The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LUCIEN McARTHUR, )
)
Plaintiff, )
v. ) Case No. 21-cv-1171-JES
)
LEONTA L. JACKSON, et al., )
)
Defendants. )
ORDER ON MOTION FOR SUMMARY JUDGMENT
Plaintiff, proceeding pro se, brought the present lawsuit pursuant to 42 U.S.C. §
1983 alleging that his Eighth Amendment rights were violated while he was incarcerated
at Pontiac Correctional Center (Pontiac). Specifically, Plaintiff alleges that Defendant
Sherri Power was deliberately indifferent to his medical needs by refusing to provide him
with additional medical care after he was diagnosed with COVID-19 in May 2020, and
that Defendant Wexford Health Sources, Inc. (Wexford) failed to train and supervise staff
to follow medical protocols for COVID-19.
Now before the Court is Defendants Wexford and Power’s Motion for Summary
Judgment on Failure to Exhaust Administrative Remedies pursuant to Federal Rule of
Civil Procedure 56 and Local Rule 7.1(D). (Doc. 16). For the reasons stated below,
Defendants’ Motion is GRANTED.
MATERIAL FACTS
Plaintiff is an inmate within the custody of the Illinois Department of Corrections
(IDOC). He filed his complaint on June 15, 2021. (Doc. 1). During the relevant time period,
he was incarcerated at Pontiac. Plaintiff was diagnosed with COVID-19 on May 16, 2020.
From May 16, 2020 until May 26, 2020, Plaintiff told the nurses every day that his
condition was deteriorating and he had trouble breathing. Id. at 3. Specifically, when he
told nurses he could not breathe on May 21, 2020, the nurses allegedly gave him
medication and then rushed off. Id. On May 26, 2020, Plaintiff received a sick call pass to
see a nurse practitioner, who checked his blood pressure and “O2 sat.” Id. at 3-4. Plaintiff
alleged Defendants failed to follow medical directives or guidelines to ensure he received
medical treatment after they left him in his cell while he had pneumonia. Id. at 5.
According to this Court’s Merit Review Order, Plaintiff articulated an Eighth
Amendment deliberate indifference claim against nursing staff who met with Plaintiff
from May 16, 2020 and May 26, 2020, and against Wexford for allegedly failing to train
and supervise employees. (Doc. 8 at 2-3).
A. Grievances Appealed to the ARB
Between January 1, 2020 and November 10, 2021, Plaintiff submitted ten
grievances to the Administrative Review Board (ARB). (Doc. 72-1 at ¶ 9; Doc. 72-4).
1. Grievance 10
On January 30, 2020, the ARB received a grievance dated January 26, 2020.
(hereinafter “Grievance 10”). It was not given a grievance number. Plaintiff alleged the
food at Pontiac “is not up to temperature,” and there is no hot water in the kitchen to
clean properly. He requested the food be cooked at the correct temperature and the hot
water turned on in the kitchen. Plaintiff indicated the grievance was an emergency
grievance. It was not submitted for a counselor’s response, nor was it reviewed by the
CAO. There is also no grievance officer’s report. On February 4, 2020, the ARB returned
the grievance because Plaintiff failed to include responses from the counselor, grievance
officer, and the CAO. Plaintiff also failed to include the dates the incidents occurred. (Doc.
72-4 at 63-64).
2. Grievance 083172
On April 24, 2020, the ARB received grievance #083172 dated January 26, 2020.
Plaintiff alleged the food at Pontiac was not prepared at the proper temperature and there
were cockroaches in the food. Plaintiff checked the emergency grievance box on the
grievance form. On February 6, 2020, the CAO reviewed the grievance and deemed it not
an emergency. On March 2, 2020, a counselor responded and stated that kitchen area food
was transported in hot boxes and cold boxes to ensure it meets IDPH standards. On April
10, 2020, the grievance officer responded to the grievance and recommended that it be
denied. On April 14, 2020, the CAO concurred with the recommendation. On April 24,
2020, the ARB returned the grievance for failure to meet DR 504.810. (Doc. 72-4 at 59-62).
3. Grievance 085714
On August 28, 2020, the ARB received grievance #085714 dated May 11, 2020.
