Morrow v. Wexford Health Sources, Inc., et al

Filing 56

ORDER granting in part and denying in part 42 Motion for Summary Judgment. Summary judgment is granted for Defendant Wexford in relation to Plaintiffs allegations that Defendant Wexford adopted unconstitutional policies and practices which caused him to receive improper care for his shoulder pain. See (Doc. 8, p. 4, Count III). However, summary judgment is denied as to Count II and Plaintiffs anemia claims in Count III. Signed by Magistrate Judge Gilbert C. Sison on 7/19/2021. (mjf)

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
vs.
)
)
WEXFORD HEALTH SOURCES,
INC., D. BLACKBURN, and VENERIO )
)
SANTOS,
)
)
Defendants.
)
)
MITCHELL MORROW,

Case No. 3:20-cv-00664-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
Plaintiff Mitchell Morrow, an inmate currently in the custody of the Illinois
Department of Corrections (“IDOC”) and incarcerated at Centralia Correctional Center
(“Centralia”), first brought suit against Defendants Blackburn, Santos, and Wexford
Health Sources, Inc. (“Wexford”) pursuant to 42 U.S.C. § 1983 on July 8, 2020. (Doc. 1). In
his complaint, Plaintiff alleged three counts of deliberate indifference to his serious
medical needs in violation of the Eighth Amendment. (Doc. 13, p. 4). Count I states that
Defendant Blackburn failed to review Plaintiff’s medical file and provide him with
proper care for his anemia. Id. Count II posits that Defendant Santos failed to care for
Plaintiff’s anemia and shoulder pain properly. Id. Count III claims that Defendant
Wexford maintains policies and practices which caused Plaintiff to receive improper care
for his anemia and shoulder pain. Id. Now before the Court is a motion for summary

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judgment on the issue of exhaustion of remedies as to Counts II and III of Plaintiff’s
complaint by Defendants Santos and Wexford. (Doc. 42). For the reasons delineated
below, the motion for summary judgment is GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
Medical professionals at Lawrence Correctional Center (“Lawrence”) first
diagnosed Plaintiff with anemia in 2011. (Doc. 52, p. 2). From August 2011 through May
2012, doctors prescribed Plaintiff iron supplements in order to treat the symptoms of his
condition. Id. However, a note in Plaintiff’s medical chart dated July 2012 indicated that
Plaintiff’s anemia was resolved. Id.
On July 1, 2015, Plaintiff was transferred from Lawrence to Centralia. (Doc. 52, p.
2). Plaintiff first saw Defendant Santos for medical treatment on July 20, 2018, after
complaining of swelling in his legs and ankles and shortness of breath. Id. at p. 3. In
response, Defendant Santos ordered Plaintiff to reduce his salt intake. Id. However,
Plaintiff’s symptoms continued to worsen. Id. On April 18, 2019, Plaintiff saw Defendant
Santos again; this time, Defendant Santos ordered a basic metabolic panel, complete
blood count, and stool samples. (Doc. 43, p. 3). The laboratory returned critical results;
accordingly, on April 24, 2019, Defendant Santos ordered that Plaintiff be sent to the
emergency room for an evaluation. Id. The hospital treating Plaintiff noted that he had
acute blood loss anemia due to an underlying gastrointestinal condition. Id.
Plaintiff first filed a grievance regarding Defendant Santos’s treatment on May 2,
2019. (Doc. 43, Exh. B, p. 34-35). In his May 2nd grievance, Plaintiff explains that he

