Remmer v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARREN REMMER,

#K54667,

Plaintiff,

Case No. 19-cv-00420-NJR

v.

WEXFORD HEALTH SOURCES, INC.,

FAIYAZ AHMED,

VIPIN SHAH, and

CLAUDIA DOWTY,1

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on Defendant Claudia Dowty’s motion for

summary judgment (Doc. 37). Dowty argues that Plaintiff Darren Remmer failed to

exhaust his administrative remedies prior to filing suit. Remmer, through court recruited

counsel, filed a response in opposition to the motion. (Doc. 51). On January 21, 2021, the

Court held an evidentiary hearing. For the reasons set for the below, the motion for

summary judgment is granted in part.

BACKGROUND

Darren Remmer, an inmate of the Illinois Department of Corrections (“IDOC”)

who is currently housed at Lincoln Correctional Center, commenced this action by filing

1 Defendant Dowty has identified her correct name in her Motion for Summary Judgment. (Doc. 37). The

Clerk of Court is DIRECTED to modify the name on the docket sheet accordingly: Claudia Dowty (“Nurse

Dowdy)”.

a Complaint pursuant to 42 U.S.C. § 1983 for the alleged deprivation of his constitutional

rights. (Doc. 1). As to Defendant Dowty, Remmer alleges that on November 25, 2017,

while working as an inmate aid in the medical unit of Lawrence Correctional Center

(“Lawrence”), Nurse Dowty directed him to help her move a deceased inmate, who

weighed approximately 270 pounds, from the bed to the floor. During the move, Nurse

Dowty dropped the deceased inmate’s feet, so more weight shifted to Remmer. The

sudden shift in weight caused Remmer to feel a strain in his groin area. Remmer claims

he reported the issue to Nurse Dowty. He alleges that he told her he was in excruciating

pain and asked for some kind of pain medication. Rather than provide him pain

medication or ensure he received prompt medical treatment, Nurse Dowty

recommended that he file a request slip to see a doctor. Later, Remmer was diagnosed

with two inguinal hernias, and he claims that he continued to not receive adequate

medical care for his injuries. He is proceeding on the following claims:

Count 1: Dowdy was deliberately indifferent by forcing Remmer to

touch a deceased inmate’s corpse and for failing to provide

any treatment for injuries Remmer sustained while doing so.

Count 2: Defendant Ahmed exhibited deliberate indifference to a

serious medical condition by delaying hernia surgery or

follow-up appointments for Remmer’s hernias.

Count 3: Defendant Shah exhibited deliberate indifference to a serious

medical condition by failing to render adequate pre- and post-

operative care for Remmer’s hernias.

Count 4: Defendant Wexford Health Sources, Inc. maintained a policy

or practice that violated the Eighth Amendment by denying

adequate medical care without making an individualized

need assessment.

In the motion for summary judgment, Nurse Dowty argues that Remmer failed to

grieve his claims against her for the alleged deliberate indifference that occurred on

November 25, 2017. (Doc. 38, p. 6). She states that there are two emergency grievances

filed by Remmer relevant to the claims in this case, dated December 28, 2017, and June

10, 2018. Dowty argues that the December 28, 2017 emergency grievance solely pertains

to alleged actions taken by Defendants Dr. Ahmed, Dr. Shah, and Wexford Health

Sources, Inc. (“Wexford”), and does not include the allegations of deliberate indifference

against Dowty, as set out in the Complaint. (Id. at p. 7-9). The grievance recounts the

events that occurred on November 25, 2017, but fails to include allegations against Nurse

Dowty for failing to provide pain medication and ensure prompt treatment from a doctor

for his injuries. The grievance also only asks that “Dr. Shah V. and Dr. Ahmed F. be held

responsible for their negligence and that [Plaintiff] be compensated for [his] injury, pain,

suffering, mental stress, and misdiagnosis” (Doc. 38-1, p. 7), and does not seek relief

pertaining to Nurse Dowty’s alleged actions. Because the December emergency grievance

consists of allegations directed against Dr. Ahmed, Dr. Shah, and Wexford, this grievance

does not fully exhaust claims against Dowty.

Likewise, Dowty argues that the June 10, 2018 emergency grievance only pertains

to alleged actions taken by Defendants Dr. Ahmed and Wexford for treatment following

Remmer’s hernia repair surgery in late January 2018. Additionally, the June 10, 2018

emergency grievance was filed more than 60 days after the incidents on November 25,

2017, as is required by Illinois Administrative Code. (Doc. 38, p. 10). Therefore, not only

does the June emergency grievance fail to grieve claims against Nurse Dowty but also

was untimely filed.

