Kruger v. Lashbrook

0IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSHUA KRUGER, )

)

Plaintiff, )

)

v. ) Case No. 20-cv-24-RJD

)

JACQUELINE LASHROOK, et al., )

)

Defendants. )

ORDER

DALY, Magistrate Judge:

Plaintiff Joshua Kruger, an inmate in the custody of the Illinois Department of Corrections

(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were

violated while he was incarcerated at Menard Correctional Center (“Menard”) and Pontiac

Correctional Center (“Pontiac”). Plaintiff generally alleges that Defendants were deliberately

indifferent to his conditions of confinement, as well as his physical and mental health. Plaintiff

proceeds on the following claims set forth in his Second Amended Complaint (Doc. 126):

Count One: Eighth Amendment conditions of confinement claim against

Defendants Lashbrook, Milleur, McCaleb, Matheny, Rooyster, and

Moore for placing Plaintiff in a deplorable segregation cell without

adequate bedding and cleaning supplies.

Count Two: Eighth Amendment conditions of confinement claim against

Defendants Lashbrook, Milleur, Siddiqui, Puga, Shicker, and

Baldwin for forcing Plaintiff to live around severely mentally ill

(“SMI”) prisoners.

Count Three: Eighth Amendment deliberate indifference claim against

Defendants Wexford, Shicker, Siddiqui, Lashbrook, and Baldwin

for failing to prescribe more than Excedrin for Plaintiff’s migraine

headaches and serious back pain.

Count Four: Eighth Amendment deliberate indifference claim against Wexford

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for enacting a policy, practice, and/or custom to put the “bottom line

of business” before prisoner medical treatment, and treating all pain

the same in a “one size fits all” policy that caused Plaintiff to suffer

more than necessary with his migraine headaches and back pain.

Count Five: Eighth Amendment deliberate indifference claim against

Defendants Lashbrook, Shicker, Wexford, Puga, Milleur, Baldwin,

Jeffreys, Renzi, and Sokol for failing to adequately monitor

prisoner’s mental health at Menard and Pontiac, thereby causing

Plaintiff injury and violating his constitutional rights.

Count Six: Eighth Amendment deliberate indifference claim against

Defendants Wexford, Shicker, Puga, and Baldwin for forming,

enacting, and/or enforcing a policy, practice, and/or custom of not

dealing with a prisoner’s mental health needs if he was not on

psychotropic medication, which caused Plaintiff’s mental health to

deteriorate.

Count Seven: State law institutional negligence claim against Wexford.

Count Eight: State law negligence claim for unsafe environment and failure to

report against Wexford.

Count Nine: State law claim of intentional infliction of emotional distress against

all defendants.

This matter is before the Court on the following motions filed by Defendants:

• Motion to Dismiss Counts Three, Five, Six, and Nine of Plaintiff’s Second

Amended Complaint filed by Defendants Puga, Lashbrook, Shicker, Milleur,

McCaleb, Matheny, Royster, Baldwin, Renzi, and Jeffreys (Doc. 141)

• Motion to Dismiss Counts Seven, Eight, and Nine of Plaintiff’s Second Amended

Complaint filed by Defendant Wexford (Doc. 149)

• Motion to Dismiss Plaintiff’s Second Amended Complaint filed by Defendant Dr.

John Sokol (Doc. 153)

• Motion for Summary Judgment for Plaintiff’s Failure to Exhaust His

Administrative remedies filed by Defendant Dr. John Sokol (Doc. 159)

The Court addresses each of the motions in relation to the counts Defendants seek to dismiss, as set

forth below.

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As a preliminary matter, the Court addresses Plaintiff’s attempt to reinstate Defendant

“Moore” as a defendant in Counts One and Nine. Defendant Moore was dismissed without

prejudice on August 28, 2020, due to Plaintiff’s failure to provide further information to ascertain

his identity and effect service (see Doc. 75). In his Second Amended Complaint, Plaintiff failed

to set forth any additional information concerning this Defendant and based on a review of the

docket, has made no attempt to serve this Defendant. As such, Defendant Moore is dismissed

pursuant to Federal Rule of Civil Procedure 4(m).

