Opinion

Chencinski v. Myers

Court
District Court, S.D. Illinois
Filed
Mar 2, 2022
Cited by
0 cases
Authority
More cited than 21.3%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT CHENCINSKI, #B75433, )

)

Plaintiff, )

)

v. ) Case No. 19-cv-485-RJD

)

PERCY MYERS, M.D., WEXFORD )

HEALTH SOURCES, INC., SCOTT )

THOMPSON, and ILLINOIS )

DEPARTMENT OF CORRECTIONS, )

)

Defendants. )

ORDER

DALY, Magistrate Judge:

This matter comes before the Court on the Motion for Summary Judgment for Failure to

Exhaust Administrative Remedies in Counts IV and V by Defendant Percy Myers. (Docs. 122 and

123). Plaintiff responded (Doc. 131). As explained further, Defendant’s Motion is GRANTED.

Background

Plaintiff is an inmate of the IDOC and was incarcerated at Pinckneyville Correctional

Center (“Pinckneyville”) at all times relevant to this motion. He filed this suit pursuant to 42

U.S.C. §1983, alleging that Dr. Myers and the other defendants violated his rights under the Eighth

Amendment, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq., and the

Rehabilitation Act, 29 U.S.C. §§794-94e.1. In his Eighth Amendment claim against Dr. Myers

(Count 1), Plaintiff alleged that Dr. Myers was deliberately indifferent to Plaintiff’s

blepharospasm, a serious medical need affecting his vision; this claim against Dr. Myers survived

the Court’s threshold review conducted pursuant to 28 U.S.C. §1915A.

Plaintiff filed a Motion to Amend his Complaint on August 27, 2020 (Doc. 93). In the

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proposed amended complaint, Plaintiff alleged that he received a spider bite at Pinckneyville in

mid-June 2020 (Doc. 110).1 On July 2, 2020, Dr. Myers prescribed an antibiotic to Plaintiff, but

Plaintiff had an allergic reaction to the antibiotic and ultimately developed blisters (Id.). Two

days later, Plaintiff submitted a grievance to the warden at Pinckneyville regarding the treatment

he received for the spider bite and identifying Dr. Myers as the subject of the grievance (Doc. 123-

1, p. 38). The warden treated the grievance as an emergency and expedited the review, but

ultimately denied the grievance on July 17, 2020 (Id., p. 36, 38). Plaintiff appealed the grievance

to the ARB on July 23, 2020, approximately one month before he filed the Motion for Leave to

bring claims against Dr. Myers related to the spider bite and antibiotic reaction. On February 2,

2021, the ARB denied Plaintiff’s grievance (Id., p. 35). On March 12, 2021, the Court granted

Plaintiff leave to file the Amended Complaint, adding two Eighth Amendment claims against

Defendant Myers: one for deliberate indifference to Plaintiff’s spider bite (Count IV) and one for

deliberate indifference to Plaintiff’s allergic reaction (Count V).

Legal Standards

Summary judgment is appropriate only if the moving party can demonstrate “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-

Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The

moving party bears the initial burden of demonstrating the lack of any genuine issue of material

fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is

1 Plaintiff’s Amended Complaint also contains a claim against Dr. Myers related to Plaintiff’s seizures, but that claim

is not relevant to the instant motion.

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made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists

when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at

248). In considering a summary judgment motion, the district court views the facts in the light

most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex

Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).

Exhaustion Requirements

Under the PLRA, a prisoner must exhaust his administrative remedies before he files suit.

Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020). “[A] suit filed by a prisoner before

administrative remedies have been exhausted must be dismissed; the district court lacks discretion

to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before

judgment.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll

dismissals under § 1997e(a) should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401

(7th Cir. 2004).

An inmate in the custody of the Illinois Department of Corrections must first submit a

written grievance within 60 days after the discovery of the incident or problem to his or her

institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN. CODE §

504.810(a). The grievance must contain the following:

…. 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 § 504.870(b).

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 Chief Administrative Officer

— usually the Warden — within 2 months of receipt, “when reasonably feasible under the

circumstances.” Id. §504.830(e). The CAO then advises the inmate of a decision on the

grievance. Id.

An inmate may appeal the decision of the Chief Administrative Officer in writing within

30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); 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 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and

(e). Inmates who intend to file suit are required to follow all steps and instructions in the

grievance process before filing with the Court in order to “[allow prisons] to address complaints

about the program [they administer] before being subjected to suit, [reduce] litigation to the extent

complaints are satisfactorily resolved, and [improve] litigation that does occur by leading to the

preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007).

Discussion

Defendant’s motion raises one legal issue to resolve-whether an inmate has complied with

the PLRA’s exhaustion requirement under the following sequence of events: 1) the inmate files

a motion for leave to add a new claim to his suit; 2) the inmate exhausts his administrative remedies

for that new claim; 3) the Court grants his motion for leave to file the new claim. An inmate

cannot sue first and then exhaust his remedies. Chambers, 956 F.3d at 984 (citing Ford v.

Johnson, 362 F.3d 395, 398-400 (7th Cir. 2004)). One exception: when an inmate amends his

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complaint to raise a new claim, the inmate may proceed if he exhausted his administrative remedies

after filing his original complaint, but prior to “the filing of the amended complaint.” Barnes v.

Briley, 420 F.3d 673, 678 (7th Cir. 2005). However, as the Seventh Circuit noted in Ford, the

Court’s use of the term “filed” may be “uttered in passing rather than the result of a need to resolve

[a] particular question.” Ford, 362 F.3d at 399. For example, in Barnes, the plaintiff exhausted

his administrative remedies before he filed a Motion for Leave to Amend his Complaint, therefore

the particular question raised here (whether Plaintiff was required to exhaust his administrative

remedies before he filed the Motion for Leave) was not at issue. Barnes, 420 F.3d 673, 675-76

(7th Cir. 2005).

Plaintiff cites a string of district court orders to support his argument that he was not

required to exhaust until the date his Amended Complaint was filed. For all these cases, the term

“filing date” is used in passing as the Court resolved other issues that are not relevant to the instant

motion. Owens v. Duncan, Case No. 15-cv-1169-MJR-SCW, 2017 WL 895591 (S.D. Ill. Mar. 7,

2017); Merriwether v. Wexford Health Sources, Inc., et al., Case No. 16-cv-1098, 2018 WL

59044021 (S.D. Ill. June 15, 2018); J. H. v. Pfizer, Inc. et al, 2016 WL 1247480 (N.D. Ill. Mar.

30, 2016) ; Smith v. Coe, Case No. 16-cv-913-NJR-DGW, 2018 WL 6625041 (S.D. Ill. Jun. 15,

2018). In one of Plaintiff’s cited cases, the issue was whether administrative remedies were

“unavailable” to the inmate. Merritte v. Kessler, No. 12-cv-263-JPG-PMF, 2015 WL 2018225

(S.D. Ill. Apr. 30, 2015). In another, the plaintiff received the relief she requested directly from

the prison and therefore the Court ruled that she exhausted her administrative remedies without

appeal to the ARB; moreover, all of the actions that sufficed to exhaust her administrative remedies

occurred before she filed the Motion for Leave. Hampton v. Baldwin, Case No. 18-cv-550, 2019

WL 3046332 (S.D. Ill. Apr. 29, 2019); cf. Docs. 53 and 117.

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The Seventh Circuit has not made it explicitly clear that a prisoner’s administrative

remedies regarding new claims in a proposed amended complaint must be exhausted before he

files the motion for leave to amend the complaint. See, e.g., Cannon v. Washington, 418 F.3d

714, 717-19 (7th Cir. 2005). In Cannon, the Seventh Circuit notes that the plaintiff fully

exhausted a new claim in his amended complaint via a grievance dated November 1998, but does

not state when it was fully exhausted. Id. at 717. However, the plaintiff did not file a motion for

leave to amend his complaint until March 2001; it is likely exhaustion was completed at some

point during that 28-month period. See id.

In any event, Plaintiff’s argument is inconsistent with other recent decisions from this

district. Daniels v. Lawrence, et al., Case No. 20-cv-96-DWD, 2022 WL 562603, *4 (S.D. Ill.

Feb. 24, 2022); Belk v. Watson, et al., 19-cv-499-JPG, 2021 WL 2292573, *5 (S.D. Ill. Jun. 4,

2021); Getty v. Santos, Case No. 18-cv-1134-MAB, 2020 WL 2832465, *6 (S.D. Ill., May 31,

2020). Requiring inmates to exhaust their administrative remedies regarding new claims before

they ask to amend their complaint seems logical. Prisoners cannot exhaust their administrative

remedies after they file their Complaint but before the Court completes the initial screening

pursuant to 28 U.S.C. §1915A. Ford, 362 F.3d at 398. The screening process is similar to the

Court’s analysis of a proposed amended complaint. 28 U.S.C. §1915A(b)(1) (the Court may

dismiss a prisoner’s frivolous claims); cf. Gandhi v. Sitara Capital Mgmt, LLC, 721 F.3d 865,

869 (the Court may deny leave to amend if the amendment is futile).

One purpose of the exhaustion process is to allow the prison time to address an inmate’s

complaints before he files suit. Jones, 549 U.S. at 219. Likewise, the interests of judicial

economy are furthered by allowing the prison the opportunity to address an inmate’s new

complaints before he asks the Court to determine whether he may amend his complaint.

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Accordingly, because Plaintiff filed his Motion for Leave to Amend the Complaint and add Claims

IV and V against Dr. Myers before he fully exhausted his administrative remedies regarding those

claims, Dr. Myers is entitled to summary judgment.

CONCLUSION

Summary judgment is granted in favor of Dr. Myers and against Plaintiff on Counts IV and

V of Plaintiff’s Amended Complaint. Counts IV and V are dismissed without prejudice. The Clerk

of Court is directed to enter judgment accordingly at the conclusion of the case.

IT IS SO ORDERED.

DATED: March 2, 2022

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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