Smith v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICKEY SMITH, )

)

Plaintiff, )

)

vs. ) Case No. 22-CV-2166-MAB

)

DEE DEE BROOKHART, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on Defendant Dr. Vipin Shah’s Motion

for Summary Judgment for Failure to Exhaust Administrative Remedies (Docs. 35, 36).

For the reasons set forth below, Dr. Shah’s Motion for Summary Judgment for Failure to

Exhaust Administrative Remedies is GRANTED (Doc. 35).

BACKGROUND

Plaintiff Mickey Smith brought this action pursuant to 42 U.S.C. § 1983 for alleged

deprivations of his constitutional rights while incarcerated at Lawrence Correctional

Center (Doc. 1). As it relates to Dr. Shah, Plaintiff alleges that he visited Dr. Shah in June

or July of 2020 because he was having trouble swallowing (Doc. 9, p. 2). Dr. Shah told

Plaintiff to eat ice, but he did not perform an examination (Id.). Plaintiff visited Dr. Shah

again in August 2020 and Dr. Shah ordered an x-ray (Id.). However, Dr. Shah did not

follow up with Plaintiff afterwards (Id.). In March 2021, Plaintiff sought medical care after

he noticed a lump on the left side of his neck while shaving (Id.). Plaintiff was

subsequently seen by doctors other than Dr. Shah in March, May, and August of 2021

(Id.). On June 23, 2021, Plaintiff was informed that he had cancer in his neck (Doc. 36-1,

p. 41).1 Following his diagnosis, a port was placed in Plaintiff’s chest for radiation and

chemotherapy treatment (Doc. 9 at p. 2).2

Plaintiff filed his initial Complaint on September 15, 2022 (Doc. 1). The Court

conducted a preliminary review pursuant to 28 U.S.C. § 1915A and Plaintiff was allowed

to proceed on the following claims:

Claim 1: Eighth Amendment deliberate indifference against

Defendant Shah for delaying or denying treatment of

Plaintiff’s throat pain beginning in June of 2020;

Claim 2: Eighth Amendment deliberate indifference by Defendants

Adamson, Daniels, [] for use of the black box restraints;

(Doc. 9 at pp. 3-5).3 The Court’s preliminary review Order also examined whether

Plaintiff raised a claim against Defendant Dee Dee Brookhart (Id. at p. 4). After noting

that Plaintiff’s allegations against Brookhart were unclear, the Court dismissed any claim

Plaintiff may have raised against Brookhart, in her individual capacity, because none of

Plaintiff’s initial allegations established that she was personally responsible for the

deprivation of a constitutional right (Id.). However, Brookhart remained a party to this

1 The Court and Dr. Shah previously stated that Plaintiff was informed of his neck cancer in August 2021

(see, e.g., Doc. 9 at p. 2; Doc. 36 at p. 2). However, based upon Plaintiff’s Grievance 07-21-258, which was

filed on July 26, 2021, it appears Plaintiff was informed that he had cancer on June 23, 2021 (Doc. 36-1, p.

41). At the very least, that grievance demonstrates that Plaintiff was aware that he had neck cancer by the

time he filed Grievance 07-21-258 on July 26, 2021 (Id.).

2 Plaintiff’s Complaint goes on to discuss additional actions taken by the other Defendants in this case.

However, those factual allegations will not be discussed in this Order because none of those allegations

relate to Plaintiff’s claim against Dr. Shah.

3 Plaintiff also sought to raise his second claim against Defendant Seed. However, Seed was dismissed in

the Court’s preliminary review Order because Plaintiff’s factual allegations against Seed were insufficient

(Doc. 9 at pp. 5-6).

lawsuit, in her official capacity, for the purpose of effectuating injunctive relief, should it

be ordered (Id.).

Pursuant to the initial scheduling order, Plaintiff had until June 16, 2023, to file a

motion for leave to amend his complaint (Doc. 21, pp. 2-3). Meanwhile, Defendants had

until July 17, 2023, to file a motion for summary judgment based upon the failure to

exhaust administrative remedies (Id. at pp. 3-4). Neither Plaintiff nor Defendants filed

anything prior to the expiration of those deadlines. In addition, a clerk’s entry of default

was entered against Dr. Shah for his failure to file an answer, but that entry of default

was subsequently set aside for good cause (see Docs. 22, 23, 30). On October 25, 2023, the

Court found Defendants Brookhart, Adamson, and Daniel had waived the defense of

failure to exhaust administrative remedies based upon their failure to timely file a motion

on that topic (Doc. 32). However, that Order granted Dr. Shah a brief extension of time to

file an exhaustion-based summary judgment motion (Id.).

On November 2, 2023, Plaintiff filed a motion for leave to file amended complaint

(Doc. 34). Just one day later, Dr. Shah filed the instant exhaustion-based summary

judgment motion and supporting memorandum (Docs. 35, 36). Plaintiff filed a response

in opposition to Dr. Shah’s motion on November 22, 2023 (Doc. 39), and Dr. Shah filed a

reply in support on November 27, 2023 (Doc. 40).

Subsequently, by Order dated May 14, 2024, the Court granted Plaintiff’s motion

for leave to amend and Plaintiff was permitted to file an amended complaint which raised

an Eighth Amendment deliberate indifference claim against Brookhart for her failure to

ensure Plaintiff received adequate medical treatment and her role in requiring Plaintiff

to use black box restraints (see Doc. 51, pp. 8-9). However, as noted in that Order, Dr.

Shah’s exhaustion-based summary judgment motion remained pending and did not need

to be refiled because Plaintiff’s Amended Complaint did not include any additional

allegations against Dr. Shah (Id. at p. 10).

LEGAL STANDARD

I. Summary Judgment Standards

Summary judgment is appropriate if the movant shows there is no genuine issue

as to any material fact and they are entitled to judgment as a matter of law. FED. R. CIV.

P. 56(a). In making that determination, the Court “generally will construe all facts and

reasonable inferences in the light most favorable to the non-moving party.” Apex Digital,

Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013). In other words, courts cannot

resolve factual disputes in favor of the party seeking summary judgment. See Tolan v.

Cotton, 572 U.S. 650, 656 (2014) (“[A] judge’s function at summary judgment is not to

weigh the evidence and determine the truth of the matter but to determine whether there

is a genuine issue for trial.”) (internal quotation marks and citation omitted). However,

“[t]he nonmoving party must do more than simply show that there is some metaphysical

doubt as to the material facts.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010).

II. Exhaustion Requirements

As provided in the Prison Litigation Reform Act, “[a] prisoner may not bring a

federal suit about prison conditions unless he first has exhausted all available

administrative remedies.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011) (citing 42

U.S.C. § 1997e(a)). A remedy has not been exhausted if the prisoner has failed to abide by

the procedures for pursuing relief. Id. Thus, to properly exhaust one’s administrative

remedies, “a prisoner must file complaints and appeals in the place, and at the time, the

prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.

2002).

However, an inmate is not required to exhaust administrative remedies that are

not actually available to him. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016)

(“Remedies that are genuinely unavailable or nonexistent need not be exhausted.”). The

Seventh Circuit has “found remedies unavailable in a number of instances in which the

inmate, through no fault of his own, could not have accessed the grievance procedure.”

Lanaghan v. Koch, 902 F.3d 683, 688 (7th Cir. 2018); see, e.g., Ramirez v. Young, 906 F.3d 530,

537 (7th Cir. 2018) (grievance procedure was unavailable where prisoner was not notified

of their existence because of his lack of English proficiency). Additionally, failure to

exhaust is an affirmative defense that the defendants carry the burden of proving.4

Ramirez, 906 F.3d at 533. “To meet their burden, the defendants must show beyond

dispute that remedies were available.” Id. at 534.

4 In most instances, when considering a motion for summary judgment based upon a prisoner’s alleged

failure to exhaust his or her administrative remedies, the Seventh Circuit has instructed courts to conduct

an evidentiary hearing and resolve contested issues of fact regarding a prisoner’s efforts to exhaust.

Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)).

Accord Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014). However, an evidentiary hearing is not necessary

when there are no material factual disputes. See Doss v. Gilkey, 649 F. Supp. 2d 905, 912 (S.D. Ill. 2009) (no

hearing required where there are “no disputed facts regarding exhaustion, only a legal question”). Here,

the Court is able to rule upon Dr. Shah’s motion without conducting a hearing as there are no material

issues of fact that require a hearing to resolve. See Robinson v. Budde, No. 18-CV-6998, 2021 WL 1722857, at

*4 (N.D. Ill. Apr. 30, 2021) (“Since the parties agree on the facts, there is no need for a hearing.”).

III. IDOC Grievance Procedures

Individuals incarcerated within the Illinois Department of Corrections (IDOC) are

required to follow the grievance procedure outlined in the Illinois Administrative Code

to exhaust their administrative remedies. See 20 Ill. Admin. Code § 504.800, et seq. (2017).