MOTIONS TO DISMISS (Docs. 141, 149, and 153)

Legal Standards

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal if a complaint

fails to state a claim upon which relief can be granted. In considering a motion to dismiss, the

Court accepts as true all well-pleaded allegations in the complaint and draws all possible

inferences in favor of the plaintiff. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614,

618 (7th Cir. 2007) (quotations omitted). A plaintiff need not set out all relevant facts or recite the

law in his or her complaint; however, the plaintiff must provide a short and plain statement that

shows that he or she is entitled to relief. See FED. R. CIV. P. 8(a)(2). The allegations must also be

“more than labels and conclusions.” Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not be

dismissed if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).

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The Supreme Court recognizes that “deliberate indifference to serious medical needs of

prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v.

Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim, Plaintiff must show first

that his condition was “objectively, sufficiently serious” and second, that the “prison officials

acted with a sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir.

2005) (citations and quotation marks omitted). “The infliction of suffering on prisoners can be

found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the

criminal law sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). Negligence,

gross negligence, or even recklessness as that term is used in tort cases, is not enough. Id. at 653;

Shockley v. Jones, 823, F.2d 1068, 1072 (7th Cir. 1987).

Count Three

Defendants Shicker, Lashbrook, and Baldwin assert Plaintiff’s Second Amended

Complaint fails to state a claim against them under Count Three (Doc. 141).

In his Second Amended Complaint, Plaintiff alleges that Shicker and Baldwin were aware,

through letters, grievances, or lawsuits, that IDOC health care units were understaffed and that

Wexford employees “cut corners” in providing medical care for inmates (Doc. 126 at ¶ 30).

Plaintiff alleges that because of these cost-cutting policies of which Shicker and Baldwin were

aware, he received inadequate medical treatment for his migraine headaches and severe back pain

(id.). Plaintiff also alleges he submitted a grievance on February 11, 2018, detailing his

complaints concerning his medical and mental health treatment at Menard. Ultimately,

Defendant Lashbrook concurred with the Grievance Officer’s recommendation to deny this

grievance, and Defendant Baldwin concurred in the Administrative Review Board’s denial of the

same.

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Defendants contend these allegations do not state a claim against them for deliberate

indifference as set forth in Count Three. Specifically, Defendant Shicker asserts Plaintiff failed to

allege that he knew Plaintiff was receiving inadequate treatment for his migraines and back pain,

and that knowledge of every allegation of insufficient medical treatment of every inmate in the

custody of the IDOC should not be imputed to him. Defendants Baldwin and Lashbrook assert

the same, arguing that even if they had knowledge of the alleged unconstitutional policies, it

should not be imputed that they had knowledge of every allegation of insufficient medical

treatment of every inmate. Defendants Baldwin and Lashbrook acknowledge that Plaintiff

alleges he filed a grievance concerning this issue that they reviewed, but argue the mishandling or

denial of a grievance does not support a constitutional claim, citing various Seventh Circuit cases

for support.

First, it is clear that the allegations against Shicker do not support the claim against him in

Count Three. The broad allegations set forth in paragraph 30 of Plaintiff’s Second Amended

Complaint simply do not amount to any inference that Shicker was aware of facts that a substantial

risk of serious harm to Plaintiff existed and that Shicker actually drew that inference in relation to

Plaintiff’s medical treatment for his migraine headaches and back pain. Greeno v. Daley, 414

F.3d 645, 653 (7th Cir. 2005) (to substantiate a claim of deliberate indifference under the Eighth

Amendment, a plaintiff must demonstrate that the officials were “aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists” and that the officials

actually drew that inference) (internal quotation omitted). While Plaintiff alleges Shicker was

aware of certain policies that Wexford “put business and the bottom line before adequate medical

care,” there is no allegation that Shicker was aware of the alleged effect these policies had on

Plaintiff’s treatment for his migraine headaches and back pain. The Court agrees with Defendant

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Shicker that even if he was notified of an alleged unconstitutional policy, such notice cannot

impute liability to Shicker for every purported instance of insufficient medical treatment for every

IDOC inmate. Such a finding would clearly undercut Section 1983’s personal involvement

requirement. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009) (To be personally

responsible, an official “must know about the conduct and facilitate it, approve it, condone it, or

turn a blind eye.”) (quoting Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006) (citing Gentry v.

Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).

The Court, however, comes to a different conclusion with respect to Defendants Lashbrook

and Baldwin. Plaintiff specifically alleges these Defendants reviewed a grievance dated February

11, 2018, concerning his medical and mental health treatment at Menard. While the Court

acknowledges the case law cited by Defendants, it finds Perez v. Fenoglio, 792 F.3d 768 (7th Cir.

2015), to be controlling in this instance. Similar to the posture here, in Perez, the Seventh Circuit

reviewed the district court’s dismissal of the plaintiff’s complaint for failure to state a claim.

Perez, 792 F.3d at 776. The Seventh Circuit considered whether non-medical prison officials

who were made aware of the plaintiff’s serious medical condition and inadequate medical care

through coherent and detailed grievances, and reviewed and denied the same, could be held

personally liable for the plaintiff’s inadequate medical care. Id. at 781. The Seventh Circuit

found that at the initial stage of litigation, before discovery and summary judgment, the plaintiff’s

complaint was “sufficient to form a basis for personal liability against the grievance officials for

violation of the Eighth Amendment,” finding the plaintiff had alleged the defendants “each

obtained actual knowledge of [the plaintiff’s] objectively serous medical condition and inadequate

medical care … [and] failed to exercise his or her authority to intervene on [the plaintiff’s] behalf

to rectify the situation, suggesting they either approved or turned a blind eye to his allegedly

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unconstitutional treatment.” Id. at 782. The allegations here are similar to Perez, and the Court

finds that at this early stage in the proceedings, Plaintiff has stated a plausible Eighth Amendment

deliberate indifference claim against Baldwin and Lashbrook based on their review and denial of

his grievance.

Plaintiff shall be allowed to proceed on Count Three against Defendants Baldwin and

Lashbrook; however, Plaintiff’s Second Amended Complaint fails to state a claim against Shicker

as to Count Three and he is dismissed from this Count without prejudice.

Count Five

Defendants Lashbrook, Shicker, Puga, Milleur, Baldwin, Jeffreys, Renzi (Doc. 141), and

Sokol (Doc. 153) assert Plaintiff’s Second Amended Complaint fails to state a claim against them

as to Count Five, wherein Plaintiff claims Defendants were deliberately indifferent in failing to

monitor prisoner’s mental health at Menard and Pontiac.

Defendants assert the allegations underlying this claim are merely legal conclusions

couched as factual allegations. Defendant Sokol expands on this argument, asserting there are no

factual allegations that indicate he had any actual knowledge of Plaintiff, Plaintiff’s incarceration

at Pontiac, or Plaintiff’s mental health treatment. Defendant Sokol further argues there are no

allegations that he was responsible for staffing levels or for any policy decisions related to mental

health care.

Defendants Lashbrook, Shicker, Puga, Milleur, Baldwin, Jeffreys, and Renzi also argue

Plaintiff’s claim in Count Five mimics a Monell policy and practice claim, and Monell claims

cannot be brought against the State or its departments.

Plaintiff clarifies Count Five is intended to be a deliberate indifference claim against the

Defendants in their individual capacities, not a Monell or respondeat superior claim. In that vein,

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Plaintiff asserts he adequately alleges Defendants knew his mental health needs were left untreated

at Menard and Pontiac. Plaintiff further asserts Defendants’ awareness of his mental health

conditions can be inferred from the circumstances based on Plaintiff’s well-documented mental

health symptoms, formal diagnoses, and three suicide attempts. Plaintiff argues this

documentation, coupled with Defendants’ supervisory positions, is sufficient to plead personal

involvement to substantiate the Eighth Amendment claim set forth in Count Five.

While the Court agrees that Count Five is the type of claim that is most often brought as a

Monell claim, a close reading of the allegations supports Plaintiff’s position that it is intended to be

brought against Defendants in their individual capacities for their role in forming alleged

unconstitutional policies that resulted in inadequate mental health treatment for Plaintiff. Unlike

cases in which similar claims have been dismissed against individual defendants because the

plaintiff bases the individual defendants’ liability on their actions taken pursuant to a municipal

policy or custom, see, e.g., Alcorn v. City of Chicago, 2018 WL 3614010, at *19 (N.D. Ill. July 27,

2018), Plaintiff here does not directly tie the individual Defendants’ actions to an institutional

policy. Rather, the policy at issue is one tied to each Defendant.

In order to hold an individual defendant liable under § 1983 for a violation of an inmate’s

constitutional rights, the inmate must show that the defendant was personally responsible for that

violation. Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir. 2017) (citing Childress v. Walker, 787 F.3d

433, 439 (7th Cir. 2015)) (other citation omitted). “A defendant will be deemed to have sufficient

personal responsibility if he directed the conduct causing the constitutional violation, or if it

occurred with his knowledge or consent.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.

2001) (internal quotation marks omitted). In other words, “a complaint must articulate a factual

basis to suggest that [the defendant] knew about the conduct that caused the constitutional

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violation and facilitated it, approved it, condoned it, or turned a blind eye … or that [the defendant]

personally devised a deliberately indifferent policy that caused a constitutional injury.” Tyson v.

Cook County, 539 F.Supp.3d 924, 927 (N.D. Ill. May 17, 2021) (internal quotations omitted).

Accordingly, in order to state a claim against the Defendants identified in Count Five,

Plaintiff must allege each Defendant at least condoned or approved a policy or practice of failing to

monitor prisoner’s mental health at Menard or Pontiac, that each Defendant failed to remedy said

policy or practice, and that, as a result, Plaintiff was harmed because of said policy. With regard

to the issue of condoning, implementing, or approving a policy or practice of failing to monitor

prisoner’s mental health at Menard or Pontiac, Plaintiff alleges Defendants “Lashbrook, Shicker,

Wexford, Puga, Milleur, Baldwin, Renzi and Sokol formed a policy, practice, and/or custom to

understaff the mental health staff of the IDOC prisons, including Menard and Pontiac, in an effort

to put business first and save money for Wexford” (Doc. 126 at ¶ 31). This allegation, coupled

with Plaintiff’s allegations that he was not placed on the mental health caseload at Pontiac or

Menard in 2018 and 2019 and subsequently attempted suicide, supports the claim – when drawing

all inferences in favor of Plaintiff – of deliberate indifference in Count Five as to Defendants

Lashbrook, Shicker, Wexford, Puga, Baldwin, Renzi, and Sokol. With regard to Milleur, Plaintiff

is not entitled to an inference that Milleur was involved in forming, implementing, or condoning

any mental health policy. Indeed, Plaintiff alleges that Milleur is an “employee” at Menard and

there is no allegation or available inference that he had any supervisory authority to affect any

policymaking at Menard. Plaintiff also fails to set forth any allegation as to Defendant Jeffreys to

support the claim against him as alleged in Count Five. Indeed, the only allegation against

Jeffreys, that he “continue[s] to disregard the mental health issues of IDOC inmates,” is vastly

overbroad to state a claim of deliberate indifference tying Jeffreys to any particular policy that

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caused Plaintiff harm.

For these reasons, Defendants Milleur and Jeffreys are dismissed from Count Five.

Count Six

Defendants Shicker, Puga, and Baldwin assert Count Six should be dismissed because it

sets forth a Monell claim and such claims cannot be brought against the State or its departments

(Doc. 141). In Count Six, Plaintiff alleges Defendants were deliberately indifferent in forming,

enacting, and/or enforcing a policy, practice, and/or custom of not addressing a prisoner’s mental

health needs if that prisoner was not taking psychotropic medication, which caused Plaintiff’s

mental health to deteriorate. In his Second Amended Complaint, Plaintiff alleges Defendants

Shicker, Puga, and Baldwin (among others) had a policy to not treat inmates who have a mental

illness if they were not on medication or refused to take psychotropic medications and, as a result,

Plaintiff asserts he was not seen by a mental health staff member in an adequate program and he

suffered injury as a result (Doc. 126 at ¶ 40). Similar to the Court’s reasoning with regard to

Count Five, the Court finds Count Six was pled as a claim against individual, supervisory

Defendants for facilitating, approving, or otherwise allowing an unconstitutional policy to cause

Plaintiff injury. Under this interpretation of the claim, it has been adequately pled against

Defendants Shicker, Puga, and Baldwin.

Count Seven

In Count Seven, Plaintiff alleges institutional negligence against Defendant Wexford.

More specifically, Plaintiff alleges Wexford “did not act as a reasonably careful hospital” in a

number of ways, including in its implementation and enforcement of policies and its supervision of

staff.

Wexford asserts this claim should be dismissed because it is not a hospital (Doc. 149).

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While this may be the case, Plaintiff has pled that Wexford is a hospital. Plaintiff has also

adequately alleged institutional negligence on the basis that Wexford is a hospital. Plaintiff did

not bring his claim pursuant to the Hospital Licensing Act and Defendant’s reliance on the same is

misplaced. While it may be that Wexford is not a hospital, such a determination is not proper at

this stage in the proceedings, wherein only a motion to dismiss is before the Court and the question

is only whether Plaintiff’s allegations, taken at face value, state a claim.

Wexford also argues Count Seven should be dismissed because Plaintiff failed to file a

certificate of merit as required by 735 ILCS § 5/2-622(a)(1). This argument can be quickly

disposed of in light of Young v. United States, wherein the Seventh Circuit remarked that “a

complaint in federal court cannot properly be dismissed because it lacks an affidavit and report

under § 5/2-622. 942 F.3d 349, 351 (7th Cir. 2019). As espoused in Young, a party in federal

court must set forth this argument in a motion for summary judgment, not a motion to dismiss. Id.

The Court, therefore, declines to dismiss Count Seven of Plaintiff’s Second Amended

Complaint on the basis that he failed to file a certificate of merit.

For these reasons, Plaintiff shall be allowed to proceed on Count Seven.

Count Eight

In Count Eight, Plaintiff alleges Wexford was negligent in maintaining an unsafe

environment and “failing to report.” In support of this claim, Plaintiff alleges he was a “lawfully

confined patient” of Wexford while at Menard and Pontiac, that Wexford had a duty to exercise

reasonable care to make certain that its premises were safe for Plaintiff, and that Wexford breached

its duty in a number of ways, including failing to monitor and supervise Plaintiff to ensure his

mental health needs were being met.

Wexford asserts Plaintiff’s claim fails because said claim is predicated on Wexford being a

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hospital (Doc. 149). Wexford further asserts that because Plaintiff was not a patient confined by

Wexford there was no duty for Wexford to maintain a safe environment of a correctional facility it

does not own or operate.

The Court agrees. First, as pled, Plaintiff’s allegations are contradictory. In support of

this Count, Plaintiff alleges that he was both a confined patient of Wexford and that he was

confined as an incarcerated individual at Menard and Pontiac. Based on a review of the Second

Amended Complaint in its entirety, Plaintiff’s allegations support the inference that Plaintiff was

confined not as a patient of Wexford, but as an inmate on premises secured by the IDOC. Thus, it

is unclear what duty, if any, Wexford would have over the premises that are controlled and secured

by IDOC. Moreover, the breaches pled by Plaintiff do not clearly relate to the maintenance of

safe premises. Courts applying Illinois state law recognize that “[a] premises liability claim

arises from an injury attributable to an unsafe condition of the property itself,” a circumstance that

is not alleged in this instance. Doe 20 v. Board of Education of Community Unit School District

No. 5, 600 F.Supp.2d 957, 994 (C.D. Ill. Jan. 11, 2010).

For these reasons, the Court finds Plaintiff’s allegations fail to state a claim to support

Count Eight and it is dismissed with prejudice.

Count Nine

Defendants Lashbrook, Shicker, Milleur, McCaleb, Matheny, Rooyster, Puga, Baldwin,

Jeffreys, and Renzi (Doc. 141), Defendants Siddiqui and Wexford (Doc. 149), and Defendant

Sokol (Doc. 153) assert Plaintiff has failed to state a claim to support Count Nine, a claim of

intentional infliction of emotional distress.

Under Illinois law, a plaintiff claiming intentional infliction of emotional distress must

demonstrate that the defendant(s) intentionally or recklessly engaged in “extreme and outrageous

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conduct” that resulted in severe emotional distress. Somberger v. City of Knoxville, Ill., 434 F.3d

1006, 1030 (7th Cir. 2006); see Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). The tort

has three components: (1) the conduct involved must be truly extreme and outrageous; (2) the actor

must either intend that his conduct inflict severe emotional distress, or know that there is at least a

high probability that his conduct will cause severe emotional distress; and (3) the conduct must in

fact cause severe emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).

As pled, it is not clear what actions Plaintiff alleges rise to the level of intentional infliction

of emotional distress and the Court declines to sift through the Second Amended Complaint to

make such determinations. Notably, at least some of Plaintiff’s allegations are based on the

failure to implement adequate policies to ensure proper medical and mental health treatment, and

the Court finds these allegations insufficient to rise to the level of “extreme and outrageous”

conduct necessary to state such a claim. Moreover, Plaintiff’s Second Amended Complaint fails

to connect any particular “extreme and outrageous” conduct with the result of Plaintiff suffering

actual severe emotional distress, and Plaintiff also fails to allege any facts to support his

conclusory assertions that he experienced severe emotional distress. The Court reiterates that

“threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Iqbal, 556 U.S. at 664.

For these reasons, Count Nine of Plaintiff’s Second Amended Complaint is dismissed for

failure to state a claim.

MOTION FOR SUMMARY JUDGMENT FOR FAIULRE TO EXHAUST

ADMINSITRATIVE REMEDIES FILED BY DEFENDANT SOKOL (Doc. 163)

Defendant Dr. Sokol asserts summary judgment in his favor is warranted because Plaintiff

failed to exhaust his administrative remedies as to the claims against him prior to filing this

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lawsuit.

The parties agree on many of the relevant facts concerning the question of whether Plaintiff

timely exhausted his administrative remedies as to his claims against Defendant Dr. Sokol (the

only claim remaining is set forth in Count Five). These facts are set forth as follows.

Plaintiff was transferred to Pontiac in September 2018 (Doc. 126 at ¶ 34; see Doc. 160-1).

Dr. Sokol was the Mental Health Services Director at Pontiac at that time (Doc. 126 at ¶ 19). On

November 5, 2018, Plaintiff wrote a letter directed to mental health staff (Maldanado) at Pontiac

and indicated that aside from his intake interview he had not been seen by mental health staff since

his transfer (Doc. 160-2 at 8). In a response signed as “Stokes,” Plaintiff was advised “there is no

current diagnosis documented” and that Plaintiff’s request would be forwarded to Dr. Renzi and

Dr. Sokol for determination as to whether Plaintiff would be considered for the mental health

caseload (id.). Plaintiff was transferred from Pontiac to Menard on March 4, 2020 (Doc. 160-1).

Prior to his transfer to Menard, Plaintiff submitted at least eleven grievances while at Pontiac (see

Doc. 160-3). It is undisputed that these grievances did not address Plaintiff’s mental health

concerns.

On August 18, 2020, Plaintiff received a Mental Health Services Referral form (through

the discovery process in this case) that was signed by Heather Kainz on July 29, 2019, while

Plaintiff was at Pontiac (Doc. 160-4)1. On this Form, Kainz referred Plaintiff to the Office of

Mental Health Management, indicating that Plaintiff had been on the mental health caseload at his

previous institution, was never removed from the caseload by a mental health treatment team

member, and, therefore, indicated Plaintiff was to be placed on the mental health caseload at

1 Defendant Sokol was added as a defendant in Plaintiff’s Second Amended Complaint after Plaintiff received and

reviewed documents produced by Defendants that identified Dr. Sokol in discovery.

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Pontiac (id.). The next day, August 19, 2020, Plaintiff filed a grievance complaining about

Wexford’s policy and practice of denying adequate mental health treatment and complaining of

Dr. Sokol’s deliberate indifference to his mental health (id.).

Plaintiff’s counselor responded to this grievance on August 26, 2020. The Grievance

Officer recommended this grievance be found moot on August 31, 2020, and the Chief

Administrative Officer (“CAO,” commonly the Warden) concurred on September 4, 2020. The

Administrative Review Board (“ARB”) denied the grievance on the merits, finding the issue was

appropriately addressed by the facility administration, and IDOC Director Jeffreys concurred on

November 13, 2020.

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 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

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

(citation omitted).

Exhaustion Requirements

Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available

administrative remedies prior to filing lawsuits in federal court. “[A] prisoner who does not

properly take each step within the administrative process has failed to exhaust state remedies.”

Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). “[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, occurrence or problem, to his

or her institutional counselor, unless certain discrete issues are being grieved. 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 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

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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).

An inmate may request that a grievance be handled as an emergency by forwarding it

directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a

substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is

handled on an emergency basis, which allows for expedited processing of the grievance by

responding directly to the offender. Id. Inmates may further submit certain types of grievances

directly to the Administrative Review Board, including grievances related to protective custody,

psychotropic medication, and certain issues relating to facilities other than the inmate’s currently

assigned facility. Id. at § 504.870.

Discussion

Based on the evidence in the record and arguments of the parties, the Court finds Plaintiff

exhausted his claim prior to filing his lawsuit against Defendant Dr. Sokol.

Defendant Sokol asserts Plaintiff’s August 19, 2020 grievance cannot exhaust the claim

against him because it was filed well beyond the 60-day timeframe required in the Administrative

Code. Defendant explains Plaintiff knew of his dissatisfaction with his mental health treatment

by November 2018, when he sent a letter to mental health staff at Pontiac. In response to this

letter, Defendant points out that Plaintiff was specifically advised of Sokol’s involvement in

Plaintiff’s mental health treatment. Plaintiff further asserts his grievance should have been filed,

at the latest, within 60 days of Plaintiff’s transfer to Menard on March 4, 2020, wherein Defendant

would no longer have any control over Plaintiff’s mental health treatment.

Plaintiff asserts he filed his grievance on August 19, 2020 because he learned, for the first

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time, on August 18, 2020 that he should have been placed on the mental health caseload at Pontiac

via discovery of the Mental Health Services Referral Form signed by Heather Kainz. Plaintiff

asserts it was not until he was provided the Referral Form that he knew Defendant Sokol was

aware of his request for services and was ignoring said request.

Defendant is correct that pursuant to 20 ILCS § 504.810(a), “[a] grievance must be filed

with the counselor or Grievance Officer … within 60 days after the discovery of the incident,

occurrence or problem that gives rise to the grievance” (emphasis added). In his grievance,

Plaintiff explained he received discovery documents on August 18, 2020 that evidenced

Wexford’s deliberate indifference to Plaintiff’s mental health needs. The Grievance Officer

rendered a decision on the merits concerning this grievance. The ARB also rendered a decision

on the merits, noting the content as “Wexford policy of MH Tx, discovered 8/18/20” (emphasis

added).

As espoused by the Seventh Circuit:

[a] procedural shortcoming like failing to follow the prison’s time

deadlines amounts to a failure to exhaust only if prison

administrators explicitly relied on that shortcoming. Conyers, 416

F.3d at 585. Where prison officials address an inmate’s grievance on

the merits without rejecting it on procedural grounds, the grievance

has served its function of alerting the state and inviting corrective

action, and defendants cannot rely on the failure to exhaust defense.

See id.; see also Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.

2004).

Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011). As such, in this instance, Plaintiff’s

grievance served its function and provided prison officials a fair opportunity to address his

complaints regarding his mental health treatment dating back to November 2018. Defendant

makes no argument that the content of the grievance was not sufficient to exhaust the claims

against him, and the Court therefore need not consider the same.

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Based on the foregoing, the Court finds Plaintiff exhausted his administrative remedies as

to his claim against Defendant Dr. Sokol.

CONCLUSION

Based on the foregoing, the Motion to Dismiss Counts Three, Five, Six, and Nine of

Plaintiff’s Second Amended Complaint filed by Defendants Puga, Lashbrook, Shicker, Milleur,

McCaleb, Matheny, Royster, Baldwin, Renzi, and Jeffreys (Doc. 141) is GRANTED IN PART

AND DENIED IN PART; the Motion to Dismiss Counts Seven, Eight, and Nine of Plaintiff’s

Second Amended Complaint filed by Defendant Wexford (Doc. 149) is GRANTED IN PART

AND DENIED IN PART; the Motion to Dismiss Plaintiff’s Second Amended Complaint filed by

Defendant Dr. John Sokol (Doc. 153) is GRANTED IN PART AND DENIED IN PART; and

the Motion for Summary Judgment for Plaintiff’s Failure to Exhaust His Administrative remedies

filed by Defendant Dr. John Sokol (Doc. 159) is DENIED.

Counts Eight and Nine are dismissed in their entirety. Count Three is dismissed as to

Defendant Shicker, and Count Five is dismissed as to Defendants Milleur and Jeffreys.

Plaintiff proceeds in this action on the following claims:

Count One: Eighth Amendment conditions of confinement claim against

Defendants Lashbrook, Milleur, McCaleb, Matheny, and Rooyster

for placing Plaintiff in a deplorable segregation cell without

adequate bedding and cleaning supplies.

Count Two: Eighth Amendment conditions of confinement claim against

Defendants Lashbrook, Milleur, Siddiqui, Puga, Shicker, and

Baldwin for forcing Plaintiff to live around severely mentally ill

(“SMI”) prisoners.

Count Three: Eighth Amendment deliberate indifference claim against

Defendants Wexford, Siddiqui, Lashbrook, and Baldwin for failing

to prescribe more than Excedrin for Plaintiff’s migraine headaches

and serious back pain.

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Count Four: Eighth Amendment deliberate indifference claim against Wexford

for enacting a policy, practice, and/or custom to put the “bottom line

of business” before prisoner medical treatment, and treating all pain

the same in a “one size fits all” policy that caused Plaintiff to suffer

more than necessary with his migraine headaches and back pain.

Count Five: Eighth Amendment deliberate indifference claim against

Defendants Lashbrook, Shicker, Wexford, Puga, Baldwin, Renzi,

and Sokol for failing to adequately monitor prisoner’s mental health

at Menard and Pontiac, thereby causing Plaintiff injury and

violating his constitutional rights.

Count Six: Eighth Amendment deliberate indifference claim against

Defendants Wexford, Shicker, Puga, and Baldwin for forming,

enacting, and/or enforcing a policy, practice, and/or custom of not

dealing with a prisoner’s mental health needs if he was not on

psychotropic medication, which caused Plaintiff’s mental health to

deteriorate.

Count Seven: State law institutional negligence claim against Wexford.

IT IS SO ORDERED.

DATED: January 25, 2023

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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