Opinion

Garner v. Burrell

Court
District Court, S.D. Illinois
Filed
Jul 26, 2021
Cited by
0 cases
Authority
More cited than 21.2%

The opinion

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CLEVELAND GARNER, )

)

Plaintiff, )

)

vs. )

) Case No. 3:20-cv-00199-GCS

THOMAS BURRELL, and WARDEN )

OF SHAWNEE CORRECTIONAL )

CENTER, )

)

Defendants. )

)

)

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Cleveland Garner is a state prisoner currently incarcerated at Shawnee

Correctional Center (“Shawnee”) in the custody of the Illinois Department of Corrections

(“IDOC”). On February 13, 2020, Plaintiff first filed his complaint against Defendant

Thomas Burrell and the Warden of Shawnee pursuant to 42 U.S.C. § 1983 for alleged

deprivations of his constitutional rights. (Doc. 1). Specifically, Plaintiff brings one count

for deliberate indifference to his serious medical needs in violation of the Eighth

Amendment against Defendant Burrell for failing to repair Plaintiff’s dentures, which

caused him to be unable to eat normally and to suffer pain. (Doc. 17, p. 3).

Defendants filed a motion for summary judgment on the issue of Plaintiff’s

exhaustion of his administrative remedies on April 7, 2021. (Doc. 40). Plaintiff timely

responded to the motion. (Doc. 45, 50, 52, 53). The Court held a hearing on the motion on

July 16, 2021 and took the matter under advisement. (Doc. 57). After careful consideration

of the parties’ arguments, for the reasons outlined below, the motion for summary

judgment is GRANTED.

FACTUAL BACKGROUND

Plaintiff’s grievance records indicate three grievances potentially relevant to his

dental health and medical treatment. See generally, (Doc. 41, Exh. A). First, on August 22,

2017, Plaintiff filed a grievance regarding his mental health and medical treatment (the

“August 22nd” grievance). Id. at p. 19-21. Plaintiff explained that he had muscle spasms

and required medication in order to sleep. Id. at p. 20. He requested a discussion with a

mental health doctor in order to get a refill on his prescription. Id. On August 25, 2017,

Plaintiff’s grievance counselor provided a written response and returned the grievance

to Plaintiff. Id. The counselor’s response on the grievance stated: “per written response;

grievant was seen by mental health staff 8/28/17 and scheduled for follow-up.” Id. There

is no indication that Plaintiff appealed this grievance to the Chief Administrative Officer

or Grievance Officer. See id. at p. 19. On September 25, 2017, the Administrative Review

Board (“ARB”) received Plaintiff’s appeal. Id. The ARB denied the appeal and returned it

to Plaintiff on October 18, 2017, stating that additional information was required; Plaintiff

did not attach the original grievance with the counselor’s response or the Grievance

Officer or Chief Administrative Officer’s response. Id.

Plaintiff filed his second potentially relevant grievance on November 13, 2018 (the

“November 13th” grievance). (Doc. 41, p. 3). In this grievance, Plaintiff stated that he went

to see the dentist about getting his dentures fixed; however, the dentist refused to finish

fixing his teeth. (Doc. 41, Exh. A, p. 18). The counselor’s response, dated November 16,

2018, stated: “[s]ee attached grievance response from Dr. Burrell dated 11/20/18.” Id.

There is no response attached from either the Grievance Officer or Chief Administrative

Officer. See id. The ARB received Plaintiff’s appeal on December 10, 2018. Id. at p. 17. On

December 14, 2018, the ARB denied the appeal and requested that Plaintiff provide a copy

of the response to the grievance from the Grievance Officer or Chief Administrative

Officer. Id.

On January 27, 2019, Plaintiff filed his final potentially relevant grievance (the

“January 27th” grievance). (Doc. 41, p. 3). Plaintiff claimed that he had attempted to have

his teeth repaired, but they were still bothering him. (Doc. 41, Exh. A, p. 16). He requested

that his teeth be fixed as soon as possible. Id. The counselor’s response, dated January 31,

2019, stated that Health Care Unit Administrator Smoot found documentation regarding

Plaintiff’s attempts to have his dentures repaired, but no documentation regarding

complaints of pain or discomfort. Id. There was no indication that the Grievance Officer

or Chief Administrative Officer received an appeal of this grievance; like his prior

grievances, the ARB denied Plaintiff’s appeal and requested copies of responses from the

Grievance Officer or Chief Administrative Officer on February 20, 2019. Id. at p. 12.

