Sultan v. Duncan et al
Filing
166
ORDER GRANTING 117 Motion for Summary Judgment on the Issue of Exhaustion. Defendant Patricia Potts is DISMISSED without prejudice. Signed by Magistrate Judge Mark A. Beatty on 2/11/2020. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES SULTAN,
Plaintiff,
vs.
STEPHEN DUNCAN, LISA TARR,
BRIAN KELLER, ZACHARY MAXEY,
ROBERT WEAVER, CHRISTOPHER
GIPSON, DARRELL SELBY, CHAD
JENNINGS, JASON FREEMAN,
PATRICIA POTTS, WILLIAM
BYFORD, KEVIN JOHNSON, ETHAN
CLARY, DON HARRIS, ALLAN
DALLAS, and NATHAN WHEELER,
Defendants.
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Case No. 3: 17-CV-418-NJR-MAB
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Currently pending before the Court is Defendant Patricia Potts’ motion for
summary judgment on the issue of exhaustion (Doc. 117). For the reasons stated below,
the motion is granted.
BACKGROUND
Plaintiff Charles Sultan (“Plaintiff”) brought this action pursuant to 42 U.S.C.
§1983 alleging various deprivations of his constitutional rights that occurred while he
was incarcerated at Lawrence Correctional Center (Doc. 11; Doc. 13). In particular,
Plaintiff alleged that officials at Lawrence placed him in a segregation cell with an inmate
who was mentally ill and had a known propensity for violence. According to Plaintiff,
this cell assignment was in retaliation for a lawsuit he previously filed against the Orange
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Crush Tactical Team. Plaintiff’s cellmate became angry with him, and Plaintiff asked
multiple officers to move him to another cell or get him a crisis team because of “a
conflict” with his cellmate, but they refused. He also asked Defendant Potts, a nurse at
Lawrence, to get him a crisis team, but she also refused. On the evening of September 13,
2015, after Plaintiff had been trying for two days to get help, Plaintiff was assaulted by
his cellmate (Doc. 13).
Following a threshold review of the complaint pursuant to 28 U.S.C. § 1915A,
Plaintiff was permitted to proceed on the following counts:
Count 1 - Eighth Amendment deliberate indifference claim against
Defendants William Byford, Ethan Clary, Allan Dallas, Stephen Duncan,
Jason Freeman, Christopher Gipson, Don Harris, Kevin Johnson, Chad
Jennings, Brian Keller, Zachary Maxey, Patricia Pots, Darrell Selby, Lisa
Tarr, Robert Weaver, and Nathan Wheeler for failing to intervene and
protect Plaintiff from an attack by Inmate Esther on or around September
13, 2015.1
Count 2 - Eighth Amendment deliberate indifference claim against
Defendants Clary, Selby, and Harris for using excessive force against
Plaintiff when cuffing him on and after September 28, 2015.
Count 4 - Conspiracy claim against all Defendants under the common law
and/or 42 U.S.C. § 1985.
Count 5 - First Amendment retaliation claim against all Defendants for
placing Plaintiff in a cell with Inmate Esther because Plaintiff sued the
Orange Crush Tactical Team.
(Doc. 13).
The threshold order also lists a Defendant named Austin, however, Lisa Tarr was later substituted in for
Defendant Austin (Doc. 73).
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1
Nurse Potts is the only Defendant who filed a motion for summary judgment on
the issue of exhaustion (Doc. 117). She argues that Plaintiff failed to reference her by name
or description in any of his grievances (Doc. 118, p. 9). His grievances instead focus
exclusively on the conduct of correctional officers (Id. at p. 10). Plaintiff, through
appointed counsel, filed a response in opposition to Nurse Potts’ motion (Doc. 138).
Nurse Potts then filed a reply to Plaintiff’s response (Doc. 141). An evidentiary hearing,
pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was not required based on the
record and the parties’ briefs.
LEGAL STANDARDS
Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the adverse party must set forth specific facts
showing there is a genuine issue. 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 determining a summary
judgment motion, the 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 omitted).
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Normally, the court cannot resolve factual disputes on a motion for summary
judgment; they must be decided by a jury. E.g., Roberts v. Neal, 745 F.3d 232, 234 (7th Cir.
2014) (“[A] trial is the standard means of resolving factual disputes . . . .”) The opposite
is true, however, when the motion for summary judgment pertains to a prisoner’s failure
to exhaust. The Seventh Circuit has instructed courts to conduct an evidentiary hearing
in order to resolve contested issues of fact regarding a prisoner’s purported failure to
exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008)). Accord Roberts, 745 F.3d at 234. Here, the parties’ briefs
demonstrate that there are no contested issues of fact and so a hearing is not required.
