Birge v. Venerio

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BRIAN LEE BIRGE, )

)

Plaintiff, )

)

vs. ) Case No. 20-cv-769-RJD

)

VENERIO SANTOS, M.D., LANA )

NALEWAJKA, and WEXFORD )

HEALTH SOURCES, INC., )

)

Defendants.

ORDER

DALY, Magistrate Judge:

This matter comes before the Court on Motions for Summary Judgment on the Issue of

Administrative Remedy Exhaustion filed by Defendants Wexford Health Sources, Inc., Myers,

Moseley, Godoyo, Delgado, Newcomb, and Wall (Docs. 151-154). Plaintiff filed Responses

(Docs. 157 and 158) and Defendants Wexford and Myers filed a Reply (Doc. 164). The Court

held a hearing on October 27, 2022. Summary judgment is granted in favor of Defendant Myers,

Moseley, Godoyo, Delgado, Newcomb, and Wall. Summary judgment in favor of Defendant

Wexford Health Sources, Inc. (“Wexford’) is GRANTED IN PART AND DENIED IN PART.

Wexford filed a Motion to Dismiss (Doc. 113) that is DENIED AS MOOT.

Background

Plaintiff, an inmate of the Illinois Department of Corrections (IDOC), filed this suit pro se

pursuant to 42 U.S.C. §1983 (Docs. 1, 47). Plaintiff alleged that Dr. Venerio Santos and Lana

Nalewajka were deliberately indifferent to his severe back pain at Centralia Correctional Center,

violating Plaintiff’s Eighth Amendment rights (Docs. 1, 47). The Court recruited counsel for

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claim against Wexford. Wexford contracts with IDOC to provide medical treatment for IDOC

inmates (Doc. 47). Plaintiff alleged that Wexford maintains policies and/or practices that result

in the delay or denial of necessary medical treatment for his chronic back pain.

Plaintiff filed a Motion for Preliminary Injunction on July 29, 2021, contending that

Defendants had repeatedly delayed treatment necessary to alleviate his severe back pain. The

Court held an evidentiary hearing on September 21, 2021 and ultimately granted the motion,

entering the following preliminary injunction on September 30, 2021:

Defendants are ORDERED to schedule and facilitate an appointment with

Dr. Berry (or another pain management physician who practices with Dr.

Berry). The appointment shall take place within 30 days of the date of this

Order. If Dr. Berry (or another pain management physician who practices

with Dr. Berry) has no available appointments within 30 days of the date of

this Order, Defendants shall schedule and facilitate an appointment for

Plaintiff on Dr. Berry’s (or another pain management physician who

practices at his clinic) first available date. Defendants shall provide a

Notice to the Court that advises the Court of the outcome of that

appointment, i.e., whether the doctor provided an injection for Plaintiff or

otherwise recommended further treatment. Defendants are further

ORDERED to arrange for a physician who is treating patients within the

IDOC to evaluate Plaintiff for a walker for him to use at Centralia

Correctional Center within 15 days of the date of this order. Defendants

shall provide a Notice to the Court that advises the Court of the results of

that evaluation.

(Doc. 81). Defendants subsequently filed their Notices of Compliance, informing the Court

that Plaintiff was provided a walker and saw Dr. Berry on October 13, 2021. Dr. Berry

recommended a “trial of Gabapentin and a seated walker with wheels” and a “follow-up with

neurosurgery” if Plaintiff’s condition did not improve (Doc. 89-1). After the visit with Dr. Berry,

IDOC transferred Plaintiff to Pinckneyville Correctional Center (Doc. 91).

In January 2022, Plaintiff requested and the Court granted leave to file his second amended

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against the following parties: Dr. Percy Myers, Joshua Moseley, George Godoyo, Jose Delgado,

Leonard Newcomb, and Chad Wall. Defendants Godoyo, Delgado, Newcomb, and Wall were

originally named as John Does and later identified by Plaintiff.

In the Second Amended Complaint, Plaintiff alleges that he was provided with a walker at

Centralia Correctional Center (“Centralia), but no physician evaluated him for a walker (as the

Court ordered). Moreover, the walker is large, heavy, bulky, and has no wheels or a seat (Doc.

100). Dr. Percy Myers prescribed gabapentin to Plaintiff, but discontinued all of Plaintiff’s other

pain medication (Id.). Plaintiff describes an incident at Centralia where he asked for his pain

medication, and Sergeant Moseley told him he would not be “getting the f******* medication”

(Id.). Sergeant Moseley then ordered Plaintiff into the hallway and slammed the cell door into

him (Id.). Plaintiff laid down on the floor and Sergeant Moseley kneeled on his back to place

handcuffs on him, further exacerbating Plaintiff’s back pain (Id.). Moseley and Defendants

Godoyo, Delgado, and Newcomb took Plaintiff to segregation (Id.; Doc. 119, ¶8(a)).

Two days later, Plaintiff was transferred to Pinckneyville Correctional Center

(“Pinckneyville”) and he alleges that Defendant Wall threatened him to plead guilty to assaulting

Sergeant Moseley or he would be “lost in seg” (Id.; Doc. 119, ¶8(b)). Plaintiff pleaded guilty,

spent 14 days in segregation, and was then released to general population (Doc. 100). At

Centralia, Plaintiff had been housed in the healthcare unit where he was able to sleep on a gel

mattress to alleviate his back pain (Id.). He has not been given a gel mattress at Pinckneyville,

nor several other accommodations that were made for his back pain at Centralia (Id.). Plaintiff’s

Second Amended Complaint contains the following claims:

Count I: Deliberate indifference by Nalejawka and Santos

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Count III: Deliberate indifference by Dr. Percy Myers

Count IV: Excessive use of force by Defendant Moseley

Count V: Retaliation by Wexford, Myers, Moseley, Godoyo, Delgado,

Newcomb, and Wall

Count I in the Second Amended Complaint is identical to Count I in the First Amended

Complaint. Count II in the Second Amended Complaint is nearly identical to Count II in the First

Amended Complaint, except that Plaintiff alleges that Wexford’s policies and practices continue

to cause the delay and/or denial of his necessary medical treatment. Counts III, IV, and V in the

Second Amended Complaint are all new claims.

Pursuant to 42 U.S.C. § 1997e(a), no §1983 action “shall be brought....until such

administrative remedies as are available are exhausted.” Defendants Myers, Wexford, Moseley,

Godoyo, Delgado, Newcomb and Wall move the Court to grant summary judgment in their favor

on the issue of exhaustion and dismiss all claims against them.1

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 Wexford did not raise the affirmative defense of administrative remedy exhaustion defense when it answered

Count II of Plaintiff’s First Amended Complaint.

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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

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, occurrence or problem, to his

or her institutional counselor. 20 ILL. ADMIN. CODE § 504.810(a). 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 (“ARB”) 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).

Where an inmate faces “a substantial risk of imminent personal injury or other serious or

irreparable harm to the offender,” his grievance is handled as an emergency. Id. §_504.840(a);

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expedites processing of the grievance and responds to the offender. Id. §_504.840(b). If the

inmate subsequently appeals the emergency grievance, the ARB also expedites its processing of

the grievance. Id. §_504.850(f).

When an inmate grieves “issues that pertain to a facility other than the facility where the

offender is currently assigned,” he must submit the grievance directly to the ARB and bypass

submitting it to the counselor and grievance officer at his current facility. Id. §_504.870(a)(4).

This rule does not apply to grievances regarding medical treatment or personal property. Id.

Inmates who intend to file suit are required to follow all steps and instructions in the

grievance process before bringing suit 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). However, an inmate is

only required to exhaust the administrative remedies that are available to him. Lewis v.

Washington, 300 F.3d 829,833 (7th Cir. 2002). Administrative remedies are unavailable to an

inmate when prison officials do not respond to his grievance(s). Id.

Relevant Grievances

The parties submitted the following grievances for the Court’s consideration.

Grievance 4043-12-21, dated December 17, 2021 (Doc. 154-1, p. 7-11)

Plaintiff submitted this grievance as an emergency to the Warden at Pinckneyville

regarding Dr. Myers’ decisions to stop Plaintiff’s prescriptions. Plaintiff also grieved that he had

needed to see a “spine specialist” and that he did not have the medical equipment that he needed

to alleviate his back pain. The Warden at Pinckneyville received the grievance on December 17,

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The grievance officer recommended that the grievance be denied on February 24, 2022,

including a response from the Health Care Unit Administrator that described Plaintiff’s current

treatment plan. The Warden concurred with this recommendation on February 25, 2022.

Plaintiff appealed the grievance to the ARB, who received the grievance on March 28, 2022 and

denied the grievance because “the issue was appropriately addressed by the facility

administration.”

Grievance dated December 17, 2021 (Doc. 157-1, p. 2)

Plaintiff submitted a copy of this grievance to the Court; Defendants did not include it in

their summary judgment documents. Plaintiff marked this grievance as an emergency. He

described the disciplinary hearing at Pinckneyville, noting that it occurred on October 25, 2021 at

approximately 12:05 p.m. He wrote that at the hearing, Defendant Wall read the disciplinary

report to him and then told Plaintiff he would be “lost in seg for who knows how long” if he did

not plead guilty to the disciplinary report. According to Plaintiff’s written Response to

Defendants’ Motions for Summary Judgment, he never received a response to this grievance.