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received an iron supplement while incarcerated at Lawrence, but Defendant Santos did
not continue the treatment. Id. Plaintiff also claims that this was the reason he was
hospitalized. Id. The grievance officer reviewed Plaintiff’s claims on their merits, and
Plaintiff properly appealed the grievance to the Administrative Review Board (“ARB”).
Id. The ARB denied this grievance as appropriately addressed by the facility
administration. (Doc. 52, p. 88).
Plaintiff also filed a May 9, 2019 grievance stating that a policy requiring inmates
to walk when transported to the emergency room resulted in unnecessary pain to his feet.
(Doc. 52, p. 89-92). In the May 9th grievance, Plaintiff did not name any particular
defendant, but did state that his grievance applied to the Health Care Unit (“HCU”). This
grievance was also reviewed by Plaintiff’s grievance officer, and on July 8, 2019, the ARB
denied this grievance on its merits. Id. at p. 92.
On August 22, 2019, Plaintiff filed a third grievance pertaining to his anemia
treatment. (Doc. 43, Exh. B, p. 13). In this grievance, Plaintiff states that Defendant
Wexford does not provide adequate follow up treatment after an inmate is diagnosed
with a serious medical condition. (Doc. 43, Exh. B, p. 14). Plaintiff claims that a visiting
physician told him he should have received regular follow-up blood testing after his
anemia diagnosis at Lawrence; however, he did not receive this testing while incarcerated
at either facility. Id. Plaintiff properly appealed the denial of this grievance, and on
September 20, 2018, the ARB denied Plaintiff’s appeal as “appropriately addressed by the
facility Administration.” (Doc. 43, Exh. B, p. 11).

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Plaintiff also began seeking treatment from Defendant Santos regarding shoulder
pain in May 2019. (Doc. 43, p. 5). When Plaintiff saw Defendant Santos on May 17, 2019,
Defendant Santos diagnosed Plaintiff with tendinitis and prescribed him a warm
compress and Tylenol tablets for ten days. Id. However, after Plaintiff had surgery for
hemorrhoids, he was prescribed a different pain medicine for seven days. Id. Plaintiff
again complained of shoulder pain on July 21, 2019. Id. at p. 6. He refused protocol pain
medication and was referred to a doctor. Id. On July 23, 2019, Defendant Santos found no
noted issues with Plaintiff’s shoulder. Id.
Plaintiff first grieved inadequate care for his shoulder pain on June 5, 2019. (Doc.
52, p. 93). In his June 5th grievance, Plaintiff stated that Defendant Santos changed his
medical prescription, and that he remained in pain. Id. Though Plaintiff referred to pain
while urinating or defecating, he did not refer to pain in his shoulder. Id. at p. 94. The
ARB denied Plaintiff’s appeal of this grievance on its merits. Id. at p. 96.
On August 15, 2019, Plaintiff again grieved the treatment he received for his
shoulder. (Doc. 52, p. 97). Plaintiff stated that he saw Defendant Santos on July 22, 2019,
and he tried to explain that Tylenol was not treating his shoulder pain. Id. at p. 98. Plaintiff
also claimed that he was still experiencing pain and that the pain was continuing to get
worse. Id. The ARB denied Plaintiff’s appeal of this grievance as appropriately addressed
by the facility administration. Id. at p. 100.

