Owens v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES OWENS,

Plaintiff,

v. Case No. 3:17-CV-1387-NJR

WEXFORD HEALTH SOURCES, INC.,

LORI CUNNINGHAM SHINKLE,

LORI JACKMAN, JOHN COE,

WILLIAM MCFARLAND,

DEDE BROOKHART, and

JULIA PETTY,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on the motions for summary judgment on the issue

of exhaustion of administrative remedies filed by Defendants DeDe Brookhart, Lori

Cunningham Shinkle, and Julia Petty (Doc. 63) and by Defendants John Coe, Lori

Jackman, William McFarland, and Wexford Health Sources, Inc. (Doc. 64). For the reasons

set forth below, the motions are granted in part and denied in part.

BACKGROUND

Plaintiff James Owens is an inmate of the Illinois Department of Corrections

(IDOC), currently housed at Taylorville Correctional Center. On December 26, 2017,

Owens filed this action, pursuant to 42 U.S.C. § 1983, seeking damages for alleged

deprivations of his constitutional rights while he was housed at Lawrence Correctional

Center (Doc. 1). Specifically, Owens claims that between December 21, 2012, and April 4,

2017, he experienced lapses in his medications at least 39 times, with each lapse lasting

between 1 and 64 days (Doc. 19 at p. 4). Owens asserts that the delay in receiving his

medications caused him unnecessary pain and suffering (Id.).

After the filing of a Second Amended Complaint (Doc. 19) and the Court’s

screening of the complaint pursuant to 28 U.S.C. § 1915A (Doc. 20), Owens is proceeding

on one count of Eighth Amendment deliberate indifference against all Defendants for

failing or refusing to provide him with adequate supplies of Naproxen, Mobic,

Chlorpheniramine (CTM), and Claritin.

Defendants consist of various employees of the IDOC and its medical services

contractor, Wexford Health Sources, Inc. In his Second Amended Complaint, Owens

states that he his suing Wexford for disregarding its medication protocol and delaying

his access to prescribed medication (Doc. 19). He further alleges that Healthcare Unit

Administrator Lori Cunningham and Medical Director Dr. Coe were responsible for

ensuring compliance with healthcare protocols and were personally informed by Owens

of the delays in receiving his medications (Id.). Owens is suing Lori Jackman, under the

supervision of the Director of Nurses, Defendant William McFarland, for failing to

provide him with medications as prescribed by his doctors (Id.). Finally, Owens alleges

that Assistant Warden of Programs/ADA Coordinator DeDe Brookhart and Counselor

Julia Petty were responsible for investigating inmate issues brought to their attention, but

failed to do so (Id.).

Between December 2012 and May 2017, Owens submitted somewhere between

120 and 140 grievances to the Administrative Review Board (ARB). Only a fraction of

those grievances are relevant to the claims in this case. And, Defendants argue, zero of

them properly exhausted the administrative review process as to each named Defendant.

For that reason, Defendants assert, Owens’s claims must be dismissed.

Owens, on the other hand, claims that he properly exhausted his administrative

remedies by submitting numerous grievances and following the Illinois Administrative

Code’s procedures in place at the time he filed them (Docs. 70, 72). Thus, he argues,

Defendants’ motions for summary judgment should be denied.

RELEVANT GRIEVANCES

After reviewing the extensive record, the Court finds the following grievances to

be relevant to both Owens’s claims and Defendants’ motions for summary judgment.

1. April 20, 2014

On April 20, 2014, Owens submitted an emergency grievance to the warden, also

known as the Chief Administrative Officer (CAO), at Lawrence stating that Defendant

Dr. Coe had prescribed him CTM 4 mg tablets, with instructions to take one tablet by

mouth four times a day (Doc. 63-4 at p. 2). Owens complained he had been requesting a

refill for over a month by sending kites (notes) to the Healthcare Unit Pharmacy at least

once per week (Id.). He also sent kites to the Healthcare Unit Administrator, but to date

he had not received the requested refill (Id.). On April 21, 2014, the CAO marked the

grievance as a non-emergency and noted he should submit the grievance in the normal

manner (Doc. 63-4 at p. 2). Owens appealed the decision to the ARB, which received it on

May 2, 2014 (Id. at p. 1). On July 31, 2014, the ARB provided a response to Owens, stating

that because the grievance was deemed non-emergent by the warden, he “must go

through normal grievance procedure.” (Id.). The ARB instructed Owens to provide a copy

of his grievance and responses from the counselor, Grievance Officer, and CAO (Id.).