To initiate the normal grievance process, an inmate must file a grievance with their

institutional counselor within 60 days of the discovery of the incident. Id. at § 504.810(a).

After the counselor provides a response, an inmate may submit his grievance to a

grievance officer who is to report his or her findings and recommendations to the Chief

Administrative Officer (the “warden”) within two months. Id. at 504.830(e). The warden

reviews the grievance officer’s findings and recommendations, and then provides a

written decision. Id. If an inmate is unsatisfied with the warden’s decision, he has 30 days

from the date of the warden’s decision to appeal to the Administrative Review Board

(ARB). Id. at § 504.850(a). The ARB then submits a written report to the Director of the

IDOC, who makes a final decision within six months, when reasonably feasible. Id. at §

504.850(e).

Alternatively, an inmate can request for his or her grievance to be handled on an

emergency basis by submitting the grievance directly to the warden. Id. at § 504.840. If

the warden determines the grievance should not be handled as an emergency, the inmate

is notified in writing that he or she may resubmit the grievance in accordance with the

standard grievance process. Id. at § 504.840(c). Conversely, if the warden determines the

grievance is an emergency, the warden must expedite processing of the grievance and

respond by indicating what action shall be or has been taken. Id. at § 504.840(b). Likewise,

if an inmate seeks to appeal the warden’s decision on a grievance that has been found to

be an emergency, the ARB is also required to expedite processing of the grievance. Id. at

§ 504.850(f).

Discussion

I. Plaintiff’s Grievances

Dr. Shah has provided numerous grievance records to the Court (see generally

Docs. 36-1, 36-2, 36-3). The Court has reviewed the grievances and associated records and

has focused its analysis on grievances that discuss Plaintiff’s medical concerns and were

filed around the timeframe alleged in Plaintiff’s complaint.5 Furthermore, while Plaintiff

filed a response in opposition, he neither provided nor alluded to any additional, relevant

grievances (see Doc. 39).

A. Grievance 07-21-099, dated 7/7/2021 (Doc. 36-2, pp. 17-18)

In this grievance, Plaintiff grieved the lack of treatment he received for a urinary

issue he was facing in July of 2021 (Doc. 36-2 at pp. 17-18). The grievance does not discuss

or challenge any of the treatment he received related to his neck/throat, and does not

reference or allude to treatment provided by Dr. Shah (Id.).

5 Dr. Shah provided several grievances that were submitted either before or after the time period in question

(see generally Docs. 36-1, 36-2, 36-3). However, due to both the timing and the nature of the issues being

grieved, it is clear that many of these grievances do not pertain to Plaintiff’s claim against Dr. Shah.

Accordingly, having thoroughly reviewed the entire evidentiary record, the Court has limited its

discussion of Plaintiff’s grievances to only those that could conceivably be related to Plaintiff’s neck cancer

and/or Dr. Shah’s treatment.

B. Grievance 07-21-258, dated 7/26/2021 (Doc. 36-1, p. 41)

Plaintiff filed Grievance 07-21-258 on July 26, 2021, to grieve his lack of treatment

after being diagnosed with neck cancer (Doc. 36-1 at p. 41). In this emergency grievance,

Plaintiff noted that he had been diagnosed by an outside provider on June 23, 2021, and

he still had not been called to the healthcare unit or had a biopsy taken (Id.). Plaintiff

requested that he be seen by a doctor and be informed as to when his biopsy would be

taken “[b]ecause cancer is not going to sit around and wait.” (Id.). After this grievance

was deemed an emergency (Id.), the grievance officer recommended, and the warden

concurred in finding the grievance moot because a biopsy of the lump of Plaintiff’s neck

occurred on August 2, 2021 (Id. at p. 40). Plaintiff timely appealed this grievance to the

ARB, but it was also denied at that level because a neck biopsy had already been

completed (Id. at p. 39).

C. Grievance 09-21-143, dated 9/14/2021 (Doc. 36-1, pp. 30-31)

Plaintiff filed Grievance 09-21-143 on September 14, 2021, to grieve the delay in

follow-up treatment after receiving a CAT scan by an outside provider (Doc. 36-1 at pp.

