McCall v. Jeffreys

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSHUA L. MCCALL, SR. )

)

Plaintiff, )

)

vs. ) Case No. 3:22-cv-02569-GCS

)

CHRISTINE BROWN, )

DAVID MITCHELL, and )

ERIC WANGLER )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION AND BACKGROUND

Plaintiff Joshua McCall, an inmate of the Illinois Department of Corrections

(“IDOC”) who is currently incarcerated at Pinckneyville Correctional Center, brings this

action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his

Complaint (Doc. 1), Plaintiff alleges from May 9, 2022, to October 5, 2022, he was denied

medical care for his torn Achilles in violation of the Eighth Amendment. On June 23, 2023,

the Court conducted a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A

and allowed Plaintiff to proceed on Eighth Amendment deliberate indifference claims

against Defendant Christine Brown, the healthcare unit administrator, for turning a blind

eye to Plaintiff’s severe pain, against Warden David Mitchell for also turning a blind eye

to Plaintiff’s severe pain, and against Lt. Eric Wangler for refusing to honor medical

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permits. (Doc. 10, p. 8-9). The Court also allowed Plaintiff to proceed on a state law claim

of intentional infliction of emotional distress against these three Defendants.

Pending before the Court is a motion for summary judgment on the issue of

exhaustion of administrative remedies filed by Defendant Brown and Defendant

Mitchell. (Doc. 26).1 Defendants Brown and Mitchell argue that Plaintiff failed to exhaust

his administrative remedies prior to filing the present lawsuit because he did not file any

grievances which address his claims against Defendants pursuant to the procedures set

forth in the Illinois Administrative Code. Along with the motion for summary judgment,

Defendants filed the required Federal Rule of Civil Procedure 56 notice informing

Plaintiff of the consequences of failing to respond to the motion for summary judgment.

(Doc. 27). Plaintiff opposes the motion. (Doc. 31). As the motion is ripe, the Court turns

to address the merits of the motion.

FACTS2

On May 15, 2022, Plaintiff filed emergency grievance # 1379-05-22 concerning the

1 Defendant Wangler withdrew the affirmative defense of failure to exhaust administrative

remedies. See (Doc. 28, 29).

2 The record reflects that Plaintiff filed many grievances pertaining to the issues in this

lawsuit. (Doc. 26-1, 26-2). In rendering this decision, the Court only addresses the grievances that

were fully grieved, addressed by the ARB, and fully exhausted prior to Plaintiff filing this lawsuit

on November 4, 2022. See, e.g., Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020) (noting that an

inmate must exhaust his administrative remedies prior to filing suit, “a ‘sue first, exhaust later’

approach is not acceptable.”). Grievances filed and exhausted after he filed his Complaint cannot

serve to exhaust administrative remedies. See Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532,

535 (7th Cir. 1999); Chambers, 956 F.3d at 984.

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allegations in this lawsuit citing staff conduct, medical treatment, and other noting

“Who’s ever else in charge of my safety.” (Doc. 26-1. p. 92). Plaintiff does not name either

Defendant Brown or Defendant Mitchell. Plaintiff requested the following relief: “I need

to be in one or two house, I need to be in a cell by myself until I have my surgery. I should

be in Health Care, I really need my pain medication . . . .” Id. at p. 92. On May 17, 2022,

the Chief Administrative Officer (“CAO”) expedited the emergency. Id. On June 16, 2022,

the grievance officer denied the grievance responding in part: “[p]er HCUA: He did not

receive a single cell permit when he saw the MD on 5/13/22. He was ordered low

bunk/low gallery permit. He has pain medications and crutches. On May 19, 2022, he

was scheduled to see the MD again but went to yard. If his foot is hurting him as bad as

he is stating and he does not want to hurt it further then he should not be going to the

yard . . . .” Id. at p. 91. On June 17, 2022, the CAO concurred with the grievance officer’s

decision to deny Plaintiff’s grievance. Id. at p. 90. On August 10, 2022, Jon Loftus of the