2. August 21, 2015

Owens submitted two emergency grievances to the CAO on August 21, 2015. In

the first, Owens complains that he sent multiple requests to Dr. Coe for a new CTM

prescription but did not receive it until nearly two months later (Doc. 65-2 at p. 4). He

further states, in both grievances, that he told the warden about the delay in receiving his

medications and that the warden said he would inform the Healthcare Unit

Administrator about the issue (Id. at p. 5). However, to date, he still had not received his

medications. The CAO determined an emergency was not substantiated on August 26,

2015, and Owens appealed to the ARB on September 4, 2015 (Id. at p. 2). The ARB returned

the grievances and told Owens to provide a copies of his grievances and responses from

the counselor, Grievance Officer, and CAO (Id.).

3. September 15, 2015

Owens submitted an emergency grievance to the CAO on September 15, 2015,

stating that he submitted a request slip on July 7, 2015, for a renewal of his CTM

prescription because it was about to expire (Doc. 63-7). He continued to request his CTM

from Dr. Coe and a nurse practitioner in August and September 2015, to no avail (Id.).

The CAO marked this grievance as a non-emergency and told Owens to submit it in the

normal manner (Id.). Owens appealed to the ARB, which responded on October 2, 2015,

by telling him to provide a copy of his grievance and responses from the counselor,

Grievance Officer, and CAO, “if timely” (Id.).

4. May 8, 2016

Owens submitted another emergency grievance on May 8, 2016, complaining he

had been out of his medications for 14 days (Doc. 63-8 at p. 2). Owens further stated his

prescription was not due to run out until August 2016, so there was no reason for an

interruption in his medication other than the Healthcare Unit’s desire to save Wexford

money (Id.). The CAO determined the grievance was not an emergency on May 9, 2016,

and Owens appealed to the ARB on May 19, 2016 (Id. at p. 3). The ARB returned the

grievance with instructions to provide a copy of his grievance and responses from the

counselor, Grievance Officer, and CAO, “if timely” (Id.).

5. February 28, 2017

On February 28, 2017, Owens filed an emergency grievance again complaining of

a delay in receiving his medication refills (Doc. 63-9 at p. 3). Owens asserted that he sent

requests to the Healthcare Unit and Assistant Warden Brookhart concerning his lack of

medication, to no avail (Id.). The CAO found this grievance did not constitute an

emergency on March 3, 2017; Owens appealed on March 15, 2017; the ARB returned the

grievance on March 29, 2017, indicating Owens needed to provide the Grievance Officer

and CAO’s response (Id. at pp. 2-3).

6. March 10, 2017

On March 10, 2017, Owens again complained in an emergency grievance about the

delay in receiving his medication refills (Doc. 65-2 at p. 17). The grievance mentions that

Owens sent a kite to Assistant Warden Brookhart about the situation, again to no avail.

The CAO determined an emergency was not substantiated on March 13, 2017, and Owens

appealed on March 22, 2017 (Id. at p. 16). The ARB told Owens to provide the Grievance

Officer and CAO’s response to his grievance (Id.).

7. October 17, 2017

On October 17, 2017, Owens filed a regular, non-emergent grievance in which he

again grieves not receiving his medication in a timely manner (Id. at p. 19). In this

grievance, he mentions that Defendant Jackman, under the supervision of Defendant

McFarland, is responsible for ordering and distributing inmate medications on time (Id.).

Counselor Petty received the grievance on October 25, 2017, but did not respond until

January 5, 2018, stating that, according to HCUA Cunningham, Owens was to continue

to submit medication refill requests through the Healthcare Unit (Id.). There is no

evidence that Owens submitted his grievance to the Grievance Officer, the CAO, or the

ARB after Counselor Petty responded.

LEGAL STANDARDS

Summary judgment is proper if the pleadings, discovery materials, disclosures,

and affidavits demonstrate no genuine issue of material fact and the movant is entitled

to judgment as a matter of law. FED. R. CIV. P. 56(a).