Plaintiff complained staff at Pontiac altered KN95 masks by removing the metal that seals
the mask around the nose. Plaintiff requested that staff stop altering inmates’ KN95
masks. Plaintiff also alleged food supervisors did not wear masks. Plaintiff indicated the
grievance was an emergency. On May 27, 2020, the CAO reviewed the grievance and
deemed it a non-emergency grievance. On June 18, 2020, a counselor responded by
stating the removal of the metal piece was an administrative decision. On August 21,
2020, the grievance officer recommended that the grievance be denied. The CAO
concurred on August 21, 2020. On February 5, 2021, the ARB concluded the grievance
failed to meet DR 504F and returned the grievance. (Doc. 72-4 at 35-39).
4. Grievance 086274
On July 22, 2020, the ARB received grievance #086274 dated June 7, 2020. Plaintiff
alleged nurse Hansen was unprofessional and “acting like a school girl trying to get all
the boys[’] attention” and nurse Hansen would not allow him have his COVID-19
paperwork. Plaintiff requested that nurse Hansen not handle any of his medical
treatment or prescriptions because of her unprofessional actions. On June 22, 2020, the
grievance counselor responded that the grievance concerned a medical issue and needed
to go to the grievance office. On June 25, 2020, the grievance officer received the grievance
and recommended that it be denied because allegations of staff misconduct could not be
substantiated. On July 13, 2020, the CAO concurred with the recommendation. On
December 3, 2020, the ARB denied the grievance and found the facility administration
addressed the issue appropriately. (Doc. 72-4 at 40-43).
5. Grievance 086273
On November 4, 2020, the ARB received grievance #086273 dated June 7, 2020.
Plaintiff alleged that he was released from the hospital and placed in a cell with no sheets.
He requested that “this part of the system be fixed.” On August 17, 2020, the counselor
responded that offenders placed in quarantine are provided with an indigent bag and
sheets at the request of the offender. On October 23, 2020, the grievance officer responded
that Plaintiff had received all his property except for a pack of playing cards and his tablet
and recommended that the grievance be denied. On October 26, 2020, the CAO concurred
with the grievance officer’s decision. On March 1, 2021, the ARB denied the grievance
and found it had been appropriately addressed by the facility administration. (Doc. 72-4
at 30-34).
6. Grievance 086272
On September 8, 2020, the ARB received grievance #086272 dated June 14, 2020.
Plaintiff alleged unidentified nurses came to his cell to check his oxygen level twice a day
after he was released from the hospital on June 4, 2020. An unidentified nurse allegedly
told Plaintiff there was something wrong with the device and did not write down his
oxygen level for the doctor to see. Plaintiff requested that nurses write down the proper
readings and to “put down what they get my oxygen level up to before walking away.”
On June 22, 2020, the counselor issued a response, stating the grievance concerned a
medical issue and needed to go to the grievance office. On August 25, 2020, the grievance
officer received the grievance and wrote that a pulse oximeter worked best if adequate
oxygen was being exchanged in the lungs and provided Plaintiff’s vital signs according
to his writ/furlough. The grievance officer considered the grievance moot. On August
25, 2020, the CAO concurred with the grievance officer’s recommendation. On March 1,
2021, the ARB denied the grievance and found that the facility appropriately addressed
the issue. (Doc. 72-4 at 25-29).
7. Grievance 086359
On November 6, 2020, the ARB received grievance #086359 dated June 23, 2020,
regarding “nurses[’] lack of response when [Plaintiff] was showing symptoms of COVID-
19.” Plaintiff alleged he complained to nurses that it was difficult to breathe. Plaintiff’s
cellmate told nurses that Plaintiff was getting worse. A nurse practitioner checked
Plaintiff’s blood pressure and oxygen level and sent him to the healthcare unit. Plaintiff
asked to know why he was left in his cell for ten days, why nurses were not “turning
anything into the doctors regarding how sick an inmate is,” and why he was not tested
for COVID-19 before being released from quarantine. He also alleged he suffered damage
to his lungs from pneumonia due to the “ignorance of Pontiac’s nursing staff.” On June
26, 2020, the counselor responded and stated the grievance concerned a medical issue
and needed to go to the grievance office. On July 26, 2020, the grievance officer responded
that Plaintiff was receiving appropriate medical treatment and recommended that the
grievance be considered moot. On July 27, 2020, the CAO concurred with the grievance
officer’s decision. On November 21, 2020, the ARB returned Plaintiff’s grievance because
it was received thirty days past the CAO’s decision. (Doc. 72-4 at 55-58).
8. Grievance 086698
On September 18, 2020, the ARB received grievance #086698 dated July 2, 2020.
Plaintiff alleged he contracted COVID-19 and was rushed to the emergency room in an
ambulance. Plaintiff claimed that unidentified staff members at Pontiac failed to socially
distance and wear masks. On July 20, 2020, the counselor responded that Plaintiff failed
to identify staff members in the grievance and did not comply with DR 504.810. On
September 7, 2020, the grievance officer responded to the grievance, stating that it was
impossible to contact staff members because Plaintiff did not identify anyone. The
grievance officer recommended the grievance be rendered moot. On September 10, 2020,
the Chief Administrative Officer (CAO) concurred with the grievance officer’s
recommendation. On September 18, 2020, the ARB returned the grievance stating,
“doesn’t meet DR 504F; no review.” (Doc. 72-4 at 19-23).
9. Grievance 090946
On March 9, 2021, the ARB received grievance #090946 dated January 26, 2021.
Plaintiff claimed he had not received any mail since September, final summary reports,
or grievances. He requested that the facility stop making his mail disappear. On February
11, 2021, a counselor responded that institutional mail is not logged and there is no way
of tracking mail. On February 23, 2021, the grievance officer responded to the grievance
and recommended that it be denied due to Plaintiff failing to “meet DR 504.810 (who,
what, where, when).” On February 24, 2021, the CAO concurred with the grievance
officer’s recommendation. On March 10, 2021, the ARB returned the grievance because it
was not submitted in the timeframe outlined in DR 504. (Doc. 72-4 at 15-17).
10. Grievance 091327
On April 1, 2021, the ARB received grievance #091327 dated February 8, 2021.
Plaintiff alleged he was ordered to work in the kitchen even though he had a medical
permit. When he refused to work, he received seven disciplinary tickets for disobeying
direct orders. He requested that two final summary reports be expunged from his record
and $200, “for not being able to shop wrongfully for over a month.” On March 11, 2021,
a grievance officer recommended that the grievance be denied based on a compliance
review of the procedural due process safeguards outlined in DR 504. On March 17, 2021,
the CAO concurred with the grievance officer’s decision. On May 21, 2021, the ARB
denied the grievance and concluded the facility administration addressed the issue
appropriately. (Doc. 72-4 at 1-12).
B. Grievances Not Appealed to the ARB
Between January 1, 2020 and November 10, 2021, Plaintiff filed four additional
grievances, which he did not appeal to the ARB. (Doc. 72-5).
1. Grievance 083950
In grievance #083950, dated February 28, 2020, Plaintiff complained about a delay
in receiving mail since December 2019. He requested that the facility stop delaying inmate
mail. On March 6, 2020, a counselor responded and informed Plaintiff mail was delayed
two to three weeks after Christmas, but the facility was caught up. The grievance was not
submitted beyond the first level of the grievance process. (Doc. 72-5 at 14).
2. Grievance 084140
In grievance #084140, dated March 6, 2020, Plaintiff alleged he was in pain every
morning because he needed a new mattress. The counselor responded on March 11, 2020,
and instructed Plaintiff to write to the MSU major, who would place him on a list for a
new mattress. This grievance was not submitted to the grievance office. (Doc. 72-5 at 11).
3. Grievance 084146
In grievance #084186, dated March 10, 2020, Plaintiff complained that inmates had
not seen a memo about “wifi in the MSU.” Plaintiff asked for the memo to be placed on
the cellhouse walls so everyone could read it and find out who wrote it. On March 13,
2020, the counselor responded that a representative would conduct a survey of the Wi-Fi
reach. The grievance was not submitted to the grievance office. (Doc. 72-5 at 12).
4. Grievance 084184
In grievance #084184, dated March 10, 2020, Plaintiff complained there was no
money for movies. He requested the facility to rent movies and “stop spinning inmates
with lies.” On March 16, 2020, the counselor responded and stated a cord used to
purchase rentals expired and the facility needed to obtain a new debit card to rent movies.
Plaintiff did not submit his grievance to the grievance office. (Doc. 72-5 at 13).
Plaintiff did not dispute any of Defendants’ Undisputed Material Facts in his
Response. (Doc. 74). Therefore, these facts are deemed admitted. See CDIL-LR
7.1(D)(2)(b)(6).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling
on a motion for summary judgment, a court “has one task and one task only: to decide,
based on the evidence of record, whether there is any material dispute of fact that requires
a trial.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making
this determination, the court must construe the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in favor of that party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir.
2010). However, a court’s “favor toward the nonmoving party does not extend to
drawing ‘inferences that are only supported by speculation or conjecture.’” Id. In order
to successfully oppose a motion for summary judgment, a plaintiff must do more than
raise a “‘metaphysical doubt’ as to the material facts, and instead must present definite,
competent evidence to rebut the motion.” Michael v. St. Joseph Cnty., 259 F.3d 842, 845 (7th
Cir. 2001) (internal citation omitted). Plaintiff is the non-moving party, and the evidence
and all reasonable inferences are viewed in the light most favorable to him. Anderson, 477
U.S. at 255.
EXHAUSTION STANDARD
As an incarcerated individual, Plaintiff is subject to the Prison Litigation Reform
Act (PLRA), 42 U.S.C. § 1997e, which requires an inmate to exhaust all available
administrative remedies prior to filing suit. The PLRA provides that “[n]o action shall be
brought with respect to prison conditions . . . by a prisoner . . . until such administrative
remedies as are available are exhausted.” § 1997e(a); see also Massey v. Wheeler, 221 F.3d
1030, 1034 (7th Cir. 2000). If a prisoner fails to follow all of the necessary grievance
procedures, the claim will not be exhausted, and will be barred, even if there are no
remaining administrative remedies available. Id.
To properly exhaust administrative remedies, prisoners must “take each of the
steps prescribed by the state’s administrative rules governing prison grievances.”
Chambers v. Sood, 956 F.3d 979, 983 (7th Cir. 2020). The Seventh Circuit follows a strict
compliance approach to exhaustion, requiring inmates to follow all grievance rules
established by the correctional authority before filing suit. Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006). This includes “complaints about medical treatment in prison.” Perez
v. Wisconsin Dep't Corr., 182 F.3d 532, 534 (7th Cir. 1999).
Plaintiff was required to follow the grievance procedures described in the
regulations provided by the IDOC. See 20 Ill. Admin. Code § 504.800, et seq. The
regulations require that a prisoner attempt to informally resolve an issue with his
counselor. If unable to resolve the issue, the prisoner must file a written grievance,
addressed to the grievance officer, within 60 days after the incident was discovered. Id.
at § 504.810(a)-(b). For any grievance to serve as a basis for exhaustion, it must contain
factual details, including what happened, when, where, and the name of each person who
is the subject of or who is otherwise involved in the complaint. Id. at (c). If the offender
cannot name specific individuals, the offender “must include as much descriptive
information about the individual as possible.” Id. Failing to provide sufficient factual or
descriptive information is grounds for the Court to grant summary judgment for failure
to exhaust administrative remedies. See Northern v. Dobbert, 816 F. App'x 11, 14 (7th Cir.
2020) (inmate failed to exhaust claim of inadequate wound care where grievance
“mentioned wound care only once” and only in the context of an example of retaliatory
conduct).
The grievance officer will review the grievance and forward a recommendation to
the CAO, who will advise the prisoner of the decision. See § 504.830(e). If the prisoner is
not satisfied with the CAO’s decision, he has thirty days in which to file a written appeal
to the IDOC Director, addressed to the ARB. Id. at § 504.850(a). The appeal must include
copies of the grievance officer’s report and the CAO’s decisions, and the appeal must be
received by the ARB within thirty days after the date of the CAO’s decision. § 504.850; see
also Chambers, 956 F.3d at 983. The ARB will submit its recommendation to the IDOC
Director, who will make a final determination within six months. § 504.850. However,
grievances on issues that are without merit may be returned as denied to the sender
without further investigation. § 504.830(a). These include grievances that are untimely,
and for which good cause justification for the delay is not provided. § 504.860.
ANALYSIS
Plaintiff filed fourteen grievances between January 2020 and February 2021.
Plaintiff appealed ten grievances to the ARB, which were either returned or denied
because the facility resolved the issues appropriately. Plaintiff also filed four grievances
that he did not appeal past the first level of the grievance process.
Of the ten grievances Plaintiff filed and appealed to the ARB, nine are inapplicable
because they contained no allegations regarding Wexford or Plaintiff’s complaints to
nurses between May 21, 2020 and May 26, 2020 about his worsening COVID-19
symptoms, breathing problems, or any resulting injuries.