30-31). Specifically, Plaintiff stated that Dr. Gonzaiga, a doctor in Lawrence’s health care

unit, told him that he would need to go back to an outside provider for further treatment,

including surgery or chemotherapy (Id.). Plaintiff alleged he was receiving inadequate

medical attention and requested he promptly receive the medical treatment ordered by

the outside doctor (Id. at p. 30). This grievance was also deemed an emergency by the

warden (Id.). However, the grievance officer recommended the grievance be denied as

moot because Plaintiff underwent surgery on September 22, 2021 (Id. at p. 29). The

warden, and subsequently the ARB, both concurred with the recommendation and

deemed the grievance to be moot in light of Plaintiff’s recent surgery (Id. at pp. 28-29).

D. Grievance 12-21-002, dated 11/25/2021 (Doc. 36-1, pp. 26-27)

Plaintiff filed Grievance 12-21-002 on November 25, 2021, to grieve Warden

Brookhart’s alleged inappropriate and disrespectful response to his in-person

conversation with her wherein he discussed his serious medical concerns (Doc. 36-1 at

pp. 26-27). Plaintiff claimed Warden Brookhart became angry and dismissive after

realizing who he was (Id. at p. 27). Plaintiff continued by alleging that Warden Brookhart

was aware that Lawrence’s health care unit was providing inadequate care, but has not

taken any action to resolve the problem (Id.). Plaintiff again marked this grievance as an

emergency, but the warden determined that it was non-emergent (Id. at p. 26). Thereafter,

Plaintiff filed his grievance using the standard, non-emergent procedure. Plaintiff’s

counselor noted that “per Warden Brookhart, ‘Individual will receive care as prescribed

by Wexford Health and the on-site MD.’” (Id.). The grievance officer then recommended

denying this grievance because they were not able to substantive that IDOC policies were

not followed (Id. at p. 25). The warden concurred in the grievance officer’s

recommendation (Id.). Finally, the ARB also denied Plaintiff’s grievance, finding the issue

was appropriately addressed by facility administration (Id. at p. 24).

E. Grievance 12-21-092, dated 12/11/2021 (Doc. 36-1, pp. 22-23)

This grievance only discussed Plaintiff’s concerns related to his waist chain permit

being revoked and the use of black box restraints (Doc. 36-1 at pp. 22-23). It neither

mentions Dr. Shah nor alludes to or complains of treatment he received in the summer of

2020 (Id.).

F. Grievance 01-22-038, dated 1/6/2022 (Doc. 36-1, pp. 18-19)

In this grievance, Plaintiff grieved the requirement that he be forced to use black

box restraints when leaving Lawrence to receive outside medical treatment (Doc. 36-1 at

pp. 18-19). This grievance does not discuss the prior medical treatment of Dr. Shah, and

instead focused on the harm he suffered due to the use of the black box restraints (Id.).

II. Analysis

Dr. Shah argues Plaintiff failed to exhaust his administrative remedies as it relates

to Plaintiff’s deliberate indifference claim raised against Dr. Shah (see generally Doc. 36).

Specifically, Dr. Shah claims that Plaintiff failed to exhaust his administrative remedies

because none of Plaintiff’s grievances identify Dr. Shah, describe Dr. Shah, or provide

any other information concerning the treatment Dr. Shah provided to Plaintiff in the

summer of 2020 (Id. at pp. 12-13). In response, Plaintiff contends he exhausted his

administrative remedies because his grievances were timely filed, properly appealed to

the ARB, and explained in detail why something must be done (Doc. 39).

Critically, section 504.810(c) provides that a “grievance shall contain factual details

regarding each aspect of the offender’s complaint, including what happened, when,

where and the name of each person who is the subject of or who is otherwise involved in

the complaint.” See 20 Ill. Admin. Code § 504.810(c) (2017). This provision 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. Id. In interpreting this provision, numerous cases have

unambiguously held that a grievance must identify who their target is or implicate their

target in the alleged wrongdoing. See Roberts v. Neal, 745 F.3d 232, 235-36 (7th Cir. 2014)

(“The grievance has a fatal defect, but it lies elsewhere; it lies in the absence of anything

in it to indicate that Davis was the target.”); Cunningham v. Isaacs, No. 3:21-CV-247-MAB,

2022 WL 3026854, at *3 (S.D. Ill. Aug. 1, 2022) (“In short, the grievance must provide

sufficient information to identify the defendant as the target of the complaint or to

implicate them in the alleged wrongdoing.”); Walker v. Harris, No. 3:19-CV-00664-MAB,

2021 WL 3287832, at *4 (S.D. Ill. Aug. 2, 2021) (“Additionally, even if Plaintiff had

properly submitted this grievance through the appropriate institutional channels and

then to the ARB prior to filing this lawsuit, the contents of this grievance are not specific

enough to exhaust the claim against Defendant Harris.”).

Here, Plaintiff’s grievances suffer from a fatal flaw in that they fail to provide any

meaningful notice of Plaintiff’s allegations against Dr. Shah regarding the allegedly

inadequate treatment he provided in the summer of 2020. In fact, none of the grievances

filed by Plaintiff could be fairly construed as challenging the treatment Plaintiff received

in the summer of 2020.6 For instance, Grievance 07-21-258 grieved the lack of treatment

Plaintiff received following his neck cancer diagnosis (Doc. 36-1 at p. 41). While this

6 Admittedly, Grievance 09-21-143 does briefly mention that Plaintiff had been complaining for over a year

that it hurts him to swallow (see Doc. 36-1 at p. 31). However, Grievance 09-21-143 is clearly only aimed at

grieving the delay in receiving cancer treatment that Plaintiff alleges he was experiencing at that time (Id.

at pp. 30-31). That grievance specifically requests Plaintiff receive the surgery or chemotherapy treatment

ordered by the outside provider (Id.). It does not indicate Plaintiff was seeking relief for the care he received

a year ago and in fact, it does not even mention that Plaintiff met with a doctor at that time (Id.).

presumably alerted the prison administration to Plaintiff’s concern that he was not being

treated or having a biopsy taken in a timely fashion, nothing in this grievance challenges

the treatment he received a year prior (Id.). Plaintiff neither mentions nor alludes to any

insufficient treatment he experienced prior to his diagnosis in June 2021, nor does he

request any relief for treatment he received a year prior. Likewise, Grievance 09-21-143

again complains of the delay in receiving treatment around the time of filing his grievance

(Id. at pp. 30-31), not of the inadequate treatment he allegedly received over a year prior

(Id.).7 See, e.g., Hacker v. Dart, 62 F.4th 1073, 1084 (7th Cir. 2023) (finding a grievance that

challenged the plaintiff’s access to listening devices and requested a listening device did

not provide prison officials with fair notice to his complaint that he was not receiving

medication).

As in Hacker, Plaintiff’s grievances, which discussed delays in treatment he was

receiving at that time, did not provide fair notice to prison officials that Plaintiff was

actually challenging Dr. Shah’s delay in providing treatment or denial of treatment in the

summer of 2020. Id. Consequently, Plaintiff has failed to exhaust his administrative

remedies as they relate to his claim against Dr. Shah. For these reasons, Dr. Shah’s Motion

for Summary Judgment for Failure to Exhaust Administrative Remedies is GRANTED

(Doc. 35).

7 Furthermore, given Plaintiff’s neck cancer diagnosis occurred on June 23, 2021, that would realistically be

the latest date Plaintiff could argue he discovered that Dr. Shah’s prior treatment in the summer of 2020

was inadequate. Therefore, pursuant to section 504.810(a), Plaintiff was required to file his grievance within

60 days of that date. However, Grievance 09-21-143 was not filed until September 14, 2021, approximately

83 days after he would have discovered the incident. As such, to the extent Grievance 09-21-143 was meant

to grieve Dr. Shah’s treatment in the summer of 2020, Plaintiff failed to timely file this grievance.

CONCLUSION

Dr. Shah’s Motion for Summary Judgment for Failure to Exhaust Administrative

Remedies is GRANTED (Doc. 35; see also Doc. 36). Dr. Shah is DISMISSED without

prejudice as a Defendant in this lawsuit.

This matter will proceed on Plaintiff’s Eighth Amendment deliberate indifference

claim against Defendants Adamson and Daniels (“Count Two”) and Plaintiff’s Eighth

Amendment deliberate indifference claim against Defendant Brookhart (“Count Three”)

(see Doc. 51 at p. 9). Due to Count Two having already progressed to discovery on the

merits while Count Three is only at the exhaustion-based summary judgment stage, the

Court intends to set a status conference to discuss the timeline of this case moving

forward insofar as it relates to Defendant Brookhart and Count Three.8

IT IS SO ORDERED.

DATED: May 20, 2024

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge

8 At this point, Plaintiff has been granted leave to amend his complaint to add a deliberate indifference

claim against Defendant Brookhart, in her individual capacity (see Doc. 51 at pp. 9-10). The Court noted

that Defendant Brookhart, in her individual capacity, may still assert exhaustion and pursue this

affirmative defense if there is a viable defense to pursue (Id.). However, at this juncture, it remains unclear

whether Defendant Brookhart has a viable exhaustion defense and therefore the Court believes a status

conference would be beneficial.