Grievance 4100-12-21, dated December 20, 2021 (Doc. 154-1, p. 2-6)

Plaintiff submitted this grievance as an emergency to the Warden at Pinckneyville

regarding the incident with Defendant Moseley. The Warden at Pinckneyville received the

grievance on December 23, 2021 and deemed it an emergency on that same date. In the grievance,

Plaintiff describes the incident at Centralia where he asked for his pain medication, Sergeant

Moseley told him he would not be “getting the f******* medication,” and a physical altercation

then ensued involving two other correctional officers. At the end of the grievance, Plaintiff writes

“two days later they transfer me to Pinckneyville with a staff assault [charge].”

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February 23, 2021, noting that she could not “address allegations against Sergeant Moseley

because the incident transpired at Centralia.” The Warden concurred with this recommendation

on February 24, 2021. Plaintiff appealed the grievance to the ARB, who did not address the

substance of Plaintiff’s grievance because they received it on March 28, 2021-more than 30 days

after the Warden’s February 24, 2021 decision.

Pavey Hearing

On October 27, 2022, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739

(7th Cir. 2008). Plaintiff testified. When asked by counsel for Wexford whether he had ever

submitted a grievance that named Wexford, he answered “I filed so many I’m not real sure.”

When asked by counsel for the IDOC Defendants whether he had submitted grievances that named

the Defendants Godoyo, Newcomb, and Wall, Plaintiff responded “I remember writing some

grievances on some officers there at Centralia and I signed my name to it…I know for sure I did

the one with the guy that was getting ignorant with me….I turned that one in and didn’t get it back

I remember waiting and waiting for it. I submitted another one and sent it in.” When asked if he

received a response to his grievance about Defendant Wall before filing his Second Amended

Complaint, Plaintiff stated “I don’t remember if they did. If I got anything back from them, I sent

it to my attorney.”

In response to questioning by his attorney, Plaintiff explained his understanding of the

emergency grievance procedure. When an inmate submits an emergency grievance, prison

officials are supposed to “get to it sooner” and the inmate does not have “to go through the three

steps.” If the Warden agrees that the grievance constitutes an emergency, then it is handled faster

than a standard grievance. Plaintiff then testified (in response to questioning by Wexford’s

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work that way. They’ve got a lot to do here.” Regarding grievances #4043-12-21 and #4100-12-

21, Plaintiff received responses “after a considerable amount of time” even though he marked them

as emergencies. He did not know that the Warden had deemed them emergencies until they were

returned to him. As soon as he received those grievances with the Warden’s decision, he mailed

them to the ARB.

Michelle Lively, a grievance officer at Pinckneyville, also testified. She did not respond

to the grievances at issue in this case but had processed a grievance for Plaintiff in the month prior

to the hearing. She testified that Plaintiff’s grievance records reflect that on December 17, 2021,

he submitted two grievances. One was deemed not an emergency and returned to Plaintiff, who

sent it to his counselor and “that was the end.” That grievance was given the number 4042-12-

21. The other grievance was deemed an emergency and then later signed by the Warden on

February 25, 2022. Ms. Lively explained that when a grievance is deemed an emergency, the

inmate is notified so that he knows it is being handled as an emergency.

Discussion

The PLRA required Plaintiff to exhaust the new claims in his amended complaint before

submitting the proposed amended complaint to the court. Chambers v. Sood, 956 F.3d 979, 984

(7th Cir. 2020); Ford v. Johnson, 362 F.3d 395, 398-99 (7th Cir. 2004) (regardless of what date

the complaint is filed, the claim is “brought” for purposes of applying §1997e(a) on the date the

complaint is submitted to the Court for consideration). Plaintiff filed his Motion for Leave and

submitted the proposed second amended complaint to the Court on January 12, 2022 (Doc. 92).

Plaintiff first submitted grievances related to the new claims in the Second Amended Complaint

on December 17 and 20, 2021. All parties agree that he did not fully exhaust those grievances

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Thus, the issue is whether administrative remedies were available to Plaintiff. The

undisputed evidence shows that the grievance process was, in fact, available to him for grievances

#4043-12-21 and #4100-12-21. Pinckneyville officials ultimately responded to those grievances

and Plaintiff then appealed them to the ARB.2 Plaintiff contends that because he waited 26 days

(from the date he submitted #4043-12-21 until the date he submitted the proposed second amended

complaint to the Court) with no response to his emergency grievances, administrative remedies

were not available to him. The regulations are silent on the length of time prison officials should

take to respond to an emergency grievance, only that it should be expedited. In general,

grievances should be addressed by the prison within sixty days “when reasonably feasible under

the circumstances.” Id. §504.830(e) (emphasis added). However, the passage of 60 days does

not “necessarily trigger the inmate’s right to sue.” Reid v. Balota, 962 F.3d 325, 331 (7th Cir.

2020) (citing Ford, 362 F.3d at 400).

To support his argument, Plaintiff cites multiple cases in which the Court found that the

amount of time the inmate’s emergency grievance(s) went unanswered indicated administrative

remedies were unavailable to him/her. Muhammed v. McAdory, 214 Fed. Appx. 610, 611 (7th

Cir. 2007); Hampton v. Baldwin, 18-cv-550-RJD, 2018 WL 5830730, *9 (S.D. Ill. Nov. 7, 2018);

Godfrey v. Harrington, 13-cv-280, 2015 WL 1228829, **1-4 (S.D. Ill. Mar. 16, 2015); Cox v.

Lashbrook,16-cv-1096, 2018 WL 4520272 *5 (S.D. Ill. Sept. 21, 2018). However, in each of

those cases, the Warden never responded to the emergency grievance.3 See id. These cases

2 Viewing the evidence in the light most favorable to Plaintiff, the Court infers that Plaintiff timely submitted his

grievances to the ARB and therefore the ARB erroneously found that decision grievance # 4100-12-21 was untimely

appealed. This inference does not change the outcome of Defendants’ Motion, however, because Plaintiff had already

submitted his proposed second amended complaint before he sent grievance #4100-12-21 to the ARB.

3 In another case cited by Plaintiff from this district, the inmate did not receive a response to an emergency grievance

regarding hernia pain for eight days. Reed v. Larson, 18-cv-1182-JPG-GCS, 2019 WL 8063919, *4 (S.D. Ill. Sept. 26,

2019). On the eighth day, Plaintiff received the grievance back from the Warden, who had marked it as a non-

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that are available to him, and remedies are unavailable when prison officials do not respond to his

grievance. Lewis, 300 F.3d at 833; Reid, 962 F.3d at 331.

Here, however, Plaintiff did receive a response. The Seventh Circuit has been unwilling

to create a bright line test and find that an inmate can file suit if he does not receive a response to

a non-emergency grievance in 60 days. Ford, 362 F.3d at 400. The undersigned is likewise

unwilling to find that after the passage of 26 days, Plaintiff could forego the exhaustion

requirement and submit his proposed second amended complaint to the Court. The emergency

grievances (#4043-12-21 and #4100-12-21) that were not fully exhausted prior to January 12, 2022

pertain to Plaintiff’s new claims in Counts III, IV, and V against Myers, Wexford, Moseley,

Godoyo, Delgado, and Newcomb. As Plaintiff did not fully exhaust any other grievances

regarding these defendants, summary judgment is therefore appropriate in favor of Defendants

Myers, Wexford, Moseley, Godoyo, Delgado, and Newcomb and Plaintiff’s claims on Counts III,

IV, and V.4

Regarding Defendant Wall, Plaintiff contends through counsel that he submitted a

grievance dated December 17, 2021 that was marked as an emergency and describes the

disciplinary hearing with Defendant Wall, but he never received a response to this grievance,

which also refers to Defendant Moseley. Plaintiff submitted this grievance to the Court (Doc.

emergency. Id. at *1. In a Report and Recommendation, Magistrate Judge Gilbert C. Sison stated in dicta that

“[g]iven the severity of [the inmate’s] complaints, not receiving a response within eight days should render the

grievance process unavailable.” Id. at *4. Ultimately, the Court found that the defendant had waived its arguments

regarding the emergency grievance. Reed v. Larson, 18-cv-1182-JPG-GCS, 2019 WL 6769319, *3 (S.D. Ill. Dec.

12, 2019).

4 Plaintiff makes general statements in a declaration signed on February 1, 2022 that grievances were not returned to

him (Doc. 100-1, p. 5). In responding to the Defendants’ Motions for Summary Judgment, he does not contend that

he submitted any grievance other than the ones discussed at the Pavey hearing and identified in the parties’ briefings

(Doc. 157, p. 10). He argues that the grievance found at Doc. 157-1 is “related to the claim of retaliation” but that

grievance only refers to Defendant Moseley and Wall. For reasons described infra, the Court does not find the

document found at Doc. 157-1 to be credible evidence.

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hearing, Plaintiff did not seem to remember that grievance nor was he able to differentiate it from

the other grievances. Grievance Officer Lively testified that Plaintiff did, in fact, submit a

grievance on December 17, 2021, that he had marked as an emergency; it was deemed a non-

emergency and reviewed by Plaintiff’s counselor. Lively testified that grievance was given the

number 4042-12-21. According to a list of grievances submitted by Defendants as part of

Plaintiff’s grievance records, grievance #4042-12-21 discussed Plaintiff’s disciplinary ticket from

Centralia (Doc. 152-2).

Plaintiff does not contend that grievance #4042-12-21 was the grievance he filed with the

Court at Doc. 157-1. At the Pavey hearing, the undersigned asked Plaintiff about Doc. 157-1:

specifically, how Plaintiff came to have a copy of it since it was purportedly never returned to him.

Plaintiff testified “I make a copy and I keep a note so I know what date I sent it out, then if it don’t

get out then I’ll rewrite it because sometimes they lose stuff and whatnot….I make a copy if

possible but I don’t always get to the library. Then I keep a handwritten copy, put the other one

in the box, then I’ll even write one and send it to my attorney if necessary.”

When Plaintiff submitted the proposed second amended complaint on January 12, 2022,

he did not know the name of the person who told him to plead guilty or he would be “lost in seg”

(Doc. 92, p. 5; see also Doc. 100-1, ¶22). However, according to his exhaustion argument, on

that same date Plaintiff was waiting on a response to a grievance (Doc. 157-1) that specifically

named Chad Wall as the individual who read his disciplinary report to him and told him he would

be “lost in seg for who knows how long” if he did not plead guilty. The grievance found at Doc.

157-1 is very specific and even includes the date and time of the October 2021 disciplinary hearing

where Defendant Wall made the alleged statement. The Court observed Plaintiff’s demeanor

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and received a response to a grievance that named Chad Wall in comparison to the very specific

grievance Plaintiff submitted to the Court at Doc. 157-1.5 The Court reaches the only logical

conclusion: that Plaintiff wrote the grievance found at Doc. 157-1 at some point after January 12,

2022. Therefore, Plaintiff failed to exhaust his administrative remedies regarding Chad Wall

prior to January 12, 2022.

Having found that Plaintiff failed to exhaust his administrative remedies in Counts III, IV,

and V against Defendants Wexford, Myers, Moseley, Godoyo, Delgado, Newcomb, and Wall, the

Court turns to Wexford’s argument that Plaintiff also did not exhaust his administrative remedies

against Wexford in Count II (an argument Wexford did not raise when it answered Plaintiff’s First

Amended Complaint). When Plaintiff submitted his original Complaint to the Court, he included

a fully exhausted grievance dated September 16, 2019 that identified a “lack of a follow-up system

for treating chronic diseases” at Centralia (Doc. 1-1, p. 23; see also Doc. 154-1, p. 1). While

Plaintiff did not apparently know Wexford was the medical provider at Centralia in September

2019, this grievance sufficiently placed the prison on notice of Plaintiff’s claim against Wexford

that is now found in Count II of Plaintiff’s Second Amended Complaint (and was also Count II in

Plaintiff’s First Amended Complaint). Wexford’s Motion for Summary Judgment on Count II is

DENIED.

Wexford also moved to dismiss Count V for failure to state a claim upon which relief could

be granted (Doc. 113). This motion is DENIED AS MOOT because Plaintiff failed to exhaust his

administrative remedies in Count V.

5 “At Pavey hearings, judges may hear evidence, find facts, and determine credibility.” Pavey v. Conley, 663 F. 3d.

899, 904 (7th Cir. 2011).

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The Motion for Summary Judgment (Doc. 151) filed by Defendants Moseley, Delgado,

Godoyo, Newcomb, and Wall is GRANTED. The Motion for Summary Judgment filed by

Defendants Wexford and Myers (Doc. 153) is GRANTED IN PART AND DENIED IN PART.

Counts III, IV, and V of Plaintiff’s Second Amended Complaint are DISMISSED

WITHOUT PREJUDICE. The Clerk of Court is directed to enter judgment accordingly at the

close of this case.

Wexford’s Motion to Dismiss (Doc. 113) is DENIED AS MOOT. This case continues on

the following claims in Plaintiff’s Second Amended Complaint:

Count I: Deliberate indifference by Nalewajka and Santos

Count II: Deliberate indifference by Wexford

IT IS SO ORDERED.

DATED: December 12, 2022

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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