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LEGAL STANDARDS
Summary judgment is proper when a moving party demonstrates that the record
cannot establish the presence of a genuine dispute of material fact. See FED. R. CIV. PROC.
56(a). In order to survive a motion for summary judgment, the non-moving party must
provide admissible evidence from which a reasonable jury could find in favor of the nonmoving party. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). Traditionally,
the Court’s role in determining a motion for summary judgment is not to evaluate the
weight of the evidence, judge witness credibility, or determine the truth of the matter,
but is instead to determine whether there is a genuine issue of material fact. See Nat’l
Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in
Pavey v. Conley, the Seventh Circuit held that a judge, rather than a jury, should determine
whether factual issues relating to the defense of the failure to exhaust administrative
remedies exist. 544 F.3d 739, 741 (7th Cir. 2008). If the Court determines that a prisoner
did not exhaust his administrative remedies, the Court will outline one of three potential
outcomes: (a) if the plaintiff still has time to do so, the plaintiff must go back and exhaust
his administrative remedies; (b) if the plaintiff’s failure to exhaust was innocent, as where
prison officials prevent a prisoner from exhausting his remedies, the plaintiff must be
given another chance to exhaust; or (c) if the failure to exhaust was the prisoner’s fault,
the case is over. Id. at 742.
The PLRA governs lawsuits filed by inmates and states that “no action shall be
brought with respect to prison conditions under § 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
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administrative remedies as are available are exhausted.”42 U.S.C. § 1997e(a). In order to
satisfy the PLRA’s exhaustion requirement, prisoners must strictly adhere to the
grievance process. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Prisoners must
exhaust their remedies before filing suit. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
2004). A plaintiff cannot file suit and then exhaust administrative remedies while that suit
is pending. Id. Consequently, if a prisoner fails to use a prison’s grievance process
properly, “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.
Prisoners must follow a prison’s administrative rules when exhausting their
remedies. See Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). As an inmate
confined within the IDOC, Plaintiff is required to follow the regulations contained in the
IDOC’s Grievance Procedures for Offenders (“grievance procedures”) in order to
properly exhaust his claims. See 20 ILL. ADMIN. CODE § 504.800, et seq. The grievance
procedures require prisoners to submit a grievance to a counselor within sixty days of
discovering the underlying incident. See 20 ILL. ADMIN. CODE § 504.800. These grievances
must state the “factual details regarding each aspect of the offender’s complaint including
what happened, when, the name of any individual involved, and where the incident
occurred.” 20 ILL. ADMIN. CODE § 504.810(a). If a prisoner is not satisfied with the
counselor’s response to the grievance, then that prisoner can submit a formal grievance
to the prison’s grievance officer. Id. at (a)-(b). The officer must then review the grievance
and provide a written response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a).
Within two months of receipt of the grievance, when reasonably feasible under the
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circumstances, the grievance officer must report findings and recommendations in
writing to the Chief Administrative Officer (“CAO”). See 20 ILL. ADMIN. CODE
§ 504.830(e). If the prisoner is still not satisfied with the CAO’s decision, the prisoner can
formally appeal to the Director through the ARB within thirty days of the CAO’s decision.
See 20 ILL. ADMIN. CODE § 504.850(a). The inmate must attach copies of the grievance
officer’s report and the CAO’s decision to the appeal. Id. The ARB then submits its
recommendation to the Director, who is then responsible for issuing the IDOC’s final
decision. See 20 ILL. ADMIN. CODE § 504.850(f).
The grievance process also permits an inmate to file an emergency grievance
directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The CAO may determine if
there is a substantial risk of imminent personal injury or other serious harm to the
offender. Id. If the CAO determines that the grievance is a non-emergency, the prisoner
is notified in writing that the prisoner may resubmit the grievance as a non-emergency
and move forward with the standard grievance process. See 20 ILL. ADMIN. CODE
§ 504.840(c).
The statutory purpose of the PLRA is to “afford corrections officials time and
opportunity to address complaints internally before allowing the initiation of a federal
case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Begolli v. Home Depot U.S.A., Inc., 701
F.3d 1158, 1161 (7th Cir. 2012). This allows the prison administration an opportunity to
fix the problem or to reduce damages and to shed light on factual disputes that may arise
in litigation. See Pozo, 286 F.3d at 1023-24. To allow otherwise would frustrate the purpose
of the grievance process. See Porter v. Nussle, 534 U.S. 516, 526 (2002). Accordingly, a
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prisoner cannot satisfy the exhaustion requirement by filing an untimely or otherwise
procedurally defective grievance. See Woodford, 548 U.S. at 83. Unless a prisoner
completes the administrative review process by following the rules established for that
process, exhaustion has not occurred. See Pozo, 286 F.3d at 1023.
ANALYSIS
Defendants argue that summary judgment should be granted in Defendant
Wexford’s favor because Plaintiff’s grievances pertaining to his shoulder pain do not
sufficiently name Defendant Wexford or its practices or procedures; Defendants further
claim that Plaintiff’s August 22nd grievance naming Defendant Wexford is untimely.
(Doc. 43, p. 11-12). Defendants also argues that summary judgment should be granted as
to Defendant Santos for Plaintiff’s claims regarding his shoulder pain because his August
15th grievance was untimely. Id. p. 8-11. The Court finds that Plaintiff’s grievances
pertaining to his shoulder pain do not sufficiently name Defendant Wexford. However,
his grievance naming Defendant Wexford as complicit in the improper treatment of his
anemia is timely. Similarly, the August 15th grievance naming Defendant Santos and
accusing him of improper care for Plaintiff’s shoulder pain is timely.
I.

Whether Plaintiff Properly Named Defendant Wexford in his Grievances Regarding
his Shoulder Pain
The Illinois Administrative Code requires that a prisoner either name the
individuals against whom they are grieving or describe those individuals with “as much
descriptive information about the individual as possible.” 20 ILL. ADMIN. CODE

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§ 504.810(c). However, the code is silent regarding the provision of sufficient identifying
information for corporate entities such as Defendant Wexford. “When the administrative
rulebook is silent, a grievance suffices if it alerts the prison to the nature of the wrong for
which redress is sought.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Courts have
held that grieving activities for which Wexford was responsible, or for which Wexford
was involved in the decision-making process, are generally sufficient to put the prison
on notice that the plaintiff was grieving a policy or practice of the corporation. See
Armbruster v. Wexford Health Sources, Inc., No. 16-cv-0544-MJR-SCW, 2017 WL 2418724, at
*6 (S.D. Ill. June 5, 2017) (internal citations omitted). Similarly, when an inmate grieves “a
broad denial of proper treatment by the health care unit as a whole,” that inmate has
sufficiently provided notice of whether Wexford’s policies or practices resulted in
inadequate medical treatment. See Cox v. Wexford Health Sources, Inc., No. 16-cv-137-SMYRJD, 2017 WL 3388159, at *3 (S.D. Ill. Aug. 7, 2017) (internal citations omitted).
However, when an inmate does not reference a specific policy or practice, or
otherwise names responsible individuals, rather than attributing responsibility to
Wexford, the grievance lacks the specificity necessary for the state to intervene, and the
grievance is considered unexhausted. See Diaz v. Baldwin, Case No. 18-cv-1426-RJD, 2021
WL 1401463, at *3 (S.D. Ill. Apr. 14, 2021). For instance, in Diaz, the plaintiff claimed that
he was provided inadequate medical care for an injury to his hand while working at
Lawrence. Id. at *1. In his grievance, the plaintiff stated that an unknown nurse told him
his hand was bruised and sent him back to work. Id. The plaintiff also claimed that he

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returned with the same symptoms, and another nurse told him his hand was only
bruised. Id. The plaintiff explained in his grievance that the delay in treatment made
surgery to his hand necessary two months later. Id. The plaintiff attempted to rely on this
grievance in order to proceed on a complaint against Wexford for an unconstitutional
policy and practice. Id. However, the plaintiff requested the nurses identified in his
grievance be terminated, thus placing the blame on the individual nurses involved, rather
than on a practice or policy maintained by Wexford. Id. at *3. Because the plaintiff named
individual defendants and did not specify a policy or practice, the state lacked the
information necessary to investigate his claims against Wexford, and his grievance
remained unexhausted as to that defendant. Id.
Here, it is clear that Plaintiff’s June 5th grievance does not sufficiently name
Defendant Wexford. In his June 5th grievance, Plaintiff specifically names Defendant
Santos. (Doc. 52, p. 93). Plaintiff does not refer to any pattern, practice, or other policy
which might be attributed to Defendant Wexford. As in Diaz, Plaintiff’s attribution of
blame to one specific individual suggests that he is grieving only about that individual’s
care. The IDOC therefore lacked the information necessary to investigate Plaintiff’s
claims against Defendant Wexford on the basis of this grievance.
Plaintiff’s August 15th grievance also fails to identify Defendant Wexford
sufficiently for the purposes of exhaustion. In this grievance, Plaintiff states that he sent
complaints about his shoulder to Healthcare Administrator Lana; however, because she
was on vacation, his complaints were also forwarded to “AWP.” (Doc. 52, p. 97). He then
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alleges that he saw Defendant Santos, who continued to prescribe him Tylenol. Id. at p.
98. Though Plaintiff described his limited movement and showed Defendant Santos an
X-ray summary of his shoulder, Defendant Santos only told him to continue with his
Tylenol prescription and to do daily exercises. Id. This grievance lists specific complaints
against Defendant Santos’s individual treatment of Plaintiff. Because Plaintiff’s August
15th grievance implicates only one individual in the underlying complaint, it does not
provide sufficient information for the IDOC to believe that Plaintiff was actually
complaining about Defendant Wexford’s policies or practices. Accordingly, this
grievance remains unexhausted against Defendant Wexford.
II.

Whether Plaintiff’s August 15th and August 22nd Grievances are Timely
Grievance officers maintain the discretion to consider and address an untimely
grievance. See, e.g., 20 ILL. ADMIN. CODE § 504.810(a)(noting that a grievance officer
may address a grievance if an offender shows it was not timely filed for good cause). If a
grievance officer chooses to address an untimely grievance on its merits, the grievance
“has served its function of alerting the state and inviting corrective action[.]” Maddox v.
Love, 655 F.3d 709, 721-722 (7th Cir. 2011) (internal citations omitted). A procedural
deficiency, such as “failing to follow the prison’s time deadlines[,] amounts to a failure to
exhaust only if prison administrators explicitly relied on that shortcoming.” Id. (internal
citations omitted). By responding to a grievance on its merits, the counselor, grievance
officer, and the ARB address the underlying issues and satisfy the purpose of the

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exhaustion requirement under the PLRA. See Kane v. Santos, No. 17-CV-01054-NJR-RJD,
2020 WL 967878, at *4 (S.D. Ill. Feb. 28, 2020).
Defendants argue that Plaintiff’s August 15th and August 22nd grievances are
untimely. (Doc. 43, p. 11-12, 8-11). However, the grievance officer reviewing the
grievances and the ARB in the appeal of that decision each denied Plaintiff’s grievances
on the merits. For instance, the grievance officer reviewing Plaintiff’s August 22nd
grievance stated that Plaintiff’s “anemia has been evaluated, treated, and resolved with
surgical intervention of his primary condition . . .” (Doc. 43, Exh. B, p. 12). The ARB
upheld this denial because Plaintiff’s complaint was appropriately addressed by the
facility. Id. at p. 11. Equally, in response to Plaintiff’s August 15th grievance, the grievance
officer denied the grievance and found the prescription was appropriate. Id. at p. 18
(noting that the “physician determines medication prescriptions and referrals to
specialists”). The ARB upheld this denial as appropriately addressed by the facility. Id. at
p. 15. Neither the reviewing grievance officer nor the ARB explicitly relied on Plaintiff’s
alleged untimeliness when denying his August 15th and August 22nd grievances. Because
the IDOC had an opportunity to address Plaintiff’s claims on their merits, as required for
exhaustion under the PLRA, Defendants cannot now rely on an alleged procedural defect
in order to defeat Plaintiff’s claims. Accordingly, the Court finds that both grievances are
exhausted, and Plaintiff may proceed with his claims regarding his shoulder pain against
Defendant Santos, and his claims regarding his anemia against Defendant Wexford and
Defendant Santos.

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CONCLUSION
For the above-stated reasons, Defendants’ motion for summary judgment (Doc.
42) is GRANTED in part and DENIED in part. Summary judgment is granted for
Defendant Wexford in relation to Plaintiff’s allegations that Defendant Wexford adopted
unconstitutional policies and practices which caused him to receive improper care for his
shoulder pain. See (Doc. 8, p. 4, Count III). However, summary judgment is denied as to
Count II and Plaintiff’s anemia claims in Count III.
IT IS SO ORDERED.

Digitally signed by
Judge Sison 2
Date: 2021.07.19
12:55:34 -05'00'

DATED: July 19, 2021.

___________________________________
GILBERT C. SISON
United States Magistrate Judge

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