The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZACHARY WATTS,
Plaintiff,
v. Case No. 3:18-CV-01334-NJR-GCS
KYLE WILLIAMS and
TRACY PEEK,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Zachary Watts, an inmate of the Illinois Department of Corrections (“IDOC”),
filed this suit pursuant to 42 U.S.C. § 1983 alleging that, while he was incarcerated at
Pinckneyville Correctional Center, Defendant Kyle Williams, a correctional officer, and
Defendant Tracy Peek, a nurse, were deliberately indifferent to his serious medical needs in
violation of his Eighth Amendment rights. According to Watts, both Williams and Peek
denied his requests for clean, new colostomy bags and medical supplies.
Now before the Court are Defendants’ motions (Docs. 27, 30) arguing that Watts failed
to exhaust his administrative remedies prior to filing suit. For the reasons explained below,
the Court grants Defendants’ motions for summary judgment.
FACTUAL BACKGROUND
Watts filed his complaint on June 28, 2018, alleging deliberate indifference to his
serious medical needs by Defendants Williams and Peek. Watts is confined to a wheelchair
and has a colostomy bag. He claims that he did not receive his needed medical supplies,
namely new colostomy bags, on November 13, 2016. He told the nurse in charge of
distributing supplies that day that he needed the bags, but the nurse did not have any. As a
result, Watts alleges that he was forced to wear a diaper around his open stomach wound for
two weeks while the healthcare unit failed to provide him with his much-needed colostomy
bags.
According to Watts, on June 11, 2017, Peek informed him that she did not have any
colostomy bags. When Watts asked her what to do because he was using his last bag, Peek
allegedly told him to reuse it or to use the clear garbage bag that his diapers and wipes came
in. He also claims that she told him to write a grievance if he “didn’t like it.” (Doc. 1, p. 11).
Watts alleges that he also spoke with Williams about his medical needs and asked him to ask
the healthcare unit about Watts’s supplies, particularly his colostomy bags, but Williams did
not help him.
Relevant to his claims in this action, Watts filed two grievances. The first, dated
November 14, 2016, complained that he was out of colostomy bags and that he did not receive
his weekly supply from the healthcare unit. (Doc. 28-2, p. 10-16). The grievance mentioned a
nurse, but it did not mention a correctional officer’s involvement. A grievance counselor
responded to the grievance on December 7, 2016, stating that Health Care Unit Administrator
Brown spoke with Watts on several occasions and explained that he did not need to use a
new bag each day. Brown also told the grievance counselor that when Watts was shaken
down in September, he had ten bags in his cell, and that the need for additional supplies was
addressed with Wexford.
A grievance officer denied the grievance on January 5, 2017, and the Chief
Administrative Officer (CAO) concurred in the decision on January 25, 2017. While Watts
signed and dated the appeal section on the grievance response on February 7, 2017, it was
not received by the Administrative Review Board (ARB) until March 10, 2017, two weeks
after his appeal deadline lapsed. The ARB offered no further redress on March 22, 2017,
finding that Watts did not submit his appeal within the timeframe outline in Department
Rule 504. (Doc. 28-2, p. 10-16).
Watts filed a second grievance about not receiving sufficient numbers of colostomy
bags on June 13, 2017. (Doc. 28-1, p. 25-27). In it, he complains that on June 11, 2017, Tracy
Peek passed out medical supplies. Watts told her that he needed bags and was in desperate
need of a colostomy bag dressing change. Peek allegedly told him to use the same bag he had
on or to use the bag that his medical supplies came in. The grievance does not mention a
correctional officer by name or by description.
Watts marked the grievance as an emergency, and the CAO agreed that it was an
emergency on June 30, 2017. A grievance officer reviewed the grievance on July 7, 2017, and
recommended that it be denied because the colostomy bags are reusable, and Watts was
found to keep a stockpile of bags hidden in his cell in the past. The CAO concurred in the
response on July 18, 2017. (Doc. 28-1, p. 25-27). There is no record of an appeal of the June
2017 grievance in the ARB’s records.
LEGAL STANDARDS
Summary judgment is “proper if the pleadings, discovery materials, disclosures, 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”). See 42 U.S.C. §1997e(a). That statute 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).
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, 740-41 (7th Cir. 2008). Here, the question of
exhaustion does not rely on weighing debatable factual issues and involves only a question
of law.
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). A 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, 286 F.3d 1022, 1025 (7th Cir. 2005).
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.
In Pavey, the Seventh Circuit set forth procedures for a court to follow in a situation
where failure to exhaust administrative remedies is raised as an affirmative defense. The
Seventh Circuit stated the following:
(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.
Id. at 742.
As an IDOC inmate, Watts was required to follow the regulations contained in the
IDOC’s Grievance Procedures for Offenders (“grievance procedures”) to exhaust his claims
properly. See 20 ILL. ADMIN. CODE §504.800, et seq. The grievance procedures first require an
inmate file his 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:
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 CAO’s response, he can file an appeal with the
Director through the ARB. See 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 Administrative Review Board within 30 days after the date of the decision.”
20 ILL. ADMIN. CODE §504.850(a). 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 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
six 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).
The grievance procedures also allow an inmate to file an emergency grievance. See 20
ILL. ADMIN. CODE §504.840. In order to file an emergency grievance, the inmate must forward
the grievance directly to the CAO who may “[determine that] there is a substantial risk of
imminent personal injury or other serious or irreparable harm to the offender [such that] the
grievance [should] be handled on an emergency basis.” 20 ILL. ADMIN. CODE §504.840(a). If
the CAO determines the grievance should be handled on an emergency basis, then the CAO
“shall expedite processing of the grievance and respond to the offender indicating what
action shall be or has been taken.” 20 ILL. ADMIN. CODE §504.840(b). If the CAO determines
the grievances “should not be handled on an emergency basis, the offender shall be notified
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). When an inmate appeals a
grievance deemed by the CAO to be an emergency, “the Administrative Review Board shall
expedite processing of the grievance.” 20 ILL. ADMIN. CODE §504.850(f).
ANALYSIS
Neither of Watts’s relevant grievances were exhausted fully prior to him filing suit
against Defendants Peek and Williams. Watts failed to appeal the CAO’s decision on his June
2017 grievance to the ARB. As such, it was not exhausted fully. While Watts attempted to
appeal the denial of his November 2016 grievance, the ARB received his appeal well outside
the 30-day timeframe required by Department Rule 504. The ARB was not incorrect in
concluding the appeal was not timely, and, as a result, the November 2016 grievance was not
fully exhausted. Additionally, neither grievance mentions Defendant Williams or any
correctional officer by name or by description in a manner that put Pinckneyville on notice
that there were issues to resolve related to a correctional officer’s interactions with Watts.
Thus, Watts failed to fully exhaust his administrative remedies prior to filing suit.
CONCLUSION
For the reasons set forth above, Defendants’ motions for summary judgment (Docs.
27,30) are GRANTED. Plaintiff Zachary Watts’s claims against Defendant Kyle Williams and
Defendant Tracy Peek are DISMISSED without prejudice for failure to exhaust
administrative remedies. The Clerk of Court shall enter judgment accordingly and close this
case.
IT IS SO ORDERED.
DATED: September 25, 2019
ef floaty
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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