When Plaintiff submitted his January 27th grievance to the ARB, he also included

a copy of his November 13th grievance. (Doc. 41, Exh. A, p. 13). The copy of the November

13th grievance included a counselor’s response and a letter from Dr. Burrell dated

November 20, 2018. Id. at p. 13-14. However, the handwriting on the counselor’s response

was different than that on the copy of the November 13th grievance that was submitted

to the ARB on December 10, 2018. (Doc. 41, p. 3). Shawnee Clinical Services Supervisor

Bob Allard noted that the counselor’s response and signature in the copy of the

November 13th grievance did not belong to the counselor. Id. at p. 4. During the hearing

on Defendants’ motion for summary judgment, Mr. Allard accused Plaintiff of forging

the signatures. However, Mr. Allard conceded that there were no substantive differences

between the counselor’s response on the copy of the November 13th grievance and the

original November 13th grievance.

LEGAL STANDARDS

Summary judgment is proper when a moving party demonstrates that the record

cannot establish the presence of a genuine dispute of material fact. See FED. R. CIV. PROC.

56(a). In order to survive a motion for summary judgment, the non-moving party must

provide admissible evidence from which a reasonable jury could find in favor of the non-

moving party. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). Traditionally,

the Court’s role in determining a motion for summary judgment is not to evaluate the

weight of the evidence, judge witness credibility, or determine the truth of the matter,

but is instead to determine whether there is a genuine issue of material fact. See Nat’l

Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in

Pavey v. Conley, the Seventh Circuit held that a judge, rather than a jury, should determine

whether factual issues relating to the defense of the failure to exhaust administrative

remedies exist. 544 F.3d 739, 741 (7th Cir. 2008). If the Court determines that a prisoner

did not exhaust his administrative remedies, the Court will outline one of three potential

outcomes: (a) if the plaintiff still has time to do so, the plaintiff must go back and exhaust

his administrative remedies; (b) if the plaintiff’s failure to exhaust was innocent, as where

prison officials prevent a prisoner from exhausting his remedies, the plaintiff must be

given another chance to exhaust; or (c) if the failure to exhaust was the prisoner’s fault,

the case is over. Id. at 742.

The PLRA governs lawsuits filed by inmates and states that “no action shall be

brought with respect to prison conditions under § 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.”42 U.S.C. § 1997e(a). In order to

satisfy the PLRA’s exhaustion requirement, prisoners must strictly adhere to the

grievance process. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Prisoners must

exhaust their remedies before filing suit. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.

2004). A plaintiff cannot file suit and then exhaust administrative remedies while that suit

is pending. Id. Consequently, if a prisoner fails to use a prison’s grievance process

properly, “the prison administrative authority can refuse to hear the case, and the

prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.

Prisoners must follow a prison’s administrative rules when exhausting their

remedies. See Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). As an inmate

confined within the IDOC, Plaintiff is required to follow the regulations contained in the

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

properly exhaust his claims. See 20 ILL. ADMIN. CODE § 504.800, et seq. The grievance

procedures require prisoners to submit a grievance to a counselor within sixty days of

discovering the underlying incident. See 20 ILL. ADMIN. CODE § 504.800. These grievances

must state the “factual details regarding each aspect of the offender’s complaint including

what happened, when, the name of any individual involved, and where the incident

occurred.” 20 ILL. ADMIN. CODE § 504.810(a). If a prisoner is not satisfied with the

counselor’s response to the grievance, then that prisoner can submit a formal grievance

to the prison’s grievance officer. Id. at (a)-(b). The officer must then review the grievance

and provide a written response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a).

Within two months of receipt of the grievance, when reasonably feasible under the

circumstances, the grievance officer must report findings and recommendations in

writing to the Chief Administrative Officer (“CAO”). See 20 ILL. ADMIN. CODE

§ 504.830(e). If the prisoner is still not satisfied with the CAO’s decision, the prisoner can

formally appeal to the Director through the ARB within thirty days of the CAO’s decision.

See 20 ILL. ADMIN. CODE § 504.850(a). The inmate must attach copies of the grievance

officer’s report and the CAO’s decision to the appeal. Id. The ARB then submits its

recommendation to the Director, who is then responsible for issuing the IDOC’s final

decision. See 20 ILL. ADMIN. CODE § 504.850(f).

The grievance process also permits an inmate to file an emergency grievance

directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The CAO may determine if

there is a substantial risk of imminent personal injury or other serious harm to the

offender. Id. If the CAO determines that the grievance is a non-emergency, the prisoner

is notified in writing that the prisoner may resubmit the grievance as a non-emergency

and move forward with the standard grievance process. See 20 ILL. ADMIN. CODE

§ 504.840(c).

The statutory purpose of the PLRA is to “afford corrections officials time and

opportunity to address complaints internally before allowing the initiation of a federal

case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Begolli v. Home Depot U.S.A., Inc., 701

F.3d 1158, 1161 (7th Cir. 2012). This allows the prison administration an opportunity to

fix the problem or to reduce damages and to shed light on factual disputes that may arise

in litigation. See Pozo, 286 F.3d at 1023-24. To allow otherwise would frustrate the purpose

of the grievance process. See Porter v. Nussle, 534 U.S. 516, 526 (2002). Accordingly, a

prisoner cannot satisfy the exhaustion requirement by filing an untimely or otherwise

procedurally defective grievance. See Woodford, 548 U.S. at 83. Unless a prisoner

completes the administrative review process by following the rules established for that

process, exhaustion has not occurred. See Pozo, 286 F.3d at 1023.

ANALYSIS

Defendants argue that the Court should grant summary judgment in their favor

because Plaintiff failed to follow the grievance process properly for any of the three

potentially relevant grievances he filed. (Doc. 41, p. 9). Inmates must complete the

administrative review process according to the rules and procedures the IDOC

established in order to exhaust their administrative remedies properly. See Pozo, 286 F.3d

at 1023. This process ensures that the prison administration has had a full opportunity to

address the inmate’s problem, reduce potential damages, or shed light on factual disputes

which may arise in potential litigation. Id. at 1023-24. The Seventh Circuit requires strict

compliance with exhaustion requirements; inmates must follow all grievance rules as

established by the IDOC. See Applewhite v. Blum, Case No. 17-cv-1111-JPG-SCW, 2018 WL

6202115, at *3 (S.D. Ill. Oct. 26, 2018)(citing Dole, 438 F.3d at 809). Inmates must therefore

file their grievances and appeals of those grievances in “the place, and at the time, the

prison’s rules require.” Pozo, 286 F.3d at 1025.

At Shawnee, inmates must follow a three-step process to exhaust their remedies

prior to bringing a lawsuit. (Doc. 41, p. 9). First, inmates must file a grievance with their

counselor within sixty days of the incident underlying the complaint. Id. Second, after

receiving a response, the inmate must timely appeal to the Grievance Officer or CAO. Id.

Third, the inmate must appeal to the ARB within thirty days. Id. None of Plaintiff’s three

grievances include a response from his Grievance Officer, and there is no evidence that

Plaintiff submitted his grievances for the second level of review. The ARB denied all three

of Plaintiff’s grievances on this technical ground. Because Plaintiff did not properly

follow Shawnee’s procedure for filing and appealing his grievances, his administrative

remedies remain unexhausted.

Plaintiff contends that he followed the grievance procedure at Shawnee to the best

of his ability. (Doc. 45, p. 2). Though he submitted the grievance to his Grievance Officer,

Plaintiff claims that he received the grievance with no explanation or attempts to remedy

the situation. Id. Plaintiff therefore appealed to the ARB as outlined in the grievance

policies at Shawnee. Id.

There are three circumstances in which an administrative remedy is not capable of

use to obtain relief, and is therefore unavailable: (i) when the remedy operates as “a

simple dead end,” in which officers are unable or unwilling to provide relief; (ii) when,

though mechanisms exist through which inmates can technically obtain relief, the

mechanisms are so opaque no ordinary inmate can navigate them; or (iii) when prison

administrators thwart a prisoner’s attempt to take advantage of available remedies

through “machination, misrepresentation or intimidation.” Ross v. Blake, 136 S.Ct. 1850,

1859-60 (2016); see also Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008); Pavey, 544 F.3d

at 742; Dole 438 F.3d at 808. When a plaintiff properly follows the procedure for

exhausting administrative remedies, but prison officials mishandle the grievance, the

remedy is rendered unavailable. See Dole, 438 F.3d at 811. For example, if a prison

appellate body rejected an appeal on the basis of a grievance officer’s misidentification of

the prisoner’s prison number, a plaintiff could argue that this mistake rendered his

attempts to exhaust his administrative remedies thwarted. See Ross v. Bock, No. 16-C-8672,

2017 WL 6758394, at *3 (N.D. Ill. Nov. 29, 2017).

If grievance personnel do not respond to a prisoner’s grievance, that prisoner’s

administrative remedies are also rendered unavailable. See Dole, 483 F.3d at 809.

