Oden v. Shah, et al

Filing 40

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 37), OVERRULES the defendants' objections (Doc. 39), and DENIES the defendants' motion for summary judgment for failure to exhaust administrative remedies (Doc. 27). Signed by Judge J. Phil Gilbert on 12/14/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DURANE ODEN,
Plaintiff,
v.

Case No. 17-cv-1134-JPG-DGW

VIPIN SHAH, DR. PHIL MARTIN, and
WEXFORD HEALTH CARE SOURCES,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
37) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny the defendants’
motion for summary judgment for failure to exhaust administrative remedies (Doc. 28). The
defendants have objected to the Report (Doc. 39).
I.

Report Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. Id. “If no objection or only partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th
Cir. 1999).
II.

The Report and Objections
This case arose when plaintiff Durane Oden became dissatisfied with the treatment he

received from defendant Dr. Vipin Shah. Dr. Shah was an employee of defendant Wexford
Health Sources, Inc. who worked at Robinson Correctional Center, where Oden was

incarcerated. Oden had a lump on his head that Dr. Shah treated with ibuprofen even after Oden
said it became ineffective to control the pain. Dr. Shah refused to refer Oden to a specialist or to
order and additional tests. He believes Dr. Shah took this action in part because of Wexford’s
cost-cutting policy.
Oden filed a grievance about his treatment, which the warden ultimately denied on July
20, 2017. Oden signed his appeal to the Administrative Review Board (“ARB”) and placed it
into the prison mail system on Wednesday, August 16, 2017. The ARB did not mark it received
until the following Monday, August 21, 2017. It then refused to address the appeal because it
was untimely; the Illinois Administrative Code provided that the ARB must receive a grievance
within 30 days after the warden’s decision, 20 Ill. Admin. Code § 504.850(a) (2017), but August
21, 2017, was day 32.
A.

Timeliness of Appeal to ARB

Magistrate Judge Wilkerson found Oden’s appeal was timely by essentially applying a
modified mailbox rule. See Houston v. Lack, 487 U.S. 266, 276 (1988). He found that if the
deadline for the ARB to receive the appeal was Saturday, August 19, 2017, 30 days after the
warden’s decision, Oden’s mailing three days before that day should have allowed plenty of time
for the appeal to have arrived at the ARB. He noted that the Federal Rules of Civil Procedure
allow three days for a party to receive something sent to them by mail. See Fed. R. Civ. P. 6(d).
He reasoned that Oden had no control over the delivery of the mail, so he is not responsible for
his appeal not arriving within three days of its mailing.
The defendants object that Magistrate Judge Wilkerson ignored the plain text of the
regulation, which requires receiving the appeal by the ARB without any exception for delay in
the mail. They argue that Oden was at fault for not mailing his appeal sooner to ensure it
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arrived on time.
The Court agrees with Magistrate Judge Wilkerson for a slightly different reason: the
defendants have not carried their burden of showing an appeal to the ARB was available to Oden
in the circumstances presented. A prisoner plaintiff need only exhaust remedies that are
“available” to him. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Johnson v.
Litscher, 260 F.3d 826, 829 (7th Cir. 2001). A remedy is deemed to be unavailable if prison
officials prevent the progress of the grievance through the administrative remedy process.
Lewis, 300 F.3d at 833; see Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001).
It is true that the ARB stamped Oden’s appeal as received on Monday, August 21, 2017,
32 days after the warden’s final decision. However, the defendants have provided no evidence
that the postal service was not prepared to deliver the appeal to the ARB on Saturday, August 19,
2017, had the ARB’s doors been open. If the postal service could otherwise have delivered the
appeal to the ARB on Saturday, August 19, 2017, but was prevented from doing so only because
the ARB closes its offices on Saturdays, the ARB essentially prevented Oden from filing a
timely appeal. The ARB may not set a deadline that tees off its receipt of a document, and then
close its doors to prevent its delivery. In sum, the defendants have not proved that a timely
appeal was available to Oden.
The Court cannot end this discussion without noting its disappointment at the Illinois
Administrative Code’s rule changes. Until April 1, 2017, it required an inmate to file an
appeal—that is, place it in the prison mail system for mailing—within 30 days of the warden’s
decision; now the rule requires the ARB’s receipt of the appeal within that period. As
illustrated above, this new version of the rule removes a great deal of responsibility for
perfecting a timely appeal from the inmate and places it on other entities. Of course, the inmate
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should try to mail his appeal early enough to reach the ARB in time, but whether the appeal is
actually timely depends also on the efficiency of the internal prison mail system, the postal
service, and the ARB mail distribution system. As discussed above, it further depends on the
ARB’s decision when it will keep its doors open to accept documents. Thus, the new rule
injects uncertainty as to who is to blame for an untimely filing—uncertainty a defendant may
now have to clear up before he can prevail on an exhaustion defense when the issue is timeliness.
Today the Court does not express any opinion on circumstances other than those presented in
this case. However, it would be hard-pressed to find, for example, that an inmate failed to
exhaust administrative remedies if the post office lost his letter or took weeks to deliver it.
B.

Identification of Wexford

Magistrate Judge Wilkerson found Oden’s grievance sufficiently put Wexford on notice
of his complaints because he did not need to articulate the specific reasons for thinking Wexford
was at fault. He noted that the Illinois Administrative Code only required Oden to describe the
factual basis for his grievance, not to explain his legal theories. See 20 Ill. Admin. Code §
504.810(c) (2017) (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. . . . [or] as much descriptive
information about the individual as possible”).
The defendants object on the grounds that Oden did not identify or describe Wexford or
any of its policies in his grievance.
The Court agrees with Magistrate Judge Wilkerson that Oden’s complaint about not
getting effective medical treatment implicitly included a complaint about the reasons Dr. Shah
was not providing effective medical treatment, a Wexford policy. Thus, his grievance satisfies
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the specificity requirements of 20 Ill. Admin. Code § 504.810(c).
III.

Conclusion
For the foregoing reasons, the Court:


ADOPTS the Report in its entirety (Doc. 37);



OVERRULES the defendants’ objections (Doc. 39); and



DENIES the defendants’ motion for summary judgment for failure to exhaust
administrative remedies (Doc. 27).

IT IS SO ORDERED.
DATED: December 14, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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