# Waldrop, Sr. v. Doe

> District Court, S.D. Illinois · November 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10151198

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10151198

## How later opinions describe it (automated extraction)

- explaining the good cause and excusable neglect standards
- explaining the excusable neglect standard

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151198. Public record. Not legal advice.