Thompson v. Thompson et al

Filing 86

ORDER: Defendant Tripp's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 76 ) is GRANTED. Plaintiff's claims in Count Three are DISMISSED WITHOUT PREJUDICE. Signed by Judge Staci M. Yandle on 7/16/2018. (njh)

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

DENNIS THOMPSON,
Plaintiff,
vs.
MISTY THOMPSON, et al.,
Defendants.

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Case No. 17-cv-843-SMY-RJD

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Dennis Thompson, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his
constitutional rights were violated while he was incarcerated at Menard Correctional Center
(“Menard”). Specifically, Plaintiff alleges officials at Menard failed to treat his degenerative
joint/disc disease and retaliated against him for engaging in protected activity.

Following

threshold review, Plaintiff proceeds on the following Counts:
Count 1 –

Eighth Amendment claim against Jane Doe, Tripp and Thompson for
exhibiting deliberate indifference to Plaintiff’s serious medical condition
(DJD and associated symptoms) on or about December 2016.

Count 2 –

Eighth Amendment claim against Thompson for exhibiting deliberate
indifference to Plaintiff’s serious medical condition (DJD and associated
symptoms) by refusing to provide Plaintiff with pain medication on or
about February 29, 2016.

Count 3 –

Eighth Amendment claim against Tripp for exhibiting deliberate
indifference to Plaintiff’s serious medical condition (DJD and associated
symptoms) by refusing to provide Plaintiff with his Neurontin
prescription, beginning on or about June 8, 2017.

Count 4 –

Eighth Amendment claim against Trost for exhibiting deliberate
indifference to Plaintiff’s serious medical condition (DJD and associated
symptoms) by failing to refer Plaintiff to physical therapy and/or failing to
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refer Plaintiff for a second evaluation with the outside specialist in a
timely manner.
Count 5 –

First Amendment retaliation claim against Tripp, Thompson and Trost for
retaliatory conduct in 2016 and 2017 motivated by Plaintiff’s civil
lawsuits and grievances.

This matter is now before the Court on Defendant Tripp’s Motion for Summary
Judgment on Count Three for Failure to Exhaust Administrative Remedies (Doc. 76). Plaintiff
filed a Response (Doc. 80). For the following reasons, Defendant’s motion is GRANTED.
Background
Plaintiff asserts that he exhausted his administrative remedies when he filed the following
grievances relating to his medical treatment:
December 12, 2016: Thompson states that on December 4, 2016, “Jane Doe” nurse
made rounds during the 3-11 shift to pass out medication, and he explained to her that he had
severe degenerative joint disease and with hip dysplasia. He explained that he was in severe pain
and experiencing edema and needed to be a priority for the doctor call line.
On December 6, 2016, he spoke to Nurse Tripp during the 7-3 shift and again explained
his medical issues. He requested emergent treatment and upon refusal, asked her to provide him
temporary pain medication because he did not have any in his possession.
He attempted to speak with Nurse Tripp again on December 8, 2016, and she told him
she would return but she failed to do so. The next day, he suffered severe spasms causing him to
collapse on the cell floor. Nurse Tripp responded to the emergency medical call, observed him
yelling in pain, and rendered no aid. He was transferred to the health care unit by other security
staff.
The relief requested was that he be seen by Medical Director Trost and that he be
awarded compensation for damages for his pain and suffering due to the unnecessary delay in
treatment.
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The Counselor responded to the grievance on December 19, 2016, stating that HCU had
reviewed the grievance and Thompson was scheduled to be seen in the near future.
grievance is stamped received on December 22, 2016.

The

There is no further documentation

submitted regarding this grievance.
December 13, 2016: Thompson states that on December 5 or 6, 2016, he told the officer
he was experiencing severe pain and needed to be seen by a medical professional. Medical was
notified and within a few hours, Misty Thompson arrived at his cell. Plaintiff heard her say to
the officer, “I wish you had told me it was the fucker who is suing everybody that was in distress
before I walked all the way to this cell.” Plaintiff explained to Defendant Thompson the medical
issues he was experiencing and requested emergency treatment.

Defendant Thompson

responded, “You know I’m not doing that for you – you need to think about things before you
start suing the very people you need to give you care especially with the way you’re breaking
down.” Plaintiff requested temporary medication from the stock shelf.
The requested relief was to speak to Dr. Trost so that he could report that his medical
staff had repeatedly retaliated against him for filing grievances. The Counselor responded to the
grievance on December 21, 2016, stating that his grievance is “duplicative in manner to previous
grievance on medical issues. The previous grievance is now with the Grievance Officer for
review.” The grievance is stamped received on December 22, 2016.

There is no further

documentation submitted regarding this grievance.
July 3, 2017: On June 22, 2017, the medical furlough clerk docketed in Thompson’s
medical records that Dr. Ritz of Wexford had denied the referral Dr. Siddiqui submitted for
Thompson to be seen by an outside orthopedic surgeon. Thompson complains that his condition
has worsened substantially since he was last seen by an orthopedic surgeon in April 2016. He

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describes his current health issues and requests to be sent to an orthopedic surgeon for a second
hip replacement evaluation.
The Counselor responded to the grievance on September 12, 2017, directing him to see
the attached response from HCU. A memorandum dated July 26, 2017 was attached, stating that
Dr. Siddiqui had reviewed the grievance and medical record and the referral had not been
approved at this time. Dr. Ritz’s review of orthopedic notes from 2016 was pending and a
follow-up was requested. The Grievance Officer responded on September 18, 2017 stating the
issue was previously addressed in Grievance # 81-8-17 and there was no justification for further
review. The grievance officer memo further stated that if Thompson disagreed with the original
grievance (81-8-17) a copy of which was sent to him on 9/7/17, he could appeal that grievance
(81-8-17) to the ARB within the prescribed timeframe. The ARB received the July 3, 2017
grievance on October 11, 2017, and denied the grievance because it was not submitted within the
timeframe outlined in Department Rule 504. The ARB also noted that there was no record of
grievance # 81-8-17 being appealed to the ARB.
July 23, 2017 (#81-8-17): Thompson reports he suffers from severe osteoarthritis of the
spine and hip dysplasia which causes severe pain. Per the Doctor’s orders, he is to receive
Neurontin three times per day. When Nurse Tripp has worked in place of Nurse Norton, she has
repeatedly refused to bring him his Neurontin. On or about June 8, 2017, staff started delivering
Neurontin to his cell. Nurse Tripp refused to bring him his medication on multiple occasions.
He specifically recalls she refused on July 10, 2017 and again on July 21, 2017.
The requested relief was to have his medication delivered on the 7 AM to 3 PM shift, that
Nurse Tripp be fired from IDOC, and that he receive compensatory damages. The Counselor
responded to the grievance on August 3, 2017, “see attached response from HCU.” The response

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from the HCU was not submitted to the Court, although a response from HCU dated August 14,
2017 is referenced in the Grievance Officer’s Report as noted below.
On August 15, 2017, Thompson sent a letter to the Grievance Officer explaining that the
Counselor had incorrectly combined the two July grievances.

On August 22, 2017, the

Grievance Officer issued a report and noted that the medical director had reviewed the offender’s
complaint concerning medical technician Tripp failing to bring his medication. The memo stated
that the HCU personnel must adhere to policy and procedure for medication administration and
the nursing staff is trained to have routine competency checks completed. The Grievance Officer
contacted HCU specifically regarding the medication issue and was advised offender’s
medication was not purposefully withheld. The medication took approximately two weeks to get
approved due to being non-formulary. The recommendation by the Grievance Officer was that
the inmate’s grievance be denied.
The CAO concurred on September 7, 2017. Thompson signed the appeal to the ARB that
same day. The ARB did not receive the grievance until December 7, 2017. On December 11,
2017, the ARB denied the appeal because it was not timely filed.
After a careful review of the arguments and evidence set forth in the parties’ briefs, the
Court has determined that an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008) is not necessary.
Legal Standards
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact 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); see also RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material

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fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
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). When considering 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).
Pursuant to 42 U.S.C. § 1997e(a), inmates are required to exhaust available
administrative remedies prior to filing lawsuits in federal court. “[A] prisoner who does not
properly take each step within the administrative process has failed to exhaust state remedies.”
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). “[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.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll
dismissals under § 1997e(a) should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401
(7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance to his or her institutional counselor within 60 days after the discovery of the
incident, occurrence, or problem, unless certain discrete issues are being grieved.

