Curry v. Butler et al

Filing 120

ORDER ADOPTING 118 REPORT AND RECOMMENDATIONS re 100 MOTION for Summary Judgment For Failure to Exhaust Administrative Remedies filed by Warden Lashbrooks, Kimberly S. Butler, Todd Brooks, Gail Walls; 97 MOTION for Summary Judgme nt for Plaintiff's Failure to Exhaust His Administrative Remedies filed by Wexford Health Source Inc, John Trost, Doctor Siddiqui. The Court adopts the 118 Report in its entirety and grants both summary judgment motions. Accordingly, the claims against all defendants are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge David R. Herndon on 7/2/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEVEN CURRY,
Plaintiff,
v.

No. 17-cv-751-DRH-RJD

KIMBERLY BUTLER, et al.,
Defendants.

MEMORANDUM and ORDER
HERNDON, District Judge:
INTRODUCTION & BACKGROUND
This matter comes before the Court on the Report and Recommendation
(“the Report”) issued by Magistrate Judge Reona J. Daly on June 15, 2018 (doc.
118). The Report recommends that the Court grant both defendants’ Lashbrook,
Butler, Brooks, and Walls Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (doc. 100) and defendants’ Wexford Health Source Inc.,
Trost, and Siddiqui Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (doc. 97) (together, the “summary judgment motions”).
Plaintiff Curry has objected 1 to the Report’s finding that he had not exhausted his
administrate remedies prior to filing suit (doc. 119). Based on the applicable law,

1

Plaintiff Curry titled his objections “an appeal,” however, due to the response being filed within
the standard objections period noted to all parties in the Report, the Court construes the motion
as plaintiff’s objections to the Report.

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the record, and the following, the Court ADOPTS the Report in its entirety (doc.
118) and GRANTS the summary judgment motions (docs. 97; 100).
Plaintiff Curry brought this pro se action for deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983. The Court screened Curry’s
complaint pursuant to 28 U.S.C. § 1915A and the following claims were allowed
to proceed:
Count 1 – Butler, Brooks, Walls, Trost, Siddiqui, and Lashbrook were
deliberately indifferent to Plaintiff’s serious heart condition in violation of
the Eighth Amendment;
Count 2 – Wexford Health Sources had an unconstitutional policy or
custom that prevented Plaintiff from receiving treatment for his serious
heart condition in violation of the Eighth Amendment;
Count 3 – Butler, Trost, and Lashbrook were deliberately indifferent to
Plaintiff’s unconstitutional conditions of confinement in violation of the
Eighth Amendment.
Thereafter, defendants filed their summary judgment motions alleging that
plaintiff had not exhausted his administrative remedies pursuant to 42 U.S.C. §
1997e(a), prior to filing the present lawsuit. Defendants claim as an inmate of the
Illinois Department of Corrections (“IDOC”), being housed at Menard Correctional
Center (“Menard”), plaintiff did not follow the proper grievance procedure set up
by Menard and the Illinois Administrative Code to fully exhaust his claims; here,
that plaintiff is allegedly receiving inadequate medical care due to a heart
condition by not obtaining surgical repair and other medical procedures plaintiff
deems necessary.

Accordingly, defendants ask the Court to dismiss plaintiff’s

First Amended Complaint without prejudice.
2

In support of the motions for summary judgment, defendants attached as
exhibits all plaintiff’s grievances and documents related to said grievances, which
pertain to plaintiff’s claim of being denied surgery to repair his heart condition. 2
Included in the documents, are responses from Menard and IDOC staff which
articulate their decisions regarding plaintiff’s medical claims and directions to
plaintiff on how to proceed with his grievances, if he so chose to do so.
According to defendants, as fully demonstrated by the exhibits, plaintiff’ failed to
follow proper protocol to exhaust his claims internally prior to filing suit.
In opposition to the summary judgment motions, plaintiff alleges that he
has complied with the exhaustion requirements of the Prison Litigation Reform
Act as he made defendants aware of his health problems via his grievance filings
and asserts that defendants have withheld grievance documents from him and the
Court (see e.g. doc. 104 at §§ 4; 16), that (presumably) would demonstrate his
compliance with the grievance procedure.
Magistrate Judge Daly issued her Report on June 15, 2018 (doc. 118)
recommending that the Court grant the summary judgment motions (docs. 97;
100). The Report was sent to the parties with a notice informing them of their
rights to appeal by way of filing “objections” within 14 days of service of the
Report. Plaintiff timely filed his “objections” on June 25, 2018 (doc. 119).

2

On June 5, 2018, in response to plaintiff’s motion to compel (doc. 108), defendants Brooks,
Butler, Lashbrook, and Walls sent additional grievance-related documents to plaintiff, even if no
bearing on the heart condition issue. See doc. 115.

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ANALYSIS
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1)(C),
which provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the
magistrate judge with instructions.

Id.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de

novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the
Court reviews those unobjected portions for clear error. Id. In addition, failure
to file objections with the district court “waives appellate review of both factual
and legal questions.” Id. Under the clear error standard, the Court can only
overturn a Magistrate Judge's ruling if the Court is left with “the definite and firm
conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co.,

Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
Specifically, Magistrate Judge Daly found that only three grievances were
relevant to the underlying Complaint. Those grievances were filed on November
2, 2014; May 18, 2015; and June 2, 2017.

Regarding the November 2014

grievance, plaintiff wrote regarding deprivation of medical treatment to treat the
hole in his heart and requests he be provided with heart surgery to repair the
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hole. As to the May 2015 grievance, plaintiff states he is concerned with improper
medical treatment due to his continued “heart pains.”

Plaintiff requested he be

sent to an outside hospital for a TEE as recommended by Dr. Trost (but later
denied in collegial). Finally, the June 2017 grievance, again, states plaintiff is
being deprived of proper medical attention for his heart condition and that he
wants to be taken for a TEE procedure. Plaintiff also complains of unsanitary
living conditions.
In recommending to this Court that the relevant grievances were never fully
exhausted prior to filing suit, Judge Daly’s Report finds as follows:
Defendants argue Plaintiff failed to follow proper procedure to fully
appeal the grievances he filed prior to filing suit. Plaintiff asserts
medical and prison staff at Menard were well aware of his medical
issues and that he filed and appealed multiple relevant grievances to the
ARB to fully exhaust his administrative remedies. Plaintiff failed to
properly exhaust any of the three grievances.
Plaintiff filed the November 2, 2014 grievance as an emergency and
when it was denied as an emergency, he appealed directly to the ARB
rather than following the written instructions to submit it through the
normal process. In Thornton, a prisoner submitted an emergency
grievance regarding the conditions of his cell in segregation and later
received a letter stating that his grievance did not constitute an
emergency. 428 F.3d at 692. He did not appeal the grievance and did
not submit the grievance through the normal grievance process. Id. at
693. The prisoner was transferred to a different cell but proceeded to
file an action regarding the conditions of the original cell, and the
district court dismissed the action for failure to exhaust administrative
remedies. Id. On appeal, the state defendants argued that the prisoner
failed to complete the grievance process because he did not submit the
grievance through the normal grievance process. Id. at 694. The
Seventh Circuit Court of Appeals disagreed, noting, “There is nothing in
the current regulatory text, however, that requires an inmate to file a
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new grievance after learning only that it will not be considered on an
emergency basis.” 3 Id. The Seventh Circuit reversed the judgment of
the district court on the basis that prisoners are not required to “appeal
grievances that were resolved as [the prisoner] requested and where
money damages were not available” because, in such instances, no
further remedy is available. Id. at 695-97.
The instant case is distinguishable from Thornton. Although
prisoners may not be required by regulation to submit a new grievance
after learning only that it is not considered an emergency, Plaintiff
received written instructions to submit the grievance through the
normal non-emergency process. Notably, prisoners must follow the
prison’s rules to properly exhaust administrative remedies, Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), and Plaintiff failed
to complete the normal grievance process after receiving reasonable
instructions to do so is. Significantly, unlike Thornton, Plaintiff’s
grievance was not resolved as he had not received the surgery
requested. Plaintiff did not exhaust his administrative remedies with
the November 2, 2014 grievance.
With regard to the May 18, 2015 grievance, Plaintiff failed to
appeal this grievance to the ARB; therefore, this grievance was not
exhausted.
Plaintiff eventually followed the proper procedures with regard to
filing the June 2, 2017 grievance. However, he did not properly exhaust
his administrative remedies with this grievance either. The ARB
response was sent to Plaintiff on July 31, 2017. Plaintiff filed this
lawsuit on July 19, 2017, prior to receiving the response from the ARB.
According to the Rule 504, the ARB will submit a written report of its
findings and recommendations to the Director who shall review the
same and make a final determination within 6 months of receipt of the
appeal. The inmate’s administrative remedies are not exhausted until
the Director rules on the appeal through the Board. Since the ARB’s
3