Administrative Review Board (“ARB”) denied the grievance finding: “[p]er HCUA,

grievant was given Medical Permit on 5/13/2022 and had MRI on 8/1/22. Grievant is

pending approval to see Orthopedic or Podiatry. Outside vendors are outside the

jurisdiction of the IDOC. Only licensed medical professionals can diagnose and treat

medical conditions. Grievant has access to HCU for all medical needs.” Id. at p. 87. Rob

Jeffreys, Director, concurred with this finding. Id.

Additionally, on May 19, 2022, Plaintiff filed emergency grievance # 1407-05-22

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complaining that Defendant Wangler made him wear a shoe on his torn Achilles despite

Plaintiff having a medical permit to wear his shower shoe. Plaintiff does not name either

Defendant in this grievance. He requested the following relief: “[a]ll I want is to protect

my ankle and foot. I have a torn Achilles!!! The Doctor gave me the permit for the shower

shoe. Move me to the one or two house in a cell by myself.” (Doc. 26-1, p. 68). On May 19,

2022, the CAO deemed this grievance an emergency. Id. The grievance officer responded

in pertinent part: “[p]er the HCUA the medical file does indicate that the individual does

have permit to wear shower shoes related to an injury. The permit is 5/13/22 to

8/13/22.” Id. at p. 67. The CAO concurred with the grievance officer’s recommendation

that the grievance be denied. Id. On August 10, 2022, Mr. Luftus with the ARB denied this

grievance concluding that the facility appropriately addressed this issue and that the

medical issues were previously addressed in grievances # 1379-05-22 and # 1522-06-22;

Director Jeffreys concurred. Id. at p. 66.

On June 12, 2022, Plaintiff filed emergency grievance # 1614-06-22 regarding the

allegations in this case for staff conduct and medical treatment. He named “Grievance

Officer C Hale, Lt. Wangler, Doctor and Nurse.” (Doc. 26-1. p. 72). Similarly, Plaintiff

requested the following relief: “[a]ll I want is to be treated fairly and as a human being. I

need a boot for my foot, crutches, a MRI, for your officers to abide by the rules and

surgery on my left foot because I am in constant pain . . . Thank you.” Id. This grievance

does not name either Defendant. On June 14, 2022, the CAO deemed this grievance an

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emergency. Id. The grievance officer replied in part: “[p]er HCU: I responded to this issue

previously. . . . He is scheduled for the MRI in July . . . .” Id. at p. 71. On June 29, 2022, the

CAO concurred with the grievance officer’s recommendation that the grievance be

denied. Id. at p. 70. On August 10, 2022, Mr. Luftus with the ARB denied this grievance

concluding that the facility appropriately addressed this issue and that the medical issues

were previously addressed in grievances # 1379-05-22 and # 1522-06-22; Director Jeffreys

concurred. Id. at p. 66.

On June 26, 2022, Plaintiff submitted emergency grievance # 1756-06-22 regarding

his torn Achilles, staff conduct, and medical treatment. He named “Lt. Wangler, Doctor,

Nurse P, Grievance Officer, Administration Office.” (Doc. 26-1, p. 76). The grievance

states in part: “[a]dministration office just signs off on anything and everything without

actually getting to the truth. Another thing the MD and nurse lied about giving me

crutches. . . . I can see Pinckneyville doesn’t care about my safety, security or health.” Id.

at p. 77. Plaintiff demanded the following relief: “[a]ll I want is to be removed from 5

house away from this disobedent [sic] Lt. Wangler. 1 or 2 house !!! I don’t feel safe or

secure around Lt. Wangler and I feel the injury to my foot is getting worse because of me

having to put a shoe on it.” Id. at p. 76. Neither Defendant Brown nor Defendant Mitchell

is named in this grievance. On June 28, 2022, the CAO deemed this grievance an

emergency. Id. On July 6, 2022, the CAO concurred with the grievance officer’s

recommendation to deny the grievance. Id. at p. 74. On August 10, 2022, Mr. Luftus with

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the ARB denied this grievance concluding that the facility appropriately addressed this

issue and that the medical issues were previously addressed in grievances # 1379-05-22

and # 1522-06-22; Director Jeffreys concurred. Id. at p. 66.

Plaintiff filed two more emergency grievances: one on July 11, 2022, emergency

grievance # 1891-07-22 and one on July 13, 2022, emergency grievance # 1937-07-22. The

CAO deemed both grievances as emergencies. (Doc. 26-1, p. 80-82). Grievance # 1891-07-

22 is for staff conduct and medical treatment and named: “Chief Administrative Officer,

Doctor, Nurse P, Lt Wangler, Grievance Officer.” Id. at p. 80. Grievance # 1937-07-22 is

for medical treatment and named “Medical staff members.” Id. at p. 82. Neither of these

grievances specifically named Defendant Brown nor Defendant Mitchell. However,

grievance # 1891-07-22 does name the CAO. These grievances were combined for review.

Id. at p. 78. On July 21, 2022, the grievance officer replied in part: “[p]er HCUA: He was

seen again on 7/12/22 for his heel pain. He was scheduled for 7/8/22, but went to yard.

He has crutches and an ace wrap for his foot, until he gets his MRI. I verified his MRI is

scheduled. It was ordered with contrast and without contrast and that is why it has taken

so long. There is a shortage nationwide of contrast and we had to wait until the imaging

company had the contrast and could get him in. He is scheduled to go in the next 14

days.” Id. On July 22, 2022, the CAO concurred with the grievance officer’s

recommendation to deny the grievance. Id. On August 10, 2022, Mr. Luftus with the ARB

denied this grievance concluding that the facility appropriately addressed this issue and

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that the medical issues were previously addressed in grievances # 1379-05-22 and # 1522-

06-22; Director Jeffreys concurred. Id. at p. 66.

Lastly, Plaintiff submitted emergency grievance # 2391-08-22 on August 29, 2022.

Plaintiff complained about not receiving surgery for his torn Achilles. His grievance

provides in part: “[w]hat’s the use of me making these grievances emergency when

Pinckneyville doesn’t treat them like an emergency. . . . Pinckneyville Medical Staff is not

treating my injury as its an emergency. . . . Pinckneyville Medical Staff doesn’t care about

my health and well being.” Id. at p. 48-49. Plaintiff relief stated: “I need pain medication.

I need to be in healthcare awaiting my surgery and I need to have my surgery (NOW !!!).”

Id. at p. 48. This grievance does not specifically name either Defendant. The CAO deemed

this grievance an emergency. Id. The grievance officer recommended denial of the

grievance stating: “[p]er HCUA: He has a permit for crutches, low bunk, and an ace wrap.

He has been instructed to not walk on his foot, on several occasions. . . . He had an MRI

completed 8/1/22. He is scheduled to go see the ortho in October. . . . He has been seen

by nursing, NP, PT and PA. He had his pain medication renewed and permits done on

9/13/22. He has a foot injury that should not require an emergency button. It is also better

for him because he should not have to walk as much.” Id. at p. 47. The CAO agreed with

the grievance officer on September 20, 2022. Id. at p. 46. On October 14, 2022, Mr. Loftus

with the ARB denied the grievance finding it was appropriately addressed and that “[p]er

HCU, grievant has been seen several times for this issue. Only licensed medical

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professionals can diagnose and treat medical conditions. Grievant has access to HCU for

all medical.” Rob Jeffreys or his signatory concurred with the decision on the same date.

Id. at p. 45.

