Ingram v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

EDMUND INGRAM,

Plaintiff,

v. Case No. 19-cv-638-NJR

WEXFORD HEALTH SOURCES, INC.,

et al.,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on motions for summary judgment filed by Dr.

Mohammed Siddiqui (Docs. 44, 45), Craig Asselmeier (Docs. 47, 48), and Wexford Health

Sources, Inc. (“Wexford”) (Docs. 50, 51). Defendants argue that Plaintiff Edmund Ingram

failed to exhaust his administrative remedies prior to filing suit. Ingram has filed a joint

response (Doc. 60) in opposition.

On July 16, 2020, the Court held an evidentiary hearing on the motions. After the

hearing, the parties filed supplemental briefs (Docs. 86, 87, 88). To the extent Ingram’s

supplement (Doc. 86) again requests counsel, that request is denied. The matter has now

been fully briefed, and the Court finds counsel is not necessary at this time.

BACKGROUND

On June 12, 2019, Ingram, an inmate of the Illinois Department of Corrections

(“IDOC”) who is currently housed at Stateville Correctional Center (“Stateville”), filed

his Complaint pursuant to 42 U.S.C. § 1983 alleging deliberate indifference in the

treatment of his broken tooth while he was housed at Menard Correctional Center

(“Menard”) (Doc. 1). Ingram was allowed to proceed on the following claims:

Count 1: Nicholas Bebout was deliberately indifferent under the

Eighth Amendment by delaying dental care for Plaintiff’s

broken tooth.

Count 2: Jacqueline Lashbrook, Dr. Siddiqui, Dr. Asselmeier, John

Baldwin, Medical Director Louis Shicker, Frank Lawrence,

and Healthcare Unit Administrator Gail Walls were

deliberately indifferent under the Eighth Amendment by

delaying dental care for Plaintiff’s broken tooth.

Count 3: Wexford Health Sources, Inc. was deliberately indifferent in

maintaining a policy of understaffing the dental and

healthcare unit at Menard which led to Plaintiff not receiving

timely care in violation of the Eighth Amendment.

Count 4: Wexford, Louis Shicker, John Baldwin, Frank Lawrence,

Jacqueline Lashbrook, Dr. Asselmeier, Dr. Siddiqui, and Gail

Walls’ failure to provide Plaintiff with timely care amounted

to intentional infliction of emotional distress.

Count 5: Louis Shicker, John Baldwin, and Jacqueline Lashbrook were

deliberately indifferent to overcrowding at Menard which

caused delays in Plaintiff’s treatment in violation of the

Eighth Amendment.

Ingram alleges that he filed two grievances relevant to the claims in his Complaint.

On January 23, 2019, Ingram submitted an emergency grievance about his dental care

(Doc. 45-2, pp. 1-2). The grievance alleges that he broke his back tooth on January 18,

2019, and submitted a dental call slip and made several requests to see the dentist but

had not been able to obtain an appointment with the dentist at the time he filed the

grievance. The grievance was deemed not an emergency by the Chief Administrative

Officer (“CAO”) and returned to Ingram with an instruction to “submit the grievance in

the normal manner” (Doc. 45-2, p. 1). On February 19, 2019, the grievance was received

by the Administrative Review Board (“ARB”) and was returned to Ingram on February

21, 2019, because he failed to provide a counselor or grievance officer response (Doc. 45-

3). The parties do not dispute that Ingram did not pursue the grievance through the

normal grievance process. Ingram argues that he was not required to pursue the

grievance further after receiving a response from the ARB.

In addition to the January 23 grievance, Ingram argues that he submitted another

emergency grievance on April 10, 2019 (Doc. 60, pp. 22-23). This grievance complains

about dental treatment provided by Wexford and Dr. Asselmeier, noting that he finally

received treatment from Dr. Asselmeier on January 30, 2019, and he was scheduled for a

tooth extraction three weeks later, despite his continued complaints of pain (Id. at p. 23).

The grievance notes that on February 20, 2019, Dr. Asselmeier was unsuccessful in

extracting the tooth, and Ingram still had pain (Id.). The grievance also mentions Dr.

Siddiqui. Ingram argues that he submitted the grievance to the CAO but never received

a response.

