Waldrop, Sr. v. Doe

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANDREW WALDROP, SR.,

Plaintiff,

v. Case No. 3:18-cv-1770-NJR-GCS

NICOLE MARSHALL,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Andrew Waldrop, Sr., an inmate in the custody of the Illinois Department

of Corrections (“IDOC”), alleges that Defendant Nicole Marshall was deliberately

indifferent to his serious medical needs after he suffered a fall due to low blood sugar.

According to Defendant, Waldrop’s claim cannot proceed because he failed to exhaust

his administrative remedies before filing suit.

FINDINGS OF FACT

Waldrop was incarcerated at Menard Correctional Center (“Menard”). Waldrop

has type-1 diabetes, and, on June 24, 2016, he fell while climbing down from the top bunk

in his cell, allegedly due to low blood sugar, injuring his knees (Doc. 1). Waldrop claims

that Defendant Nicole Marshall, a member of the medical staff, denied him care and that,

as a result, his pain went unaddressed for several days, resulting in a permanent limp. Id.

Lori Oakley, a grievance officer, searched Menard’s records for grievances

submitted by Waldrop between June 2016 and August 2016, and she did not locate any

grievances (Declaration of Lori Oakley, Doc. 24-1). She found only one grievance dated

September 1, 2016. Id. The grievance was marked as an emergency by Waldrop, but the

Chief Administrative Officer (CAO) determined that it was not an emergency on

September 1, 2016, and returned it to Plaintiff. Id. The grievance was never re-submitted.

Id.

The Administrative Review Board (ARB) records include a grievance dated

August 21, 2016, that relates to Waldrop’s claims in this action (Doc. 24-3). The grievance

does not have a response from a counselor, a grievance officer, or the CAO at Menard. Id.

Waldrop included a letter dated August 22, 2016, with the grievance. Id. In the letter,

Waldrop wrote that he submitted the grievance at Menard on July 7, 2016, but he did not

receive a response. Id. He said that he spoke to his counselor about not receiving a

response twice, but he still didn’t receive a response. Id. The ARB received the grievance

on August 26, 2016; it was denied on August 31, 2016, because it was submitted without

the required facility responses and outside the timeframe required by department rule

504. Id.

In his response to Marshall’s motion, Waldrop maintains that the grievance

process was unavailable to him.1 (Doc. 26). He claims that he submitted two grievances

to his counselor, Jason Vasquez, but he never received responses, prompting him to file

1 In her reply brief, Marshall argues that Waldrop’s response should not be considered because it was not

timely-filed. Waldrop’s response was due by July 29, 2019, but he did not file it with the Court until August

15, 2019. In an exhibit attached to his response, Waldrop explains that he sent his response to the law library

to be filed on July 11, 2019, but it was not filed. He also attaches an August 6, 2019 letter from defense

counsel explaining that his response was mailed to the Attorney General’s office but was not filed with the

Court. While Waldrop should have sought leave to file a late response, it would be unduly punitive to

refuse to consider his response, so the Court rejects Marshall’s argument as to the timeliness of the response.

the grievance directly with the ARB. Id. Waldrop’s cumulative counseling summary does

not reflect conversations with Vasquez about his medical treatment or about grievances.

(Doc. 27-1, p. 5). In the counseling summary, there is only one entry of face to face contact

between the two, where Waldrop and Vasquez discussed the possibility Waldrop’s

transfer to another IDOC facility. Id.

The Court held an evidentiary hearing on November 22, 2019. At the hearing,

Waldrop testified that he submitted his first grievance when he was in the East Cell

House area of Menard. He claimed that he put the grievance in between the bars of his

cell for receipt, an understood process at the time amongst inmates. Waldrop said that he

put the name of his counselor at the time on the grievance, although he could not recall

the name or identify her in any way other than describing her as female. He stated that

he was then moved to the North 2 Disciplinary Unit, where Vasquez was his counselor.

He testified that he filed another grievance with Vasquez and spoke to Vasquez several

times about the status of his grievance to no avail.

Vasquez also testified. For his part, he said that he never received or spoke with

Waldrop about a grievance. When questioned about his practice of keeping notes for the

counseling summary, Vasquez claimed that he took meticulous notes when speaking to

inmates and always logged his conversations. He further stated he would have written

down and logged a conversation with Waldrop about a grievance if one would have

occurred.

LEGAL STANDARDS

A. Summary Judgment

Summary judgment is proper only where the moving party can demonstrate no

genuine issue of material fact exists and the movant is entitled to judgment as a matter of

law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins

v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). All facts and

reasonable inferences must be construed in favor of the non-moving party. Blow v. Bijora,

Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing Calumet River Fleeting, Inc. v. Int’l Union of

Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48 (7th Cir. 2016)).

B. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all

administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a);

Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). Proper exhaustion requires an inmate

to “file complaints and appeals in the place, and at the time, the prison’s administrative

rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).

Under the procedures set forth in the Illinois Administrative Code, an inmate is

required to file a written grievance within 60 days of the “incident, occurrence or problem

that gives rise to the grievance.” 20 ILL. ADMIN. CODE § 504.810(a). The grievance must be

filed with the inmate’s counselor, unless certain discrete issues are being grieved. Id. If

the complaint is not resolved through a counselor, the grievance is considered by a

grievance officer who must render a written recommendation to the CAO (usually the

Warden) within two months of receipt, “when reasonably feasible under the

circumstances.” Id. at § 504.830(e). The Warden then advises the inmate of a decision on

the grievance. Id.

An inmate may also file an emergency grievance that is forwarded directly to the

Warden. Id. at § 504.840. If “there is a substantial risk of imminent personal injury or other

serious or irreparable harm to the offender,” consideration of the grievance will be

expedited. Id. at § 504.840(a) and (b). An inmate may appeal the Warden’s decision to the

IDOC Director. Id. at § 504.850(a). The appeal must be in writing, must be directed to the

ARB, and must be received by the ARB within 30 days of the date of the Warden’s

response. See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). The ARB will

submit a written report of its findings and recommendations to the Director who shall

review the same and make a final determination within six months of receipt of the

appeal. Id. § 504.850(d) and (e).

DISCUSSION

While it is true that defendants bear the burden of establishing the affirmative

defense of failure to exhaust administrative remedies, see Pavey v. Conley, 663 F.3d 899,

903 (7th Cir. 2011), Marshall has met that burden here. From an administrative

perspective, it does not appear that Waldrop filed a grievance concerning his fall with

any counselor at Menard. The records suggest that he filed his grievance to the ARB, and

the grievance was rejected because it was submitted without the required facility

responses and outside the 60-day timeframe. That leads to the question of whether the

grievance procedures at Menard were unavailable to Waldrop, and the divergent

accounts of the two witnesses that follow.

In this case, the Court does not find Waldrop’s testimony credible. He was unable

to provide plausible specifics about the grievances he allegedly submitted or his follow

up conversations when he did not receive a response. On the other hand, Vasquez

explained his routine process of logging inmate conversations, and was convincing that —

if he had been a part of the conversations Waldrop insisted the two had—it would have

been in the counseling notes. Waldrop, on the other hand, wanted to testify for Vasquez

and recreate a conversation that likely never took place. Weighing the two conflicting

stories as it must here, the Court simply finds Vasquez’s testimony more believable.

CONCLUSION

Simply stated, based on the documentary evidence and testimony, Waldrop’s ARB

grievance was not sufficient to exhaust his administrative remedies. Accordingly, the

Motion for Summary Judgment filed by Marshall (Doc. 23) is GRANTED. This entire

action is DISMISSED without prejudice. The Clerk of Court is DIRECTED to close this

case and enter judgment accordingly.

IT IS SO ORDERED.

DATED: November 25, 2019

Teceg MM ooesteg

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Page 6 of 8

NOTICE

Out of an abundance of caution, the Court advises Waldrop as follows. If Waldrop

wishes to contest this Order, he has two options. He can ask the Seventh Circuit to review

the Order, or he can first ask the undersigned to reconsider the Order before appealing

to the Seventh Circuit.

If Waldrop chooses to go straight to the Seventh Circuit, he must file a notice of

appeal within 30 days from the entry of judgment or order appealed from. FED. R. APP. P.

4(a)(1)(A). The deadline can be extended for a short time only if Waldrop files a motion

showing excusable neglect or good cause for missing the deadline and asking for an

extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421,

424 (7th Cir. 2012) (explaining the good cause and excusable neglect standards);

Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807 (7th Cir. 2011) (explaining the

excusable neglect standard).

On the other hand, if Waldrop wants to start with the undersigned, he should file

a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The

motion must be filed within twenty-eight (28) days of the entry of judgment, and the

deadline cannot be extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply

with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the Court should

reconsider the judgment. Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano v. Nw.

Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford Life &

Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to amend

judgment, a party must clearly establish (1) that the court committed a manifest error of

law or fact, or (2) that newly discovered evidence precluded entry of judgment.”) (citation

and internal quotation marks omitted).

So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-

day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock

will start anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P.

4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the 28-

day deadline or “completely devoid of substance,” the motion will not stop the clock for

filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v. CSX

Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–20 (7th

Cir. 1977). Again, this deadline can be extended only on a written motion by Waldrop

showing excusable neglect or good cause.

The Court has one more bit of instruction regarding the appeals process. If

Waldrop chooses to appeal to the Seventh Circuit, he can do so by filing a notice of appeal

in this Court. FED. R. APP. P. 3(a). The current cost of filing an appeal with the Seventh

Circuit is $505.00. The filing fee is due at the time the notice of appeal is filed. FED. R. APP.

P. 3(e). If Waldrop cannot afford to pay the entire filing fee up front, he must file a motion

for leave to appeal in forma pauperis (“IFP motion”) along with a recent statement for his

prison trust fund account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth

the issues Waldrop plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is

allowed to proceed IFP on appeal, he will be assessed an initial partial filing fee. 28 U.S.C.

§ 1915(b)(1). He will then be required to make monthly payments until the entire filing

fee is paid. 28 U.S.C. § 1915(b)(2).