Garcia v. Wexford Health Sources Inc et al

Filing 45

ORDER: For the reasons set forth in the attached Memorandum and Order, Defendants' motion for summary judgment (Doc. 34 ) is GRANTED in part and DENIED in part. The motion is granted in that Plaintiff concedes that he has not exhausted hi s administrative remedies as to Defendants Moldenhauer, Shearing and Garcia; the Court DISMISSES those three Defendants without prejudice. The motion is denied in that the Court finds Plaintiff did exhaust his administrative remedies as to Wexford. Wexford remains as a Defendant in this suit. Plaintiffs claims against Defendants Wexford, Trost, and Lang shall go forward. Signed by Chief Judge Michael J. Reagan on 2/21/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUAN GARCIA,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
JOHN TROST, M.D.,
MIKE MOLDENHAUER,
AIMEE LANG,
HECTOR GARCIA, M.D., and
ROBERT SHEARING, M.D.,
Defendants.

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Case No. 15-cv-1369-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
I.

INTRODUCTION
While incarcerated at Menard Correctional Center in December 2015, Juan Garcia

filed the above-captioned lawsuit under 42 U.S.C. 1983. Garcia (Plaintiff) named five
healthcare professionals (three doctors, a nurse, and a nurse practitioner) plus the
private corporation that contracts with the Illinois Department of Corrections to provide
medical care to Illinois inmates (Wexford Health Sources, Inc.). The complaint alleges
that Defendants ignored Plaintiff’s medical needs arising from cysts and growths on his
testicles.

On threshold review under 28 U.S.C. 1915A, the undersigned found the

complaint stated a claim for deliberate indifference to serious medical needs in violation
of the Eighth Amendment to the United States Constitution (see Doc. 6).
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The case comes now before the Court on a motion for summary judgment and
supporting memorandum (Docs. 34-35) filed by five of the six named Defendants –
(1) Mike Moldenhauer, (2) Robert Shearing, M.D., (3) John Trost, M.D., (4) Hector Garcia,
M.D., and (6) Wexford Health Sources, Inc. (Wexford). 1 Where helpful herein, the
Court refers to these six Defendants collectively as the “Wexford Defendants.” The
motion and memo assert that Plaintiff failed to exhaust his administrative remedies as to
four of five Wexford Defendants – all of them except Dr. Trost (see Doc. 34, p. 1) – as
required under the Prison Litigation Reform Act.2 Plaintiff responded to the motion
(Doc. 37). The deadline for a reply has passed, the motion is ripe for disposition.
In his response, Plaintiff concedes that he failed to exhaust his administrative
remedies as to Defendants Moldenhauer, Shearing, and Garcia (Doc. 37, p. 2). Plaintiff
asks that the Court dismiss those Defendants (id.). The Court DISMISSES without
prejudice Defendants Moldenhauer, Shearing, and Garcia. The question is whether
Plaintiff exhausted his administrative remedies as to Defendant Wexford. The Court
finds that Plaintiff did exhaust as to Wexford and thus GRANTS in part and DENIES in
part the summary judgment motion (Doc. 34), for the reasons explained below.

Answers and jury demands herein supplied the full/correct names of
Defendants identified in the complaint as Trost, Moldenhauer, Garcia, and
Shearing – John Trost, M.D., Mike Moldenhauer, Hector Garcia, M.D., and Robert
Shearing, M.D. The Clerk’s Office shall correct the docket sheet accordingly.
1

2

Defendants concede that Plaintiff exhausted as to Dr. Trost ( Doc. 35, p. 8).
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II.

FACTUAL AND PROCEDURAL BACKGROUND
Though Plaintiff filed multiple grievances relating to the matter at issue in this

suit, one grievance (the August 18, 2014 grievance) is clearly dispositive, and the Court
need not discuss any others.

On August 18, 2014, Plaintiff filed a grievance

complaining of Dr. Trost and Wexford (Doc. 35-5). Plaintiff asserted that Trost and
Wexford violated his Eighth Amendment rights when they “acted with deliberate
indifference when they denied [his] request to have … cysts surgically removed from
[his] testicles” (Id. at 1). He claimed that he was suffering from pain due to the cysts
and that he had reported the pain to the Menard healthcare unit as early as November
2013 (id.). Plaintiff further grieved that he had requested to have his cysts surgically
removed on July 24, 2014, and his request was denied by Trost and Wexford (id. at 2).
He wrote that Trost and Wexford were “forcing [him] to live with … constant pain and
are refusing to properly treat [his] mass” (id.). Among the relief he requested was to
have his cysts surgically removed, as well as to be provided with monetary
compensation (id. at 1).
Plaintiff’s counselor received the grievance on September 6, 2014 and penned a
response on September 20, 2014 (id.).

The response provided a brief summary of

Plaintiff’s written care and indicated that Plaintiff would be seen by Dr. Trost for further
care (id.).

Plaintiff sent his grievance to the grievance officer, who responded on

January 22, 2015 (Doc. 35-6). The grievance officer found Plaintiff’s grievance to be
moot, due to recent treatment (id.). The chief administrative officer concurred with the
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grievance officer on January 30, 2015, and Plaintiff appealed his grievance to the
Administrative Review Board (ARB) on February 5, 2015 (id.). The ARB responded on
September 21, 2015, indicating that Menard had properly addressed Plaintiff’s grievance
(Doc. 35-7). Plaintiff filed this lawsuit on December 15, 2015.
In the January 2016 merits review Order, the undersigned found that Plaintiff
alleged, inter alia, that Defendant Wexford denied his requests for surgical removal of his
cysts due to policies maintained by Wexford that place costs as a priority over patient
care (id. at 3). The Court found that these allegations sufficiently stated a claim for an
Eighth Amendment violation against Wexford (Id. at 5).
III.

APPLICABLE LEGAL STANDARDS
A.

Summary Judgment Motions

Summary judgment is proper only if the admissible evidence considered as a
whole shows there is no genuine dispute as to any material fact, and 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).
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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.

“A mere

scintilla of evidence in support of the nonmoving party’s position is not sufficient; there
must be evidence on which the jury could reasonably find for the non-moving party.”
Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). 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, judge 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 on the issue of exhaustion. Nat’l Athletic Sportwear 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). The case may proceed on the merits only after
any contested issue of exhaustion is resolved. Pavey, 544 F.3d at 742.
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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. Here, Plaintiff
has not disputed any of the Wexford Defendants’ factual assertions, so no hearing is
required.
B.

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. 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).3

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).
3

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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,
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,
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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.
C.

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

procedures first require inmates to speak with their counselor about the issue or
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).
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
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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.
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
have a grievance handled on an emergency basis may also be appealed to the ARB. 20
Ill. Adm. Code 504.850.
IV.

ANALYSIS
In the case at bar, although Defendants concede that Plaintiff exhausted as to

Defendant Trost through the August 2014 grievance, they argue that Plaintiff has not
exhausted as to Defendant Wexford. They claim that Plaintiff failed to mention how
Wexford violated his rights, and therefore his grievance did not place Menard on notice
of his complaints against Wexford. The Court is not persuaded.
Plaintiff complied with IDOC’s specificity requirements as to Wexford.

The

level of detail required in a grievance depends on the state’s exhaustion requirements,
Jones, 549 U.S. at 218, and, as noted above, the State of Illinois requires that a grievance
“contain 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
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is otherwise involved in the complaint.”

20 Ill. Adm. Code. 504.850.

Plaintiff

provided the requisite specificity as to Wexford, in his August 2014 grievance. He
specifically listed Wexford in the grievance, and he complained that Wexford and Trost
violated his Eighth Amendment rights by acting with deliberate indifference when they
denied his request to have cysts surgically removed from his testicles. He alleged that
Trost and Wexford were “forcing [him] to live with…constant pain and are refusing to
properly treat [his] mass.”

Plaintiff also provided the specific date of one of the

instances he was denied surgery.
Defendants suggest that Plaintiff failed to exhaust as to Wexford because his
grievance did not specify that Wexford was engaging in a policy or practice to deny him
care. Defendants’ position would obligate Plaintiff to go beyond what the IDOC has
mandated inmates do in exhausting their administrative remedies. Defendants would
require Plaintiff to tailor his complaints against a particular individual to essentially
plead a cause of action against that individual, as if Plaintiff were in federal court. The
Illinois Administrative Code does not require such specificity. It merely requires, at its
core, “factual details regarding each aspect of the offender’s complaint.”
“Grievances are intended to give prison administrators an opportunity to address
a shortcoming, not to put individual defendants on notice of a lawsuit.”

Glick v.

Walker, 385 Fed. App’x 579, 582 (7th Cir. 2010), citing Jones, 549 U.S. at 218. See also
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary
purpose of a grievance is to alert prison officials to a problem, not to provide personal
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notice to a particular official that he may be sued; the grievance is not a summons and
complaint that initiates adversarial litigation.”).
Plaintiff’s August 2014 grievance clearly put Menard officials on notice of an
alleged shortcoming on Wexford’s part, i.e., that Wexford was denying Plaintiff surgery
to remove painful cysts from his testicles. To put Menard on notice, Plaintiff did not
need to specify that Wexford’s shortcomings toward him were due to policies or
practices. Defendants concede that Plaintiff completed the required procedural steps in
regards to the August 2014 grievance, and the Court finds that Plaintiff provided the
level of specificity required by the IDOC in the grievance as to Wexford. Accordingly,
the Court finds that Plaintiff exhausted his administrative remedies as to Wexford.
V.

CONCLUSION
Defendants’ motion for summary judgment (Doc. 34) is GRANTED in part and

DENIED in part. The motion is granted in that Plaintiff concedes that he has not
exhausted his administrative remedies as to Defendants Moldenhauer, Shearing and
Garcia; the Court DISMISSES those three Defendants without prejudice. The motion
is denied in that the Court finds Plaintiff did exhaust his administrative remedies as to
Wexford. Wexford remains as a Defendant in this suit.
Plaintiff’s claims against Defendants Wexford, Trost, and Lang shall go forward.
IT IS SO ORDERED.
DATED: February 21, 2017.
s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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