Wilson v. Wexford Health Services et al

Filing 46

ORDER granting 28 Motion for Summary Judgment on the issue of exhaustion of administrative remedies. The Court DISMISSES without prejudice Wilsons claims against the Defendant. The Court DIRECTS the Clerk of the Court to enter judgment and close the case. Signed by Magistrate Judge Gilbert C. Sison on 2/18/2021. (klh)

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VARRON WILSON, #B57716
Plaintiff,
vs.
ALESHIA MOLLS,
Defendant.

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Case No. 3:19-cv-00805-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
INTRODUCTION
Now before the Court is the Defendant’s motion for summary judgment on the
issue of exhaustion of administrative remedies. (Doc. 28, 29). Plaintiff opposes the motion.
(Doc. 41). The Court held an evidentiary hearing on the motion on January 20, 2021. Based
on the reasons delineated below, the undersigned GRANTS the motion for summary
judgment on the issue of exhaustion of remedies.
FACTUAL BACKGROUND
Plaintiff Varron Wilson, an inmate of Illinois Department of Corrections (“IDOC”)
who is currently incarcerated at Menard Correctional Center, brings this civil action
pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights. Wilson alleges that
Defendant was deliberately indifferent to a serious medical need in failing to provide
treatment for a spider bite. He requests monetary relief.

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On or about February 1, 2018, Wilson was bitten by a spider on his left side. (Doc.
1, p. 5). He submitted two request slips to sick call to report the incident and spoke to
nurses on several occasions to inform them of the worsening injury. Id. After
approximately two weeks, Wilson was seen by Defendant Molls (Nurse Molls), who
treated him at that time. Id. Two days after being seen by Nurse Molls, he was evaluated
by a nurse practitioner and transferred to the healthcare unit where he was given an
unspecified intravenous treatment. Id. at p. 5-6. By that time, Wilson had developed
several boils around the injury and was in significant pain that restricted movement on
his left side. Id. at p. 6. The medical staff was unable to diagnose him. Id. Eventually, a
scar developed in the spot where Wilson was bitten. Id.
Wilson contends that he filed a grievance prior to being seen by Nurse Molls on
“February 11th or 12th,” of 2018, but he was never given a copy of the grievance. (Doc. 1,
p. 4, 6). Having received no response after several months, Wilson states he made verbal
inquiries into the grievance and was told that his grievance had been given to the medical
department, per procedure. (Doc 41. p. 3). Specifically, Wilson states he contacted clinical
services in September 2018 to inquire about the grievance but did not receive a response.
Id. at p. 4.
In October 2018, Wilson was transferred to the Menard Medium Security Unit.
Shortly thereafter, Wilson states he spoke with his counselor, Misti Price, about the
grievance and was told that it had likely been discarded due to the transfer. He states he
was also told that he was time-barred from re-filing the grievance. Wilson filed suit on
July 25, 2019 alleging violations of his constitutional rights. On July 5, 2020, Wilson filed

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a second grievance as a follow-up to his initial grievance.
The Court conducted a preliminary review of Wilson’s complaint pursuant to 28
U.S.C. § 1915A. Wilson was allowed to proceed on one claim against Defendant Molls as
follows:
Count 1:

Eighth Amendment claim against Nurse Molls for deliberate
indifference to Wilson’s serious medical need of treatment for his
spider bite.

(Doc. 7, p. 3). All other claims mentioned in the Complaint were dismissed without
prejudice as inadequately pled under the Twombly pleading standard.1 Id.
On July 27, 2020, Defendant filed a motion for summary judgment on the issue of
failure to exhaust administrative remedies. (Doc. 28, 29). Wilson filed his opposition to
the motion on December 12, 2020. (Doc. 41). The Court held an evidentiary hearing on
January 20, 2021 and took the matter under advisement. (Doc. 44). The Court heard
testimony from Plaintiff.
Wilson testified that he was aware of the grievance process at Menard. He
maintained that he personally spoke with correctional officers several times, including
during face-to-face meetings, and made multiple inquiries regarding the lack of response
to his grievance. Thus, he contends that he followed the grievance procedure to the best
of his ability.
LEGAL STANDARDS
Summary judgment is proper if the pleadings, discovery materials, disclosures

See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-556 (2007)(noting that “[f]actual allegations
must be enough to raise a right to relief above the speculative level[.]”).

1

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and affidavits demonstrate no genuine issue of material fact such that [Defendants are]
entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467
(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The statute provides, in relevant
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).
Generally, the Court’s role on summary judgment is not to evaluate the weight of
the evidence, to judge witness credibility, or to determine the truth of the matter. Instead,
the Court is to determine whether a genuine issue of triable fact exists. See Nat’l Athletic
Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, however, the
Seventh Circuit held that “debatable factual issues relating to the defense of failure to
exhaust administrative remedies” are not required to be decided by a jury, but are to be
determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-741 (7th Cir. 2008).
The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)(noting that “[t]his
circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur
before the suit is filed. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot
file suit and then exhaust his administrative remedies while the suit is pending. Id.
Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in
the place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry,

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286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to use a prison’s
grievance process, “the prison administrative authority can refuse to hear the case, and
the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.
Under Pavey, the Seventh Circuit set forth the following procedures where failure
to exhaust administrative remedies is raised as an affirmative defense:

(1) The district judge conducts a hearing on exhaustion and permits
whatever discovery relating to exhaustion he deems appropriate. (2) If the
judge determines that the prisoner did not exhaust his administrative
remedies, the judge will then determine whether (a) the plaintiff has failed
to exhaust his administrative remedies, and so he must go back and
exhaust; (b) or, although he has no unexhausted administrative remedies,
the failure to exhaust was innocent (as where prison officials prevent a
prisoner from exhausting his remedies), and so he must be given another
chance to exhaust (provided that there exist remedies that he will be
permitted by the prison authorities to exhaust, so that he’s not just being
given a runaround); or (c) the failure to exhaust was the prisoner’s fault, in
which event the case is over. (3) If and when the judge determines that the
prisoner has properly exhausted his administrative remedies, the case will
proceed to pretrial discovery, and if necessary a trial, on the merits; and if
there is a jury trial, the jury will make all necessary findings of fact without
being bound by (or even informed of) any of the findings made by the
district judge in determining that the prisoner had exhausted his
administrative remedies.
Pavey, 544 F.3d at 742.
As an inmate confined within the Illinois Department of Corrections, Wilson was
required to follow the regulations contained in the Illinois Department of Correction’s
Grievance Procedures for Offenders (“grievance procedures”) to exhaust his claims. See
20 ILL. ADMIN. CODE § 504.800, et seq. The grievance procedures first require inmates to
file their grievance with the counselor within 60 days of the discovery of an incident. See
20 ILL. ADMIN. CODE § 504.810(a). The grievance form must:

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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. This provision
does not preclude an offender from filing a grievance when the names of
individuals are not known, but the offender must include as much descriptive
information about the individual as possible.
20 ILL. ADMIN. CODE § 504.810(c). Grievances that are unable to be resolved through
routine channels are then sent to the grievance officer. See 20 ILL. ADMIN. CODE
§504.820(a). The Grievance Officer will review the grievance and provide a written
response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a). “The Grievance Officer shall
consider the grievance and report his or her findings and recommendations in writing to
the Chief Administrative Officer within two months after receipt of the grievance, when
reasonably feasible under the circumstances.” 20 ILL. ADMIN. CODE § 504.830(e). “The
Chief Administrative Officer shall review the findings and recommendation and advise
the offender of his or her decision in writing. Id.
If the inmate is not satisfied with the Chief Administrative Officer’s response, he
or she can file an appeal with the Director through the Administrative Review Board
(“ARB”). 20 ILL. ADMIN. CODE § 504.850(a). The grievance procedures specifically state,
“[i]f, after receiving the response of the Chief Administrative Officer, the offender still
believes that the problem, complaint or grievance has not been resolved to his or her
satisfaction, he or she may appeal in writing to the Director. The appeal must be received
by the ARB within 30 days after the date of the decision.” Id. The inmate shall attach
copies of the Grievance Officer’s report and the Chief Administrative Officer’s decision
to his appeal. Id. “The Administrative Review Board shall submit to the Director a written

