McCarter v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMIE MCCARTER, #K04505,

Plaintiff,

v. Case No. 21-cv-0062-SPM

DR. BROOKHART,

LUKING (N.P.),

MRS. CUNNINGHAM,

HAYLEY KERMICLE,

and ALLYSON FISCUS (R.N.),1

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Now before the Court is the motion for summary judgment for failure to exhaust

administrative remedies filed by Defendant Luking (Doc. 44), which Defendant Fiscus joined.

(Docs. 81, 82).2 At this time, Defendant Kermicle has not yet been served with summons. (Docs.

49, 50, 59, 60, 67).

The Court held an evidentiary hearing on the motion on August 1, 2022. For the reasons

set forth below, the motion for summary judgment is DENIED.

BACKGROUND

Plaintiff Jamie McCarter is an inmate of the Illinois Department of Corrections (“IDOC”)

who is currently incarcerated at Pinckneyville Correctional Center. In a Complaint filed on January

15, 2021 (Doc. 1), he alleges that Defendants were deliberately indifferent to his abdominal pain

1 Defendant A. Fiscus has further identified herself as Allyson Fiscus (Doc. 76); the Clerk shall be directed

to correct her name accordingly.

2 Defendants Brookhart and Cunningham had earlier filed a similar motion (Doc. 39) to which Plaintiff

responded (Doc. 42); however, they withdrew their exhaustion defense and the motion. (Docs. 83, 84).

while he was confined at Lawrence Correctional Center. Upon initial review of the Complaint,

Plaintiff was allowed to proceed on the following single count:

Eighth Amendment deliberate indifference claim against Brookhart, Luking,

Cunningham, and Nurse Jane Doe3 for delaying and denying care for

McCarter’s abdominal pain.

(Doc. 15).

On June 2, 2022, over the objection of three Defendants, the Court granted Plaintiff leave

to file his First Amended Complaint (Docs. 64, 65). The First Amended Complaint added factual

allegations against Defendants Kermicle and Fiscus.

In the First Amended Complaint, Plaintiff states he began seeing blood in his stool and

urine around May 31, 2019 and consulted Defendant Kermicle about the problem.4 (Doc. 65, pp.

3-4, 17). Kermicle did a urine test but Plaintiff never heard anything about the results. (Doc. 65,

p. 4). Plaintiff saw Defendant Fiscus on September 3, 2019 but she dismissed his complaint of

abdominal pain as gas. (Doc. 65, pp. 4-5, 19-20). On September 16, 2019, Plaintiff consulted

Defendant Luking about his abdominal pain and the blood in his stool. (Doc. 65, pp. 5, 24-25).

Luking said she would refer Plaintiff to a doctor but never did so. Id. Plaintiff submitted another

request to health care for his abdominal pain, as well as a grievance, but got no response to either.

(Doc. 65, p. 6). He wrote to Defendant Brookhart about the lack of medical attention but got no

response. (Doc 65, pp. 6, 22-23). On February 2, 2020, Plaintiff began vomiting blood; he was

transferred to an outside hospital where he had emergency surgery and was diagnosed with

helicobacter pylori and a peptic ulcer. (Doc. 65, pp. 7-8)

Defendants Luking and Fiscus argue that Plaintiff submitted his lawsuit prematurely

3 Plaintiff later identified the “Jane Doe” Nurse as two individuals, Hayley Kermicle and A. Fiscus.

(Docs. 47, 49, 54, 55).

4 In the original Complaint, Plaintiff alleged an onset of symptoms (abdominal pain) around September

2019. (Doc. 1, p. 2).

because he filed this case approximately two weeks before the ARB issued its response to his

appeal. (Doc. 45, pp. 2, 6-7). Fiscus also claims that Plaintiff failed to timely grieve her alleged

misconduct as his encounter with her was more than 60 days before he filed his grievance. Plaintiff

did not file a response to this motion, but had responded to Brookhart and Cunningham’s

withdrawn exhaustion motion by arguing that he submitted his appeal in a timely manner in

accordance with prison procedures. (Doc. 42, pp. 2-3, 14-15). The Court has considered Plaintiff’s

response as it relates to the instant motion (Doc. 44).

I. Emergency Grievance (#03-20-065) – First Submission

Plaintiff submitted Emergency Grievance (#03-20-065) on March 4, 2020; Brookhart

ordered it to be expedited as an emergency. (Doc. 45-1, pp. 12-13).5 Plaintiff describes his

unsuccessful efforts to obtain medical attention for his abdominal pain and bloody stool since

approximately September 2019, including his September 13, 2019 letter to Brookhart and a

grievance submitted that month which yielded no response, culminating with his February 4, 2020

emergency surgery and diagnosis with the bacterial infection and peptic ulcer. (Doc. 45-1, p. 13).

Plaintiff included a copy of his September 13, 2019, letter to Brookhart. (Doc. 45-1, pp. 14-15).

On March 12, 2020, the Grievance Officer issued a written response noting that Plaintiff

had been approved for an EGD (upper GI endoscopy)6 and was receiving regular treatment, and

recommending the grievance be deemed partially moot (regarding this care) and partially unable

to substantiate (regarding Plaintiff’s claims that he requested care and got no response). (Doc. 45-

1, p. 11). The warden concurred on March 19, 2020, and Plaintiff signed the document on March

27, 2020, indicating his intent to appeal. (Doc. 45-1, p. 11). Notably, this document, attached to

5 Exhibit A to Luking’s Motion for Summary Judgment (Doc. 45-1) contains the ARB’s records of

Plaintiff’s appeals.

6 See https://my.clevelandclinic.org/health/diagnostics/22549-esophagogastroduodenoscopy-egd-test (last

visited July 28, 2022).

Luking’s motion for summary judgment, displays a stamp showing Plaintiff’s appeal was received

by the ARB on April 7, 2020, within 30 days of the warden’s written decision. Id.

On January 26, 2021, the ARB finally responded to Plaintiff’s appeal of Grievance Number

03-20-65 (received on April 7, 2020) by ruling it moot because Plaintiff had been approved for

EGD and was being seen regularly. (Doc. 45-1, p. 10).

II. Second Submission – Status Inquiry on Emergency Grievance (#03-20-065)

On April 10, 2020, Plaintiff sent a letter to the ARB inquiring about the status of the

grievance appeal he had sent about a week prior. (Doc. 45-1, p. 25). The letter was stamped as

received by the ARB on April 27, 2020. Also stamped with the same receipt date are duplicate

copies of Plaintiff’s original grievance, the grievance officer’s response, and Plaintiff’s letter to

Brookhart. (Doc. 45-1, pp. 20-24). On September 2, 2020, the ARB responded to this inquiry by

stating the “appeal” of Grievance No. 3-20-65 was received on April 27, 2020, which was past the

30-day deadline and the matter would not be addressed further. (Doc. 45-1, p. 19).

The contents of the ARB’s September 2, 2020 response to Plaintiff’s inquiry and its

January 26, 2021 disposition of Plaintiff’s timely appeal indicate no awareness by the ARB that it

issued two different (and inconsistent) responses to the same grievance.

III. Emergency Grievance (#04-20-294)

Defendants mention this separate grievance submitted by Plaintiff on April 18, 2020,

regarding not getting his stomach medication for two weeks. (Doc. 40, pp. 3-4; Doc. 45-1, pp. 16-

18). This grievance was deemed an emergency and found moot by the grievance officer and the

CAO. The ARB did not review Plaintiff’s appeal because he did not provide a date for the incident.

(Doc. 45-1, p. 16).

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). On summary judgment, the district court’s role

is generally not to weigh evidence or judge witness credibility. When deciding a motion for

summary judgment on the issue of exhaustion, however, the Seventh Circuit explains that a

different standard applies. Pavey v. Conley, 544 F.3d at 739-41. The Seventh Circuit in Pavey held

that “debatable factual issues relating to the defense of failure to exhaust administrative remedies”

are to be determined by the judge, not a jury. Pavey, 544 at 740-41. A summary judgment motion

on exhaustion grounds typically requires a hearing to decide any contested issues regarding

exhaustion, and a judge may make limited findings at that time. Id. at 742.

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).

While strict compliance with the exhaustion requirement is the rule in this Circuit, an

inmate is only required to exhaust administrative remedies that are actually available to him. Ross

v. Blake, 578 U.S. 632, 642 (2016). An inmate “must exhaust available remedies, but need not

exhaust unavailable ones.” Id.; Reid v Balota, 962 F.3d 325, 329 (7th Cir. 2020) (“an

administrative scheme can be ‘unavailable’ to a prisoner when a prison fails to respond to a

prisoner’s grievance”); Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013).

The United States Supreme Court has adopted a definition of “available” that means

“capable of use for the accomplishment of a purpose” and that which is “accessible or may be

obtained.” See Booth v. Churner, 532 U.S. 731, 737-38 (2001) (internal quotations and citations

omitted). In this context, an inmate is required to exhaust “those, but only those, grievance

procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross,

578 U.S. at 642 (citing Booth, 532 U.S. at 738). For example, an administrative procedure is

unavailable when it operates as a simple dead end, despite what the regulations or guidance

materials may state. Ross, 578 U.S. at 643 (citing Booth, 532 U.S. at 736, 738) (“[W]here the

relevant administrative procedure lacks authority to provide relief,” the inmate has “nothing to

exhaust.”). This commonly occurs when an administrative official has apparent authority and

refuses to exercise it or when a grievance handbook directs an inmate to submit his grievance to

an administrative office that disclaims any capacity to consider the grievance. Id. The

unavailability of a grievance process “lifts the PLRA exhaustion requirement entirely and provides

immediate entry into federal court.” Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016).

III. Grievance Procedures

As an inmate in the custody of IDOC, Plaintiff 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 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 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.

