Yoder v. David

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHARLES YODER,

#A97771,

Plaintiff, Case No. 21-cv-01385-SPM

v.

ALFONSO DAVID, et al.,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

This matter is before the Court on a motion for summary judgment on the issue of failure

to exhaust administrative remedies filed by Defendant Melissa York. (Doc. 102). Plaintiff Charles

Yoder filed a response in opposition. (Doc. 107). Defendant York filed a reply, and Plaintiff filed

a sur-reply.1 (Doc. 108, 109). For the following reasons, the motion for summary judgment is

granted.

BACKGROUND

Plaintiff Charles Yoder, an inmate of the Illinois Department of Corrections (“IDOC”) who

is currently incarcerated at Robinson Correctional Center, initiated this action pursuant to 42

U.S.C. § 1983 for violations of his constitutional rights. In the Complaint, Plaintiff alleges that

while at Shawnee Correctional Center he was denied adequate medical treatment for various

medical conditions, including tissue tears in both shoulders, an umbilical hernia that was repaired

1 The Local Rules of this Court provide that “[u]nder no circumstances will sur-reply briefs be accepted” and prior to

filing a supplement, a party must first seek leave of the court. SDIL-LR 7.1(c). Because sur-reply briefs are prohibited

and Plaintiff did not seek leave before filing his additional supplements, the sur-reply will be stricken from the docket.

(Doc. 109).

in March 2021 but still causing complications and abdominal pain, lower back pain, degenerative

disk disease in his spine, enlarged prostate, and “trigger finger.” Following review of the

Complaint pursuant to 28 U.S.C. §1915A, Plaintiff is proceeding with the following claims:

Count 1: Eighth Amendment claim against David, Edwards, York, Johnson,

Wexford, and Monti for deliberate indifference to Plaintiff’s serious

medical needs regarding his hernia and conditions affecting his

shoulders, back, prostate, and fingers.

Count 2: First Amendment claim against York and Monti for retaliating

against Plaintiff for writing grievances regarding his medical care.

(Doc. 31).

Relevant to the motion for summary judgment currently before the Court are Plaintiff’s

allegations against Defendant Melissa York.2 (Doc. 31, p. 4-6). Plaintiff claims that after arriving

at Shawnee Correctional Center on July 21, 2021, he was seen by nursing staff and explained his

chronic medical issues. He was referred to medical doctor and scheduled be seen by Dr. David on

July 29, 2021. The appointment, however, was rescheduled for August 2, 2021. The August

appointment was then canceled. Plaintiff was next scheduled to be seen by Nurse Practitioner

Edwards on August 13, 2021. This appointment was also canceled. Later that evening, Defendant

Nurse Melissa York came to Plaintiff’s cell to deliver a note from Edwards. Plaintiff alleges that

York was loud, disrespectful, and mean-spirited. York told Plaintiff that if he had not stormed out

of the healthcare unit, then Edwards would have explained why he, Edwards, could not see Plaintiff

that day. York shoved the note at Plaintiff. The note stated that Edwards was waiting on Plaintiff’s

outside medical records and would be contacting Plaintiff in a week. Plaintiff next saw York in

the healthcare unit on October 3, 2021. He alleges that she was again unprofessional and

disrespectful. Plaintiff told York about his hernia repair surgery and medical issues, but she

2 Melissa York is identified in the Complaint and Merit Review Order as Jane Doe. On June 6, 2022, Plaintiff filed a

motion to substitute York for the Jane Doe Defendant. (Doc. 37, 44).

ignored him. York told Plaintiff she was busy and that she did not intend to help him because he

was going to write grievances anyways.

On January 24, 2023, Defendant York filed a motion for summary judgment arguing that

Plaintiff failed to exhaust his administrative remedies prior to initiating this lawsuit. (Doc. 102,

103). Defendant York identifies three grievances relevant to Plaintiff’s claims against her,

Emergency Grievances #2021-09-278E, #2021-10-30E, and #2021-10-48E.

• In Grievance #2021-09-278E, dated September 22, 2021, Plaintiff grieves

not receiving medical treatment and mentions that a nurse handed him a

note from NP Edwards on August 13, 2021, informing Plaintiff why

Edwards refused to see him.

• In Grievance #2021-10-30E, dated October 4, 2021, Plaintiff grieves that

on October 3, 2021, a nurse refused to treat him or tell him her name.

Plaintiff wrote that the nurse said she could refill his order for Flomax to

treat his prostate symptoms, but he told her he could not get a refill for a

medication the doctor had not yet ordered. The nurse then ended the

encounter by saying she did not have time to argue with him and that he

would just file a grievance on her like he did everyone else Plaintiff

specified that this was the same nurse who was rude to him on August 13,

2021.

• In Grievance 2021-10-48E, dated October 4, 2021, Plaintiff complains that

a nurse refused to treat him on October 3, 2021, stating she was not going

to help him because he was just going to write a grievance on her.

All three grievances were deemed emergencies by the chief operating officer within two days of

submission. (Doc. 103-2, p. 8, 12, 14). These grievances and twelve others were collectively

responded to by the grievance officer on December 6, 2021. (Doc. 103-1, p. 34). The grievance

officer deemed the grievances mixed. The chief administrative officer concurred. (Doc. 103-1, p.

36). Plaintiff appealed the decision to the Administrative Review Board on December 15, 2021.

On January 10, 2022, the Administrative Review Board denied the grievances. (Id. at p. 30). York

argues that Plaintiff failed to exhaust in accordance with the Prison Reform Litigation Act, 42

U.S.C. §1997e(a), since he filed suit on November 5, 2021, before the final adjudication of his

grievances was complete on January 10, 2022. (Doc. 103, p. 6). Therefore, York seeks summary

judgment in her favor.

In the response in opposition, Plaintiff argues that the Defendant York’s motion should be

denied because (1) the issue of improperly exhausting was not raised during the exhaustion process

itself; (2) the grievance officer violated the Administrative Rule 504 by waiting over two months

to respond to his grievances, which results in waiver of the right to raise a failure to exhaust

defense; (3) Plaintiff did completely exhaust; and (4) forcing Plaintiff to refile a new lawsuit,

especially in light of the fact that he received a favorable ruling by the grievance officer, is

counterproductive and a waste of time. (Doc. 107).

LEGAL STANDARDS

I. Summary Judgment

Summary judgment is proper only if the moving party can demonstrate “that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”

See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Any doubt about the

existence of a genuine issue must be resolved in favor of the nonmoving party. Lawrence v.

Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004). The moving party is entitled to judgment as a

matter of law when the pleadings, answers to interrogatories, depositions, and admissions, along

with affidavits, show that there is no genuine issue of material fact. FED. R. CIV. P. 56(c).

II. Exhaustion of Administrative Remedies

Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform

Act (“PLRA”). 42 U.S.C. § 1997e(a). The PLRA states, in pertinent part, that “no action shall be

brought with respect to prison conditions under section 1983 of this title, or any other Federal law,

by a prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” Id. The Seventh Circuit requires strict adherence to the

PLRA’s exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Exhaustion

must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). The only

exception to the exhaustion requirement is when the administrative remedies are “unavailable.”

Ross v. Blake, 578 U.S. 632, 643 (2016).

As an inmate confined in the Illinois Department of Corrections, Plaintiff was required to

follow the grievance process outlined in the Illinois Administrative Code to properly exhaust his

administrative remedies. 20 ILL. ADMIN. CODE § 504.800, et seq. Pertinent to this case is the

regulation regarding emergency procedures. 20 ILL. ADMIN CODE § 504.840. An inmate can

request a grievance to be handled on an emergency basis by forwarding the grievance directly to

the chief administrative officer (“warden”). Id. The warden then reviews the grievance to

determine if it is truly an emergency. Id. If the warden determines that “there is a substantial risk

of imminent personal injury or other serious or irreparable harm,” the warden “shall expedite

processing of the grievance and respond to the offender, indicating what action shall be or has been

taken.” Id. After receiving a response from the warden, if the inmate believes that his problem or

complaint has not been resolved, then he may appeal in writing to the Administrative Review

Board. Id. at §504.850(a). When an inmate appeals a grievance deemed by the warden to be an

emergency, “the Administrative Review Board shall expedite processing of the grievance.” Id. at

§504.850(f).

The regulation stating that a grievance officer is to provide his or her findings and

recommendations to the chief administrative officer within two months, “when reasonably

feasible,” cited to by all parties, applies to grievances filed through the normal procedures. See 20

ILL. ADMIN. CODE §504.830(e). Here, Plaintiff filed his grievances as emergencies. Once the

warden determines that a grievance is an emergency, there is no prescribed deadline for the warden

to respond. See Godfrey v. Harrington, 2015 WL 1228829, at *3 (S.D. Ill. Mar. 16, 2015) (citing

20 ILL. ADMIN CODE §504.840). Based on the Code, “it is not clear how long inmates must wait to

receive a response when using the emergency process.” Id. The Seventh Circuit has “implied that

inmates must wait more than two days for a response to their emergency grievance but less than

fifty-one before they can file suit.” Id. (citing Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173

(7th Cir. 2010) and Muhammad v. McAdory, 214 F. App’x 610, 611, 613 (7th Cir. 2007)). That

being said, an emergency or imminent danger does not exempt an inmate from exhausting his

administrative remedies. As stated above, exhaustion is a precondition to filing suit.

ANALYSIS

Here, while it took the grievance officer more than two months to respond to Plaintiff’s

grievances, Defendants have presented evidence that Plaintiff’s remedies were available and that

Plaintiff was able to follow and receive responses at each stage of the process. Plaintiff does not

provide a reason for filing this case before he had exhausted his claims against York. He does not

allege that his administrative remedies were unavailable to him due to the delayed response to his

emergency grievances or that his efforts were thwarted in some way. Plaintiff’s main argument is

that IDOC officials must follow their own regulations. Because the grievance officer did not follow

the two-month rule, a defendant cannot raise exhaustion as an affirmative defense. This assertion

is not correct. Failure to timely respond to a grievance can render an administrative scheme

unavailable, but a delayed response does not automatically prevent an inmate from using the

administrative remedies process. See Reid v. Balota, 962 F. 3d 325, 329 (7th Cir. 2020). Plaintiff

does not explain why, if he was operating under the belief that the grievance officer had two

months to respond, he file this suit against York before two months had passed – 44 days after

submitting the September 22 grievance and 32 days after submitting the October 4 grievance.3

Nor does he assert he was in imminent danger and that is the reason why he filed the lawsuit before

seeking to resolve his issues internally.4 Because Plaintiff does not refute York’s assertion and

evidence that his remedies were available and does not deny that he filed this lawsuit before full

compliance with the administrative process, the motion for summary judgment is granted. See

Ford, 362 F. 3d at 398 (an inmate may not file a lawsuit while the prisoner is simultaneously

proceeding through the required grievance process).

The Court finds Plaintiff’s additional arguments not well taken. The affirmative defense of

failure to exhaust was properly raised in York’s response to the Complaint and did not need to be

raised sooner. See FED. R. CIV. 8(c); Massey v. Helman, 196 F. 3d 727, 735 n. 5 (7th Cir. 1999).

And finally, while Plaintiff may feel that refiling a new lawsuit against York is a waste of time,

the “court lacks discretion to resolve the claim [against York] on the merits.” Perez v. Wisc. Dep’t

of Corr., 182 F. 3d 532, 535 (7th Cir. 1999). His claims against York “must be dismissed.” Id.

DISPOSITION

For the reasons stated above, the Motion for Summary Judgment is GRANTED. (Doc.

102). The claims against Defendant York are DISMISSED without prejudice for Plaintiff’s

failure to exhaust.

The Clerk is DIRECTED to TERMINATE MELISSA YORK as a party and enter

3 In the Complaint, Plaintiff asserts that from August 10, 2021, through October 20, 2021, he filed 32 grievances.

(Doc. 1, p. 5). At the time of initiating this lawsuit, three grievances “have been decided.” He further states the

grievances filed as emergencies have been deemed medical emergencies but are still pending and have not come to a

final conclusion. (Id. at p. 6).

4 In his pleadings, Plaintiff alleges that he is continually being denied adequate care, but the three emergency

grievances cited to by York complained of his treatment by nursing staff and not being seen by a medical doctor.

Plaintiff had an appointment with Dr. David on October 22, 2021. (Doc. 1, p. 22). Albeit, Plaintiff was also unhappy

with Dr. David’s treatment decisions, but he was seen by a doctor as requested in the grievances. At the time of filing,

Plaintiff did not request any kind of emergency relief (Doc. 31, p. 12), and there is no “reason to think that the prison’s

grievance procedure would take longer than judicial procedure.” Fletcher, 623 F. 3d at 1175.

judgment in her favor at the close of this case.

The Clerk is DIRECTED to STRIKE the sur-reply at Doc. 109. The stay on merits

discovery is LIFTED and the parties can proceed with discovery on the merits. A new scheduling

order will be entered by separate order.

IT IS SO ORDERED.

DATED: September 14, 2023

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge