Gibson v. Wexford Health Sources, Inc. et al

Filing 39

ORDER GRANTING 30 Motion for Summary Judgment filed by Defendants Wexford Health Sources, Inc., Craig J. Asselmeier, and Steven M. Newbold. The Eighth Amendment claim in COUNT 1 against these defendants is DISMISSED without prejudice based on Plaintiff's failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. 1997e(a). Signed by Judge J. Phil Gilbert on 5/28/2020. (jsy)

Case 3:18-cv-00585-JPG Document 39 Filed 05/28/20 Page 1 of 7 Page ID #146

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE GIBSON, #R17924,

)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES, INC., )
CRAIG J. ASSELMEIER, DMD, and
)
STEVEN M. NEWBOLD, DMD,
)
)
Defendants.
)

Case No. 18-cv-00585-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for consideration of Defendants’ Motion for Summary
Judgment for Plaintiff’s Failure to Exhaust Administrative Remedies. (Doc. 30). For the reasons
set forth below, the Court finds that Plaintiff failed to properly exhaust his available remedies
before filing suit as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
Accordingly, the Motion for Summary Judgment filed by Defendants Wexford Health Sources,
Inc., Craig J. Asselmeier, and Steven M. Newbold shall be GRANTED and this case
DISMISSED.
FACTUAL BACKGROUND
Plaintiff Willie Gibson is an inmate in the Illinois Department of Corrections (“IDOC”)
who is incarcerated at Menard Correctional Center (“Menard”). (Doc. 31, ¶ 1; Doc. 33, ¶ 1). His
claims arise from the denial of dental care for two teeth. (Doc. 1, pp. 5-12; Doc. 31, ¶ 2; Doc. 33,
¶ 2). In his Complaint filed pursuant to 42 U.S.C. § 1983, Plaintiff brings a single claim against
Defendants Wexford Health Sources, Inc., Craig J. Asselmeier, and Steven M. Newbold for their
deliberate indifference to his serious dental needs in violation of the Eighth Amendment. (Id.).
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The Court screened this matter and allowed this claim to proceed on April 4, 2018. (Doc. 5, p. 5).
In the Complaint, Plaintiff alleges that in August 2017, he suffered extreme dental pain on
both sides of his mouth. (Doc. 1; Doc. 31, ¶ 3; Doc. 33, ¶ 3). He submitted over ten treatment
requests to Asselmeier and Newbold but received no response. (Id.). He sent two letters to
Wexford but also received no response. (Id.). On January 23, 2018, Plaintiff spoke with
Asselmeier, who told Plaintiff there was nothing he could do about his teeth and denied his request
for pain medication and antibiotics. (Doc. 31, ¶ 4; Doc. 33, ¶ 4).
On January 26, 2018, Plaintiff was again called to see Asselmeier. (Doc. 31, ¶ 5; Doc. 33,
¶ 5). When Plaintiff described his symptoms, Asselmeier examined his teeth and agreed to provide
a temporary filling in one tooth. (Id.). Plaintiff requested a permanent filling instead. (Id.).
Asselmeier explained that the waiting list for a permanent filling was two years. (Id.). When
Plaintiff requested treatment of his second problem tooth, Asselmeir refused to treat it because of
the long line of inmates awaiting dental care that day. (Id.). In response to Plaintiff’s request for
dental medication, Asselmeier agreed to send some to Plaintiff’s cell. (Id.).
Plaintiff then submitted a request to see Newbold, but the dentist ignored the request.
(Doc. 31, ¶ 6; Doc. 33, ¶ 6). Newbold allegedly possessed authority to send Plaintiff to an off-site
hospital for dental treatment but declined to do so. (Id.). Plaintiff blames Wexford for encouraging
its employees to delay medical treatment even where doing so causes increased pain. (Doc. 31,
¶ 7; Doc. 33, ¶ 7).
Plaintiff filed an emergency grievance with the warden that was dated January 26, 2018
(Grievance #517-1-18). (See Doc. 1, p. 16; Doc. 31, ¶ 8a; Doc. 33, ¶ 8). On January 31, 2018, the
warden denied the grievance as a non-emergency and instructed Plaintiff to resubmit it through
normal channels. (Doc. 31, ¶ 10; Doc. 33, ¶ 8). The warden responded by checking a box on the

