Dent v. Burrell et al

Filing 105

ORDER DENYING 56 Motion for Summary Judgment filed by Defendants Thomas Burrell and Alfonso David. The 102 Motion For Leave to Join Co-Defendant's Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants Stephen Engler, Deda Millis, Jeffery Dennison, Harry Allard, Sherry Benton, and Karen Smoot is also DENIED. Signed by Judge Nancy J. Rosenstengel on 2/20/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DENT,
Plaintiff,
vs.
THOMAS BURRELL, ALFONSO
DAVID, KAREN SMOOT, JEFFERY
DENNISON, HARRY ALLARD, DEDA
MILLIS, STEPHEN ENGLER, and
SHERRY BENTON,
Defendants.

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Case No. 3:16-CV-01263-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on a Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies (Doc. 56) filed by Defendants Thomas
Burrell and Alfonso David, as well as the Motion for Leave to Join Co-Defendant’s
Motion for Summary Judgment filed by Defendants Jeffery Dennison, Deda Millis,
Harry Allard, Karen Smoot, Stephen Engler, and Sherry Benton (Doc. 102). For the
reasons set forth below, both the Motion for Summary Judgment and the Motion to Join
are denied.
BACKGROUND
On November 21, 2016, Plaintiff Charles Dent filed this action pursuant to
42 U.S.C. § 1983, alleging Defendant Thomas Burrell, the dentist at Shawnee
Correctional Center, failed to properly treat an abscessed tooth. He also alleges Alfonso
David, the medical director at Shawnee, and a number of other officials failed to

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intervene in that improper treatment, and that David failed to promptly treat Dent’s
chronic migraine condition (Doc. 1, pp. 1-2). The Court conducted a preliminary review
of Dent’s Complaint pursuant to 28 U.S.C. § 1915A, and allowed him to proceed on the
following claims:
COUNT 1:

Burrell failed to promptly and properly treat Dent’s abscess
and abscess-related complications, in violation of the Eighth
Amendment.

COUNT 2:

Burrell made improper treatment decisions and wrote a false
disciplinary report against Dent because Dent filed
grievances against him concerning his treatment, in violation
of the First Amendment.

COUNT 3:

David, Smoot, Dennison, Allard, Millis, Engler, and Benton
violated the Eighth Amendment by not intervening in Dent’s
dental care.

COUNT 4:

David failed to properly treat Dent’s migraine-related
problems from May 2016 to August 2016, in violation of the
Eighth Amendment.

Grievances
It is undisputed that Dent submitted multiple grievances regarding Count 1,
Burrell’s failure to treat his abscessed tooth. Dent first filed a non-emergency grievance
on August 5, 2016 (Doc. 57-1, pp. 23-24), stating that on July 11, 2016, he began
experiencing severe tooth pain. On July 15, 2016, he was called to the dental department,
but the dentist, Burrell, did not take any x-rays. Dent claimed he knew he had an
abscessed tooth and sought to be called back to dental for x-rays and for a “proper
diagnosis.” On August 15, 2016, the grievance counselor responded to the grievance and
found the issue to be resolved as Dent’s tooth had since been removed (Id.). On
September 14, 2016, the Grievance Officer recommended, for the same reason, that the

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grievance be found moot (Id. at p. 22). The Chief Administrative Officer (“CAO”)
concurred with this decision on September 19, 2016 (Id.), and Dent appealed the decision
to the ARB. The ARB issued its decision on March 22, 2017, finding that Dent’s issue was
moot considering his tooth was extracted on August 15, 2016 (Id. at p. 21).
Dent also filed two emergency grievances related to his dental care on August 23,
2016 (Doc. 57-1, pp. 13-16). Within these nearly identical grievances, Dent complained
that Burrell was ignoring a piece of broken tooth in the socket where his tooth had been
pulled. Dent claimed Burrell’s inadequate treatment was retaliation for Dent filing his
August 5, 2016 grievance (Id. at pp. 14, 16). Despite being marked as an emergency, one
of the grievances was replied to by the grievance counselor rather than the CAO (Id. at
p. 13). The other August 23, 2016 grievance was sent directly to the CAO, who
determined two days later that the grievance was not an emergency (Id. at p. 15). The
following day, Burrell himself responded to the grievance stating that the tooth was
extracted in its entirety, there was no tooth remaining in the socket, and when the socket
begins to heal, bone spicules can occur (Id.). The Administrative Review Board (“ARB”)
received Dent’s appeal of these grievances on November 4, 2016 (Id. at p. 10), and
subsequently denied the appeals because “the issue was appropriately addressed by the
facility Administration” and because the “claims against Dentist are not substantiated.”
(Id.).
Dent filed a final emergency grievance related to his dental care on September 8,
2016 (Id. at p. 37). In this grievance, Dent complained to the CAO that he had filed two
prior emergency grievances regarding his treatment by Burrell, but had not received a

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response (Id.). He also stated that he had been in constant pain for more than two
months, that there were clearly tooth fragments and a tissue mass in the extraction site,
and that Burrell refused to acknowledge that he “botched” the extraction of his tooth.
Dent demanded to be seen by an offsite oral surgeon for treatment (Id.). On September
12, 2016, the CAO determined the grievance was not an emergency (Id.). The counselor
also responded that day stating that it was a “duplicate grievance.” (Id.). Burrell
appealed this denial to the ARB, arguing that the CAO refused to process it as an
emergency grievance and asking the ARB to “fast track” the emergency grievance so he
could get treatment for his severe pain (Id.). The ARB received Burrell’s appeal of the
September 8 grievance on October 13, 2016, and denied it the following day because
Burrell already had two other grievances regarding dental care pending appeal (See
Doc. 57-1, p. 35).
Also at issue are exhaustion of the grievances relating to Defendant David’s
failure to treat Dent’s chronic migraines (Count 4) and Defendant Burrell’s retaliation
against Dent by filing a false disciplinary report (Count 2). Again, it is uncontested that
Dent filed grievances on both of these issues: a non-emergency grievance regarding
David’s failure to treat his migraines was filed on August 5, 2016 (Doc. 57-1, p. 19), and a
non-emergency grievance claiming Burrell wrote a false disciplinary ticket in retaliation
for Dent filing grievances against him was filed on October 6, 2016 (Id. at p. 4).
In his August 5, 2016 grievance, Dent stated that he had been prescribed Excedrin
for his chronic migraines for seven years prior to his arrival at Shawnee on May 10, 2016
(Id. at p. 19). It further stated that on July 16, 2016, Dent saw a nurse about getting his

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prescription for Excedrin renewed (Id. at pp. 19-20). The nurse told Dent that the
Excedrin would have to be prescribed by Defendant David and that there was only one
doctor for 1,000 inmates (Id. at p. 20). After suffering for several weeks, Dent placed
another sick call request on August 3, 2016. When he was called to sick call on August 5,
2016, he was informed that the nurse never submitted him to see the doctor (Id.). He then
filed a grievance requesting that David renew his Excedrin prescription (Id. at p. 19). On
August 15, 2016, the counselor responded noting that Dent was scheduled to see Dr. Coe
(not a defendant) on August 19, 2016, for an assessment of his need for Excedrin (Id.). On
September 14, 2016, the Grievance Officer reviewed the grievance and determined that
the issue was moot considering Dent had been scheduled to see the doctor (Id. at p. 18).
The CAO concurred in this decision on September 19, 2016 (Id.). The ARB received
Dent’s appeal of this grievance on September 29, 2016, and on March 22, 2017—after this
lawsuit was filed—found the issue to be moot (Id. at p. 17).
The counselor responded to Dent’s October 6, 2016 grievance regarding Burrell’s
alleged retaliation on October 18, 2016, instructing Dent to attach the allegedly false
disciplinary report and summary and then forward it to the Grievance Officer. On
November 15, 2016, the Grievance Officer reviewed the incident and found that the
disciplinary report had been expunged. Thus, the grievance was denied (Id. at p. 3). Dent
appealed this denial to the ARB on December 2, 2016—again, after the filing of this
lawsuit (Id.). On April 10, 2017, the ARB denied Dent’s appeal of his October 6, 2016
grievance because it found the issue was appropriately addressed by the facility (Dent’s

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disciplinary ticket had been expunged) and because the claims of retaliation by Burrell
were not substantiated (Id. at p. 2).
Motions Filed by Defendants
On April 7, 2017, Magistrate Judge Wilkerson entered an Order setting a June 2,
2017 deadline for filing motions for summary judgment regarding exhaustion of
administrative remedies (“Pavey motions”) (Doc. 39). Defendants Burrell and David
timely filed the motion currently pending before the Court (Doc. 56). Defendants
Dennison, Millis, Allard, Smoot, Engler, and Benton, all employees of the Illinois
Department of Corrections (“IDOC Defendants”), did not file a Pavey motion. After the
deadline passed, the parties participated in a status conference with Magistrate Judge
Wilkerson, in which the pending Pavey motion by Defendants Burrell and David was
discussed (Doc. 61). Almost five months after the deadline for filing Pavey motions had
passed, the IDOC Defendants filed the pending Motion for Leave to Join Co-Defendant’s
Motion for Summary Judgment (Doc. 102).
LEGAL AND ADMINISTRATIVE STANDARDS
Summary Judgment
Summary judgment is proper only where the moving party can demonstrate no
genuine issue of material fact exists 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); Ruffin-Thompkins
v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). All facts and
reasonable inferences must be construed in favor of the non-moving party. Blow v. Bijora,
Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing Calumet River Fleeting, Inc. v. Int’l Union of
Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48 (7th Cir. 2016)). The judge’s
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role at summary judgment is not to weigh the evidence or assess the facts, but simply to
determine whether there is a genuine issue for trial. Id. at 259. The question is can there
be only one reasonable conclusion based on the evidence, or could reasonable minds
differ? Id. at 250-51.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust all
administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a);
Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). Proper exhaustion requires an inmate
to “file complaints and appeals in the place, and at the time, the prison’s administrative
rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Defendants,
however, bear the burden of proving a failure to exhaust. Jones v. Bock, 549 U.S. 199, 216
(2007); Dole, 483 F.3d at 809.
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)).
In finding the PLRA requires proper exhaustion, the Supreme Court agreed with the
Seventh Circuit’s interpretation of the statute as stated in Pozo, which required an inmate
to “file complaints and appeals in the place, and at the time, the prison’s administrative
rules require.” Pozo, 286 F.3d at 1025. In Pavey v. Conley, the Seventh Circuit instructed
District Courts to conduct a hearing to determine whether a plaintiff has exhausted his
remedies. 544 F.3d 739, 742 (7th Cir. 2008). If a plaintiff has exhausted his remedies, the

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case will proceed on the merits. Id. If, however, a plaintiff has not exhausted, the Court
may either allow the plaintiff to exhaust or terminate the matter. Id.
Under the Illinois Administrative Code, an inmate must first attempt to resolve a
complaint informally with his Counselor. ILL. ADMIN. CODE TIT. 20, § 504.810(a). If the
complaint is not resolved, the inmate may file a grievance within 60 days after the
discovery of the incident, occurrence, or problem that gives rise to the grievance. Id. The
grievance form must 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 the complaint. Id. The grievance officer is required to advise the Chief
Administrative Officer (“CAO”) at the facility in writing of the findings on the
grievance. Id. § 504.830(e). The CAO shall advise the inmate of the decision on the
grievance within two months of it having been filed, where reasonably feasible under
the circumstances. Id. Responses to duplicate grievances on issues that are currently
being grieved may be combined in one response. Id.
An inmate may request that a grievance be handled as an emergency by
forwarding it directly to the CAO. Id. § 504.840. If it is determined that a substantial risk
of imminent personal injury or other serious or irreparable harm exists, the grievance
process must be expedited. Id. § 504.840.
If, after receiving the response of the CAO, the offender still believes the problem
has not been resolved to his satisfaction, 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’s administrative

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remedies are not exhausted until the appeal is ruled on by the Administrative Review
Board. See id. § 504.850(a); See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006).
An inmate is required to exhaust only those administrative remedies available to
him. See 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative remedies
become “unavailable” when prison officials fail to respond to inmate grievances. Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002). 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 F. App’x 10,
13 (7th Cir. 2009). If further remedies are unavailable, the inmate is deemed to have
exhausted. Id. Prisoners are required only to provide notice to “responsible persons”
about the complained-of conditions. See Wilder, 310 F. App’x 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.
DISCUSSION
I.

Emergency Grievances
Defendants Burrell and David argue Dent failed to his exhaust administrative

remedies with regard to his complaints in Counts 1, 2, and 41 (Doc. 57, p. 7). Specifically,
Burrell and David argue that Dent filed this lawsuit prior to receiving a decision on his
appeals to the ARB; thus, he filed his lawsuit too soon and summary judgment must be
granted in their favor.
Defendants do not address Dent’s claim against David in Count 3; thus, the argument is deemed waived.
See Fluker v. County of Kankakee, 741 F.3d 787, 793 (7th Cir. 2013) (a defendant in prison litigation who has a
possible exhaustion defense can waive it and instead seek dismissal on the merits).