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). The Seventh Circuit requires strict adherence to the PLRA’s

exhaustion requirement. 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. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A 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 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, 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, 740-41(7th Cir.

2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative

defense, the Seventh Circuit set forth the following recommendations:

The sequence to be followed in a case in which exhaustion is contested is

therefore as follows: (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.

Id. at 742.

A. Illinois Exhaustion Requirements

As an IDOC inmate, Ingram was required to follow the regulations contained in

IDOC’s Grievance Procedures for Offenders (“grievance procedures”) to properly

exhaust his claims. 20 Ill. Administrative 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. 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. 20 Ill. Admin. Code §504.820(a).

The Grievance Officer will review the grievance and provide a written response to the

inmate. 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. 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 do allow for an inmate to file an emergency grievance.

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” and thus 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 to him what

action shall be 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

There are two grievances relevant to Ingram’s claims: a grievance dated January

23, 2019, and a grievance dated April 10, 2019. The Court finds that neither grievance was

properly exhausted.

A. January 23, 2019 Grievance

Ingram first argues that he did not need to exhaust his administrative remedies

because the grievance process is unconstitutional and futile, but futility does not excuse

exhaustion. Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005) (“An inmate’s perception

that exhaustion would be futile does not excuse him from the exhaustion requirement.”).

He also argues that he did not need to further exhaust his January emergency grievance

after he submitted it to the warden and it was deemed not an emergency. See Thornton,

428 F.3d at 694. The administrative procedures were changed, however, in 2017 and

require an inmate to re-submit a grievance deemed not an emergency through the normal

process. Williams v. Wexford Health Sources, Inc., 957 F.3d 828, 832 (7th Cir. 2020) (“[H]ad

[plaintiff’s] grievances been filed after the [2017] amendment took effect, it would be clear

that he was required to resubmit his grievances under the normal procedure and

complete the full three-stage process in order fully to exhaust available remedies”).

Ingram filed his grievance in January 2019—well after the administrative procedures

were changed—requiring him to submit his grievance through the normal process after

being deemed not an emergency.

Ingram argued at both the hearing and in his supplement that he was not aware

that the grievance process had changed after Thorton (Docs. 86, pp. 5-6; 88, pp. 2 and 4).

He asserts that the grievance form was not updated at the time he submitted his grievance

and the warden checked the box that the “[o]ffender should submit this grievance in the

normal manner” where the grievance form now states “offender should submit his

grievance according to standard grievance procedure.” (Doc. 86, p. 7). But Ingram was

informed on two occasions that his grievance was not an emergency and he needed to

process his grievance through the normal process. The warden specifically found his

grievance to not be an emergency, and he was directed to submit the grievance “in the

normal manner”—which is through the normal grievance process (Doc. 45-2, p. 1).

Although IDOC may have recently changed the language on the form, the Court does

not find the language on Ingram’s grievance confusing or misleading. Ingram was

directed to submit his grievance through the normal manner, by submitting the grievance

with his counselor.

Further, any confusion Ingram may have had about how to proceed with his

grievance was clarified in the response from the ARB. The ARB’s response specifically

notes that Ingram needed to provide a counselor’s response as well as a response from

the grievance officer and CAO (Doc. 45-3). The ARB also checked the box informing

Ingram that his medical claims had to first be reviewed at his current facility before

submitting his grievance to the ARB (Id.). Thus, Ingram was provided with ample

instructions on how to properly submit his grievance, but he failed to so. Because he

failed to pursue the grievance through the normal grievance process as directed, he failed

to exhaust his January 23, 2019 grievance.

B. April 10, 2019 Grievance

As to April 10 grievance, Ingram testified that he submitted the grievance through

the bars of his cell, addressed to the warden, but never received a response. He testified

at the hearing that a copy of the grievance was later confiscated during a shakedown of

his cell because it was “extra legal” material. He did not realize it was in his excess legal

storage box until an inmate helping him with the case was preparing his response to the

summary judgment motion. Ingram attached an affidavit from that inmate, Ronald

Barrow, who testified that he located a copy of the April 10 grievance while going

through Ingram’s legal files (Doc. 84, p. 9). If Ingram did submit this grievance and never

received a response, then his attempts at exhaustion would be deemed thwarted, and he

would be allowed to proceed with his lawsuit. See Walker v. Sheahan, 526 F.3d 973, 979

(7th Cir. 2000) (an inmate is not required to appeal his grievance if he submits the

grievance to the proper authorities but never receives a response); Dole v. Chandler, 438

F.3d 804, 809 (7th Cir. 2006) (a remedy can be unavailable to a prisoner if the prison does

not respond to the grievance or uses misconduct to prevent a prisoner from exhausting

his resources).

Although Ingram testified that he submitted the grievance through the cell bars

and never saw it again, the Court does not find his testimony to be credible. There is no

evidence of the grievance anywhere in the records. As Defendants point out, Ingram’s

counseling summary includes a number of entries where grievances were received,

including his January 23, 2019 grievance (Doc. 45-1, p. 2). The counseling summary shows

a history of grievances being received from Ingram by the prison (Doc. 45-1). There is no

evidence on the counseling summary that the April 10 grievance was ever received. It

seems implausible that this one grievance would go missing when the prison had a

history of receiving and responding to Ingram’s grievances. There is simply no evidence

in the record to suggest that Ingram submitted the grievance as he testified.

The counseling summary also indicates that Ingram met with his counselor on

May 17, 2019, after he allegedly submitted the grievance. Although he requested a trust

fund statement, he had “no other issues” (Id. at p. 1). There is no indication that he

inquired about the status of the April 10 grievance. He testified at the evidentiary hearing

that he inquired of other inmates about the status of his grievance, and they told him it

usually took thirty days to get a response. Yet when he met with his counselor on May

17, 2019, over thirty days after he testified he submitted his April 10 grievance, he did not

inquire about its status. The Court finds that he did not inquire about the status of the

grievance because he had not submitted a grievance.

Not only is there no evidence of the grievance in IDOC’s records nor did Ingram

inquire about the grievance, but he also did not identify the grievance in his Complaint

(Doc. 1). He attached his January 23, 2019 grievance but made no mention of any

additional grievances. Although Ingram testified that he did not rely on the April 10

grievance in writing his Complaint because he did not believe he had access to the

grievance and thought it was lost, he did not even mention a possible second grievance

anywhere in his Complaint. He tries to justify not mentioning the grievance based on

advice of the inmate helping him file his Complaint, but the Court does not find this to

be credible either (see also Doc. 84, p 10). If he had submitted another grievance, the Court

finds that he would have at least described the grievance in his Complaint. The fact that

he did not indicates that he did not submit the April 10 grievance or that it did not exist

prior to filing his Complaint.

Ingram tried to explain the missing grievance and its later discovery, but his story

about how a copy of his grievance went missing and was later discovered also defies

belief. Ingram testified that during a routine shakedown at Menard, the date and time of

which he could not recall, the April 10 grievance and other documents were taken from

his cell and placed in his excess storage box. The only item related to this case that was

confiscated was the April 10 grievance. He testified that he did not know the grievance

was confiscated or placed in his excess storage box. The grievance was not discovered

until Ronald Barrow went through his documents in helping him prepare a response to

the summary judgment motions. Ingram could not remember anything about the

shakedown or even that the grievance was taken. He testified that he did not know it was

missing until he filed his Complaint and, even then, he did not realize it was in his excess

legal storage. But Barrow miraculously discovered it when it was needed to respond to

the summary judgment motions. The story is implausible and appears made up to justify

the existence of the April 10, 2019 grievance.

Because there is no evidence of the existence of the grievance anywhere in the

records and Ingram’s story regarding the grievance defies credibility, the Court finds that

the April 10 grievance was not submitted. Thus, Ingram failed to exhaust his

administrative remedies as to his claims against Dr. Mohammed Siddiqui, Craig

Asselmeier, and Wexford.

CONCLUSION

For the reasons stated above, the summary judgment motions (Docs. 44, 45; 47, 48;

50; 51) are GRANTED. The claims against Dr. Siddiqui, Craig Asselmeier, and Wexford

are DISMISSED without prejudice for Ingram’s failure to exhaust his administrative

remedies. Judgment will be entered accordingly at the conclusion of the entire action.

IT IS SO ORDERED.

DATED: July 30, 2020

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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