Kennedy v. Santos

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RAFAEL KENNEDY, )

)

Plaintiff, )

)

vs. ) Case No. 3:21-cv-00266-GCS

)

VENERIO SANTOS, JODI PELEGRIN, )

BRIAN JONES, VIPIN SHAH, )

)

Defendants.

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION

Pending before the Court is the Motion for Summary Judgment on the Issue of

Exhaustion of Administrative Remedies filed by Defendants Santos, Shah, and Pelegrin.

(Doc. 57). The Court initially held a hearing on the Motion on August 29, 2022. (Doc. 70).

The hearing, however, was forced to end early “due to technical difficulties with the

Court.” Id. The hearing was continued on September 12, 2022, wherein the Court took the

matter under advisement upon the hearing’s completion. (Doc. 73). For the reasons

delineated below, the Court GRANTS in part and DENIES in part the Motion for

Summary Judgment. (Doc. 57).

On March 8, 2021, Plaintiff Rafael Kennedy, an inmate of the Illinois Department

of Corrections (“IDOC”) currently incarcerated at Centralia Correctional Center

(“Centralia”)1, brought this action against the 4 named Defendants pursuant to 42 U.S.C.

§ 1983 for alleged deprivations of his constitutional rights. (Doc. 1). Plaintiff amended his

complaint (Doc. 12) on March 24, 2021, following notification from the Court (Doc. 9) that

his initial complaint lacked a signature and was submitted in violation of Rule 11(a) of

the Federal Rules of Civil Procedure. In his Amended Complaint, Plaintiff alleges that he

received inadequate medical care for the following: persistent chest pain, an abdominal

hernia, and tumors in his groin area. (Doc. 12, p. 6-10). On March 16, 2022, the Court

completed its preliminary review of Plaintiff’s Amended Complaint pursuant to 28

U.S.C. § 1915A. (Doc. 23). Plaintiff was permitted to proceed against Defendants in their

individual capacities with the following counts:

Claim 1: Eighth Amendment deliberate indifference claim against

Defendants Dr. Santos, Dr. Pelegrin, and Dr. Shaw concerning Plaintiff’s

chest pain, cysts and hernia;

Claim 2: Eighth Amendment deliberate indifference claim against

Defendant Jones for ignoring Plaintiff’s repeated requests for care.

(Doc. 23, p. 3). Defendants Santos, Shah, and Pelegrin filed the present Motion for

Summary Judgment on the Exhaustion of Administrative Remedies along with their

Memorandum of Support on July 19, 2022. (Doc. 57, 58). Defendant Brian Jones filed a

Motion to Withdraw the Affirmative Defense of Failure to Exhaust Administrative

Remedies on July 20, 2022. (Doc. 60). Plaintiff timely filed a Response to the Motion for

Summary Judgment on August 2, 2022. (Doc. 68).

1 Plaintiff Kennedy was previously housed at Illinois River Correctional Center. Plaintiff was

transferred to Centralia Correctional Center around May 30, 2019. (Doc. 58, Exh. A, p. 6).

BACKGROUND

On July 23, 2019, Plaintiff was seen by Defendant Dr. Santos (“Santos”) concerning

complaints of chest pain, an abdominal hernia, and lumps in his groin area. (Doc. 12, p.

6; Doc. 58, Exh. E). In response to Plaintiff’s concerns about a slow heart-beat and high

blood pressure, Santos allegedly stated that such issues “would be better to take care of

when [he] get[s] home.” (Doc. 12, p. 6). As to Plaintiff’s hernia, Santos provided Plaintiff

with a hernia belt. Id.; (Doc. 58, Exh. E). Regarding the lumps in Plaintiff’s groin, Santos

allegedly told Plaintiff that “it was nothing.” Id.; (Doc. 58, Exh. E). Following Plaintiff’s

examination with Santos, Plaintiff reported that he spent months complaining of constant

pain. (Doc. 12, p. 6).

Plaintiff was then seen by Defendant Dr. Pelegrin (“Pelegrin”) on February 2, 2021.