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emergency grievance form, which states: “No. An emergency is not substantiated. Offender should
submit this grievance in the normal manner.” (Doc. 1, p. 16; Doc. 33, ¶ 8). Instead of using normal
channels to pursue relief, Plaintiff filed an appeal directly with the Administrative Review Board
(“ARB”). (Id.). An ARB “Return of Grievance or Correspondence” for Grievance #517-1-18,
received February 22, 2018, requests a copy of the counselor’s response, grievance officer’s
response, and warden’s response to the grievance. (Doc. 31, ¶ 8c; Doc. 33, ¶ 8). Instead of
producing documentation of his efforts to exhaust remedies through normal channels, however,
Plaintiff filed this lawsuit on March 19, 2018. (Doc. 1; Doc. 30, ¶ 4).
Defendants seek summary judgment based on Plaintiff’s failure to exhaust his
administrative remedies before filing suit. (Docs. 30 and 31). Defendants argue that Plaintiff did
not pursue exhaustion of his administrative remedies through normal channels, after the warden
denied his emergency grievance dated January 26, 2018. (Id.). This Court agrees.
LEGAL STANDARDS
Summary judgment is proper only if the moving party can demonstrate “that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Lawsuits filed by
inmates are governed by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The
PLRA states, in pertinent part, that “no action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are exhausted.”
Id. (emphasis added). A summary judgment motion based on failure to exhaust administrative
remedies typically requires a hearing to decide any contested issues regarding exhaustion, and a
judge may make limited findings at that time. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).

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The Court’s role on summary judgment is not to weigh evidence, judge witness credibility, or
determine the truth of the matter, but to determine whether a genuine issue of triable fact exists.
Nat’l Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). The Seventh
Circuit in Pavey held that “debatable factual issues relating to the defense of failure to exhaust
administrative remedies” are to be determined by the judge, not a jury. Pavey, 544 at 740-41.
The PLRA prohibits a prisoner from bringing a civil rights action to challenge the
conditions of his confinement under Section 1983 “until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies
is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). The Supreme Court
has interpreted the PLRA to require “proper exhaustion” before filing suit. Woodford v. Ngo, 548
U.S. 81, 84 (2006); Perez v. Wis. Dept. of Corr.,182 F.3d 532, 534-535 (7th Cir. 1999) (stating
that § 1997e(a) of the PLRA “makes exhaustion a precondition to bringing suit” under § 1983).
This means “using all steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002)). In other words, an inmate must “file complaints and appeals in
the place, and at the time, the prison’s administrative rules require.” Pozo, 286 F.3d at 1025.
In order to properly exhaust his claims, an IDOC inmate is required to follow the
regulations contained in the IDOC’s Grievance Procedures for Offenders. 20 ILL. ADMIN. CODE
§ 504.800 et seq. The inmate may request that a grievance be handled on an emergency basis by
forwarding it directly to the Chief Administrative Officer (“CAO”) of the institution. 20 ILL.
ADMIN. CODE § 504.840. If the grievance presents a situation posing imminent personal injury or
serious physical harm to the inmate, the CAO shall expedite the handling of the grievance on an
emergency basis. 20 ILL. ADMIN. CODE § 504.840(a). If the CAO determines that the grievances