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. The

Seventh Circuit requires strict adherence to the PLRA’s exhaustion requirement. Dole v.

Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Exhaustion must occur before the suit is filed.

Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).

“To 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. 2002). Consequently, if a prisoner fails to properly utilize a prison’s

grievance process, “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. Under Pavey

v. Conley, “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).

Illinois Administrative Code

The grievance procedure for inmates of the IDOC is laid out in the Illinois

Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. Under the Code, there are two

pathways an inmate can take with regard to grievances. If the grievance pertains to an

issue that is not an emergency, the inmate must first file a grievance with the counselor

within 60 days of the discovery of an incident. Id. § 504.810(a). The grievance form must

contain factual details regarding what happened, when, where, and the name of each

person who involved in the complaint. Id. at 504.810(c). While this provision does not

preclude an offender from filing a grievance when the names of individuals are not

known, he or she must include as much descriptive information about the person as

possible. Id.

Grievances that are unable to be resolved through the counselor are then sent to

the Grievance Officer. Id. at § 504.820(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.” Id. at § 504.830(e). The Chief Administrative Officer

then reviews the findings and recommendation of the Grievance Officer and advises the

offender of his or her decision in writing. Id.

If the inmate is not satisfied with the response from the Chief Administrative

Officer, he or she can file an appeal the decision to the Administrative Review Board. Id.

at § 504.850(a). The appeal must be received by the ARB within 30 days after the date of

the CAO’s decision. Id. The ARB then must submit to the Director a written report of its

findings and recommendations. Id. at § 504.850(d). “The Director shall review the

findings and recommendations of the Board and make a final determination of the

grievance within 6 months after receipt of the appealed grievance, when reasonably

feasible under the circumstances.” Id. at § 504.850(e).

The other path an inmate can take is to request a grievance be handled on an

emergency basis by forwarding the grievance directly to the CAO. Id. at § 504.840. Under

the version of the Code in effect at the time Owens submitted his grievances, if the CAO

determines “there is a substantial risk of imminent personal injury or other serious or

irreparable harm to the offender, the grievance shall be handled on an emergency basis.”

20 ILL. ADMIN. CODE § 504.840(b) (2014). The CAO shall then expedite the review of the

grievance and inform the inmate as to what action shall be taken. 20 ILL. ADMIN. CODE §

504.840(c) (2014).

DISCUSSION

I. Grievance Procedure

Defendants first argue that Owens failed to properly exhaust his administrative

remedies because he failed to follow the grievance procedure laid out in the Illinois

Administrative Code. Specifically, Defendants contend that Owens did not resubmit his

emergency grievances through the normal grievance process once the CAO determined

they did not constitute an emergency. Instead, he appealed the CAO’s determination

directly to the Administrative Review Board. Thus, because Owens did not exhaust his

administrative remedies, his lawsuit is barred by the PLRA.

A recent opinion by the Seventh Circuit Court of Appeals disposes of this

argument. In Williams v. Wexford Health Sources, Inc., the plaintiff filed two emergency

grievances regarding Wexford’s failure to treat his severe vision issues in his left eye.

Williams v. Wexford Health Sources, Inc., 957 F.3d 828, 830-31 (7th Cir. 2020). The warden

disagreed that the grievances constituted emergencies and checked a box with the pre-

printed statement directing Williams to “submit this grievance in the normal manner.”1

Id. Williams appealed to the ARB, which returned at least one of the appeals after

checking a box on the form that told Williams to provide responses from his counselor,

the Grievance Officer, and the CAO. Id. at 831. Williams then filed a pro se complaint

under 42 U.S.C. § 1983 in federal court. Id. Wexford moved for summary judgment on the

grounds that Williams failed to exhaust his administrative remedies before filing suit. Id.

1 This is the same statement found on the grievances submitted by Owens.

The district court concurred with Wexford and found that because Williams did not re-

file his grievances through the standard grievance process after they were denied

emergency status, he failed to exhaust. Id.