LEGAL STANDARDS

Summary Judgment is proper if the pleadings, discovery materials, disclosures

and affidavits demonstrate no genuine issue of material fact such that [Defendants are]

entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467

(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison

Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). That statute 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. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA’s

exhaustion requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting

that ‘[t]his circuit has taken a strict compliance approach to exhaustion”). Exhaustion

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

Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is

pending. Id.

Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in

the place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry,

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286 F.3d 1022, 1025 (7th Cir. 2002). Consequently, if a prisoner fails to use a prison’s

grievance process, “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. The purpose

of exhaustion is to give prison officials an opportunity to address the inmate’s claims

internally, prior to federal litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

Under Pavey, 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. Pavey v. Conley, 544 F.3d 739, 740-741 (7th

Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an

affirmative defense, the Court set forth the following procedures:

The sequence to be followed in a case in which exhaustion is contested is

therefore as follows: (1) The district judge conducts a hearing on exhaustion

and permits whatever discovery relating to exhaustion he deems appropriate.

(2) If the judge determines that the prisoner did not exhaust his administrative

remedies, the judge will then determine whether (a) the plaintiff has failed to

exhaust his administrative remedies, and so he must go back and exhaust; (b)

or, although he has no unexhausted administrative remedies, the failure to

exhaust was innocent (as where prison officials prevent a prisoner from

exhausting his remedies), and so he must be given another chance to exhaust

(provided that there exist remedies that he will be permitted by the prison

authorities to exhaust, so that he’s not just being given a runaround); or (c) the

failure to exhaust was the prisoner’s fault, in which event the case is over. (3)

If and when the judge determines that the prisoner has properly exhausted his

administrative remedies, the case will proceed to pretrial discovery, and if

necessary a trial, on the merits; and if there is a jury trial, the jury will make

all necessary findings of fact without being bound by (or even informed of)

any of the findings made by the district judge in determining

that the prisoner had exhausted his administrative remedies.

Id. at 742.

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As an inmate confined within the Illinois Department of Corrections, Plaintiff was

required to follow the regulations contained in the Illinois Department of Correction’s

Grievance Procedures for Offenders (“grievance procedures”) to exhaust his claims. See

20 ILL. ADMIN. CODE § 504.800, et seq. The grievance procedures first require inmates to

file their grievance with the counselor within 60 days of the discovery of an incident. See

20 ILL. ADMIN. CODE § 504.810(a). The grievance form must:

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. 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.

20 ILL. ADMIN. CODE § 504.810(c). Grievances that are unable to be resolved through

routine channels are then sent to the grievance officer. See 20 ILL. ADMIN. CODE

§504.820(a). The Grievance Officer will review the grievance and provide a written

response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a). “The Grievance Officer shall

consider the grievance and report his or her findings and recommendations in writing to

the Chief Administrative Officer within two months after receipt of the grievance, when

reasonably feasible under the circumstances.” 20 ILL. ADMIN. CODE § 504.830(e). “The

Chief Administrative Officer shall review the findings and recommendation and advise

the offender of his or her decision in writing. Id.

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If the inmate is not satisfied with the Chief Administrative Officer’s response, he

or she can file an appeal with the Director through the ARB. The grievance procedures

specifically state, “[i]f, after receiving the response of the Chief Administrative Officer,

the offender still believes that the problem, complaint or grievance has not been resolved

to his or her satisfaction, he or she may appeal in writing to the Director. The appeal must

be received by the Administrative Review Board within 30 days after the date of the

decision.” 20 ILL. ADMIN. CODE § 504.850(a). The inmate shall attach copies of the

Grievance Officer’s report and the Chief Administrative Officer’s decision to his appeal.

Id. “The Administrative Review Board shall submit to the Director a written report of its

findings and recommendations.” 20 ILL. ADMIN. CODE § 504.850(d). “The Director shall

review the findings and recommendations of the Board and make a final determination

of the grievance within 6 months after receipt of the appealed grievance, when reasonably

feasible under the circumstances. The offender shall be sent a copy of the Director’s

decision.” 20 ILL. ADMIN. CODE § 504.850(e).