(Doc. 12, p. 6); (Doc. 58, Exh. F). Pelegrin examined Plaintiff’s abdominal hernia and

discovered small nodules in Plaintiff’s groin area. (Doc. 58, Exh. F). Plaintiff reported that

the nodules were painful and that he had difficulty urinating. Id. Pelegrin advised

Plaintiff to continue using his hernia belt. Pelegrin also provided Plaintiff with a low bunk

permit for one year. Pelegrin further proscribed Plaintiff antibiotics for suspected

epididymitis or prostatitis, Prilosec for acid reflux, and Ibuprofen for pain. Id. Plaintiff

claimed that he took the medications as proscribed, but they did not have any effect. (Doc.

12, p. 7).

On February 13, 2021, Plaintiff was seen by Defendant Dr. Shah (“Shah”) for a

prostate exam. (Doc. 58, Exh. G). Plaintiff stated that the examination was “very

uncomfortable” and conducted “unprofessional[ly].” (Doc. 12, p. 9). Plaintiff alleged that

Shah was “loud and obnoxious” while performing the exam and that the door was left

“wide open” which allowed other inmates and staff to observe. Id. Additionally, Shah

was allegedly “upset” and performed the exam in a rough manner. Id.

Defendants attached a portion of Plaintiff’s grievance record to their

Memorandum of Support which contained Plaintiff’s grievances covering the time-

period for the above-mentioned allegations. (Doc. 58, Exh. B, C). Defendants also attached

selections of Plaintiff’s medical records to their Memorandum of Support. (Doc. 58, Exh.

E, F, G). Plaintiff provided the Court with selections of medical records and counseling

summaries as well. (Doc. 1, p. 23-24); Id. at p. 14-18, 29-30. Below is a summary of the

contents of the relevant grievances and their procedural history:

1. Grievance No. E-19-6-9 (Submitted on June 2, 2019)

On June 2, 2019, Plaintiff submitted Grievance No. E-19-6-9 (“E-19-6-9”). (Doc. 58,

Exh. B, p. 37-38). In the grievance, Plaintiff alleges that upon his arrival to Centralia from

Illinois River Correctional Center (“Illinois River”) on May 26, 2019, he never received

treatment for his abnormally high-blood pressure.2 Id. at p. 37. Plaintiff also claimed that

physicians at Illinois River had diagnosed him with an abnormally slow heart rate and

that no EKG had been performed; he also alleged that the previously proscribed

medication for the issue had not been provided to him at Centralia. Id. Further, Plaintiff

stated that he believed his blood pressure condition had been “misdiagnosed” on June 2,

2019, because the blood-pressure pills eventually provided to him were ineffective and

2 Plaintiff also grieved that he did not receive his personal property upon transfer from Illinois River

to Centralia. The Administrative Review Board (“ARB”) confirmed that Plaintiff received his personal

property from Illinois River before denying his final appeal. (Doc. 58, Exh. C, p. 22).

worsened his condition. Id. at p. 38. At the conclusion of Plaintiff’s grievance, Plaintiff

stated that he believed “Dr. Santos need[ed] to be removed due to repeatedly

misdiagnosing and treating conditions that should be left up to [treatment by] a

specialist.” Id. at 38. Plaintiff also noted that the Doctor in Illinois River told him “not to

worry about his hernia.” Id.

The grievance was marked as an emergency by Plaintiff; as such, it was expedited

to the Grievance Officer for review on June 3, 2019. (Doc. 58, Exh. B, p. 37). On June 6,

2019, the Grievance Officer conducted a review of Plaintiff’s medical records and

determined that Plaintiff’s medical concerns had been adequately addressed by

Centralia’s medical staff. (Doc. 58, Exh. B, p. 35). In her review, Grievance Officer Susan

Walker reported the following:

Offender was admitted to healthcare due to increased blood pressure and

dizziness. Upon receiving medications, his blood pressure decreased.

Offender also received an EKG on 6/2/19 which showed a normal sinus

rhythm, but the rate was slightly below the normal rate, however with

medications, this can be a normal rate for certain individuals. In reviewing

your medical records, the lower heartrate is a normal occurrence for you.

Dr. Santos followed up with you on 6/4/19 after your discharge from the

infirmary and you voiced no complaints, with recommendations to

continue medications, decrease salt intake and increase your exercise. You

have also been placed in the Hypertension Chronic Clinic where you can be

provided continued monitoring to check your status of hypertension. Dr.

Santos is providing proper evaluation and treatment of your condition. . . .

I recommend [that the] grievance be denied.

Id. On June 10, 2019, the Chief Administrative Officer concurred with Grievance Officer

Walker’s denial of the grievance. Id. Plaintiff then filed an appeal with the Administrative

Review Board (“ARB”) on June 29, 2019. (Doc. 58, Exh. C, p. 23). The ARB received the

appeal on July 5, 2019 and denied it on July 12, 2019. Id.

2. Grievance No. E-21-1-101 (Submitted on January 9, 2021)

On January 9, 2021, Plaintiff submitted Grievance No. E-21-1-101 (“E-21-1-101”).

(Doc. 58, Exh. B, p. 13). In the grievance, Plaintiff complained that inmates were moved

throughout Centralia on January 4, 2021, without any COVID testing which placed him

at risk for contracting the virus. Id. Plaintiff reported that none of the inmates he was

housed with were tested until January 6, 2021. Id. Plaintiff also reported that he was not

receiving his medications for heartburn, acid reflux, or thyroid. Id. at p. 14. Plaintiff

further complained that his medication for acid reflux was ineffective and requested that

he be switched back to Prilosec. Id. Plaintiff further expressed his concern about the lack

of COVID testing because of his “severe [medical] conditions,” asthma, and high blood

pressure; he also noted that at the time of the filing of the grievance, he still had not been

seen by a doctor for an assessment. Id.

The grievance was marked as an emergency by Plaintiff; as such, it was expedited

to the Grievance Officer for review on January 11, 2021. (Doc. 58, Exh. B, p. 11). In his

review, Grievance Officer Jeffrey Strubhart (“Strubhart”) indicated that “Housing Unit

assignments are determined by Administrative Decision . . . and warrant no further

review.” Id. Strubhart also indicated that “Inmate Kennedy’s medical concerns [were]

being addressed and that his medications [had] been ordered and [would] be given to

him when they [were] available.” Id. Accordingly, Strubhart denied the grievance on

January 21, 2021. Id. The Chief Administrative Officer concurred with the Grievance

Officer’s recommendation on January 22, 2021. Id. Plaintiff filed an appeal to the ARB that

same day. (Doc. 58, Exh. C, p. 18). On March 11, 2021, the ARB denied the appeal finding

that the “issues regarding [the] COVID protocol at Centralia [had] no merit . . . and will

not be reviewed.” Id.

3. Grievance No. E-21-2-50 (Submitted on February 4, 2021)

On February 4, 2021, Plaintiff submitted Grievance No. E-21-2-50 (“E-21-2-50”).

(Doc. 58, Exh. B, p. 19). In the grievance, Plaintiff expressed concerns regarding his

“serious [medical] conditions, including “asthma, high blood pressure, inactive thyroid,

hernia and [cysts].” Id. at p. 20. Plaintiff reported that his hernia was “giving [him] major

pain” and that “something [was] spreading like [cysts] in [and causing] a lot of pain in

[his] prostate area.” Id. Plaintiff believed that the previously proscribed antibiotics and

Ibuprofen were causing his blood pressure to further elevate. Id. Additionally, Plaintiff

reported that his thyroid gland was enlarged and that he was experiencing “constant acid

reflux, heartburn, and pain in [his] abdominal area.” Id. Plaintiff requested that he be

seen by a gastrologist and be provided with a lower bunk permit to alleviate the pain

associated with his abdominal hernia. Id.

The grievance was marked as an emergency by Plaintiff; as such, it was expedited

to the Grievance Officer for review on February 9, 2021. (Doc. 58, Exh. B, p. 19). On

February 11, 2021, Grievance Officer Jeffrey Strubhart (“Strubhart”) requested that

Healthcare Unit Administrator, Lana Nalewajka (“Nalewajka”) investigate Plaintiff’s

allegations. Id. at p. 25. On February 25, 2021, upon reviewing the documentation from

Nalewajka, Strubhart recommended that Plaintiff’s grievance be partially upheld, noting

the following:

Offender Kennedy was seen 2/24/21 for his chronic illnesses (Thyroid and

asthma) . . . he was evaluated by a physician on 2/13/21 for c/o prostate

pain and on 2/2/21 for acid reflux, hernia, and low bunk. Due to the

concerns with prostate vs. epididymitis an ultrasound of the scrotum has

been ordered and will allow for continued revisions to treatment plan or

medical necessity for outside referral. . . . Would recommend the use of sick

call for further evaluation.

Id. On February 26, 2021, the Chief Administrative Officer concurred with the Grievance

Officer’s decision to partially uphold the grievance. Plaintiff subsequently appealed the

decision to the ARB on March 4, 2021. (Doc. 58, Exh. C, p. 15). On March 16, 2021, the

ARB declined to review the appeal because the “grievance was incomplete as [Plaintiff]

failed to send [the] second page [of the original grievance].” Id. at p. 14.

4. Grievance No. E-21-2-135 (Submitted on February 24, 2021)

On February 24, 2021, Plaintiff submitted Grievance No. E-21-2-135 (“E-21-2-135”).

(Doc. 58, Exh. B, p. 29). In the grievance, Plaintiff alleged that Defendant Jones (“Jones”)

denied him access to healthcare on January 22, 2021, after he repeatedly complained of

chest pain and pain around his groin area. Id. The grievance was marked as an emergency

by Plaintiff; as such, it was expedited to the Grievance Officer for review on February 26,

2021. Id. at p. 27. On March 17, 2021, after inquiring with the Health Care Unit

Administrator, the Grievance Officer concluded that the grievance should be partially

upheld noting that:

Offender Kennedy was seen on 2/24/21 for chronic illnesses (Thyroid and

asthma) were addressed. He was evaluated by a physician on 2/13/21 for

complaint of prostate pain and on 2/2/21 for acid reflux, hernia and low

bunk. Due to concerns with prostate vs. epididymitis an ultrasound of

scrotum has been ordered and will allow for continued revisions to

treatment plan or medical necessity for outside referral. . . . Would

recommend the use of sick call for further evaluation.

Id. Grievance Officer Strubhart (“Strubhart”) also noted that the “claims regarding C/O

Jones [could not] be substantiated.” Id. The Chief Administrative Officer concurred with

the Grievance Officer’s determination on March 17, 2021. Id. Plaintiff appealed to the ARB

on March 18, 2021. (Doc. 58, Exh. C, p. 11). On March 31, 2021, the ARB denied the appeal

because the “allegations of staff misconduct [could not] be substantiated” and that “the

issue was appropriately addressed by the facility administrator.” Id. at p. 10.

LEGAL STANDARDS

Summary judgment is proper when a moving party cannot establish the presence

of a genuine dispute of material fact. See FED. R. CIV. PROC. 56(a). To survive a motion for

summary judgment, the non-moving party must provide admissible evidence which

would allow a reasonable jury to find in his or her favor. See Maclin v. SBC Ameritech, 520

F.3d 781, 786 (7th Cir. 2008). Generally, in determining the outcome on a motion for

summary judgment, the Court’s role is not to evaluate the weight of the evidence, judge

witness credibility, or determine the truth of the matter, but instead is to determine

whether a genuine issue of material fact exists. See Nat’l Athletic Sportwear Inc. v. Westfield

Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in Pavey v. Conley, the Seventh Circuit

held that “debatable factual issues relating to the defense of failure to exhaust

administrative remedies “are not required to be decided by a jury but are to be

determined by the judge.” 544 F.3d 739, 740-741 (7th Cir. 2008). Therefore, it is up to the

Court to evaluate whether a prisoner has exhausted his or her administrative remedies

when the affirmative defense of non-exhaustion is raised. If the Court determines that a

prisoner did not exhaust administrative remedies, the Plaintiff is given the opportunity

to exhaust should time still permit or if the failure to exhaust was innocent.3 Id. at 742.

Alternatively, if the Court determines that the failure to exhaust was the prisoner’s fault,

the case is over. Id.

Under the Prison Litigation Reform Act (“PLRA”), which governs lawsuits filed

by inmates, “no action shall be brought with respect to prison conditions under § 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.”

42 U.S.C. § 1997e(a) (emphasis added). This comports with the PLRA’s statutory purpose

of “afford[ing] correction officials [the] time and opportunity to address complaints

internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93

(2006); see also Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1161 (7th Cir. 2012).

Additionally, it affords prison administrations an opportunity to fix the problem, reduce

damages, and shed light on the factual disputes that may arise in litigation. See Pozo v.

McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002).

When attempting to exhaust administrative remedies, prisoners must follow their

prison’s administrative rules. See Pozo, 286 F.3d at 1023. As an inmate confined within the

3 Pavey provides that an “innocent” failure to exhaust includes situations where prison officials

prevent prisoners from pursuing exhaustion of their administrative remedies. 544 F.3d at 742. Further, if

an inmate submits a grievance and does not receive a response, the inmate’s attempts at exhaustion will be

deemed thwarted, and the inmate will be allowed to proceed with the lawsuit. See, e.g., Walker v. Sheahan,

526 F.3d 973, 979 (7th Cir. 2008)(noting that an inmate is not required to appeal his grievance if he submits

the grievance to the proper authorities but never receives a response); Dole v. Chandler, 438 F.3d 804, 809

(7th Cir. 2006)(indicating that a remedy can be unavailable to a prisoner if the prison does not respond to

the grievance or uses misconduct to prevent a prisoner from exhausting his remedies).

IDOC, Plaintiff is required to follow the regulations contained in the IDOC’s Grievance

Procedures for Offenders (“IDOC Grievance Procedures”) to properly exhaust his claims.

See 20 ILL. ADMIN. CODE § 504.800, et seq. The Seventh Circuit requires strict adherence to

a prison’s grievance procedures to satisfy the exhaustion requirement under the PLRA.

See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Accordingly, a prisoner cannot

satisfy the exhaustion requirement by filing untimely or otherwise procedurally defective

grievances. See Woodford, 548 U.S. at 83. Nor may a prisoner file a lawsuit while the

prisoner is simultaneously proceeding through the required grievance process. See Ford

v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Consequently, if a prisoner fails to use a

prison’s grievance process properly, “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.

To initiate the grievance process, the IDOC Grievance Procedures first require that

inmates file a grievance with a Counselor at their correctional institution within 60 days

of the discovery of an incident. See 20 ILL. ADMIN. CODE § 504.810(a). In the grievance, the

prisoner must provide: “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.”4 20 ILL. ADMIN. CODE § 504.810(a).

Should the prisoner not be satisfied with the Counselor’s response, the prisoner can then

submit a formal grievance to the prison’s Grievance Officer. Id. at (a)-(b). The Grievance

4 This 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.

See 20 ILL. ADMIN. CODE § 504.810(a).

Officer must review the grievance and provide a written response to the inmate. See 20

ILL. ADMIN. CODE § 504.830(a). Within 60 days of receipt of the grievance, when

reasonably feasible under the circumstances, the Grievance Officer must report his or her

findings and recommendations in writing to the Chief Administrative Officer (“CAO”).

See 20 ILL. ADMIN. CODE § 504.830(e). The CAO shall review the findings and

recommendations from the Grievance Officer and advise the inmate of his or her decision

in writing. Id. If the prisoner is not satisfied with the CAO’s decision, the prisoner can

then formally appeal to the Director through the ARB within 30 days of the CAO’s

decision. See ILL. ADMIN. CODE § 504.850(a). The inmate must attach copies of the

Grievance Officer’s report and the CAO’s decision to the appeal. Id. The ARB then

submits its written recommendation to the Director, who is responsible for issuing the

IDOC’s final decision within six months. See 20 ILL. ADMIN. CODE § 504.850(d)–(e).

A separate procedure exists for emergency grievances. Inmates may file

emergency grievances directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The

CAO will determine if there is “a substantial risk of imminent personal injury or other

serious or irreparable harm” to the inmate that warrants the grievance being handled on

an emergency basis. Id. If the CAO classifies the grievance as an emergency grievance,

the CAO shall “expedite the process of the grievance and respond to the offender

indicating what action shall be or has been taken.” See 20 ILL. ADMIN. CODE § 504.840(b).

The inmate will also be informed by the CAO if it is determined that the grievance is non-

emergent. See 20 ILL. ADMIN. CODE § 504.840(c). In such a case, notification will be made

in writing that the inmate should “resubmit the grievance as non-emergent, in accordance

with the standard grievance process.” Id. When an inmate appeals a grievance that has

been deemed emergent by the CAO, the ARB “shall expedite the processing of the

grievance.” 20 ILL. ADMIN. CODE § 504.850(f).

Lastly, there are certain circumstances where a prisoner may exhaust his or her

administrative remedies by filing a grievance directly with the ARB. See 20 ILL. ADMIN.

CODE § 504.870. Those circumstances include grievances addressing: (1) placement in

protective custody; (2) involuntary administration of psychotropic medication; (3)

decisions regarding disciplinary proceedings that took place at an institution other than

where the inmate currently resides; and (4) all other issues, with the exception of personal

property issues, that occurred at a previous institution.” Id. The ARB “shall review and

process . . . [such] grievance[s] in accordance with Section 504.850.” Id.

DISCUSSION

Defendants argue that Plaintiff’s claims should be dismissed because he filed suit

prematurely prior to fully exhausting his administrative remedies. (Doc. 58, p. 11).

Particularly, Defendants note that Plaintiff filed this lawsuit on March 8, 2021, before the

appeal decisions from the Administrative Review Board (“ARB”) for Grievance Nos. E-

21-2-505 and E-21-2-135 had been issued. Id. The ARB denied those appeals on March 16,

2021, and March 31, 2021, respectively. (Doc. 58, Exh. C, p. 10, 14). This same line of

5 The ARB denied Grievance No. E-21-2-50 because Plaintiff failed to attach the second page of the

Grievance Officer’s decision to the appeal as required under the IDOC Grievance Procedures. Plaintiff’s

grievance record and counselling summary do not include any documentation or reference suggesting that

Plaintiff attempted to perfect his submission to the ARB. (Doc. 58, Exh. A, B, C).

argument applies to Grievance No. E-21-1-101, as the ARB denied the appeal on March

11, 2021, three days after Plaintiff filed his lawsuit.

Defendants are correct in asserting that Plaintiff prematurely filed suit.

Administrative exhaustion is a pre-condition to filing suit under the PLRA. See 42 U.S.C.

§ 1997e(a). See also Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020)(noting that the PLRA

does not tolerate a “sue first exhaust later” approach). To fulfil the requirements of

exhaustion, “it is clear that a prisoner cannot . . . file suit during the pendency of a

required administrative response period.” See Hoskins v. Johnson et al., Cause No. 3:19-cv-

01303-GCS, 2020 WL 7263286, at * 6 (S.D. Ill. Dec. 10, 2020). Cf Gregory v. Santos, Civil No.

07-669-JPG-CJP, 2010 WL 750047, at * 6 (S.D. Ill. Jan. 19, 2010)(stating that prisoner has

failed to exhaust where he gave the ARB “only a few days leeway beyond the 6-month

period.”); Kyles v. Mathy, No. 09-1084, 2010 WL 3025109, at *4 (C.D. Ill. Aug. 2, 2010)

(noting that prisoner exhausted when he waited approximately one and half months after

the expiration of the two-month response deadline before moving on to the next step of

the grievance process.). Each of the appeals decisions issued by the ARB for Grievance

Nos. E-21-2-50, E-21-2-135, and E-21-1-101 occurred within the statutorily designated 6-

month response period. See 20 ILL. ADMIN. CODE § 504.850(d)–(e). Therefore, because

Plaintiff filed this lawsuit prior to receiving the ARB responses for Grievance Nos. E-21-

2-50, E-21-2-135, and E-21-1-101, Plaintiff jumped the gun and did not fully exhaust his

administrative remedies as to those grievances.

During the August 29, 2022, Hearing on the Motion, Plaintiff indicated that his

allegations against Pelegrin were about the February 2, 2021, visit. This visit was

recounted in Grievance No. E-21-2-50. (Doc. 58, Exh. C, p. 15-16); (Doc. 58, Exh. F, p. 1).

As Plaintiff did not follow the full IDOC Grievance Procedures for Grievance No. E-21-

2-50 and because no other grievance in Plaintiff’s Grievance Record contains any

information about the February 2, 2021, visit, the claim against Defendant Pelegrin must

be dismissed.

Similar logic eliminates Shah from the action. While Plaintiff complains about pain

in his prostate area in Grievance No. E-21-2-50, no grievance contains a reflection of an

“uncomfortable” or “unprofessional” prostate examination, which is the gravamen of

Plaintiff’s complaint against Shah. (Doc. 58, Exh. B, p. 19-20); (Doc. 12, p. 9). Rather,

Plaintiff testified that his complaint of prostate pain, as alleged in Grievance No. E-21-2-

50, is what led Shah to conduct the prostate examination on February 13, 2021. During

the hearing on September 12, 2022, Plaintiff further indicated that Grievance No. E-21-2-

135 (the only Grievance filed after the prostate examination took place on February 13,

2021) was about Defendant Jones denying him medical treatment. Thus, Plaintiff could

not have complained about the exam before it took place in Grievance No. E-21-2-50, nor

could a grievance complaining specifically about Defendant Jones place the prison on

notice of an improperly conducted prostate examination conducted by Shah. Thus,

Plaintiff’s claim against Shah must likewise be dismissed.

The only grievance remaining is Grievance No. E-19-6-9. Plaintiff successfully

completed all steps of the IDOC Grievance procedures for Grievance No. E-19-6-9 and

did not prematurely file suit. (Doc. 58, p. 6). Upon reviewing the limited excerpts of

Plaintiff’s Grievance Record, Plaintiff’s Complaint, and Plaintiff’s testimony from the

Motion Hearings that took place on August 29, 2022, and September 12, 2022, the Court

finds that Plaintiff successfully alleged a continuing violation of improper treatment

related to his chest pain and hernia. (Doc. 58, Exh. B, C); (Doc. 12). Plaintiff repeatedly

grieved that he was receiving inadequate care for his chest pain and hernia. Accordingly,

Plaintiff has exhausted his administrative remedies as to those complaints with respect

to Dr. Santos.

“In order to exhaust their remedies, prisoners need not file multiple, successive

grievances raising the same issue . . . if the objectionable condition is continuing.” Turley

v. Rednour, et al., 729 F. 3d 645, 650 (7th Cir. 2013). See also Wilson v. Wexford Health Sources,

Inc., 932 F.3d 513, 517 (7th Cir. 2019)(noting that “Section 1983 Eighth Amendment Claims

based on deliberate indifference in the delivery of medical care does not necessarily allege

a single event or series of events but may describe an ongoing denial of care.”) (citing

Heard v. Sheahan, 253 F. 3d 316, 319 (7th Cir. 2001)). Separate complaints about particular

issues are only required if the underlying facts of the complaints are different. See Turley,

729 F. 3d at 650. See also Tidwell v. Asselmeir et al., Case No. 16-cv-00041-MJR-SCW, 2018

WL 7636483, at *4 (S.D. Ill. Dec. 28, 2018)(finding that Plaintiff was not required to re-

grieve the existence and complications relating to his dental care because the facts

underlying Plaintiff’s grievances were the same); Laktas v. Wexford Health Sources, Inc., et

al., No. 18-cv-1299-NJR-RJD, 2019 WL 3928690, at *4 (S.D. Ill. Aug. 20, 2019)(finding that

Plaintiff was not required to repeatedly grieve defendants continuous denial of medical

treatment regarding his spinal cord and carpal tunnel issues). Therefore, once a prison

has received notice of, and and opportunity to correct a problem, the prisoner has

satisfied the purpose of the exhaustion requirement. Id.

Here, Plaintiff’s complaint focuses on an exam conducted by Dr. Santos on July 23,

2019, during which Plaintiff’s high blood pressure, hernia, and cysts were evaluated.

Plaintiff, however, also alleges mistreatment of his blood pressure and hernia by Dr.

Santos in Grievance No. E-19-6-9, which was submitted nearly two months prior on June

2, 2019. (Doc. 58, Exh. C, p. 24). In Grievance No. E-19-6-9, Plaintiff specifically stated that

he believes his blood pressure had been “misdiagnosed” and that his hernia had “never

been treated.” Id. at 25. See also (Doc. 58, Exh. E, p. 1). The limited excerpts of Plaintiff’s

grievance record provided by Defendants also contain numerous complaints alleging

improper treatment for his blood pressure.6 (Doc. 58, Exh. C, p. 13, 15, 24, 30). Further,

during the Motion Hearing, Plaintiff testified that there were several grievances that were

not on file that related to the improper treatment of his blood pressure and hernia.

Plaintiff further testified that he still suffers from high blood pressure and that his hernia

situation was never fully addressed. Together, this evidence is sufficient for the Court to

find that Plaintiff is alleging a continuing violation of the mistreatment of his chest pain

and hernia, and as such, he adequately placed the prison on notice of these conditions to

6 The Court considers Plaintiff’s complaints of inadequate care for his blood pressure as related to

his complaints of inadequate care for his chest pain given the possibility that Plaintiff’s chest pain is a

symptom of his allegedly mismanaged high blood pressure. See, e.g., Centers for Disease Control (“CDC”),

“High Blood Pressure Symptoms and

Causes,”https://www.cdc.gov/bloodpressure/about.htm#:~:text=High%20blood%20pressure%20can%

20damage%20your%20arteries%20by%20making%20them,Chest%20pain%2C%20also%20called%20angi

na, visited on January 26, 2023 (noting that “[h]igh blood pressure can damage your arteries by making

them less elastic, which decreases the flow of blood and oxygen to your heart and leads to heart disease. In

addition, decreased blood flow to the heart can cause: . . . Chest pain, also called angina.”) (emphasis added).

satisfy the administrative exhaustion requirements. Grievance No. E-19-6-9, however,

contains no complaints about cysts. Thus, Plaintiff's claims against Dr. Santos in relation

to the care for his hernia and chest pain survive, but not with respect to the care for his

cysts.

CONCLUSION

Accordingly, the Court GRANTS in Part and DENIES in part the Motion for

Summary Judgment as to Exhaustion of Administrative Remedies. (Doc. 57). The Court

DENIES the motion as to Defendant Santos in Count 1 concerning improper treatment

of Plaintiff's chest pain and hernia. The Court GRANTS the motion as to Defendant

Santos in Count 1 concerning the improper treatment of Plaintiff's cysts. The Court

GRANTS the motion as to Defendants Pelegrin and Shah. Thus, the Court DISMISSES

without prejudice for failure to exhaust administrative remedies Kennedy’s claims

against Pelegrin and Shah in Count 1 and against Defendant Santos in Count 1 concerning

the improper treatment of Plaintiff's cysts. The Court DIRECTS the Clerk of Court to

enter judgment reflecting the same at the conclusion of the case.

IT IS SO ORDERED.

DATED: February 9, 2023. hae oan by

Abklet ©. invates 2023.02.09

15:50:41 -06'00'

GILBERTC.SISON ts”

United States Magistrate Judge

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