Smith v. Thompson

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

GARY SMITH, )

)

Plaintiff, )

)

vs. ) Case No. 3:18-cv-2190-GCS

)

SCOTT THOMPSON, )

KAREN JAIMET, )

CHRISTINE BROWN, )

DR. SCOTT, )

DR. BUTALID, and )

WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

As narrowed by this Court’s threshold order (Doc. 10), Plaintiff Gary Smith alleges

that Defendants Jaimet, Brown, Scott, Butalid, and Wexford Health Sources, Inc. were

deliberately indifferent to his serious medical needs by failing to ensure that he received

adequate medical care for a severe sore throat that made it difficult for Smith to breathe

and to swallow.1 On March 20, 2020, Defendants Brown and Jaimet filed a motion for

summary judgment on the issue of exhaustion of administrative remedies. (Doc. 44).

Smith, through counsel, responded in opposition on April 28, 2020. (Doc. 48). For the

reasons delineated below, Defendants’ motion is denied.

1 The threshold order added Warden Scott Thompson as a defendant in his official capacity only

because, in addition to monetary damages, Smith seeks injunctive relief.

FACTUAL BACKGROUND

At all times relevant to his complaint, Smith was incarcerated at Pinckneyville

Correctional Center (“Pinckneyville”). Defendant Karen Jaimet was the warden at

Pinckneyville, and Defendant Christine Brown was the healthcare unit administrator

(“HCUA”). Smith alleges that he had a red, swollen, and irritated uvula that resulted in

a severe sore throat that caused difficulty breathing and swallowing. When he felt that

his medical issues were not treated adequately, Smith began filing grievances requesting

that he be sent to an outside ear, nose, and throat specialist.

Defendants attach two relevant grievances to their motion. In the first, dated April

25, 2017, Smith explains that he was being denied proper and adequate healthcare. He

complained that he submitted a sick call request for his throat issues on July 18, 2016, and

that he saw a nurse who referred him to Dr. Scott. Dr. Scott diagnosed Smith with allergy

issues and was given a prescription that did not help his symptoms. Smith explained that

he submitted another sick call request on January 8, 2017. He spoke with a nurse before

being examined by Nurse Practitioner Rector on January 12, 2017. Rector ordered blood

tests and an x-ray before allegedly telling Smith he needed to see a throat specialist. (Doc.

45, p. 13-14).

The grievance goes on to explain that Smith saw Dr. Scott in February 2017 and a

nurse in March 2017. On April 8, 2017, Smith was seen by a doctor’s assistant, Tim

Adesanya, who told Smith he would be referred to a doctor. (Doc. 45, p. 15). Smith did

not name Brown or Jaimet in the grievance. A counselor reviewed Smith’s grievance on

April 25, 2017, writing, “Per HCUA: Offender has been treated per the assessment and

judgment of the providers. He was seen by the PA on 4-08-17 and has been referred to

the MD. He is scheduled to see the doctor on 4-30-17.” (Doc. 45, p. 13). The grievance does

not contain a response from a grievance officer or from the Chief Administrative Officer

(“CAO”).

A July 5, 2017 memorandum from a grievance officer to Smith explains that the

April 2017 grievance was being returned to him because Smith did not submit it to the

grievance officer until July 5, 2017, when the counselor had returned the grievance to

Smith on April 27, 2017. (Doc. 45, p. 17). In a letter to the Administrative Review Board

(“ARB”) dated July 11, 2017, Smith explained that a grievance officer denied the

grievance on July 5, 2017, but explained that “this denial does not contain the signature

of the Grievance Officer or the concurrence of the Chief Administrative Officer,” even

though Smith claimed that he submitted the grievance to the grievance officer on May 11,

2017. (Doc. 45, p. 16). On July 26, 2017, the ARB offered no further redress to Smith

because the grievance was not submitted in the timeframe required by Department Rule

504 and because it was forwarded without a grievance officer’s response. (Doc. 45, p. 12).

The second grievance attached to Defendants’ motion is dated December 28, 2017.

In the grievance, Smith again addresses what he views as the ongoing denial of necessary

medical treatment. He explained that he had been seen by nurses, nurse practitioners,

and doctors but was being denied a referral to an ENT specialist. He referred to additional

grievances he filed on April 25, May 23, June 8, and July 11 that were of no help in

securing a referral. Smith requested that he be referred to a specialist for treatment of his

uvula and breathing problems. (Doc. 45, p. 20-21).

A grievance officer responded on January 5, 2018, “Per the HCUA: Wexford

Health Source has denied an outside referral. Pinckneyville HCUA has sent an appeal to

the Office of Health Services. At this time Wexford does not feel that an outside referral

is medically necessary.” (Doc. 45, p. 20). A grievance officer denied Smith’s grievance on

March 13, 2018. Jaimet concurred in the denial on March 26, 2018. (Doc. 45, p. 19). Smith

appealed to the ARB on April 18, 2018. (Doc. 45, p. 19). The ARB denied his grievance on

May 22, 2018, because the treatment requested must be ordered by an attending

physician. (Doc. 45, p. 18).