In response, Remmer argues that Nurse Dowty’s motion for summary judgment

is not supported by admissible evidence. (Doc. 51, p. 11). The motion is premised on the

content of grievance records that are not self-authenticating, and Nurse Dowty did not

attach a declaration establishing the admissibility of those documents. Remmer argues

that the grievance records are hearsay and inadmissible in summary judgment

proceedings. Because Nurse Dowty has not met her burden of proof to establish that

Remmer failed to exhaust his administrative remedies, the Court should deny the motion

for summary judgment.

In the alternative, Remmer argues that even if the grievance records are

admissible, the December 28, 2017 emergency grievance fully exhausted his

administrative remedies. The grievance was timely filed, identifies Nurse Dowty by

name, contains sufficient factual detail regarding the events on November 25, 2017, and

was timely appealed to the Administrative Review Board. Remmer states that the Illinois

Administrative Code does not require him to request relief against Nurse Dowty or

include her name in the “relief requested” section of the grievance form. The December

emergency grievance was properly submitted and appealed and adequately alerts the

prison to the problem with Nurse Dowty. Thus, the December emergency grievance fully

exhausted his claims against her.

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. Vill. 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. 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). 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 Court 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. Because exhaustion is an affirmative defense, the burden of proof is on the

defendants to demonstrate that “remedies were available and that [the plaintiff] failed to

use them.” Ried v. Balota, No. 19-1396, 2020 WL 3248128, at *3 (7th Cir. June 16, 2020). See

also Kaba v. Stepp, 458 F. 3d 678, 686 (7th Cir. 2006).

As an inmate confined within the Illinois Department of Corrections, Remmer was

required to follow the regulations contained in the Illinois Department of Corrections’

Grievance Procedures for Offenders (“grievance procedures”) to properly exhaust his

claims. 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. 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 considers the grievance and reports his or her findings and

recommendations “in writing to the Chief Administrative Officer…” 20 ILL. ADMIN. CODE

§504.830(e). The Chief Administrative Officer then advises the offender of the decision in

writing. Id.

If the inmate is not satisfied with the Chief Administrative Officer’s response, he

or she can file an appeal with the Director through the Administrative Review Board

(“ARB”). The grievance procedures specifically state, “[i]f, after receiving the response of

the Chief Administrative Officer, the offender still feels 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.” 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 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 Chief Administrative Officer (“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).

ANALYSIS

Before discussing the merits of the motion for summary judgment, the Court will

address Remmer’s arguments that the documents presented by Nurse Dowty in support

of the motion were unauthenticated, and thus inadmissible hearsay, and the objections

to the Court conducting an evidentiary hearing raised by Remmer’s counsel at the

hearing.

First, the Court finds that the grievance records submitted by Nurse Dowty are

admissible. Grievance documents, such as the ones presented by Nurse Dowty, are

routinely accepted by the Court in prisoner cases at the summary judgment on

exhaustion phase for the purpose of determining whether administrative remedies have

been exhausted. As stated at the hearing, the Court can consider unauthenticated

documents on motions for summary judgment if it appears that they are capable of

authentication at trial. See Boyce v. Wexford Health Sources, Inc., No. 15 C 7580, 2017 WL

1436963, at *3 (N.D. Ill. Apr. 24, 2017) (“federal courts routinely consider unauthenticated

documents on motions for summary judgment, for example, when it is apparent[ ] that

such documents are capable of reduction to admissible, authenticated form.” (quoting

Talley v. Triton Health Sys., LLC, No. 14-cv-02325-RDP, 2016 WL 4615627, at *8 (N.D. Ala.

Sept. 6, 2016)). See also Saiger v. Dart, No. 13 C 5495, 2017 WL 1927689, at *1 n. 3 (N.D. Ill.

May 10, 2017) (allowing a handwritten medical log as a business record “that could be

authenticated at trial and thus properly considered on summary judgment.”); Hartford

Fire Ins. Co. v. Aaron Ind., Inc., No. 18 CV 4123, 2020 WL 91991 at *5 (N.D. Ill. Jan. 8, 2020)

(ruling that “Hartford would be able to produce a witness at trial that could authenticate

[insurance] documents and, likely, establish that they fall within the business records

exception to the hearsay rule”). Here, the grievance records could be authenticated at

trial, and in fact, Nurse Dowty has already filed an affidavit from a custodian of records

at IDOC (Doc. 57-1), demonstrating their trustworthiness. See Woods v. City of Chi., 234 F.