DISCUSSION

Defendants Brown and Mitchell maintain that none of Plaintiff’s fully exhausted

grievances reference any action or inaction by them. Thus, Plaintiff failed to exhaust his

administrative remedies against them.

Exhaustion of administrative remedies is an affirmative defense in an action

against prison officials, and the burden of proof is on the officials. Here, the undersigned

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finds Defendants have not met their burden and that Plaintiff did exhaust his claims as

to them. The grievance procedures require that an inmate name the individuals involved

in the complaint, or, if their names are not known, an inmate, must at the very least,

“include as much descriptive information about the individual as possible.” 20 ILL.

ADMIN CODE § 504.810(a)(b). See also Ambrose v. Godinez, No. 11-3068, 510 Fed. Appx. 470,

472 (7th Cir. Feb. 22, 2013); but see Jackson v. Shepherd, No. 13-2651, 552 Fed. Appx. 591,

593 n.1 (7th Cir. Feb. 6, 2014). Further, the Seventh Circuit has held that an inmate is

required to provide enough information to serve a grievance’s function of giving “prison

officials a fair opportunity to address [an inmate’s] complaints.” Maddox v. Love, 655 F.3d

709, 722 (7th Cir. 2011). This fits within the purpose of the PLRA exhaustion requirement,

which was designed to afford correctional officials a chance to address inmate complaints

internally, prior to resorting to federal litigation. See, e.g., Kaba, 458 F.3d at 684 (citing

Woodford v. Ngo, 548 U.S. 81, 93 (2006)). Indeed, the Seventh Circuit has consistently

reminded district courts that “all the PLRA requires” is that a grievance “alert the prison

to the nature of the wrong for which redress is sought[.]” Westefer v. Snyder, 422 F.3d 570,

580 (7th Cir. 2005) (citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). An inmate is

not required to provide personal notice of suit to an individual defendant through his

grievance. See Maddox, 655 F.3d at 722 (citing Jones v. Bock, 549 U.S. 199, 219 (2007)).

Here, the undersigned finds that Plaintiff through the above grievances provided

enough information to put the prison officials on notice of the nature of his claims against

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Defendant Brown and Defendant Mitchell. These grievances provide enough detail to

inform the prison officials that Defendant Brown and Defendant Mitchell were involved

somehow in his ongoing medical care. For example, in some of the grievances, Plaintiff

complains about the grievance officer. In another grievance, Plaintiff specifically

complained about the administration office noting that the administration just signs off

on everything. In yet another grievance, Plaintiff complains about the Pinckneyville

medical staff. While Defendant Mitchell and Defendant Brown are not specifically

named, this is sufficient to satisfy the purpose of exhaustion, which is to put the jail on

notice of problems within the facility to allow the jail the opportunity to address the

problem before a lawsuit is filed. Moreover, Defendants were part of the grievance

process (Defendant Mitchell finding the grievances as emergencies and then denying the

grievances and Defendant Brown as the administrator of the HCUA providing

information regarding Plaintiff throughout the process). Thus, they may be liable for

deliberate indifference as Plaintiff’s requests fell on “deaf ears.” Perez v. Fenoglio, 792 F.3d

768, 782 (7th Cir. 2015). Further, Plaintiff, even though he did file many grievances, was

not required to file successive grievances regarding the same issues if the conduct

continues. Construing the evidence in the light most favorable to Plaintiff, the Court finds

that Defendants have not carried their burden regarding exhaustion, and that Plaintiff

did exhaust his administrative remedies as to his claims against Defendant Brown and

Defendant Mitchell.

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CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ motion for summary

judgment on the issue of exhaustion (Doc. 26).

IT IS SO ORDERED.

DATED: June 4, 2024. Digitally signed by

. Judge Sison

(SAket tate: 2024.06.04

12:06:10 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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