With his response to Defendants’ motion, Smith included additional grievances

about his medical treatment and copies of letters he sent seeking assistance with his

treatment. (Doc. 48-1). Smith wrote a grievance on May 23, 2017, involving his medical

treatment and his ongoing pain. (Doc. 48-1, p. 12). The grievance complains about the

medical director and Dr. Butalid. A counselor received the grievance on June 9, 2017, and

responded on August 10, 2017. The response cited information received from the HCUA,

Defendant Brown. No response from a grievance counselor, the CAO, or the ARB is

included. (Doc. 48-1, p. 12-13).

Smith again raised complaints with the medical director in a June 8, 2017

grievance. (Doc. 48-1, p. 14-15). A grievance counselor responded on June 14, 2017,

finding that it was a duplicate of the May 23, 2017 grievance. (Doc. 48-1, p. 14). The

grievance does not show a response from a grievance officer or the CAO, nor is there a

response from the ARB.

On August 14, 2017, Smith wrote to the grievance officer at Pinckneyville about

the May 2017 and June 2017 grievances. (Doc. 48-1, p. 16). According to the letter, Smith

enclosed the grievances, and he requested “access to the doctor ordered Ear Nose Throat

Specialist.” (Doc. 48-1, p. 16). No response to his letter was provided.

Smith also attached a copy of a July 11, 2017 grievance that states that it was filed

directly with Defendant Jaimet on an emergency basis. No response from Jaimet marking

it as an emergency or a non-emergency is shown on the copy provided. Similarly, no

response from a counselor, grievance officer, or the CAO is written on the grievance.

(Doc. 48-1, p. 18-19). Also attached to Smith’s response is a January 19, 2018 letter that he

wrote to Defendant Brown. In the four-page document, he recounted all of his issues

receiving care for his throat problems and asked her for assistance. (Doc. 48-1, p. 27-30).

Of the grievances submitted by the parties relevant to Smith’s throat issues, only the April

25, 2017 grievance and the December 28, 2017 grievance appear in the ARB’s records. (See

Doc. 48-2).

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”). 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, 740-741 (7th Cir. 2008).

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). 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.

Pavey, 544 F.3d at 742.

As an inmate confined within the Illinois Department of Corrections (“IDOC”),

Plaintiff 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 inmates to file

their 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 or she 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 CAO’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

The Court first considers the two grievances in the ARB’s records: the April 2017

grievance and the December 2017 grievance. Defendants maintain that neither grievance

complains about any specific conduct by Brown or Jaimet. They do not challenge,

however, that the grievances were exhausted fully. While the ARB raised timing issues

with respect to the April 2017 grievance, the December grievance was exhausted fully in

a timely manner and was considered on its merits by the ARB.

Defendants are correct that neither grievance identifies Jaimet or Brown by name

or by description of their position or conduct, but that does not establish, in turn, that

Smith failed to exhaust his administrative remedies. An inmate is not required to provide

personal notice to an individual defendant through his grievances. See Maddox v. Love,

655 F.3d 709, 722 (7th Cir. 2011)(citing Jones v. Bock, 549 U.S. 199, 219 (2007)(citing Johnson

v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)(stating that “[w]e are mindful that the primary

purpose of a grievance is to alert prison officials to a problem, not to provide personal

notice to a particular official that he may be sued.”))). Instead, the purpose of a grievance

is to provide “prison officials a fair opportunity to address [an inmate’s] complaints.” Id.

Here, prison officials, including Jaimet and Brown, were alerted to Smith’s

difficulties, and Smith exhausted grievances related to his complaints. Both Jaimet and

Brown participated in responding to Smith’s grievances. Jaimet’s name appears as the

signature on the December 2017 grievance on behalf of the CAO concurring with the

grievance officer’s decision to deny the grievance. Prison officials relied on information

from Brown, the healthcare unit administrator, in responding to both the April grievance

and the December grievance, as well as the other grievances Smith produced in his

response.2

Smith’s grievances, namely the December 2017 grievance, clearly explain that

Smith believed his requests for treatment were being ignored, which parallels the conduct

2 Because the Court finds that the December 2017 grievance exhausted Smith’s administrative

remedies, the Court need not reach whether the additional grievances produced by Smith show that his

administrative remedies were unavailable due to the failure of prison officials to respond.

that he alleges Brown and Jaimet engaged in after being informed of his difficulties.

Defendants seem to suggest that Smith needed to file a separate grievance complaining

that they, specifically, failed to address his lack of medical care by denying, or

participating in the denial of, his grievances, but they cite no precedent in support of such

a contention. As such, the undersigned finds that Defendants failed to carry their burden

of establishing the affirmative defense of failure to exhaust administrative remedies.

CONCLUSION

For all these reasons, Defendants’ motion for summary judgment on the issue of

exhaustion (Doc. 44) is DENIED.

Digitally signed

Alteee 2. 5. Date:

Dated: May 22, 2020. i "2020.05.22

09:02:16 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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