3d 979, 988 (7th Cir. 2000). Additionally, Remmer submitted the June 10, 2018 emergency

grievance, grievance officer response, and ARB response along with his Complaint

(Doc. 1, p. 94, 104-106). He also has included the ARB response to his December 28, 2017

emergency grievance (Id. at p. 101). Therefore, he has already “conceded the accuracy” of

four of the seven documents that Nurse Dowty has sought to produce in support of her

motion. Thanonginsh v. Board of Educ., 462 F. 3d 762, 778 (7th Cir. 2006). For these reasons,

the grievance records are properly considered on summary judgment.

Second, the Court finds the objection to the evidentiary hearing asserted by

Remmer’s counsel is without merit. Counsel argued that pursuant to Seventh Circuit

precedent an evidentiary hearing on a motion for summary judgment regarding

exhaustion is proper only when there is a disputed of issue of material fact and the motion

for summary judgment has been denied by the Court.

The Court has found several cases from the Northern District of Indiana that

utilize the procedures, as put forth by Remmer. In these cases, when there was a disputed

issue of fact pertaining to whether the plaintiff prisoner exhausted his administrative

remedies, the district court denied the motion for summary judgment on exhaustion and

gave the defendants fourteen days to waive their exhaustion defense or advise the court

whether they wish to proceed with a hearing pursuant to Pavey. See Martin v. Jones, No.

19-CV-1102 DRL-MGG, 2021 WL 325874 (N.D. Ind. Feb. 1, 2021); Corbin v. Ind., No. 16-

CV-00602, 2017 WL 1509307 (N.D. Ind. Apr. 26, 2017); Handzlik v. Lain, No. 13-CV-119 JD,

2014 WL 4167844 (N.D. Ind. Aug. 21, 2014); Daher v. Sevier, No. 13-CV-940 JD, 2014 WL

4261245 (Aug. 28, 2014); Franklin v. Fewell, No. 13-CV-673 JD, 2014 WL 505341 (7th Cir.

2014). See also Phelps v. Martin, No. 08-CV-7132, 2010 WL 331721, at *5 (N.D. Ill. Jan. 22,

2010) (denying the motion for summary judgment and setting the case for status

conference to discuss whether an evidentiary hearing was needed to resolve the issue of

exhaustion). While this may be the preferred method by other districts, it is not the

procedure of this Court, and it is not mandated by the Seventh Circuit. The central

holding in Pavey “is that exhaustion is not a question for the jury at trial, but instead is a

preliminary issue for the court.” Wagoner v. Lemmon, 778 F. 3d 586, 592 (7th Cir. 2015).

The Seventh Circuit “instructed district judges…to conduct a hearing to resolve factual

disputes [on the issue of exhaustion].” Winston v. Clarke, 746 F. App’x 561, 563 (7th Cir.

2018) (citing Pavey, 544 F. 3d at 741-42). This instruction did not include the requirement

that district courts must first deny the motion for summary judgment prior to holding an

evidentiary hearing. See Pavey, 544 F. 3d at 742 (specifying that the first step is that “[t]he

district judge conducts a hearing on exhaustion and permits whatever discovery relating

to exhaustion he deems appropriate”). There is nothing that prohibits the Court from

conducting a hearing in order to clarify the record and take testimony on the grievances.

Accordingly, Remmer’s objection is not well taken.

Finally, the Court finds that Remmer did not exhaust his administrative remedies

regarding his claims of deliberate indifference against Nurse Dowty for inadequate

medical treatment. At the hearing, Remmer recounted the same set of events alleged in

the Complaint, that on November 25, 2017, he was injured while assisting Nurse Dowty

in transferring a deceased inmate from the bed to the floor. He immediately informed

Dowty that he had injured his groin area and she did not provide medical treatment. He

further testified that later, despite knowledge of his injury, she instructed Remmer to help

move a second patient who was dehydrated. He confirmed that there is nothing in the

December 28, 2017 emergency grievance, stating that he informed Nurse Dowty that he

was injured, requested assistance, and the request was refused. Remmer stated that the

grievance specifically offers complaints against the doctors for refusing hernia repair

surgery and grieves that the refusal to recommend surgery by Dr. Shah and Dr. Ahmed

was negligent and cruel and unusual punishment.

Based on the testimony and the evidence in the record, the Court finds that neither

the December 28, 2017 emergency grievance nor the June 10, 20182 emergency grievance

2 Because the grievances do not sufficiently grieve the allegations raised in the Complaint, the Court will

not address the timeliness argument raised by Defendant Dowty. (See Doc. 38, p. 10).

exhausted Remmer’s claims against Nurse Dowty for failing to provide medical

treatment. Remmer is correct in his argument that he is not required to put forth a

particular claim, legal theory, or constitutional violation in a grievance. (Doc. 51, p. 15).

The primary purpose of exhaustion “is to ‘alert [ ] the state’ to the problem ‘and invit[e]

corrective action.’” (Doc. 51, p. 15) (citing Turley v. Rednour, 729 F.3d 645, 649-650 (7th Cir.

2013)) (additional citations and quotations omitted). The Court finds, however, that the

grievances fail to meet this requirement and give prison officials notice of Remmer’s

allegations regarding Dowty’s deliberate indifference to his injuries. As Remmer testified

at the hearing, Dowty is mentioned twice in the December 28, 2017 emergency grievance

but only in relation to the fact that she gave Remmer instructions to lift a deceased inmate.

Likewise, in the June 10, 2018 emergency grievance she is again described as giving a

directive to Remmer to lift the inmate’s body. Neither grievance notifies prison officials

that Remmer informed Dowty of his injury and pain and that she did not provide him

medical treatment in response. Her inclusion in the grievances is limited to descriptive

information regarding how Remmer was injured. Thus, the grievances do not sufficiently

grieve her misconduct regarding inadequate medical treatment, and that portion of

Count 1 will be dismissed for failure to exhaust. See Shaw v. Frank, 288 F. App’x 299, 302

(7th Cir. 2008) (“All the grievance need do is object intelligibly to some asserted

shortcoming.” (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).

But Remmer’s Eighth Amendment claim is twofold. As designated by Judge

Gilbert in the merit review order, Remmer is proceeding on an Eighth Amendment claim

against Nurse Dowty for acting with deliberate indifference by forcing him to “touch a

deceased inmate’s corpse, and for failing to provide any treatment for injuries Remmer

sustained while doing so.” (Doc. 6, p. 4) (emphasis added). In the Complaint, Remmer

alleges that Nurse Dowty’s instructions to assist her in lifting the deceased inmate were

against the policies of the Illinois Department of Corrections and Wexford. (Doc. 1, p.14).

He claims he was later informed by the healthcare administrator that the instructions

were improper, and he should not have been asked to touch a deceased inmate. (Id. at

p. 13).

As mentioned, both grievances state that Remmer was instructed by Nurse Dowty

to assist her in lifting a deceased inmate. But even if the grievances sufficiently notified

prison officials that Nurse Dowty gave Remmer improper instructions, this is not a

constitutional claim. While the conduct may have been performed in violation of prison

policy, the failure of prison officials to follow their own procedures does not, of itself,

violate the Constitution. See Scott v. EdinBurg, 346 F. 3d 752, 760 (7th Cir. 2003) (noting

that “42 U.S.C. § 1983 protects plaintiffs from constitutional violations, not violations of

state laws or, in this case, departmental regulations and police practices”). Taking

Remmer’s allegations in the Complaint as true, the Court finds that Dowty’s instruction

to Remmer to touch a deceased inmate does not state a claim for a constitutional violation.

Therefore, the Court sua sponte dismisses this portion of Remmer’s Eighth Amendment

claim against Nurse Dowty. See FED. R. CIV. P. 12(b)(6); Ledford v. Sullivan, 105 F. 3d 354,

356 (7th Cir. 1997) (stating that “[s]ua sponte 12(b)(6) dismissals are permitted, provided

that a sufficient basis for the court’s action is evident from the plaintiff’s pleading”).

DISPOSITION

For the reasons stated above, the Court dismisses Plaintiff Remmer’s claim that

Defendant Dowty acted with deliberate indifference by forcing him to touch a deceased

inmate’s corpse (Count 1) for failure to state a claim under Rule 12(b)(6).

The Court GRANTS in part the Motion for Summary Judgment for Failure to

Exhaust Administrative Remedies (Doc. 37) filed by Defendant Dowty to the extent

Remmer did not exhaust his administrative remedies regarding his claim that Defendant

acted with deliberate indifference in failing to provide medical treatment for his injury

on November 25, 2017 (Count 1). Because the Court has dismissed Remmer’s claim

regarding the touching of a deceased body pursuant to Rule 12(b)(6), the Motion for

Summary Judgment is DENIED in part as moot. Defendant Dowty is DISMISSED

without prejudice.

This matter shall proceed on Remmer’s claims (Counts 2-4) against the remaining

Defendants Wexford, Ahmed, and Shah. The stay on merits discovery is LIFTED and the

parties can proceed with discovery on the merits. A new scheduling order will be entered

by separate order.

Finally, the Clerk of Court is DIRECTED to change Defendant Dowty’s name in

accordance with footnote 1.

IT IS SO ORDERED.

DATED: February 12, 2021 Tl (een iting)

“oo

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Page 14 of 14