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 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). If the

CAO determines the grievance “should not be handled on an emergency basis, the offender shall

be notified in writing that he or she may resubmit the grievance as non-emergent, in accordance

with the standard grievance process.” 20 ILL. ADMIN. CODE §504.840(c). When an inmate appeals

a grievance deemed by the CAO to be an emergency, “the Administrative Review Board shall

expedite processing of the grievance.” 20 ILL. ADMIN. CODE §504.850(f).

DISCUSSION

At the evidentiary hearing, Administrative Review Board chairperson Adewale Kuforiji

testified for Defendants Fiscus and Luking. In 2020 in his capacity as an ARB staff member, he

reviewed Plaintiff’s appeal to the ARB and signed both responses to Plaintiff’s grievance # 03-20-

065. Due to the COVID-19 pandemic, the ARB closed its office for 3-4 months starting

approximately March 16, 2020, and thereafter reopened with only a skeleton staff for the rest of

2020. Consequently, the ARB’s processing of grievance appeals was significantly delayed. To

catch up on the backlog, they triaged grievances by first responding to those that did not qualify

for review on their merits, such as Plaintiff’s resubmission of grievance # 03-20-065 on April 10,

2020 along with his letter of inquiry – which Kuforiji rejected on September 2, 2020 without

review of the merits because it was submitted beyond the 30-day time frame following the CAO’s

ruling. As time went on, the ARB addressed timely-submitted grievances on the merits, including

Plaintiff’s original appeal received by the ARB on April 7, 2020. Kuforiji stated that appeal was

properly submitted. He ultimately issued his ruling on that appeal on January 26, 2021. Kuforiji

testified that because of the pandemic, it was not feasible for ARB to review grievances within six

months of their receipt, as the Illinois Administrative Code directs. Kuforiji acknowledged that

Plaintiff’s April 2020 resubmission of his grievance # 03-20-065 was an exact duplicate of his

original, timely submission – however, he did not mention this duplication in the written decision

issued to Plaintiff on September 2, 2020 or in the final January 2021 ruling.

Kuforiji further opined that Plaintiff’s grievance # 03-20-065 was not timely as to his

complaints about medical staff’s failure to treat him in September 2019 or on earlier dates, because

the grievance was submitted more than 60 days after those occurrences. Plaintiff responded that

his March 2020 grievance was timely because he submitted it as soon as discovered the injury,

when he was diagnosed with a serious illness that staff previously failed to investigate or treat.

Plaintiff stated, in response to the Court’s questioning, that when he received the first

(September 2020) ARB response to his appeal, dismissing it as untimely, he believed that was the

final step in processing his appeal and he did not think there were any further steps to take in the

grievance process. Normally the ARB would send an acknowledgement that an appeal was

received, but he did not get any such receipt after his first submission of grievance # 03-20-065.

That was why he sent his inquiry letter on April 10, 2020. He did not know that the pandemic had

any effect on the processing of his appeal.

Neither party further addressed Plaintiff’s emergency grievance #04-20-294 regarding a

medication issue, and the Court concludes that grievance has no relevance to Plaintiff’s claims in

this case or to the exhaustion question.

Based on the above testimony and on the ARB records produced prior to the evidentiary

hearing, the Court concludes that Plaintiff satisfied the exhaustion requirement as to Emergency

Grievance #03-20-065. He timely submitted his appeal, and the ARB’s handling of Plaintiff’s

April 10, 2020 inquiry on the status of the appeal created confusion such that Plaintiff had no way

to know that the ARB would still consider his appeal on the merits and ultimately issue a ruling

on January 26, 2021. The ARB’s September 2, 2020 response failed to acknowledge that Plaintiff’s

second submission of his grievance was a duplicate of his first and was in fact an inquiry as to

whether the ARB received the original submission. The ARB told Plaintiff that his appeal (actually

his inquiry) was untimely and was therefore rejected. That response misled Plaintiff to believe that

his appeal was over. This scenario effectively rendered the administrative appeal process

unavailable to Plaintiff. While the Court understands the difficulties the ARB experienced in

processing appeals because of the COVID-19 pandemic, Plaintiff took all the necessary steps to

properly exhaust his appeal and could not have known that the ARB would eventually rule on its

merits some ten days after he filed this action. Accordingly, the motion for summary judgment

will be denied.

DISPOSITION

IT IS THEREFORE ORDERED that the Motion for Summary Judgment on Exhaustion

of Administrative Remedies filed by Defendant Luking (Doc. 44) and joined by Defendant Fiscus

(Docs. 81, 82) is DENIED.

The matter of exhaustion of administrative remedies now being resolved as to all the parties

who have appeared, the stay on merits discovery is LIFTED and the parties can proceed with

discovery on the merits of Plaintiff’s claims. The Court will enter a separate scheduling order to

set forth discovery and dispositive motion deadlines.

The Clerk is DIRECTED to correct Defendant A. Fiscus’ name in accordance with

footnote 1 above.

IT IS SO ORDERED.

DATED: August 1, 2022

s/ Stephen P. McGlynn __

STEPHEN P. McGLYNN

United States District Judge