The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE R. ROBINSON,
Plaintiff,
v. Case No. 20-CV-00432-SPM
MATTHEW SWALLS, VENERIO
SANTOS, and KIMBERLY BIRCH,
Defendants.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Plaintiff Willie R. Robinson, an inmate in the custody of the Illinois
Department of Corrections (“IDOC”), alleges that Defendants Warden Matthew
Swalls, Dr. Venerio Santos, and Dr. Kimberly Birch were deliberately indifferent
to his serious medical needs due to a skin condition.1 According to Defendants
Swalls, Santos, and Birch, Robinson’s claims against them for deliberate
indifference cannot proceed because he failed to exhaust his administrative
remedies before filing suit.2
FINDINGS OF FACT
Robinson alleges that in late 2015, he contracted a skin rash below his knees
while he was being housed at the IDOC’s Danville Correctional Center. He claims
1 Robinson also has a claim against Swalls for an Eighth Amendment conditions of confinement
violation for the unsanitary living conditions related to alleged mold in his living quarters at Vienna
Correctional Center (Count 3).
2 The Court failed to address the order granting motion to join filed by Swalls (Doc. 53) and in error
stated that Count 2, rather than Count 3, would proceed against Swalls. This order is to address
typographical errors and oversight by the Court.
he was treated by Dr. Lochard at Danville, Santos when he transferred to
Centralia Correctional Center on November 16, 2016, and Birch when he
transferred to Vienna on February 1, 2019. Each doctor diagnosed Robinson as
having eczema and provided a cream to treat his skin condition. Robinson claims
that the creams did not resolve his condition.
Robinson states he was seen in the health care unit at Vienna in August
2019 for pain from a lump on his left knee. The med tech looked at the lump and
sent Robinson back to his housing unit without treatment. The pain continued and,
in September 2019, Robinson was seen by Birch. Birch incised the lump and
discovered it was an infection. Robinson was given an antibiotic and other
medication. His symptoms persisted and he continued to seek treatment for his
skin conditions but received no relief from the treatments offered by Birch.
Robinson asked to be seen by an “outside specialist,” but Birch denied his request.
In June 2019, Robinson alleged he was diagnosed with cellulitis. He was
admitted to the prison infirmary and given IV antibiotics and other medications
which resolved his symptoms. The symptoms returned within a few days of
Robinson’s release from the infirmary and he sent Birch a request slip to be seen.
Robinson was then seen by a nurse practitioner and provided antibiotics and other
medications. The problem persisted and Robinson sent several sick call requests
to Birch. As of December 2019, Robinson was still suffering without any relief.
Robinson filed several grievances about his ongoing medical care issues. He
filed a grievance at Centralia regarding his skin condition that was then appealed
to the Arbitration Review Board (“ARB”) in March 2017. The grievance did not
allege any improper treatment by any physician. Robinson filed a grievance at
Vienna regarding a “lump on his leg” in September 2019, but an appeal to the ARB
was received more than 30 days after the decision from the correctional center was
received. Robinson filed another grievance at Vienna regarding his skin condition
in November 2019, which was appealed to the ARB, but he did not allege any
improper treatment by any physician.
Robinson filed one other grievance after transferring to Shawnee
Correctional Center in December 2019. But Robinson filed this lawsuit prior to an
appeal and ruling from the ARB. The ARB did not receive the appeal of the
grievance until July 2020, after this lawsuit was filed in May 2020. Robinson
admitted as much in his Complaint, stating “the grievance process at Shawnee CC
is not entirely complete; it is in its 2nd stage” (Doc. 1, p. 11).
LEGAL STANDARDS
A. Summary Judgment
Motions for summary judgment are governed by Federal Rule of Civil
Procedure 56. “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); FED. R. CIV. P. 56(c).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all
administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. §
1997e(a); Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). Proper exhaustion
requires an inmate to “file complaints and appeals in the place, and at the time,
the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002).
Under the procedures set forth in the Illinois Administrative Code, an
inmate is required to file a written grievance within 60 days of the “incident,
occurrence or problem that gives rise to the grievance.” 20 ILL. ADMIN. CODE §
504.810(a). The grievance must be filed with the inmate’s counselor, unless certain
discrete issues are being grieved. Id. If the complaint is not resolved through a
counselor, the grievance is considered by a grievance officer who must render a
written recommendation to the CAO (usually the Warden) within two months of
receipt, “when reasonably feasible under the circumstances.” Id. at § 504.830(e).
The Warden then advises the inmate of a decision on the grievance. Id.
An inmate may also file an emergency grievance that is forwarded directly
to the Warden. Id. at § 504.840. If “there is a substantial risk of imminent personal
injury or other serious or irreparable harm to the offender,” consideration of the
grievance will be expedited. Id. at § 504.840(a) and (b). An inmate may appeal the
Warden’s decision to the IDOC Director. Id. at § 504.850(a). The appeal must be in
writing, must be directed to the ARB, and must be received by the ARB within 30
days of the date of the Warden’s response. See also Dole v. Chandler, 438 F.3d 804,
806-07 (7th Cir. 2006). The ARB will submit a written report of its findings and
recommendations to the Director who shall review the same and make a final
determination within six months of receipt of the appeal. Id. § 504.850(d) and (e).
DISCUSSION
Because Robinson did not file a response to the motion, the facts presented
by Defendants Swalls, Santos, and Birch are uncontroverted. As there are no
disputes of fact, the Court finds that an evidentiary hearing is not needed in this
case. Defendants Swalls, Santos, and Birch have established that Robinson had
access to the grievance process, but his grievances are either factually inadequate
when compared to his medical allegations in this case or procedurally inadequate.
The Court concludes, therefore, that Robinson did not exhaust his administrative
remedies as to the claims of deliberate indifference against Defendants Swalls,
Santos, and Birch prior to filing suit. Accordingly, Defendants Swalls, Santos, and
Birch are entitled to summary judgment.
CONCLUSION
Consequently, the Motion for Summary Judgment (Doc. 50) is GRANTED.
Counts 1 and 2 against Defendants Warden Matthew Swalls, Venerio Santos, and
Kimberly Birch are, therefore, DISMISSED without prejudice. Count 3 will
proceed against Swalls. The Clerk of Court is DIRECTED to terminate Santos
and Birch as parties to this suit.
IT IS SO ORDERED.
DATED: October 22, 2021
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge