The opinion
FOINR T THHEE U SNOIUTTEHDE SRTNA TDEISST DRIISCTTR IOCFT I CLOLIUNROTI S
RICO CLARK,
#M10831,
Plaintiff, Case No. 21-cv-00153-SPM
v.
J.B. PRITZKER, ROB JEFFREYS,
ANTHONY WILLS, WEXFORD
HEALTH SOURCES, INC., JOHN DOE 1,
and MELVIN HINTON,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court on motions for summary judgment on the issue of failure
to exhaust administrative remedies filed by all Defendants. (Doc. 38, 41). Plaintiff Rico Clark filed
an incomplete response in opposition, which did not include a memorandum of law as indicated
on the electronic filing cover sheet. (Doc. 49). Clark was given additional time to supplement his
response and file additional pages. (Doc. 51). He has failed to do so. For the reasons set forth
below, the motions for summary judgment are granted.
BACKGROUND
Plaintiff Rico Clark, an inmate of the Illinois Department of Corrections (“IDOC”) who is
currently incarcerated at Menard Correctional Center (“Menard”), alleges he was subjected to
unconstitutional conditions of confinement and denied adequate health care during the COVID-19
pandemic. Clark initiated this action by jointly filing a Complaint with two other Plaintiffs, also
inmates at Menard, on October 28, 2020 (“original case”). (See Fleming v. Pritzker, No. 20-cv-
01133-SPM, Doc. 1). After determining that joinder of the three Plaintiffs would further delay the
fair and efficient litigation of each Plaintiff’s claims, the Court severed the case into three separate
lawsuits. (Id. at Doc. 57). This action was opened, and Clark, the sole plaintiff in this severed case,
is proceeding on the following counts:
Count 1: Eighth Amendment claim against Pritzker, Jeffreys, and Wills for
overcrowded conditions at Menard, which subjected Clark to
unconstitutional conditions of confinement, including the failure to
follow COVID-19 safety protocols and delay of medical treatment.
Count 2: Eighth Amendment claim of against Pritzker, Jeffreys, Wills, John Doe
#1, and Hinton for failing to enforce and implement necessary safety
protocols to protect Clark from the spread of and exposure to COVID-
19.
Count 3: Eighth Amendment claim of denial of adequate medical care against
Pritzker, Jeffreys, Wills, John Doe #1, and Hinton for providing Clark
delayed and inadequate treatment after they contracted COVID-19.
Count 4: Eighth Amendment claim of cruel and unusual punishment against
Pritzker, Jeffreys, Wills, John Doe #1, and Hinton for quarantining
Clark in unconstitutional conditions of confinement.
Count 5: Eighth Amendment claim against Wexford for denial of adequate
medical care to Clark.
Count 6: State law claim of intentional infliction of emotional distress against
Pritzker, Jeffreys, Wills, John Doe #1, Hinton, and Wexford.
(Doc. 1). On August 2, 2021, Defendant Wexford Health Sources, Inc. (“Wexford”) filed a motion
for summary judgment, and on August 30, 2021, Defendants Hinton, Jeffreys, Pritzker, and Wills
filed a motion for summary judgment. (Doc. 38, 41). All Defendants argue that Clark failed to
exhaust his administrative remedies prior to initiating this suit, as is required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. 1997e(a).
In the Initial Scheduling and Discovery Order, Clark was warned that the failure to respond
to a motion for summary judgment on exhaustion may result in an order granting the motion. (Doc.
20, p. 5). Additionally, Defendants provided Clark a Rule 56 Notice stating that he had 30 days
from service to respond to the motions and that, pursuant to the Local Rules of this District, failure
to file a response within the deadline may “be considered an admission of the merits of the motion.”
(Doc. 43, citing SDIL-LR 7.1(c)(1)).
After Defendants filed their motions for summary judgment, Clark filed a notice with the
Court stating he was denied extra writing supplies. (Doc. 45). To ensure that Clark’s ability to
litigate this case was not being frustrated due to conduct by IDOC staff, the Court directed Defense
Counsel to file a notice regarding inmate access to writing materials at Menard. In the meantime,
Clark was granted additional time to file responses to the motions for summary judgment and was
directed to seek assistance in obtaining writing supplies by contacting his counselor or using the
grievance process. (Doc. 46).
Defense Counsel for Defendants Hinton, Jeffreys, Pritzker, and Wills notified the Court on
November 1, 2021, that the commissary at Menard was having difficulties timely receiving orders
placed for supplies. (Doc. 48). In October 2021, pens and paper were made available through the
counselors’ office for offenders who had a court deadline pending, on October 24, 2021, all
inmates at Menard were given one free ink pen, and on October 31, 2021, all inmates at Menard
were given 30 sheets of paper free of charge. After Defendants filed this notice, Clark to did not
file a response or notify the Court of any additional supply issues. Accordingly, no further Court
action was required.
Clark filed his response to the motion for summary judgment on November 18, 2021.
(Doc. 49). The document includes an electronic cover page indicating that Clark intended to file a
memorandum of law along with his response. However, his filing consisted of only a title page
and a page with instructions to copy, mail, sign, and send the document to the law library.
Defendant Wexford filed a reply, which was served on Clark, stating that it raised no objections
to extending the deadline for Clark to file additional pages. (Doc. 50). The Court then sua sponte
granted Clark until February 10, 2022, to file additional pages to add to his response. (Doc. 51).
Clark was reminded that if he failed to support his arguments or address Defendants’ assertions,
the Court may consider the facts undisputed or grant summary judgment.
The response deadline has past, and Clark has not supplemented his response to the motions
for summary judgment despite the above notices of the consequences, nor has he requested any
further extensions.
LEGAL STANDARDS
Summary judgment is proper only if the moving party can demonstrate “that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Any doubt about the
existence of a genuine issue must be resolved in favor of the nonmoving party. Lawrence v.
Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004). The moving party is entitled to judgment as a
matter of law when the pleadings, answers to interrogatories, depositions, and admissions, along
with affidavits, show that there is no genuine issue of material fact. FED. R. CIV. P. 56(c).
II. Exhaustion of Administrative Remedies
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform
Act (“PLRA”). 42 U.S.C. § 1997e(a). The PLRA 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 of available
administrative remedies 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. 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). This allows the prison
administration an opportunity to fix the problem or to reduce the damages and perhaps shed light
on factual disputes that may arise in litigation even if the prison administration’s solution does not
fully satisfy the prisoner. 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).
III. Grievance Procedures
As an inmate in the custody of IDOC, Clark was required to follow the grievance procedure
laid out in the Illinois Administrative Code (“grievance procedures”). 20 ILL. ADMIN. CODE §
504.800, et seq. The grievance procedures direct an inmate is to file a grievance first with the
Counselor within 60 days of the discovery of an incident. See 20 ILL. ADMIN. CODE § 504.810(a).
The grievance form must:
[C]ontain 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 a Grievance Officer. See 20 ILL. ADMIN. CODE § 504.820(a). 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 must submit his findings to the Chief
Administrative Officer (“CAO”) within two months after receiving the grievance. 20 ILL. ADMIN.
CODe § 504.830(e). The CAO then reviews the findings and recommendation of the Grievance
Officer and issues a written decision to the inmate. Id. If the inmate is not satisfied with the
response, he can file an appeal with the Administrative Review Board (“ARB”). See 20 ILL.
ADMIN. CODE § 504.850(a). The ARB must receive the appeal within 30 days after the date of the
decision by the CAO. Id. Only after a grievance is reviewed by the ARB is it deemed exhausted.
See Pozo, 286 F.3d at 1023–24.
ANALYSIS
Defendants assert that from the time Clark entered Menard on February 2020 through
October 28, 2020 when the Complaint was jointly filed in the original case,1 he did not file any
grievances relating to his conditions of confinement and medical treatment prior to and after
contracting COVID-19. (Doc. 47, p. 4). Furthermore, the Administrative Review Board records
demonstrate that he did not appeal any grievances related to issues at Menard. (Doc. 38, p. 3; Doc.
38-3, p. 1; Doc. 47, p. 3). They argue that because Clark did not appeal any grievances regarding
his claims in this case, he has failed to comply with the grievance procedures and has failed to
exhaust his administrative remedies.
As mentioned, Clark filed a response but did not refute any of Defendants’ factual
assertions, arguments, or exhibits. He also did not put forth any arguments or exhibits of his own.
It appears his response is incomplete, but Clark did not take the opportunity given by the Court to
supplement his response. Thus, the Court “consider[s] the fact[s] undisputed for the purposes of
the motion.” FED. R. CIV. P. 56(e).
There is no evidence that Clark filed or attempted to file any grievances regarding COVID-
19 procedures at Menard, his conditions of confinement while on quarantine, or his medical care
in accordance with grievance procedures. Neither has he asserted that he tried to grieve his issues,
1 “[A]n action is ‘brought for the purposes of § 1997e(a) when the complaint is tendered to the district clerk.” Ford v.
Johnson, 362 F. 3d 395, 400 (7th Cir. 2004). See also Gakuba v. Henderson, No. 19-cv-01273-SPM, 2021 WL
3140727, at 3 (S.D. Ill. July 26, 2021) (finding that the date a plaintiff submits a complaint to the court for filing is
the operative date in determining exhaustion, regardless of whether the actions is severed at a later date).
yet his administrative remedies were somehow unavailable to him. Accordingly, Defendants are
entitled to summary judgment on each of Clark’s claims. (Counts 1, 2, 3, 4, 5, and 6).
DISMISSAL OF JOHN DOE
In the Initial Scheduling and Discovery Order, the Court set a deadline of June 18, 2021,
for Clark to file a motion to substitute a specific Defendant for the John Doe or, if John Doe
remained unidentified, to file a motion specifying additional steps that could be taken to identify
the Doe Defendant. (Doc. 20). The Court stated that failure to file a motion to substitute by that
date would result in the dismissal of the John Doe Defendant without prejudice. Additionally, the
Court set a deadline of July 19, 2021, for Clark to file a motion for leave to amend the complaint
to include any additional claims or parties. The Court noted that failure to comply would likely bar
further amendment of the complaint. Clark has not filed a motion to substitute or moved to amend
the complaint to identify the John Doe Defendant, and he has not otherwise informed the Court of
this defendant’s identity. Accordingly, John Doe is dismissed without prejudice.
DISPOSITION
For the reasons provided, the Court GRANTS the motion for summary judgment (Doc.
38) filed by Defendant Wexford Health Sources, Inc and GRANTS the motion for summary
judgment (Doc. 41) filed by Defendants Hinton, Jeffreys, Pritzker, and Wills.
The Court DISMISSES the John Doe Defendant without prejudice. The Clerk is
DIRECTED to TERMINATE him as a party.
This case is DISMISSED without prejudice for failure to exhaust. The Clerk of Court is
DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 15, 2022
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge