The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN CURRY, #R09761, )
)
Plaintiff, )
vs. ) Case No. 3:20-cv-01137-SMY
)
KIMBERLY BUTLER, )
TODD BROOKS, )
GAIL WALLS, )
MOHAMMED SIDDIQUI, )
and JOHN TROST, )
)
Defendants. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court on separate motions for summary judgment for failure to
exhaust administrative remedies filed by Defendants John Trost and Mohammed Siddiqui (Doc.
93) and Defendants Kimberly Butler and Gail Walls (Doc. 108). Given the undisputed facts set
forth in the parties’ written submissions, an evidentiary hearing pursuant to Pavey v. Conley, 544
F.3d 739, 742 (7th Cir. 2008) is unnecessary. For the following reasons, the motions are
GRANTED.
BACKGROUND
Plaintiff Steven Curry filed the instant lawsuit pursuant to 42 U.S.C. § 1983 for alleged
deprivations of his constitutional rights at Menard Correctional Center. He makes the following
allegations in the First Amended Complaint (Doc. 1): Prior to entering IDOC, Plaintiff was
stabbed in the heart and underwent emergency open heart surgery. Plaintiff did not have any issues
after entering IDOC custody until he was transferred to Menard. While at Menard, he began
experiencing shortness of breath, tightness in his chest, weakness throughout his body, and painful
headaches. Dr. Trost confirmed that Plaintiff had an irregular heartbeat and told him further testing
was needed. Plaintiff told Dr. Trost that he was living in unsanitary cell conditions including
extreme temperatures of 90 to 100 degrees, a lack of proper ventilation, and soiled pillows and
mattresses. Dr. Trost told Plaintiff he would submit a request for him to be referred to an outside
facility for testing and would contact the administration about his placement in a sanitized cell.
Dr. Trost later notified Plaintiff that Wexford denied the request for further testing.
Plaintiff continued to be housed in a cell with poor ventilation, poor air quality, dust, rust,
mold, pepper spray residue, soiled pillows, and torn mattresses. He was not provided with cleaning
supplies. Plaintiff spoke to Warden Butler on a few occasions and told her that he was not
receiving proper medical treatment for his heart and about his unsanitary cell conditions. She
stated she would look into the matters, but failed to take any action to assist him.
Plaintiff wrote to health care administrator Gail Walls regarding the breathing issues he
was having due to his heart condition and requested surgery. He received a response advising him
that Wexford collegial had denied his request and that the medical unit would continue to monitor
him on site. He was told to put in for a sick call if he had any problems. Plaintiff notified Assistant
Warden Brooks, who supervised the healthcare unit, that he was having issues with breathing and
unsanitary cell conditions and was not receiving any results from his complaints. Brooks stated
he would look into the matters but did not.
Plaintiff wrote another grievance to Warden Butler regarding his situation, after which he
was sent to an outside hospital to have the test Dr. Trost recommended a year prior. The outside
doctor confirmed that Plaintiff had a hole in his heart and diagnosed ventricular septal defect.
Thereafter, Plaintiff was sent to an outside hospital a few times, but nothing was done to close the
hole in his heart or to ensure that he received adequate medical treatment.
Plaintiff then submitted an emergency grievance to Warden Lashbrook regarding
reoccurring chest pain, a lack of proper medical treatment, and unsanitary cell conditions. Warden
Lashbrook expedited the grievance and Plaintiff was referred to Dr. Siddiqui. Dr. Siddiqui
confirmed an abnormal heartbeat and after reviewing Plaintiff’s medicals files, recommended that
Plaintiff be urgently referred to an outside hospital. However, Dr. Siddiqui did not take any action
to ensure Plaintiff got the surgery he needed. In response to Plaintiff’s grievance, Warden
Lashbrook advised him to go through his counselor for a transfer, but took no action to transfer
him or place him in a sanitized cell.1
After preliminary review of the First Amended Complaint, Plaintiff proceeds on the
following claims (Doc. 19):
Count 1: Eighth Amendment claim against Butler, Brooks, Walls, Trost, and
Siddiqui for exhibiting deliberate indifference to Plaintiff’s serious
heart condition.
Count 2: Eighth Amendment claim against Butler, Brooks, and Trost for the
unconstitutional conditions of confinement that Plaintiff endured
which worsened his medical condition.
FACTS
Plaintiff was incarcerated at Menard Correctional Center from August 7, 2013, until April
4, 2018 when he was transferred to Pontiac Correctional Center (Doc. 94-5, pp. 1, 10). He had his
first appointment with Dr. Trost regarding his heart condition on April 25, 2014 (Id., p. 2). Dr.
Trost’s last in-person encounter with Plaintiff regarding his heart condition occurred on March 14,
1 Plaintiff filed a lawsuit on July 19, 2017 against the defendants based on these same allegations, but it was dismissed
for failure to exhaust administrative remedies. See Steven Curry v. Kimberly Butler, et. al., 3:17-cv-00751-DRH-RJD
(S.D. Ill. July 2, 2018). The Court found that grievances dated November 2, 2014, and May 18, 2015 were
procedurally defective. See Curry, 3:17-cv-00751 at Docs. 118 and 120. As a result, the issue of exhaustion as to
those two grievances has been adjudicated. Also, the Court noted that Plaintiff’s grievance dated June 2, 2017, which
is at issue in this lawsuit, could not exhaust administrative remedies as to the claims in that lawsuit because Plaintiff
had not received a ruling from the Administrative Review Board prior to filing the lawsuit. Id. As a result, the Court
did not address any substantive or procedural deficiencies in the grievance.
2016 (Id., p. 6). Plaintiff was seen by an outside cardiologist on June 16, 2016 (Id., p. 16). In
October 2016, Dr. Trost referred Plaintiff for a cardiology follow-up which was approved (Id., pp.
19-20). Dr. Trost left his employment at Menard on March 17, 2017 (Doc. 94-6, pp. 1-2). Dr.
Siddiqui became the Medical Director at Menard on June 12, 2017 (Doc. 94-6, pp. 1-2). Plaintiff’s
first encounter with Dr. Siddiqui regarding his heart condition occurred on June 15, 2017 (Doc.
94-5, p. 9).
Grievance Documents
Plaintiff filed an emergency grievance dated June 2, 2017 complaining that he was being
deprived of proper medical attention for his heart condition and being subjected to unsanitary
living conditions (Doc. 94-7, pp. 1-4; Doc. 109-2, pp. 43-46). He states the nurses, doctors, and
medical administrators at Menard are aware of his medical condition. He requests proper heart
monitoring, sanitary living conditions, and a transfer to another prison for physical therapy. The
chief administrative officer (CAO) granted expedited review. The grievance officer contacted the
health care unit (HCU) and Plaintiff was called to the HCU on June 15, 2017 for evaluation of his
grievance issues. The cell house supervisor was also contacted regarding Plaintiff’s cell
conditions, and a health and safety check was conducted with no issues noted. The grievance
officer’s Report noted that Plaintiff should contact his assigned counselor to request a transfer
review. The CAO concurred with the Report on June 22, 2017. The Administrative Review Board
(ARB) received the grievance on July 13, 2017 and returned it on July 31, 2017 because it was not
submitted within the timeframe required by Department Rule 504. The ARB noted that because
there was no date of incident(s), there was no way to determine the time frame of Plaintiff’s
allegations, and no cell issue was cited.
Plaintiff filed an emergency grievance on October 25, 2017 regarding medical treatment
for his heart condition and the conditions of his cell (Doc. 109-2, pp. 31-35). The grievance was
sent directly to the ARB with a letter addressed to the ARB of the same date. Plaintiff’s October
25, 2017 grievance was received by the ARB on October 31, 2017 and returned on November 9,
2017 for additional information because Plaintiff did not include a copy of any responses at the
facility level.
Plaintiff filed no other grievances related to his medical treatment or the conditions of his
confinement at Menard prior to his transfer to Pontiac (Doc. 109, p. 4 at ¶ 17; Doc. 109-2, pp. 2-
3; Doc. 109-3, pp. 1-5).
DISCUSSION
Failure to exhaust administrative remedies is an affirmative defense properly raised in a
motion for summary judgment to be resolved by the judge. Pavey v. Conley, 544 F.3d 739, 740
(7th Cir. 2008). Summary judgment is proper if there is no genuine issue 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).
The Prison Litigation Reform Act requires prisoners to exhaust all available administrative
remedies prior to filing lawsuits in federal courts with regard to prison conditions. 42 U.S.C. §
1997e(a). Administrative exhaustion “means using all steps that the agency holds out, and doing
so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006).
As an inmate in the Illinois Department of Corrections, Plaintiff was required to follow
the grievance process outlined in the Illinois Administrative Code. 20 ILL. ADMIN. CODE §
504.800, et seq. (2017). The regulations require an inmate to file his grievance with his counselor
within sixty days of the discovery of an incident, occurrence, or problem that gave rise to the
grievance. 20 ILL. ADMIN. CODE § 504.810(a). The grievance must “contain 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.” 20 ILL.
ADMIN. CODE § 504.810(c).
If the complaint is not resolved through the counselor, the grievance must be submitted to
a grievance officer, who reports his or her findings and recommendations in writing to the CAO.
20 ILL. ADMIN. CODE § 504.830(e). The CAO then provides the inmate with a written decision on
the grievance. Id. If the inmate is not satisfied with the CAO’s response, he files an appeal with
the IDOC Director through the ARB. 20 ILL. ADMIN. CODE §504.850(a). The ARB must receive
the appeal within thirty days of the date of the CAO’s decision. Id. The ARB submits a written
report of its findings and recommendations to the Director, who then makes a final determination.