The undersigned notes that the Department of Corrections has since amended the regulatory
text, although the amendment occurred after the relevant time period in the instant action. As of
April 1, 2017, the regulations state, “If the Chief Administrative Officer determines that the
grievance should not be handled on an emergency basis, the offender shall be notified in writing
that he or she may resubmit the grievance as non-emergent, in accordance with the standard
grievance process.” 20 Ill. Admin. Code § 504.840.

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response to Plaintiff’s June 2, 2017 grievance was not dated until July
31, 2017, Plaintiff’s filing of this lawsuit on July 19, 2017 was
premature. 4
Here, the Court agrees with Magistrate Judge Daly’s analysis in the Report
and finds that defendants are entitled to summary judgment.

Pursuant to 42

U.S.C. § 1997e(a), prisoners are required to exhaust available administrative
remedies prior to filing lawsuits in federal court. “[A] suit filed by a prisoner
before administrative remedies have been exhausted must be dismissed; the
district court lacks discretion to resolve the claim on the merits, even if the
prisoner exhausts intra-prison remedies before judgment.”

Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999).

Perez v. Wisconsin

An inmate who fails to

properly take each and every step of the administrative process regarding
grievances has failed to exhaust his remedies.

Pozo v. McCaughtry, 286 F.3d

1022, 1024 (7th Cir. 2002).
To file a proper grievance, an IDOC inmate must submit his complaint
within 60 days after occurrence of the problem to his institutional counselor. 20
ILL. ADMIN. CODE § 504.810(a). If the counselor cannot resolve the issue, it gets
considered by a Grievance Officer who then renders a written recommendation to
the Chief Administrative Officer (“CAO”), which is most typically the Warden.
This written report is made within 2 months of receipt of the grievance “when

4

The Court notes Defendants also argue the grievance lacked necessary substantive information, it
failed to identify Defendants, and it was not filed within the 60 day timeframe as required under
the Code. These issues need not be considered as the Court has already concluded that the
lawsuit was prematurely filed because Plaintiff did not wait for final denial of his appeal prior to
filing suit.

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reasonably feasible under the circumstances.” Id. §504.830(e). The CAO then
informs the inmate of the decision. Id.
To appeal the decision of the CAO, an inmate must write to the
Administrative Review Board (“ARB”) within 30 days. Id. § 504.850(a). The ARB
will then submit a written document containing its findings and recommendations
to the Director whose job it is to review the same and make a final decision on the
grievance within 6 months of receipt of the appeal.

20 ILL. ADMIN. CODE §

504.850(d) and (e). Alternatively, a grievance may be handled as an emergency if
the inmate sends it directly to the CAO.

Id. § 504.840. The CAO then makes a

determination on whether the grievance warrants expedited processing and if so,
will respond directly to the inmate. Id.
It is clear to the Court, based upon the grievance process laid out above,
that Magistrate Judge Daly made no error in her analysis in finding that plaintiff
did not exhaust his administrative remedies as it pertains to the three relevant
grievances.

Additionally, the Court notes that there is nothing contained in

plaintiff’s “objections” to the Report that he had not stated previously, he simply
rehashes the same arguments. 5 Further, the majority of plaintiff’s submission
addresses topics beyond the content of the Report. Such topics include: arguing

5

The Court is aware that plaintiff has filed one new grievance in his exhibits attached to his
objections. Doc. 119, Ex. 1. The grievance is very difficult to read however it appears it may be
the first complaint written at Menard asking for a doctor to see him regarding a heart murmur.
See id. at Ex. 2, response from nursing supervisor informing plaintiff he had “been placed on Dr.
Trost line to be evaluated for concerns of heart murmur/hole in heart. Please follow sick call
process for further health concerns.” The grievance, based on the supporting document from the
nursing supervisor, does not request surgery nor does it seek care from an outside
hospital/medical facility as do the grouping of the three relevant grievances analyzed above. Thus,
the Court does not consider this grievance exhibit pertinent to plaintiff’s Complaint.

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for a “continuing violation” determination such that the statute of limitation has
not run and relentless allegations that defendants have continued to withhold
paperwork from him. Neither issue is addressed by the Report nor relevant here;
however, the Court finds it necessary to point out to plaintiff that it is apparent
that he does indeed have the paperwork necessary to advocate for his claims.
To begin, plaintiff has filed the same exhibits numerous times throughout
this litigation in a haphazard manner, making the review of his motions and the
current objections most difficult. Here, specifically, it is hard for the Court to
follow plaintiff’s contentions that he is without the necessary paperwork as the
relevant grievances have been on record as far back as February 12, 2018,
wherein the documents were filed as exhibits in a standalone entry in conjunction
with plaintiff’s motion for preliminary injunction.

See doc. 81.

Additionally,

plaintiff asserts that certain defendants have violated court orders by not sending
any requested material, however, defendants Brooks, Bulter, Lashbrook, and
Walls made clear on June 5, 2018, that they purposefully did not submit any
paperwork to plaintiff as co-defendants had already disclosed the same
documents. See doc. 115, § 4. Plaintiff is also concerned that material provided
is “blacked out” such that, presumably, information imperative to him is being
kept secret. Again however, defendants made clear that the blacked out portions
of grievance logs – NOT any of the grievances themselves – is to protect the privacy
of other inmates whose names are on the logs but not included in this suit. Id.

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This Court cannot conclude that plaintiff is without information sufficient
to demonstrate he exhausted his administrative remedies prior to filing suit. See

also, doc. 114 at ¶ 6 (“Despite Plaintiff’s implication that there are more
documents than he has received, Defendants have attached all 116 pages of
grievance records received via subpoena from the Illinois Department of
Corrections; all 34 pages of grievance records received via subpoena from the
Custodian of Records at Menard Correctional Center; and 14 pages of counseling
records received via subpoena from Menard Correctional Center”). Plaintiff has
raised the same arguments in his objections numerous times and based on the
defendant’s filings and plaintiff’s attachment of grievances and accompanying
documents himself, the Court cannot postulate more may be out there to support
plaintiff’s position – particularly so, since plaintiff has not once stated with
specificity what documents he believes he is missing.
Finally, the Court finds that plaintiff’s allegations that Magistrate Judge
Daly is “biased” and “prejudiced” against plaintiff are unfounded.

There is

nothing contained in the Report that would support such accusations. Indeed, the
Report mechanically and appropriately applies an exhaustion of remedies analysis
to arrive at the outcome that defendants’ summary judgment motions must be
granted.
Accordingly, the Court ADOPTS the Report in its entirety (doc. 118). The
Court GRANTS the motions for summary judgment for failure to exhaust

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administrative remedies (docs. 97 and 100).

Thus, the claims against all

defendants are hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.

Judge Herndon
2018.07.02
10:38:18 -05'00'
United States District Judge

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