The Seventh Circuit Court of Appeals disagreed. First, the Court observed that at

the time Williams filed his grievances in 2016, the Code was silent as to what should

happen when the Warden concludes a grievance is not an emergency. Id. at 832. Before

the Code was amended on April 1, 2017, to fill this gap, “nowhere in the Code did it say

that an inmate who invoked the emergency process in a non-frivolous way had to start

all over again with the standard procedure whenever the warden concluded that no

emergency existed.” Id. at 833. And although a prisoner must properly go through all the

steps offered by a prison, “this does not mean that the inmate must go beyond the

established system and guess at some other way of attracting the attention of the prison

authorities.” Id. at 833-34. Second, the Court noted the importance of transparency in the

grievance procedure. Id. at 834. “This helps everyone: the institution is better able to

investigate and resolve grievances if they are presented under a well-understood system,

and inmates are better able to comply with institutional expectations if the rules are

clear.” Id.

For these reasons, the Court held that Williams exhausted the remedies that were

available to him at the time. Id. “The competent authorities, including the warden and

the ARB, did not have the right to move the goal posts while Williams was in the middle

of his case and suddenly announce that special new requirements applied to him.” Id. at

835. The Court finally indicated that the outcome might be different if an inmate

frivolously asserts that his grievance is an emergency or if the ARB merely asks for

additional information rather than requiring the inmate to go through the normal

grievance procedure. Id.

Here, Owens filed multiple emergency grievances regarding delays in receiving

his medication that the CAO determined were not substantiated emergencies. He then

appealed these grievances to the ARB, which returned the appeals because they lacked a

response by the counselor, Grievance Officer, and CAO. Under the prior version of the

Code, as interpreted in Williams, the Court finds that Owens exhausted the administrative

remedies that were available to him at the time. Furthermore, Owens did not frivolously

assert that his grievances were emergencies, even though the CAO ultimately disagreed

with that characterization. Accordingly, the Court finds that Owens exhausted his

administrative remedies with regard to his April 20, 2014, August 21, 2015, September 15,

2015, May 8, 2016, February 28, 2017, and March 10, 2017 grievances.

He did not, however, fully exhaust his October 17, 2017 grievance. That grievance,

which was submitted through the normal grievance procedure, contains only a response

from Counselor Petty. There is no evidence in the record that the grievance was then

reviewed by the Grievance Officer, the CAO, or the ARB. Accordingly, the Court finds

that the October 17, 2017 grievance was not fully exhausted.

II. Identification of Defendants

Defendants next argue that they were not referenced by name in Owens’s

grievances, thus, the grievances failed to put the facility on notice of any improper

conduct.

Under the Illinois Administrative Code, an inmate is required to provide “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.” 20 ILL. ADMIN. CODE §504.810(c). This does not, however,

preclude an inmate from filing a grievance when the names of individuals are not known.

Rather, the offender must include as much descriptive information about the individual

as possible. Id. The Seventh Circuit has interpreted this as requiring the inmate to provide

names only to the extent practicable. See Glick v. Walker, 385 F. App’x 579, 582 (7th Cir.

2010).

Here, Owens clearly identified Defendants Wexford, Dr. Coe, Brookhart, and

Cunningham in his properly exhausted grievances. Although he never explicitly

mentioned Cunningham’s name, Owens stated several times that he sent kites to the

Healthcare Unit Administrator regarding his lack of medication, and Cunningham was

the Healthcare Unit Administrator (See Doc. 19; Doc. 63 at p. 16). Thus, the Court finds

that Owens adequately described Cunningham in his grievances.

Owens did not, however, identify Defendants Jackman, McFarland, or Petty—or

describe them in any fashion—in any grievance except for his October 17, 2017 grievance.

Because Owens failed to properly exhaust his October 17, 2017 grievance, the Court finds

that these Defendants are entitled to summary judgment.

CONCLUSION

For these reasons, the motions for summary judgment on the issue of exhaustion

of administrative remedies filed by Defendants DeDe Brookhart, Lori Cunningham

Shinkle, and Julia Petty (Doc. 63) and by Defendants John Coe, Lori Jackman, William

McFarland, and Wexford Health Sources, Inc. (Doc. 64) are GRANTED in part and

DENIED in part.

Defendants Julia Petty, Lori Jackman, and William McFarland are DISMISSED

without prejudice.

This case shall now proceed on Count One against Defendants DeDe Brookhart,

Lori Cunningham Shinkle, John Coe, and Wexford Health Sources, Inc.

IT IS SO ORDERED.

DATED: July 9, 2020 n g

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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