20 ILL. ADMIN. CODE § 504.850(d), (e).
June 2, 2017 grievance
In the June 2, 2017 grievance, Plaintiff asserts an ongoing deprivation of medical care and
unsanitary living conditions. As it pertains to Dr. Trost, the grievance was not filed within sixty
days of the incident, occurrence, or problem that gave rise to the grievance because Dr. Trost left
Menard on March 17, 2017. Under the continuing violation theory, Dr. Trost’s alleged violations
of Plaintiff’s constitutional rights ended when he was no longer in a position to provide the medical
treatment sought by Plaintiff. See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001).
Similarly, the grievance is procedurally deficient as to Warden Butler who resigned from
Menard in 2016 (Doc. 94-2, p.4). Further, the grievance does not suggest that Warden Butler or
any other prison administrator knew about Plaintiff’s complaints of inadequate medical care or
unsanitary cell conditions and approved, condoned, or turned a blind eye to it. The grievance could
not have been directed to, or exhausted administrative remedies against, Dr. Siddiqui because he
did not become the Medical Director at Menard until June 12, 2017 and saw Plaintiff for the first
time on June 15, 2017. See Barrow v. Wexford Health Sources, Inc., 793 F.App’x 420, 423 (7th
Cir. 2019) (finding grievances filed before doctor became involved in plaintiff's medical care did
not establish exhaustion of available remedies as to claim against doctor).
Additionally, the grievance does not exhaust administrative remedies for the claim against
Defendant Walls. Plaintiff’s conclusory and vague assertion that Menard nurses/doctors and
medical administrators are aware of his medical condition is insufficient to alert prison officials of
his claim that Walls denied him medical care or knew of inadequate medical care and approved,
condoned, or turned a blind eye to it.
For these reasons, the June 2, 2017 grievance does not exhaust administrative remedies as
to the claim against Trost, Siddiqui, Butler, and Walls in Count 1 or the claim against Trost and
Butler in Count 2.
October 25, 2017 grievance
The October 25, 2017 grievance was not fully exhausted because Plaintiff submitted it
directly to the ARB without submitting it to the counselor, grievance officer, and CAO. As a
result, the grievance does not serve to exhaust administrative remedies for any claims asserted in
this lawsuit.
Pontiac grievances
In his response, Plaintiff references grievances he allegedly filed after he transferred to
Pontiac dated September 9, 2018, December 13, 2019, December 23, 2019, February 18, 2020,
and May 14, 2020 (Doc. 106, pp. 5-7). Those grievances were submitted more than sixty days
after Plaintiff transferred from Menard to Pontiac in April 2018 (Doc. 94-5, p. 10). Additionally,
those grievances pertain to medical treatment issues at Pontiac, not Menard (Doc. 106-1, pp. 5, 11,
17).
Defendant Brooks
Although Defendant Brooks has not been served, the Court will address whether Plaintiff
exhausted his administrative remedies as to his claims against Brooks.2 There is nothing in the
June 2, 2017 grievance to suggest that Brooks knew of inadequate medical care or unsanitary cell
conditions and approved, condoned, or turned a blind eye to it. The October 25, 2017 grievance
was not fully exhausted. The Pontiac grievances were submitted outside the sixty-day time frame
set forth in § 504.810(a). And Plaintiff did not file any other grievance related to his medical
treatment or the conditions of his confinement at Menard prior to his transfer to Pontiac.
Accordingly, pursuant to Federal Rule of Civil Procedure 56(f), Plaintiff is notified that summary
judgment may and should be granted in favor of Defendants Brook. Plaintiff will be given fourteen
days from the date of this Order to submit any documents and/or arguments to the Court as to why
Defendant Brooks should not be dismissed for failure to exhaust administrative remedies.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment for Plaintiff’s Failure to
Exhaust his Administrative Remedies filed by Defendants John Trost and Mohammed Siddiqui
(Doc. 93) is GRANTED and the Motion for Summary Judgment on the Issue of Exhaustion of
Administrative Remedies (Doc. 108) filed by Defendants Kimberly Butler and Gail Walls is
GRANTED.
2 A judge may grant summary judgment in favor of all defendants even if only some defendants have moved for
summary judgment. See Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir.1994) (“[a] district judge is authorized to
grant summary judgment to a party that has not requested it”). A court may sua sponte enter summary judgment in
favor of additional nonmoving defendants if they are in a position similar to that of the moving defendants and the
motion raised by the moving defendants is equally effective in barring the claim against the nonmoving defendants.
See Bonny v. The Society of Lloyd's, 3 F.3d 156, 162 (7th Cir.1993).
Defendants Trost, Siddiqui, Butler, and Walls are DISMISSED without prejudice. The
Clerk of Court is DIRECTED to terminate Trost, Siddiqui, Butler, and Walls as parties and enter
judgment in accordance with this Order at the close of the case.
Pursuant to Rule 56(f), Defendant Brooks will be dismissed for failure to exhaust
administrative remedies unless Plaintiff submits documents and/or other information within
fourteen days of the date of this Order establishing that he exhausted his claims against Brooks.
IT IS SO ORDERED.
DATED: August 9, 2022
s/ Staci M. Yandle_____
STACI M. YANDLE
United States District Judge