However, in order for a prisoner’s remedies to be unavailable due to lack of a response,

a prisoner must have no indication that officials are pursuing his case. See Reid v. Balota,

962 F.3d 325, 331 (7th Cir. 2020). For example, when prison officials state that they will

inform a prisoner of the status of his or her grievance within sixty days, “whenever

possible,” a period of silence exceeding six months nevertheless does not render remedies

unavailable because officials may still be investigating a complicated case. Ford, 362 F.3d

at 400. In contrast, in Reid, the Seventh Circuit Court of Appeals found that a two-month

period of silence rendered administrative remedies unavailable only because the prisoner

had no other reason to believe that anyone was “looking into” his grievance. 962 F.3d at

331.

During the hearing on Defendants’ motion for summary judgment, Mr. Allard

explained that administrators logged a record of an inmate’s grievances, including their

appeals to the Grievance Officer, for each step of the grievance process after 2018.

However, there is no record that the Grievance Officer ever received any appeal from

Plaintiff for any of his three potentially relevant grievances. While the Plaintiff during the

hearing did appear to indicate that he had submitted an appeal to the Grievance Officer,

but got no response, he later admitted during cross-examination that he likely skipped

the second level of review at the facility.

This appears to be confirmed by the testimony regarding the November 13th

grievance wherein Mr. Allard accused Plaintiff of forgery. A copy of the November 13th

grievance was submitted to the ARB, as opposed to the original grievance. Mr. Allard

noted however that the handwriting on the grievance copy was not from the counselor

whose signature was on the grievance. Mr. Allard believed it was a forgery because he

knew the counselor’s handwriting and confirmed with the counselor that the signature

on the copy was not hers. However, upon questioning by the Court, Mr. Allard admitted

that the substance of the original November 13th grievance and the copy of the November

13th grievance was the same. As an initial matter, the Court does not believe that Plaintiff

had the intent to forge any document as the copy of the November 13th grievance was the

same in form and substance as the original November 13th grievance. Rather, it appears

that the Plaintiff simply made a copy of the original November 13th grievance and sent

the copy, as opposed to the original grievance to the ARB for consideration. However, in

order for Plaintiff to make a copy of his original November 13th grievance, it had to have

been returned to him by his counselor because his counselor’s comments were included

in the copy that was made. But, instead of forwarding this grievance to the Grievance

Officer for second level review as was required, Plaintiff sent the grievance to the ARB.

This evidence confirms Plaintiff’s admission that he likely skipped the second level of

review. As such, the Court finds that the grievance process was available to Plaintiff and

that he was not thwarted in his attempts to remedy his complaints.

Even if Plaintiff did submit his grievances to the Grievance Officer and it was not

responded to, his remedies remain unexhausted because he appealed to the ARB prior to

waiting a sufficient period of time to determine that no one was looking into his response.

The Grievance Officer and CAO are afforded a full two months to review an inmate’s

grievance and provide a response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(e).

Plaintiff received his counselor’s response to his August 22nd grievance on August 25,

2017. (Doc. 41, p. 2). However, he submitted the grievance to the ARB on September 25,

2017. Id. The Grievance Officer and CAO had another thirty days in which to respond to

Plaintiff’s August 22nd grievance, making this appeal untimely.

Equally, Plaintiff received his counselor’s response to his November 13th grievance

on November 16, 2018 but appealed to the ARB by December 10, 2018. (Doc. 41, p. 3).

Though Plaintiff received his counselor’s response to his January 27th grievance on

January 31, 2019, he appealed to the ARB prior to February 20, 2019. Id. Plaintiff submitted

both of these grievances to the ARB well within the timeframe in which the Grievance

Officer and CAO could respond to Plaintiff's appeal. Accordingly, Plaintiff prematurely

appealed to the ARB and failed to follow Shawnee’s procedures for exhausting his

remedies. Plaintiff's administrative remedies therefore remain unexhausted.

CONCLUSION

For the above stated reasons, Defendants’ motion for summary judgment for

failure to exhaust administrative remedies (Doc. 40) is GRANTED. The Court directs the

Clerk of the Court to dismiss this case without prejudice.

IT IS SO ORDERED. Digitally signed

Dated: July 23, 2021. Win 0. Dag ee en ;

17:48:40 -05'00'

GILBERTC.SISON

United States Magistrate Judge

Page 12 of 12

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