1

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It is undisputed that Dent submitted multiple grievances regarding Burrell’s
failure to treat his abscessed and infected tooth. It is also undisputed that the CAO
determined one of Dent’s August 23, 2016 emergency grievances and his September 8,
2016 emergency grievance were not, in fact, emergencies.
Recently, the Seventh Circuit held that administrative remedies should be
considered exhausted upon rejection of an emergency grievance by the CAO, with no
further action required on behalf of the inmate. Bentz v. Ghosh, No. 16-1607, 2017 WL
5564679 at *4 (7th Cir. Nov. 20, 2017) (non-precedential disposition) (“[A]n Illinois
inmate who asks the warden to handle a grievance on an emergency basis need not
resubmit that complaint as a normal grievance after the warden concludes that the
grievance does not present an emergency. . . . Under these circumstances Illinois rules do
not require him to appeal that decision to the Administrative Review Board.”).
Accordingly, when the CAO determined Dent’s August 23, 2016 grievance was
not an emergency, Dent effectively had exhausted his administrative remedies with
regard to his claims in Count 2 that Burrell ignored a piece of broken tooth in the socket
where his tooth had been pulled in retaliation for Dent filing his August 5, 2016
grievance. Likewise, when the CAO rejected Dent’s September 8, 2016 grievance as a
non-emergency, Dent’s claim in Count 1 that Burrell failed to treat Dent’s abscess-related
complications was sufficiently exhausted.
II.

Non-Emergency Grievances
It is also uncontested that Dent filed a non-emergency grievance on August 5,

2016, relating to David’s failure to treat Dent’s chronic migraines as alleged in Count 4, a

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second non-emergency grievance on August 5, 2016, relating to Burrell’s inadequate
pre-extraction dental care as alleged in Count 1, and a final non-emergency grievance on
October 6, 2016, asserting Burrell wrote a false disciplinary ticket in retaliation for Dent
filing grievances against him, as alleged in Count 2. It is also undisputed that these
grievances were appealed to the ARB and ultimately rejected (Doc. 57-1, pp. 2, 4, 17).
David argues, however, that Dent failed to exhaust his administrative remedies because
he did not file his grievance within the 60-day timeframe required by the PLRA (Doc. 57,
p. 9). Further, both Burrell and David argue Dent improperly filed this action before the
ARB appellate process was complete (Doc. 57, p. 7).
A.

60-Day Deadline

Dent was transferred to Shawnee Correctional Center on May 10, 2016 (Doc. 57,
p. 9). Prior to his transfer, Dent had been prescribed Excedrin for seven years in order to
treat his chronic migraines (Doc. 57-1, p. 19). On July 16, 2016, Dent told a nurse about
the Excedrin prescription, and the nurse referred him to Dr. David for a prescription
(Doc. 1, p. 25, ¶33). After several weeks of waiting, Dent placed a sick call request and
was against seen by the nurse, who gave him Tylenol and made another referral to Dr.
David for an Excedrin prescription (Doc. 1, p. 25, ¶33). After almost three months of no
prescription, blurred vision, headaches, and numbness, Dent filed a grievance against
David on August 5, 2016 (Doc. 57-1, pp. 23-24).
David argues the filed grievance was untimely because Dent was required to file
it within 60 days of his transfer to Shawnee (Doc. 57, p. 9). The Court disagrees. Under
the Illinois Administrative Code, an inmate must file a grievance within 60 days after the

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discovery of the incident, occurrence, or problem that gives rise to the grievance.
§ 504.810(b). Every day that Dent went without his Excedrin constituted a new incident,
occurrence, or problem giving rise to the grievance. Thus, Dent’s August 5, 2016
grievance was timely filed with regard to his claim that, beginning June 6, 2016 (60 days
before he filed his grievance), he was denied treatment for his chronic migraines.
B.