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report of its findings and recommendations.” 20 ILL. ADMIN. CODE § 504.850(d). “The
Director shall review the findings and recommendations of the Board and make a final
determination of the grievance within 6 months after receipt of the appealed grievance,
when reasonably feasible under the circumstances. The offender shall be sent a copy of
the Director’s decision.” 20 ILL. ADMIN. CODE § 504.850(e).
ANALYSIS
Defendant asserts that she is entitled to summary judgment because Wilson failed
to exhaust his administrative remedies prior to filing his complaint. Specifically,
Defendant relies on the Declaration of Yvette Baker, Grievance Officer, which states that
there is no evidence of grievances or emergency grievances filed by Wilson from
February 2018 to July 2019. (Doc 33, p. 3). Defendant also cites the Declaration of Sherry
Benton, ARB Chairperson, in which Benton asserts that she was unable to find any record
of grievances regarding the claim in this suit filed by Wilson from February 2018 to July
2019. (Doc. 34, p. 3).
If the Court finds that Plaintiff’s attempts to file a grievance were thwarted, he will
be allowed to proceed with his suit, as his administrative remedies have been rendered
effectively unavailable. See Dole, 438 F.3d at 809. For example, a Plaintiff who files a
grievance in accordance with local procedure but does not receive a response has not
necessarily failed to exhaust his administrative remedies. See, e.g., Walker v. Sheahan, 526
F.3d 973, 979 (7th Cir. 2008)(where a plaintiff files a grievance but receives no ruling he is
not required to file an appeal). However, the Court must assess Wilson’s credibility in
order to accept his contention that he was thwarted in his attempts to exhaust his

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remedies. See, e.g., McIntosh v. Wexford Health Sources, Inc., No. 19-1095, 2021 WL 406105,
at *2 (7th Cir. Feb. 5, 2021)(affirming the district court’s decision to grant the defendants’
motion for summary judgment due to the plaintiff’s lack of credibility).
The Court does not find Wilson's testimony regarding the filing of this grievance
credible. Wilson does not have a copy of the grievance he claims to have filed in February
of 2018. Therefore, he can only corroborate his assertions through his self-serving
testimony, which the undersigned finds lacking. Wilson asserts that he spoke with his
correctional counselors several times regarding his grievance. The record, however,
contradicts this assertion. The cumulative counseling summary provided by Defendant
does not make mention of any discussion of grievances between February 2018 to July
2019. See (Doc. 45). In fact, the first mention of a grievance relating to the presently
discussed injury was on July 15, 2020, when Wilson discussed with his counselor the
second grievance that he had filed on July 5, 2020. Id. at p. 3. The record clearly does not
support Wilson’s claims that he made multiple inquiries and had various face-to-face
discussions regarding his February 2018 grievance. This is obviously a cause for concern
and calls into question Wilson’s credibility.
The Court is similarly skeptical of the timeline represented by Wilson. Wilson had
ample opportunities to inquire about his February 2018 grievance. Instead, Wilson waited
more than two years until July 2020 to follow-up with prison officials regarding his initial
grievance. This was also almost a year after Wilson filed the present lawsuit. When
questioned, Wilson could not provide the Court with an explanation for his failure to
follow-up on his initial grievance. The Court further notes that it issued an “Initial

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Scheduling and Discovery Order” on May 28, 2020, in which it informed the parties that
the exhaustion of local remedies was an issue. (Doc. 26, p. 4-5). The Court also set
deadlines for the Defendant to file a motion for summary judgment regarding
exhaustion. Id. at p. 4. It was only after that scheduling order was issued that Wilson
followed up and inquired as to the status of his original grievance, presumably because
he knew that it would be an upcoming issue before the Court. This further erodes the
undersigned’s belief in Wilson’s testimony. Thus, the Court does not find Wilson credible
regarding the alleged filing of his grievance in February 2018.
CONCLUSION
Based on the foregoing, Defendant's summary judgment motions as to exhaustion
of administrative remedies is GRANTED. The Court DISMISSES without prejudice
Wilson’s claims against the Defendant. The Court DIRECTS the Clerk of the Court to
enter judgment and close the case.
IT IS SO ORDERED.

Digitally signed
by Judge Sison 2
Date: 2021.02.18
09:19:59 -06'00'

DATED: February 18, 2021.

____________________________________
GILBERT C. SISON
United States Magistrate Judge

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