The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEPHEN D. GREEN, )
)
Plaintiff, )
)
v. ) Case No. 19-CV-971-RJD
)
RONALD VITALE, SUSAN GRIFFIN, and )
DR. AFUWAPE, )
)
Defendants. )
MEMORANDUM AND ORDER
DALY, Magistrate Judge:
The matter is before the Court on the Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (Doc. 48) filed by Defendants Griffin and Vitale. For the following
reasons, Defendants’ motion is GRANTED.
BACKGROUND
Plaintiff Stephen Green, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights
were violated while he was incarcerated at Southwestern Illinois Correctional Center
(“S.W.I.C.C.”). Following threshold review, Plaintiff proceeds on the following claims:
Count 1: Eighth Amendment claim of deliberate indifference to Plaintiff’s unsafe
working conditions against Vitale.
Count 3: Eighth Amendment claim of deliberate indifference to a serious medical
need against Vitale, Griffin, and Dr. Afuwape.
Defendants Griffin and Vitale filed a motion for summary judgment asserting Plaintiff
failed to properly exhaust his administrative remedies prior to filing this lawsuit (Doc. 48).
Specifically, Defendants contend while Plaintiff filed multiple grievances, he did not grieve the
actions of either Warden Vitale or Griffin. Plaintiff timely filed a response (Doc. 52) arguing
Defendants were aware of his complaints, he was never instructed on how to properly write a
grievance, and he feared retaliation if he named the warden in a grievance.
The Court reviews the following relevant grievances contained in the record.
June 7, 2019, 012-06-2019 (Docs. 49-1 at 27-28, 49-2 at 8-9): Plaintiff states he
sustained an injury when a forklift operator accidently lowered a pallet of sandbags onto his foot.
Plaintiff was taken to St. Elizabeth’s hospital for treatment and then returned to S.W.I.C.C.
Plaintiff states in the grievance that the Warden, COs, lieutenants, majors, and the “majority of the
medical staff” treated him with the “upmost respect and gave me immediate care.” However,
Plaintiff grieves that Nurse Sawyer and Dr. Afuwape were disrespectful and failed to provide him
proper medical treatment. Specifically, Plaintiff grieves Afuwape aggressively grabbed and
twisted his foot and Nurse Sawyer was rude and threatened him with discipline when he asked for
pain medication. Plaintiff’s requested relief was for proper treatment and respect from all staff.
Additionally, Plaintiff asked for an apology from Sawyer and that the Warden make Sawyer and
Afuwape take sensitivity training. On June 18, 2019, the counselor responded that the grievance
was reviewed, and he had been evaluated and treated by an emergency medical provider and that
all staff presented themselves in professional manner. The grievance was denied.
On June 24, 2019 the grievance was appealed to the grievance office (Doc. 49-1 at 26).
On June 27, 2019, the grievance officer reviewed the grievance and contacted the health care unit
administrator who confirmed the offender had been seen by medical providers since the injury.
The administrator further noted the offender had pain medication, crutches, and a low bunk permit
until he was released by a physician. The grievance officer noted the offender’s healthcare needs
were being met and that he could not substantiate staff misconduct. It was recommended the
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grievance be denied. On July 1, 2019, the chief administrative officer concurred.
On July 12, 2019, the Administrative Review Board received an appeal of the June 7, 2019
grievance and a June 8, 2019 grievance. The ARB denied the appeal on August 5, 2019 finding
that the issues were appropriately addressed by the facility Administration (Doc. 49-1 at 14).
Defendants Griffin and Vitale assert this grievance does not serve to exhaust Plaintiff’s
administrative remedies as to either of them because he does not grieve any actions taken by Griffin
or Vitale. Defendants point out that Plaintiff actually stated that the Warden (Vitale) treated him
with the “utmost respect.”
June 8, 2019, 011-06-2019 (Doc. 49-1 AT 16-17): This grievance was filed as an
emergency. On June 11, 2019, the CAO determined the grievance was not an emergency and
informed Plaintiff he should submit in in the normal manner. Plaintiff states that his foot was
injured when a forklift was lowered on his foot while he was working on a sandbag crew. Plaintiff
named staff member Palm as the operator of the forklift. Plaintiff explains that he was taken to
St. Elizabeth’s Hospital and then subsequently treated by medical personnel at S.W.I.C.C.
Plaintiff sets forth the actions of staff at St. Elizabeth’s as well at Nurse Sawyer. Plaintiff grieves
that he is in pain and that since the accident happened the day before, he has received two
disciplinary reports. The requested relief was for physical therapy, examination by foot specialist
and nerve doctor at an outside hospital, medical bills paid for by IDOC, future help for physical
injuries and emotional damages, proper training for staff, and an OSHA contact.
On June 20, 2019, a counselor reviewed the grievance and contacted the health care unit.
A statement from Susan Griffin, the Health Care Unit Administrator, set forth that Plaintiff was
diagnosed at St. Elizabeth’s Emergency Room with a toe injury (Doc. 49-2 at 10). She further
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states he was last seen on June 19, 2019, by a doctor and the swelling was practically gone and he
was continuing to improve. She also indicated he had pain medication, crutches, and a low bunk
permit until released from the doctor’s care. The grievance was denied.
On June 24, 2019, Plaintiff appealed to the grievance office (Doc. 49-1 at 15). Upon
review, the grievance officer determined Plaintiff was treated appropriately for his left foot/toe
injury, his medical bills are paid while he is in IDOC custody, and his healthcare needs were being
met at the time. It was recommended the grievance be denied. On June 26, 2019, the CAO
concurred.
Plaintiff appealed the grievance to the ARB, along with the grievance from the prior day.
As set forth above, the ARB determined the issue was handled appropriately by the Administration
of the facility and denied the appeal.
Defendants Griffin and Vitale assert this grievance does not serve to exhaust his
administrative remedies as to either of them because he does not name or describe actions taken
by Griffin or Vitale.
June 10, 2019, #013-06-2019 (Doc. 49-1 at 10-11): Plaintiff states that on June 7, 2019
he was mistreated in the health care unit. Plaintiff grieves that he was issued a disciplinary ticket
by Nurse Sawyer on June 7, 2019, and a second ticket by Sgt. Hawkins on June 10, 2019. Plaintiff
also states he was yelled at by Dr. Afuwape and Sgt. Hawkins. The requested relief was for both
tickets to be expunged and for a written apology from Hawkins and Sawyer. On June 18, 2019,
a counselor reviewed the grievance, determined Plaintiff was given two IDRs and found guilty of
both. The final summary report for the two IDRs found Plaintiff guilty of insolence on June 7,
2019 and June 10, 2019 and he received 14 days phone restriction and 14 days commissary
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restriction (Doc. 49-1 at 12-13). The counselor could not substantiate the staff conduct
complaints and denied the grievance.
On June 19, 2019, Plaintiff appealed to the grievance office. The grievance officer
reviewed Plaintiff’s medical records as well as the tickets issued and determined the tickets and
discipline stand as issued and recommended denying the grievance (Doc. 49-1 at 9). On July 1,
2019, the CAO concurred.
On August 5, 2019, the ARB reviewed the disciplinary report and denied Plaintiff’s appeal
finding no violation of his due process (Doc. 49-1 at 8).
Defendants again assert this grievance does not serve to exhaust his administrative
remedies as to either of them because he does not grieve any actions taken by Griffin or Vitale.
July 10, 2019, #023-07-2019 (Doc. 49-1 at 6-7): Plaintiff states that on this date Dr.
Afuwape took away his crutch and informed him he was done with Plaintiff’s foot injury and “tired
of this file.” Plaintiff spoke with Counselor Davison, multiple lieutenants, and the health care
unit administrator and nobody could provide him a crutch. Plaintiff states that the health care unit
administrator told him to try to walk on his foot to see if it will heal. Plaintiff grieves that he is
in pain and needs an MRI. The relief requested was an MRI from an outside hospital, a crutch to
help him get around, help for his pain and suffering, physical therapy, and to see a foot doctor.
On July 22, 2019, Susan Griffin, the Health Care Unit Administrator, reviewed Plaintiff’s
grievance and his medical record which indicated he was last seen on July 15, 2019 and the left
foot injury remains resolved (Doc. 49-2 at 24). At that time, Plaintiff was released and approved
to resume school, work, yard, gym, and sports. On July 29, 2019, a counselor reviewed the
memorandum from the health care unit administrator and recommended the grievance be denied.
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On August 23, 2019, Plaintiff appealed to the grievance office (Doc. 49-1 at 5). The
grievance officer reviewed the grievance and all available information and recommended the
grievance be denied based upon medical documentation that offender had received appropriate
treatment. On August 27, 2019, the CAO concurred.
On September 3, 2019, the ARB received an appeal (Doc. 49-1 at 2). On September 12,
2019, the ARB denied the grievance finding the issue was appropriately addressed by the facility
Administration.
Defendants assert Plaintiff failed to properly exhaust this grievance prior to filing suit
because he did not wait to receive a response from the ARB when he filed suit on September 4,
2019. Additionally, Defendants argue Warden Vitale is neither mentioned or described in the
grievance.
After a careful review of the arguments and evidence set forth in the parties’ briefs
regarding the issue of exhaustion, the Court determined that an evidentiary hearing pursuant to
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) is not necessary.
LEGAL STANDARD
Summary judgment is appropriate only if the moving party can demonstrate “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-
Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In determining a summary judgment motion, the Court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital,
Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Pursuant to 42 U.S.C. § 1997e(a), inmates are required to exhaust available administrative
remedies prior to filing lawsuits in federal court. “[A] prisoner who does not properly take each
step within the administrative process has failed to exhaust state remedies.” Pozo v. McCaughtry,
286 F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies
have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on
the merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v.
Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll dismissals under § 1997e(a)
should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance within 60 days after the discovery of the incident, occurrence or problem, to his
or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN.
CODE § 504.810(a). 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 Chief
Administrative Officer — usually the Warden — within two months of receipt, “when reasonably
feasible under the circumstances.” Id. §504.830(e). The CAO then advises the inmate of a
decision on the grievance. Id.
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An inmate may appeal the decision of the Chief Administrative Officer in writing within
30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); 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 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and
(e).
An inmate may request that a grievance be handled as an emergency by forwarding it
directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a
substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is
handled on an emergency basis, which allows for expedited processing of the grievance by
responding directly to the offender. Id. Inmates may further submit certain types of grievances
directly to the Administrative Review Board, including grievances related to protective custody,
psychotropic medication, and certain issues relating to facilities other than the inmate’s currently
assigned facility. Id. at § 504.870.
ANALYSIS
Defendants Vitale and Griffin argue Plaintiff failed to name or identify them in any
grievance that was properly exhausted before filing suit. Plaintiff argues he was never given any
instructions on how to write a grievance and did not know to name each person that was liable.
Additionally, Plaintiff asserts he did not know that he could name Defendant Vitale because he
was the Chief Administrative Officer. Plaintiff also argues he feared retaliation if he named
administrators in his grievances.
The grievance form completed by Plaintiff specifically instructs offenders to, “Provide
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information including a description of what happened, when and where it happened, and the name
or identifying information for each person involved.” The June 6, 2019, June 7, 2019, and June
10, 2019 grievances do not name or grieve any actions taken by Defendants Vitale or Griffin.
Plaintiff’s argument that he was not aware he needed to name each individual in a grievance is
without merit. Additionally, Plaintiff fails to set forth any evidence that he would have been
subjected to retaliation if he would have named either administrator in a grievance.
In the July 10, 2019 grievance, Plaintiff did state that Plaintiff spoke to the health care unit
administrator (Defendant Griffin) regarding crutches, but Plaintiff failed to properly exhaust this
grievance. Plaintiff appealed the grievance on September 3, 2019, and filed suit on September 4,
2019, before waiting for the response from the ARB. Proper exhaustion is required as a
prerequisite to filing suit. Additionally, Plaintiff failed to name or identify Defendant Vitale in
this grievance. Defendants Vitale and Griffin are entitled to summary judgment for failure to
exhaust administrative remedies.
CONCLUSION
Based on the foregoing, the Motion for Summary Judgment based on Plaintiff’s Failure to
Exhaust Administrative Remedies filed by Defendants (Doc. 48) is GRANTED, and Plaintiff’s
claims against Defendants Vitale and Griffin are DISMISSED WITHOUT PREJUDICE. The
Clerk shall enter judgment accordingly at the close of the case.
Plaintiff proceeds in the case on the following claim:
Count 3: Eighth Amendment claim of deliberate indifference to a serious medical
need against Dr. Afuwape.
IT IS SO ORDERED.
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DATED: April 2, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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