ARB Appeals

Both David and Burrell also argue Dent filed this lawsuit prematurely because the
ARB appeal process had not yet been completed. Defendants are correct that the PLRA
requires the prison’s administrative process to be completed before a plaintiff files suit.
Perez v. Wisconsin, 182 F.3d 532, 534 (7th Cir. 1999). That did not happen with regard to
Dent’s non-emergency grievances. In each instance, the ARB issued its decision after
Dent filed this lawsuit. Nonetheless, Dent argues that he was not required to appeal the
decisions, as he received the relief he requested.
It is true that 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 Dept. 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).
On the other hand, the Seventh Circuit has clearly held that a prisoner need not
appeal grievances that were resolved as he requested and where money damages were
not available. Thornton v. Snyder, 428 F.3d 690, 695 (7th Cir. 2005). “When there is no

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possibility of any further relief, the prisoner’s duty to exhaust available remedies is
complete.” Id. at 696 (quotation and citation omitted).
Here, Dent’s August 5, 2016 grievance regarding Burrell’s failure to promptly and
properly treat his abscessed tooth was determined by the counselor, Grievance Officer,
and CAO to be moot because Dent’s tooth had since been removed. Thus, his grievance
had been resolved as requested. Likewise, Dent’s other August 5, 2016 grievance relating
to David’s failure to treat Dent’s chronic migraines also was found to be moot by prison
administrators because Dent had since been scheduled to see the doctor. Finally, Dent’s
October 6, 2016 grievance asserted Burrell wrote a false disciplinary ticket in retaliation
for Dent filing grievances against him. On November 15, 2016, the Grievance Officer
denied the grievance because disciplinary report had been expunged. In other words,
Dent had received the relief he requested. Dent then filed this lawsuit on November 21,
2016 (Doc. 1).
Because Dent received the relief requested in his non-emergency grievances, he
was not required to appeal the grievances to the ARB, and they are deemed properly
exhausted.
III.

Motion for Leave to Join
The IDOC Defendants did not file a Pavey motion in this case. After the deadline

for filing such motions had passed, the parties participated in a status conference, in
which the pending Pavey motion by Defendants Burrell and David was discussed
(Doc. 61). All counsel, including counsel for the IDOC Defendants, indicated the matter
was currently on track (Doc. 61). At no time did the IDOC Defendants indicate an intent

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to request leave to file a Pavey motion out of time. Thus, the Court infers counsel for the
IDOC Defendants did not believe they had a cognizable Pavey claim.
Almost five months after the deadline for filing Pavey motions, and after new
counsel had entered his appearance (Docs. 92, 101), the IDOC Defendants filed the
pending Motion for Leave to Join Co-Defendant’s Motion for Summary Judgment.
Unfortunately, however, the motion provides no justification for the IDOC Defendants’
failure to file a timely Pavey motion. Rather, the motion simply categorically states
Defendants had a meritorious defense based on exhaustion that was not filed by prior
counsel (Doc. 102, p. 3). In short, the current attorney disagrees with the prior attorney’s
assessment, and therefore wants a second bite at the apple. Defendants provide no legal
support for why they are entitled to such an opportunity.
Further, the IDOC Defendants argue the claims raised by Defendants Burrell and
David are equally applicable to them and thus Plaintiff would not be prejudiced by their
joining in the original motion (Doc. 102, pp. 2-3). The Court finds, however, that the
same claims are not raised. Burrell and David’s claims relate to the denial of Excedrin for
migraines and the denial of proper dental care for an abscessed tooth. Nowhere in the
pending Pavey motion, memorandum, or reply do Burrell or David address the failure to
intervene claim (Count 3), which is the only claim implicating the IDOC Defendants. If
the Court were to allow the IDOC Defendants to Join the Motion, an additional analysis
would need to be completed that has not been briefed by any party. See United States v.
Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011) (explaining that “perfunctory and

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undeveloped arguments, and arguments that are unsupported by pertinent authority,
are waived”).
Thus, the Court finds the IDOC Defendants waived any claims regarding failure
to exhaust administrative remedies, and no good cause exists for allowing them to join
Defendants Burrell and David’s Motion for Summary Judgment.
CONCLUSION
For these reasons, the Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies filed by Defendants Thomas Burrell and Alfonso David
(Doc. 56) is DENIED. The Motion for Leave to Join Co-Defendants’ Motion for Summary
Judgment filed by Defendants Jeffery Dennison, Deda Millis, Harry Allard, Karen
Smoot, Stephen Engler, and Sherry Benton (Doc. 102) is also DENIED.
IT IS SO ORDERED.
DATED: February 20, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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