Gillum v. Jeffreys

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CORTEZ GILLUM, )

)

Plaintiff, )

)

vs. ) Cause No. 3:19-CV-1039-GCS

ROB JEFFREYS, )

MOHAMMED SIDDIQUI, )

and WEXFORD HEALTH SOURCES, )

INC., )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION

Before the Court is a motion for summary judgment on the issue of exhaustion of

administrative remedies filed by Defendants Siddiqui and Wexford Health Sources, Inc.

(Doc. 47, 57). Specifically, Defendants argue that Plaintiff Cortez Gillum failed to exhaust

his administrative remedies because he did not properly complete the grievance process

before filing his lawsuit. Gillum opposes the motion arguing that Defendants have

impeded his ability to exhaust his administrative remedies by not responding to his

grievances. (Doc. 52, 53).

On July 28, 2020, the Court held a hearing on the summary judgment motion. (Doc.

60). During the hearing, the Court heard testimony from Gillum and from Kelly Pierce, a

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grievance officer at Menard Correctional Center (“Menard”). The Court took the matter

under advisement. Based on the following reasons, the undersigned GRANTS the

motion for summary judgment filed by Defendant Siddiqui and Defendant Wexford

Health Sources, Inc. (“Wexford”) on the issue of exhaustion of administrative remedies.

Pursuant to 42 U.S.C. § 1983, Gillum, an inmate within the Illinois Department of

Corrections (“IDOC”) currently housed at Pontiac Correctional Center (“Pontiac”), filed

a complaint for deprivations of his constitutional rights that occurred while he was

housed at Menard. (Doc. 1). The Court, after conducting the preliminary review of the

complaint pursuant to 28 U.S.C. § 1915A, allowed Gillum to proceed on the following

claims: Count 1 against Dr. Siddiqui and Wexford for deliberate indifference to medical

care for the delay and denial of medical treatment for his shoulder injury; and Count 2

against Dr. Siddiqui for deliberate indifference to medical care for denying him further

medical treatment for a sinus infection after previously prescribed medication had been

ineffective.1 (Doc. 18, p. 11). Further, as to Defendant Jeffreys, the Court found as follows:

“Jeffreys will be dismissed in his individual capacity but, to the extent Plaintiff is seeking

injunctive relief, Jeffreys will remain in the case in his official capacity. See Gonzalez v.

Feinerman, 663 F.3d 311, 315 (7th Cir. 2011)(proper defendant in a claim for injunctive

relief is the government official responsible for ensuring any injunctive relief is carried

out).” Id. at p. 6.

1 The Court also severed Gillum’s unrelated allegations into four other causes of action which Gillum

ultimately voluntarily dismissed. See 19-1228-SMY; 19-1229-NJR; 19-1231-NJR; and 19-1230-SMY.

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FACTS

Gillum is an inmate within IDOC and currently housed at Pontiac. At the time of

the allegations in the complaint, Gillum was housed at Menard. During the hearing,

Gillum testified that two grievances, #107-12-18 and #350-4-19, were the only grievances

relevant to the claims in this case.2 The record reflects the following as to the two

grievances.

Gillum filed emergency grievance #107-12-18 dated December 30, 2018 regarding

medical treatment and an injury. During the hearing, however, Gillum testified that the

date of December 30, 2018 was his mistake and that he probably filed the grievance on

November 30, 2018. In the grievance, Gillum claims that he fell and injured his left

shoulder. He requested to be seen by an outside specialist to repair the injury to his

shoulder. The grievance does not contain any complaints about a sinus infection. On

December 10, 2018, the grievance was deemed non-emergent by the Chief Administrative

Officer (“CAO”). On December 17, 2018, the Menard Grievance Office received grievance

#107-12-18 regarding medical treatment that was previously deemed a non-emergency,

and the grievance was forwarded to Clinical Services for the counselor’s response. On

April 26, 2019, the Counselor responded and included a response from the Health Care

2 Thus, the Court will address only these two grievances regarding exhaustion of the claims in this

case.

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Unit (“HCU”). Defendant Siddiqui and Health Care Unit Administrator (“HCUA”)

Angela Crain responded to Gillum’s grievance in a memorandum dated April 25, 2019,

which noted that Gillum was seen by an orthopedic specialist on December 31, 2018. The

memorandum further noted that on February 28, 2019, Gillum refused to be seen by

physical therapy for an evaluation.

Next, Gillum included a letter dated April 28, 2019 to the Grievance Officer

regarding grievance #107-12-18. The grievance contains a counselor’s response dated

April 26, 2019 instructing Gillum to see the attached response from the HCU. The

grievance also contains Grievance Officer and CAO responses dated May 16, 2019 and

May 22, 2019, respectively. Further, the Grievance Officer noted that Gillum attached 4

handwritten pages to this grievance, stating that he believed his medical issues were not

being addressed. The grievance was deemed moot by the CAO as Gillum refused his

physical therapy referral and as of the grievance review, there were no requests received

from Gillum on this issue.

In Gillum’s complaint, he attached a letter dated June 16, 2019 addressed to the

Menard Grievance Office requesting a copy of the grievance and response to his

grievance from the Grievance Office. He received a response to his letter informing him

that the grievance was deemed moot on May 22, 2019 and instructed him to contact the

Records Office for a copy. Gillum then wrote a letter to the Menard Records Office dated

June 20, 2019 requesting a copy of his #107-12-18 grievance. At the top of the letter, there

is a note that appears to be a response from the Records Office which reads, “[r]esubmit

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with money voucher.” At the bottom of the letter, there is a handwritten notation by

Gillum which reads, “[r]eceived on 7/16/2019 for resubmitt (sic) with money voucher.”

Gillum filed another emergency grievance #350-4-19 dated April 13, 2019

regarding medical treatment, staff conduct, and accommodations under the Americans

with Disabilities Act (“ADA”). The grievance does not contain any complaints about a

sinus infection. On April 19, 2019, the grievance was deemed non-emergent by the CAO.

The grievance contains a counselor’s response dated July 9, 2019 and a Memorandum

from Defendant Siddiqui and HCUA Crain. The grievance contains Grievance Officer

and CAO responses dated July 22, 2019 and August 13, 2019, respectively. The grievance

was deemed moot by the CAO as Gillum refused his physical therapy referral and as of

April 25, 2019, he made no requests for shoulder issues. There is no record that Gillum

appealed this grievance to the Administrative Review Board (“ARB”).

Gillum’s Cumulative Counseling Summary reveals the relevant entries as to these two

grievances. On May 19, 2014, Gillum participated in the Orientation process and was

provided with the Orientation Manual.

On December 7, 2018, the Menard Grievance Office received grievance #107-12-18

dated December 30, 2018 marked emergency by Gillum regarding medical treatment/left

shoulder.

On December 17, 2018, the Menard Grievance Office received grievance #107-12-18

from Plaintiff regarding medical treatment that was previously deemed a non-emergency.

The grievance was forwarded to Clinical Services for the counselor’s response.

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On April 18, 2019, the Menard Grievance Office received grievance #350-4-19 dated

April 13, 2019, which was marked an emergency by Gillum. He complained about his

shoulder injury, that diabetics be given their insulin, and that he should still be able to go to

night yard. On April 26, 2019, the HCU’s response to grievance #107-12-18 was written

verbatim in the counseling records.

On May 2, 2019, the Menard Grievance Office received grievance #350-4-19 from

Gillum that was previously deemed a non-emergency. The grievance was forwarded to

Clinical Services for the counselor’s response. On May 8, 2019, the Menard Grievance Office

received grievance #107-12-18 for second-level review.

On June 18, 2019, the Office Coordinator noted that she received a KITE from Gillum

dated June 16, 2019 stating that he did not receive a response to grievance #107-12-18 and

would like to have a copy of it. The Office Coordinator replied via institutional mail that

grievance #107-12-18 was deemed moot on May 22, 2019 and to contact the Records Office

for a copy.

On July 8, 2019, Correctional Counselor II Hood noted that she conducted a gallery

tour and spoke with Gillum who stated that he never received a response to grievance #107-

12-18. She noted that per the CHAMPs (Counseling Summary), the Grievance Officer

received the same question and advised Gillum of the results of his grievance and to write

the Grievance Office for a copy.

On July 9, 2019, it was noted that grievance #350-4-19 was reviewed by the HCUA,

who indicated that Gillum self-reported going to the yard instead of waiting on the insulin

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line. A response was sent to Gillum, and he was instructed to use nurse sick call if any other

issues arose.

On July 11, 2019, the Office Associate of the Menard Record Office noted that she

received a KITE from Gillum requesting copies of his grievance. The Office Associate

responded to Gillum via institutional mail instructing him to resubmit his request with a

money voucher.

On July 22, 2019, the Menard Grievance Office received grievance #350-4-19 for

second-level review. On July 22, 2019, it was noted that grievance #350-4-19 was received by

the ADA Coordinator and it was determined that Gillum did not require accommodation.