Exhaustion
The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit
about prison conditions unless and until he has exhausted all available administrative
remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)). The
purpose of the exhaustion requirement is to “alert prison officials to perceived problems
and to enable them to take corrective action without first incurring the hassle and expense
of litigation.” Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) (per curiam)
(citations omitted). See also Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (quoting Jones
v. Bock, 549 U.S. 199, 219 (2007)). In order for a prisoner to properly exhaust his or her
administrative remedies, the prisoner must “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); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion is an
affirmative defense, which the defendants bear the burden of proving. Pavey, 663 F.3d at
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903 (citations omitted).
As an inmate in the IDOC, Plaintiff was required to follow the grievance process
outlined in the Illinois Administrative Code to exhaust his claims. 20 ILL. ADMIN. CODE §
504.800, et seq. (2015). 2 Pertinent to this case is the regulation regarding emergency
procedures. 20 ILL. ADMIN. CODE § 504.840 (2015). 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 will process and
respond to the grievance on an expedited basis. Id. If the prisoner is unsatisfied with the
warden’s expedited decision, he can appeal to the ARB for a final determination from the
Director of the IDOC. Id. at 504.850(a), (g) (“In those instances where an offender is
appealing a grievance determined by the [warden] to be of an emergency nature, the ARB
shall expedite processing of the grievance.”).
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 20
ILL. ADMIN. CODE §§ 504.840, 504.850 (2015). The Seventh Circuit held in an unpublished
Illinois amended its grievance procedures, effective April 1, 2017. See 41 Ill. Reg. 3909–10 (March 31, 2017)
(amending 20 Ill. Admin. Code § 504.810). However, the grievances at issue here were written in 2015, well
before the amended grievance procedures took effect. Consequently, the previous version of the grievance
procedures—the one that was in effect from April 2003 to April 2017—applies here. See 27 Ill. Reg. 6285–86
(April 11, 2003) (promulgating the version of 20 Ill. Admin. Code § 504.810 in effect from April 2003 to April
2017). That is the version cited and referred to throughout this Order.
2
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case that “after the warden concludes that the grievance does not present an emergency
. . . Illinois rules do not require [the prisoner] to appeal that decision to the [ARB].” 718
Fed. Appx. 413, 418 (7th Cir. 2017) (unpublished). See also Boyce v. Illinois Dep’t of Corr.,
661 Fed. Appx. 441, 443 (7th Cir. 2016) (noting that prisoner “submitted grievances
directly to the warden as emergencies, and our decision in Thornton v. Snyder implies that
this may have been enough.”). Judges in this district have elected to follow the holding
in Bentz. E.g., Cox v. Lashbrook, No. 16-CV-1096-NJR-DGW, 2018 WL 4520272, at *4 (S.D.
Ill. Sept. 21, 2018); Viverette v. Wexford Health Sources Inc., No. 17-CV-586-JPG-DGW, 2018
WL 3526501, at *4 (S.D. Ill. July 23, 2018).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Nurse Potts provided the Court with a select portion of Plaintiff’s grievance
records from the Administrative Review Board and Western Correctional Center, as well
as a cumulative counseling summary from Western (Docs. 118-1, 118-2, 118-3). Nurse
Potts highlighted six potentially relevant grievances dated July 28, 2015; September 28,
2018; October 6, 2015; October 8 (maybe 18), 2015; November 18, 2015; and December 14,
2015 (Doc. 118, pp. 2–3). She argued that none of these grievances contain any reference
whatsoever to her, and therefore they are insufficient to exhaust as to her (Doc. 118). After
reviewing these grievances, the Court also agrees that these grievances are insufficient to
exhaust as to Nurse Potts.
To begin with, the grievance dated November 18, 2015 concerns medical care that
Plaintiff received at Western Correctional Center (Doc. 118-1, pp. 19–20). It is wholly
unrelated to the claims in this case and therefore cannot exhaust as to Nurse Potts.
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The other five grievances—July 28, September 28, October 6, October 8 (maybe 18),
and December 14, 2015—make clear that Plaintiff was only complaining about purported
misdeeds by correctional officers. There is no indication in any of these grievances that
Plaintiff was complaining about a nurse or anyone else on the healthcare staff harassing
him, threatening him, or otherwise retaliating against him in any way for his ongoing
lawsuit against the Orange Crush.
Illinois law specifies that a prisoner's grievances 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 or who is otherwise involved
in the complaint.” 20 ILL. ADMIN. CODE § 504.810(b) (2015). If the offender does not know
the names of individual, he “must include as much descriptive information about the
individual as possible.” Id. The grievance forms used by Plaintiff likewise asked for “a
description of what happened, when and where it happened, and the name or identifying
information for each person involved” (see Doc. 118-1). In short, the grievance must
provide sufficient information to identify the defendant as the target of the complaint or
to implicate them in the alleged wrongdoing. See Roberts v. Neal, 745 F.3d 232, 234 (7th
Cir. 2014) (explaining “fatal defect” in grievance was “the absence of anything in it to
indicate that [the defendant] was the target.”); see also Ward v. Hoffman, 670 Fed. Appx.