The remaining grievance – grievance #086359 – included factual allegations
similar to his Complaint against Defendants Wexford and Power; however, the grievance
was denied because it was received by the ARB more than thirty days after the CAO
issued a decision and did not comply with § 504.850(a). See Harris v. Baldwin, 818 F. App'x
561, 563 (7th Cir. 2020) (holding inmate failed to exhaust when the ARB did not receive
his appeal until over thirty days after the CAO’s decision). The CAO issued a decision on
grievance #086359 on July 27, 2020, but the ARB did not receive Plaintiff’s appeal until
November 6, 2020, at least ninety-six days after the CAO issued a decision.
In his Response, Plaintiff argues that Defendants did not submit a counseling
summary with grievance #086359 to show the grievance was sent to the second level.
(Doc. 74 at 6). This argument is immaterial. Further, a counseling summary was
completed indicating that Plaintiff needed to request copies of grievance #086359 from
the grievance office and that the facility does not get the second level decision. (Doc. 72-
4 at 50). Plaintiff appears to be arguing that he did not intend to submit his grievance past
the first level of the grievance process and that the grievance office somehow improperly
submitted his grievance to the second level. (Doc. 74 at 6). Plaintiff asserts that even
though he believed the grievance process was complete at the second stage, he submitted
his grievance to the ARB “to let them know that Pontiac is back to their old tricks of hiding
grievances.” Id. at 7.
Plaintiff’s Cumulative Counseling Summary shows that grievance #086359 was
mailed to Plaintiff via the institutional mail service on July 27, 2020, the same day the
CAO issued a decision. (Doc. 77-1 at 8). On October 19, 2020, Plaintiff requested and
received a copy of the grievance from the records office. Id. at 7. Regardless of why he
submitted this grievance to the ARB, he was required to submit it within the timeframe
specified by law, and he failed to do so.
Plaintiff also failed to exhaust his administrative remedies regarding his deliberate
indifference claim against Defendant Wexford because he failed to include any factual
details in grievance #086359 about any policy, procedure, or custom that caused the
alleged constitutional violation. This is necessary because there is no respondeat superior
liability under § 1983. A private corporation cannot be held liable “unless the
constitutional violation was caused by an unconstitutional policy or custom of the
corporation itself.” Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014). In the
absence of a policy or custom, a Plaintiff can point to “a pattern of behavior that would
support an inference of a custom or policy, as required to find that Wexford as an
institution was deliberately indifferent to [the Plaintiff’s] needs.” Id. at 796.
Plaintiff alleges he suffered damage to his lungs due to the “ignorance of Pontiac’s
nursing staff,” but he does not mention an unconstitutional policy or custom in his
grievance. Even if there was a connection between Wexford and Plaintiff’s grievance,
there is no information that would alert Wexford to a custom or policy related to a failure
to supervise or train its staff on COVID-19 protocols.
In his Response, Plaintiff does not dispute that he failed to include information in
his grievance that would alert Wexford to an alleged policy or custom of failing to
supervise or train its staff, as was required to properly exhaust his claims. Plaintiff has
not adequately included facts in his grievance to exhaust his administrative remedies as
to his claim against Wexford. See Nally v. Obaisi, 2019 WL 6527953, at *3 (N.D. Ill. Dec. 4,
2019) (untethered statement concerning policies and procedures about treatment does
not alert prison officials to a particular problem or invite them to take corrective action).
The Court finds that Plaintiff failed to exhaust his administrative remedies prior
to filing suit. Defendants’ Motion for Summary Judgment is GRANTED. Defendants
Wexford and Power are DISMISSED with prejudice.
IT IS THEREFORE ORDERED:
1) Defendants' Motion for Summary Judgment [72] is GRANTED. Defendants
Sherri Power and Wexford Health Sources, Inc. are DISMISSED with prejudice. The Clerk
is directed to terminate Defendants Power and Wexford.
2) This case will proceed against the remaining IDOC Defendants – Leonta
Jackson, Anita Bunce, Sabrina Fox, David Hanson, John Overfelt, Elaine Smith, Patricia
Swisher, Ashley Kinsella, and Kim Williams.
3) Discovery on the merits was stayed until the Court ruled on Defendants'
Motion for Summary Judgment. (See d/e 10/22/2022). The discovery deadline is RESET
for August 4, 2023. The dispositive motions deadline is RESET for September 5, 2023.
ENTERED: 5/11/23
s/ James E. Shadid
James E. Shadid
United States District Judge