
Plaintiff exhausted, put the remaining IDOC defendants on notice of Plaintiff’s problems
with the healthcare unit and the same defendants certainly did not need to see another
grievance to notify them that they themselves were not acting on Plaintiff’s problems.
Accordingly, summary judgment is not appropriate as to Defendants Schoon, Duncan,
and Strubhart.
V.

CONCLUSION
For the reasons articulated above, the IDOC Defendants’ Motion for Summary

Judgment (Doc. 39) is therefore GRANTED in part and DENIED in part. Plaintiff did
not exhaust his administrative remedies as to Defendant Dunlop. Summary judgment
is GRANTED as to him, and Defendant Dunlop is DISMISSED without prejudice.
Plaintiff did, however, exhaust two grievances regarding his lack of treatment from the
healthcare unit as to the remaining IDOC defendants. Plaintiff is deemed to have
exhausted his administrative remedies as to Defendants Schoon, Duncan, and Strubhart,
and summary judgment is DENIED as to them. Plaintiff’s claims against Defendants
Litherland, Duncan, Schoon, and Strubhart go forward.
IT IS SO ORDERED.
DATED: March 13, 2017

s/ Michael J. Reagan
MICHAEL J. REAGAN
Chief Judge
United States District Court
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