408, 410 (7th Cir. 2016) (affirming summary judgment based on prisoner’s failure to
exhaust where he complained only about the procedures used by the adjustment
committee and did not mention excessive force or the defendants); Ambrose v. Godinez,
510 Fed. Appx. 470, 472 (7th Cir. 2013) (affirming the dismissal of prison officials where
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the plaintiff’s grievance failed to mention the officials by name or otherwise implicate
them in the alleged constitutional violation).
Here, in the July 28, 2015 emergency grievance, Plaintiff alleges he was put into
segregation on investigative status but not given any explanation. When officers tried to
take him back to general population, Plaintiff refused out of fear that officers involved in
his lawsuit against the Orange Crush were “gunning for having me hit. . . .” and were
going to “have [him] set-up and have one of the inmates with mental illness . . . do it for
them.” Plaintiff indicates that he feared for his life at Lawrence and begged to be placed
in protective custody.
The emergency grievance dated September 28, 2015 explicitly states that it is about
officers Clary, Ethan, Selaby, and Harris harassing Plaintiff and using excessive force
against him, amongst other things, all in retaliation because Plaintiff filed a lawsuit.
In the emergency grievances dated October 6 and October 8, 2015, Plaintiff
contests the proceedings at the Adjustment Committee hearing on September 23, 2015 for
a disciplinary ticket that he received after his cellmate assaulted him. He asks to have the
ticket expunged from his record and to be transferred out of Lawrence.
The emergency grievance dated December 14, 2015 was submitted after Plaintiff
was transferred to Western Correctional Center. It is substantially the same as the
September 28, 2015 grievance discussed above in that Plaintiff complains about officers
Clary, Ethan, Selaby, and Harris harassing him and using excessive force against him,
amongst other things, all in retaliation for filing a lawsuit.
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Because these grievances clearly focus on the actions of correctional officers and
none of them even remotely suggest that members of the healthcare staff were also
involved in the misdeeds or somehow at fault, they cannot serve to exhaust Plaintiff’s
claims against Nurse Potts.
The six grievances highlighted by Nurse Potts are not the end of the story,
however. In his response to the motion for summary judgment, Plaintiff claims he filed
another grievance on September 23, 2015 (Doc. 138). This grievance, which was attached
to Plaintiff’s amended complaint, was marked as an emergency (Doc. 11-1, pp. 13–15, 30).
In the grievance, Plaintiff describes a conflict with his cellmate in segregation. Plaintiff
indicates he began notifying officers of the conflict on the night of September 12, 2015 and
continued notifying other officers the next day. He further indicates that on September
13th, he was taken to the medication line where he asked “Nurse (Jane Doe #1)” to put
him in a crisis cell, but the nurse told him she did not have time to do it right then because
she had other stuff to do, but she would come back later with the zone lieutenant to do a
crisis move. The nurse, however, never followed through.
The unknown nurse referred to in the September 23rd grievance very well could
be Nurse Potts. However, there is no evidence that Plaintiff ever filed this grievance, let
alone exhausted it. For example, there is no indication on the face of the grievance the
warden ever received it or determined whether it constituted an emergency (see Doc. 111, pp. 13–15, 30). There is also no indication on the face of the grievance that it was ever
received by Plaintiff’s counselor, the grievance office, or the ARB (see id.). There is also no
record of this grievance in the materials submitted by Nurse Potts (see Docs. 118-1, 118-2,
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118-3). Furthermore, Plaintiff also did not provide a declaration asserting that he
submitted this grievance, that he did not understand how to do so, or that he was
thwarted from doing so by prison officials; there is also no argument to this effect in his
response brief (see Doc. 138). See Ross v. Blake, 136 S. Ct. 1850, 1860, 195 L. Ed. 2d 117 (2016)
(explaining that grievance process is unavailable and exhaustion is not required when
“prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”); Ramirez v. Young, 906 F.3d
530, 535 (7th Cir. 2018) (holding that grievance process is “available only if a prisoner has
been notified of [its] existence” and the process has been “communicated in a way
reasonably likely to be understood.”).
In short, Plaintiff failed to provide the Court with any evidence to support his
suggestion that he filed and fully exhausted the September 23, 2015, and therefore failed
to show a genuine issue of fact existed as to whether he exhausted his administrative
remedies with respect to Nurse Potts. Consequently, Nurse Potts is entitled to summary
judgment.
CONCLUSION
The motion for summary judgment on the issue of exhaustion filed by Defendant
Patricia Potts (Doc. 117) is GRANTED. Potts is DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: February 11, 2020
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
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