20 ILL.

ADMIN. CODE § 504.810(a). If the complaint is not resolved through a counselor, the grievance
is considered by a Grievance Officer who must render a written recommendation to the Chief
Administrative Officer — usually the Warden — within 2 months of receipt, “when reasonably
feasible under the circumstances.” Id. §504.830(e). The CAO then advises the inmate of a

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decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within
30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); see also Dole
v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). 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. 20 ILL. ADMIN. CODE § 504.850(d) and
(e).
An inmate may request that a grievance be handled as an emergency by forwarding it
directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that a substantial
risk of imminent personal injury or other serious or irreparable harm, the grievance is handled on
an emergency basis, which allows for expedited processing of the grievance by responding
directly to the offender. Id. Inmates may also submit certain types of grievances directly to the
Administrative Review Board, including grievances related to protective custody, psychotropic
medication, and certain issues relating to facilities other than the inmate’s currently assigned
facility. Id. at § 504.870.
Discussion
Defendant Tripp asserts she is entitled to summary judgment because Plaintiff failed to
exhaust his administrative remedies as to Count Three prior to filing suit. Specifically, Tripp
argues the July 23, 2017 grievance concerning the medication denial by her was not exhausted
until the ARB denied the grievance on December 11, 2017. Plaintiff filed this lawsuit on August
7, 2017.
Plaintiff asserts the July 23, 2017 grievance exhausted his administrative remedies on
Count Three “while the Court presided over Plaintiff’s Complaint and Motion for Preliminary
Injunction.” He contends there is an “irreparable harm/undue severe pain” exception to the

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PLRA exhaustion requirement and that it was not necessary for him to exhaust his administrative
remedies prior to filing suit; rather, he could exhaust the remedies while the suit was pending.
Plaintiff is incorrect. Section 1997e(a) does not require exhaustion of administrative
remedies before a case may be decided. Instead, it provides that “[n]o action shall be brought
with respect to prison conditions ... until such administrative remedies as are available are
exhausted.” Thus, Plaintiff filed this action in violation of § 1997e(a). 1 See Perez v. Wisconsin
Dep't of Corr., 182 F.3d 532, 534–35 (7th Cir. 1999).
As an alternative argument, Plaintiff asserts the December 2016 grievances exhausted his
administrative remedies because the actions complained of in Count Three were a continuing
violation, and under the continuing violation doctrine, he was not required to file additional
grievances. The December 12, 2016 grievance did complain about Nurse Tripp, however, the
conduct complained of in early December 2016 was separate and distinct from the allegations in
Count Three.
Count Three was identified by the Court as an Eighth Amendment claim against Tripp for
exhibiting deliberate indifference to Plaintiff’s serious medical condition (DJD and associated
symptoms) by refusing to provide Plaintiff with his Neurontin prescription, beginning on or
about June 8, 2017 (Doc. 12). The Court noted that any other claim mentioned in the Second
Amended Complaint but not addressed in the Screening Order was dismissed without prejudice
as inadequately pled under the Twombly pleading standard (Id.). As identified by the Court, the
actions giving rise to Count Three occurred when Plaintiff was allegedly refused his Neurontin
prescription on or about June 8, 2017. Therefore, grievances filed in December 2016 could not

1

Thompson also argues the ARB denial of the July 23, 2017 grievance was improper because he sent the appeal to
the ARB on September 7, 2017; therefore, the ARB should have timely received it. The Court need not make a
factual determination as to whether the ARB received the grievance in September or December because it has
already determined administrative remedies were not exhausted prior to suit being filed on August 7, 2017.

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exhaust Plaintiff’s administrative remedies as to the issue. 2 For these reasons, Defendant Tripp is
entitled to summary judgment for failure to exhaust administrative remedies as to Count Three.
Conclusion
For the foregoing reasons, Defendant Tripp’s Motion for Summary for Failure to Exhaust
Administrative Remedies (Doc. 76) is GRANTED; Plaintiff’s claims in Count Three are
DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED: July 16, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

2

Because the Court has determined the December 2016 grievances could not exhaust Plaintiff’s claims in Count
Three, a review of whether the December 2016 grievances were fully exhausted is not necessary.

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