On August 15, 2019, it was noted that the Grievance Officer’s response to grievance

#350-4-19 was placed in the transfer business mail to be sent to Pontiac.

Gillum’s ARB IGRV inmate grievance history does not include any record of

grievance #107-12-18 or grievance #350-4-19.

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

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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. 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, “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. The purpose

of exhaustion is to give prison officials an opportunity to address the inmate’s claims

internally, prior to federal litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)

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, 740-741 (7th

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

affirmative defense, the Court set forth the following sequence and procedures to be

followed:

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(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.

As an inmate confined within the IDOC, Gillum was required to follow the

regulations contained in the IDOC’s Grievance Procedures for Offenders (“grievance

procedures”) to exhaust his claims. 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.

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20 ILL. ADMIN. CODE § 504.810(c). Grievances that are unable to be resolved through

routine channels are then sent to the grievance officer. 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 Chief Administrative Officer’s response, the

inmate 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 Chief Administrative Officer’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 6 months after receipt of the appealed grievance, when reasonably

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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 further allow some grievances to be submitted directly

to the ARB for consideration. See 20 ILL. ADMIN. CODE § 504.870(a). Those grievances

include:

1) Decisions regarding protective custody placement, including continued

placement in or release from protective custody.

2) Decisions regarding the involuntary administration of psychotropic

medication.

3) Decisions regarding disciplinary proceedings that were made at a facility other

than the facility where the offender is currently assigned.

4) Other issues that pertain to a facility other than the facility where the offender

is currently assigned, excluding personal property and medical issues.

20 ILL. ADMIN. CODE § 504.870(a)(1-4).

ANALYSIS

Defendants argue they are entitled to summary judgment as Gillum did not

properly exhaust his administrative remedies regarding the claims in this case.

Specifically, Defendants maintain that he never appealed the two relevant grievances to

the ARB. Further, Defendants assert that neither of these grievances contain any

references to his sinus infection. Gillum opposes the motion arguing that he properly

used the grievance procedure; that he did not receive responses to his grievances; and

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that he cannot be responsible for prison staff’s conduct once he submits mail to the prison

staff for mailing. The Court disagrees with Gillum and does not credit his testimony.

First, the record clearly indicates that Gillum was aware of the grievance

procedures at Menard and Pontiac. Gillum testified that he knew of the grievance

process, the appeal times, and the steps regarding the exhaustion of administrative

remedies. Gillum likewise understood such steps when he filed his grievances with the

prison and when he filed his complaint.

As to grievance #107-12-18, the Court finds that Gillum did not exhaust his

administrative remedies because he did not appeal this grievance to the ARB. Gillum did

not attach any evidence to his Complaint that he resubmitted his request to the Menard

Record Office with a money voucher. Also, the Counseling Records (which contain a note

that the Records Office received a request from Plaintiff for copies of his grievance and

that Gillum was told to resubmit his request with a money voucher) do not contain any

entries that Gillum resubmitted his request with a money voucher. The ARB records

show that Gillum did not appeal grievance #107-12-18 to the ARB. Further, the records

show that Gillum was sent a copy of his grievance with Grievance Officer and CAO

responses and then had the opportunity to request another copy, but he did not, and

therefore, he did not properly exhaust this grievance as to Dr. Siddiqui or Wexford.

As to grievance #350-4-19, the Court likewise finds that Gillum did not properly

exhaust his administrative remedies as to Siddiqui. The grievance was received by the

Menard Grievance Office on April 18, 2019. On April 18, 2019, the CAO received the

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grievance and deemed it non-emergent on April 19, 2019. Gillum’s counselor received

the grievance on May 2, 2019 and responded on July 9, 2019. The grievance was returned

by the counselor to Gillum on July 15, 2019 and then the Grievance Office received the

grievance for second-level review on July 22, 2019. On August 13, 2019, the CAO received

the grievance and responded on August 13, 2019. The grievance with the Grievance

Officer and CAO responses was returned to Gillum on August 15, 2019. There is a stamp

on the CAO’s response that the grievance was received by the Pontiac Records Office on

August 22, 2019. The record reveals that one copy was distributed to Gillum’s Master File

and the other copy was distributed to Gillum. The ARB records show that Gillum did not

appeal grievance #350-4-19 to the ARB. Further, this grievance fails to contain any

reference to Gillum’s claim against Defendant Siddiqui regarding a sinus infection.

Gillum did not properly or timely exhaust grievance #350-4-19 as to either Defendant

Siddiqui or Defendant Wexford.

Next, the Court notes that in some circumstances an inmate’s ability to exhaust the

grievance process may be thwarted. This can occur, for example, if an inmate properly

submits a grievance, but does not receive a response. In such circumstances, an inmate’s

administrative remedies are arguably no longer available to him, and the inmate may

thus proceed with a lawsuit. See, e.g., Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir.

2000)(noting that an inmate is not required to appeal his grievance if he submits the

grievance to the proper authorities but never receives a response); Dole, 438 F.3d at 809

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(noting that 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).

However, such a situation does not exist under the circumstances of this case.

Gillum contends that the grievance counselor only has thirty (30) days to respond to a

grievance. Gillum offers no support/evidence for this argument and the grievance

process does not have such a timeline for a grievance counselor’s response. The Illinois

Administrative Code does not require the grievance counselor to respond to an inmate’s

grievance within 30 days. See 20 ILL. ADMIN. CODE §§ 504.810-850. The only 30-day

requirement within these cited rules is that the inmate’s appeal must be received by the

ARB within 30 days after the decision by the CAO. See 20 ILL. ADMIN CODE §504.850. Thus,

Gillum failed to demonstrate that the failure to receive a response to his grievances by

the Counselor within 30 days constitutes exhaustion of those grievances. Accordingly,

the Court rejects this argument.

Furthermore, the Court rejects Gillum’s contention that he appealed both

grievances to the ARB as Gillum offers no evidence to demonstrate that he did, and the

record reveals otherwise. Specifically, Gillum argues that once he puts something in the

prison mail, he is not responsible for the whereabouts of that mail after the fact. Assuming

arguendo that Gillum did appeal these grievances, Gillum has not submitted any evidence

to show what dates he allegedly mailed the appeals to the ARB or how the prison staff

mishandled his mail. Moreover, looking at the timeline of both grievances it would

appear that if Gillum did timely appeal the grievances to the ARB any time after May 22,

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2019 and August 15, 2019, respectively (the dates the records reveal the COA’s responses

were made as to the two grievances), he filed this lawsuit on September 25, 2019. This

short period of time does not give either the ARB or the IDOC Director the appropriate

time to decide the merits of the appeals of the grievances. See, e.g., 20 ILL. ADMIN. CODE §

504.850(a)(stating that “[t]he appeal must be received by the Administrative Review

Board within 30 days after the date of the decision.”). See also 20 ILL. ADMIN. CODE §

504.850(e)(stating that “[t]he 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.”). Without

any evidence regarding the dates Gillum placed these appeals in the prison mail system,

it is clear that if Gillum did timely appeal those grievances, he prematurely filed this

lawsuit before the ARB and IDOC Director had time to consider the merits of his appeals.

As such, the grievances were not properly exhausted. See, e.g., Gregory v. Santos, No. 07-

669-JPG-CJP, 2010 WL 750047, at *6 (S.D. Ill. Jan. 19, 2010)(stating that prisoner failed to

exhaust where he gave the ARB “only a few days leeway beyond the six-month period”).

Gillum should have waited until he received a final determination from the Director of

the Administrative Review Board on these two grievances before filing suit. The time

frames for consideration of grievances under said section are “directory and not

mandatory[,]” given the code language “whenever possible.” Beahringer v. Page, 789

N.E.2d 1216, 1226 (Ill. 2003)(quoting 20 ILL. ADMIN. CODE § 504.830). It is clear from the

authorities cited above that a prisoner cannot properly exhaust his administrative

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remedies if he files suit during the pendency of a required administrative response

period.

Neither of these two grievances can serve to exhaust administrative remedies as

to the claims against the Defendants in this case. See, e.g., Ford, 362 F.3d at 398 (noting that

no action shall be brought until exhaustion has been completed). Based on the record, it

is clear that Gillum either did not appeal these grievances or he “jumped the gun” by

filing suit before the grievance process was complete. Thus, he did not fully exhaust his

administrative remedies prior to filing suit.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Siddiqui and Defendant

Wexford’s motion for summary judgment. (Doc. 47). The Court DISMISSES without

prejudice Gillum’s complaint for failure to exhaust administrative remedies. The Court

DIRECTS the Clerk of the Court to enter judgment reflecting the same and close the case.

IT IS SO ORDERED.

Date: August 25, 2020. Salis Seon 2

“= Date: 2020.08.25

11:28:35 -05'00'

GILBERTC.SISON

United States Magistrate Judge

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