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presents a non-emergency, as in this case, he or she shall notify the offender “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(c).
The standard grievance procedure requires inmates to file a grievance with a counselor or
grievance officer at the institutional level within sixty days of the incident giving rise to the
complaint. 20 ILL. ADMIN. CODE § 504.810(a). Within two months of receipt of the grievance,
the grievance officer shall report his or her findings in a written report and recommendation to the
CAO. 20 ILL. ADMIN. CODE § 504.830(a),(e). Upon review of these findings and recommendation,
the CAO shall advise the inmate or his or her decision in writing. Id. If the inmate disagrees with
the decision and wishes to appeal it, the inmate may file a written appeal to the IDOC Director by
submitting the appeal, along with a copy of the grievance officer’s report and CAO’s decision, to
the Administrative Review Board (“ARB”) within thirty days of the warden’s decision. 20 ILL.
ADMIN. CODE § 504.850(a). The ARB then submits a written report and recommendation to the
Director, who makes a final determination about the grievance within six months after receipt of
the appealed grievance. 20 ILL. ADMIN. CODE § 504.850(d),(e). The ARB shall expedite this
process, in cases where an inmate is appealing a grievance that the CAO deemed to be an
emergency. 20 ILL. ADMIN. CODE § 504.850(f).
ANALYSIS
There are no genuine issues of material fact in dispute. (See Docs. 31 and 33, ¶¶ 1-10).
Because there are no debatable factual issues here, the question of exhaustion is purely a legal one
and requires no hearing. See, e.g., Miller v. Wexford Health Sources, Inc., Case 15-cv-1077-MJRSCW, 2017 WL 951399, at *2 (S.D. Ill. Mar. 10, 2017). According to the undisputed facts,
Plaintiff filed this action on March 19, 2018, less than two months after submitting an emergency

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grievance to the CAO, dated January 26, 2018. The CAO denied the grievance as a non-emergency
on January 31, 2018, indicating that “an emergency is not substantiated” and instructing him to
“submit this grievance in the normal manner.” (Doc. 1, p. 16; Doc. 33, ¶ 8). Instead of doing so,
Plaintiff filed an appeal directly with the ARB. (Id.). An ARB “Return of Grievance or
Correspondence” for Grievance #517-1-18, dated January 26, 2018 and received February 22,
2018, identified additional documentation that was necessary to process the grievance appeal.
(Doc. 31, ¶ 8c; Doc. 33, ¶ 8). Specifically, Plaintiff was required to submit a copy of the
counselor’s response, grievance officer’s response, and warden’s response to the grievance along
with the appeal. (Id.). Instead of submitting this documentation, Plaintiff filed this action.
Plaintiff presented no argument that he properly exhausted all available administrative
remedies before bringing suit. On the contrary, Plaintiff admittedly failed to respond to the ARB’s
request for additional documentation to support his appeal of Grievance #517-1-18, dated January
26, 2018 and received February 22, 2018. Plaintiff explains that he had no other documentation
requested by the ARB, such as another written reply from the warden, grievance officer, or
counselor. He makes no claim that these avenues to relief were unavailable to him. Plaintiff
instead concedes that he turned to the Court for relief before following these normal channels.
Accordingly, the Court finds that Plaintiff did not submit Grievance #517-1-18 through the
normal channels and thereby failed to exhaust his available administrative remedies before
bringing suit, in violation of the PLRA. Count 1 against Defendants Wexford, Asselmeier, and
Newbold shall be dismissed. Because this is the only claim at issue in this case, the entire action
shall also be dismissed without prejudice.
DISPOSITION
IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendants

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Wexford Health Sources, Inc., Craig J. Asselmeier, and Steven M. Newbold (Doc. 30) is
GRANTED.

The Eighth Amendment claim in COUNT 1 against these defendants is

DISMISSED without prejudice based on Plaintiff’s failure to exhaust administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). See Ford v. Johnson, 362
F.3d 395, 401 (7th Cir. 2004) (holding that “all dismissals under § 1997e(a) should be without
prejudice.”).
The Clerk is DIRECTED to enter judgment accordingly and close this case.
IT IS SO ORDERED.
DATED: 5/28/2020
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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