Adams v. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHN ADAMS, #B89920, )

)

Plaintiff, )

)

vs. ) Case No. 22-cv-01853-SMY

)

ANTHONY WILLS, )

AMY LANG, and )

MICHAEL MOLDENHAUER, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

This matter is before the Court for consideration of motions for summary judgment filed

by Defendants Anthony Wills and Amy Lang (Doc. 46) and Defendant Michael Moldenhauer

(Doc. 49). Defendants seek dismissal of the claims against them based on Plaintiff’s failure to

exhaust his available administrative remedies before filing suit, in violation of the Prison Litigation

Reform Act (PLRA), 42 U.S.C. § 1997e. For the following reasons, Defendants’ motions are

GRANTED, and Plaintiff’s Motion to Supplement (Doc. 55) the record with briefing on the merits

is DENIED.

BACKGROUND

Plaintiff filed this civil rights action under 42 U.S.C. § 1983 for constitutional deprivations

stemming from the alleged denial of medical care for his swollen and infected legs even after he

developed cellulitis at Menard Correctional Center in January 2022. (Doc. 1). In an Amended

Complaint filed October 19, 2022, Plaintiff alleges that he endured three years of inadequate

medical care at Menard. (Doc. 20, p. 8, ¶ 1; Doc. 50, ¶ 3). He describes sores that swelled and

eventually “bust[ed] open and ooz[ed] infection.” Id. He claims that Defendants refused to

provide him with any medical care because they identified him as a member of the prison’s “soon

to be dying population.” (Doc. 20, p. 10, ¶ 10; Doc. 50, ¶ 6). Nurse Practitioner Moldenhauer

allegedly denied his requests for treatment because Illinois is “broke.” (Doc. 20, p. 8, ¶ 3; Doc.

50, ¶ 7). When Moldenhauer announced that his legs and feet would likely need amputation

on August 24, 2022, Plaintiff began to cry. (Doc. 20, p. 10, ¶ 7; Doc. 50, ¶ 8). Moldenhauer

laughed and offered him ibuprofen. Id. Plaintiff maintains that Defendants treated his serious

condition ineffectively with ibuprofen, physical therapy, and a wheelchair. (Doc. 20, p. 10, ¶¶ 8-

9; Doc. 50, ¶ 12).

Plaintiff asserted four claims against the defendants in the Amended Complaint for

discrimination based on his advanced age and inadequate medical care for his condition.

(Doc. 20). Following preliminary review pursuant to 28 U.S.C. § 1915A, the Court allowed

Plaintiff to proceed with two claims:

Count 1: Eighth Amendment deliberate indifference claim against Defendants Lang

and Moldenhauer for denying Plaintiff adequate medical care for his

swollen and infected legs and feet even after he developed cellulitis in 2022.

Count 3: Fourteenth Amendment claim against Defendants Lang and Moldenhauer

for denying Plaintiff equal protection of the law by singling him out for a

denial of outside medical care due to his advanced age.

(Doc. 21).

Defendants move for summary judgment on both claims based on Plaintiff’s failure to

exhaust his administrative remedies before bringing suit against them. (Docs. 46 and 49). They

argue that Plaintiff did not submit a single grievance in accordance with the IDOC grievance

procedure and Illinois Administrative Code. Plaintiff opposes both motions, but does not dispute

any material facts presented by Defendants.1 (Doc. 54).

1 In a Rule 56 Notice entered when Defendants filed their motion for summary judgment, the Court explained

that “[i]f a party fails . . . to properly address another party’s assertion of fact” in a motion for summary judgment, the

UNDISPUTED MATERIAL FACTS

For purposes of the pending motions, the following facts are not in dispute (see Docs. 47,

50, and 54): Plaintiff was an inmate in IDOC custody and housed at Menard Correctional Center

at all times relevant to this action. (Doc. 47, ¶ 1; Doc. 50, ¶ 1). During this same time period, the

IDOC had an administrative grievance process in place that is described below, and Plaintiff was

aware of the process. (Doc. 50, ¶ 2). From the date of his alleged diagnosis in April 2020 until

the date he filed his Amended Complaint in October 2022, Plaintiff submitted no grievances to

complain of discrimination or denial of medical care for this serious condition to the

Administrative Review Board (ARB). (Doc. 47, ¶¶ 5-6).

Defendants found one grievance Plaintiff filed against Moldenhauer on

November 24, 2020. (Doc. 50, ¶ 13). In it, Plaintiff complained that Moldenhauer saw him on

several occasions but did not treat the swelling in his legs. Id. A counselor received the grievance

December 7, 2020 and denied it. Id. at ¶ 14. The counselor concluded that Plaintiff had not sought

treatment for leg swelling with Moldenhauer. Id. There is no evidence or record of any further

action to pursue this grievance or to file other grievances. Id. at ¶ 15.

For his response, Plaintiff submitted an excerpt from his amended complaint that lists

grievances he placed in the prison’s grievance box by date on May 7, 2022, June 14, 2022, July 28,

2022, August 5, 2022, and September 2, 2022. (Doc. 54) (citing Doc. 20, p. 7). Based on the

advice of fellow inmates, Plaintiff prepared two additional grievances for mailing directly to

“Springfield” on October 6, 2022 and October 13, 2022. Id. He planned to send another on

Court may “consider the fact undisputed for purposes of the motion” pursuant to Rule 56(e)(2) of the Federal Rules

of Civil Procedure (Doc. 48). Because Plaintiff disputes none of Defendants’ proposed undisputed material facts, the

Court accepts them as undisputed. See FED. R. CIV. P. 56(e).

October 20, 2022. Id. Plaintiff states that he kept copies but received no responses. He did not

summarize the contents or provide copies. Id.

DISCUSSION

Summary judgment is proper if there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). 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). Any doubt about the existence of

a genuine issue must be resolved in favor of the nonmoving party, i.e., the prisoner. Lawrence v.

Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004).

Generally, on summary judgment, the district court’s role is not to weigh evidence or judge

witness credibility. However, a different standard applies when deciding a motion for summary

judgment on the issue of exhaustion. Pavey v. Conley, 544 F.3d 739, 739-41 (7th Cir. 2008). The

Seventh Circuit has instructed courts to conduct an evidentiary hearing and resolve contested

issues of fact regarding a prisoner’s efforts to exhaust. See Pavey, 544 F.3d at 742. After hearing

evidence, finding facts, and determining credibility, the court must decide whether to allow the

claim to proceed or to dismiss it for failure to exhaust. See Wilborn v. Ealey, 881 F.3d 998, 1004

(7th Cir. 2018) (citing Pavey, 544 F.3d at 742). No hearing is required if no material facts are

disputed. 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 legal questions”). Here, both motions can

be resolved without a Pavey hearing because there are no genuine issues of material fact in dispute.

Under the Prison Litigation Reform Act, a prisoner may not bring a lawsuit concerning

prison conditions unless and until he has exhausted all available administrative remedies.

42 U.S.C. § 1997e(a); Pavey, 544 F.3d at 740. “The exhaustion requirement is an affirmative

defense, which the defendants bear the burden of proving.” Pavey v. Conley, 663 F.3d 899, 903

(7th Cir. 2011). For a prisoner to properly exhaust his administrative remedies, the 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). “[A] prisoner who does not properly

take each step within the administrative process has failed to exhaust state remedies.” Id. at 1024.

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

An inmate in IDOC custody must follow the grievance process described in the Illinois

Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017). The regulations require an

inmate to file his grievance with his counselor within sixty days of the incident, occurrence, or

problem giving rise to the grievance. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not

resolved through the counselor, the grievance must be submitted to a grievance officer, who reports

his or her findings and recommendations in writing to the CAO. 20 ILL. ADMIN. CODE

§ 504.830(e). The CAO then provides the inmate with a written decision on the grievance. Id. If

the inmate is not satisfied with the CAO’s response, he files an appeal with the IDOC Director

through the ARB. 20 ILL. ADMIN. CODE § 504.850(a). The ARB must receive the appeal within

thirty days of the date of the CAO’s decision. Id. The inmate must attach copies of responses

from the grievance officer and CAO to his appeal. Id. The ARB submits a written report of its

findings and recommendations to the Director, who then makes a final determination. 20 ILL.

ADMIN. CODE § 504.850(d), (e).

An inmate may file an emergency grievance using an alternative procedure. 20 ILL.

ADMIN. CODE § 504.840. He may submit an emergency grievance directly to the CAO. Id. If

deemed an emergency due to a substantial risk of imminent personal injury or other serious or

irreparable harm, the grievance is expedited for processing. Id. If the CAO determines that a

grievance should not be handled on an emergency basis, the grievance is denied as a non-

emergency, and the offender is notified, in writing, that he or she may resubmit the grievance in

accordance with the standard grievance procedure. 20 ILL. ADMIN. CODE § 504.840(c).

Alternatively, an inmate may file a grievance directly to the ARB when addressing the

following issues: (1) decisions regarding protective custody placement, including continued

placement in or release from protective custody; (2) decisions regarding the involuntary

administration of psychotropic medication; (3) decisions regarding disciplinary proceedings that

were made at a facility other than the facility where the offender is currently assigned; or (4) other

issues that pertain to a facility other than the facility where the offender is currently assigned,

excluding personal property and medical issues. 20 ILL. ADMIN. CODE § 504.870, amended at 41

Ill. Reg. 3869, effective April 1, 2017.

Based on the undisputed evidence in the record, the Court finds that Plaintiff did not use

the grievance process to exhaust his available administrative remedies before filing suit. With

respect to Plaintiff’s grievance against Moldenhauer, after submitting it to a counselor on or around

November 24, 2020, Plaintiff took no other steps to appeal the grievance before or after it was

denied. (Doc. 50, ¶ 14). Defendants found no evidence of additional efforts to exhaust, and

Plaintiff did not offer any.

Plaintiff’s mere assertion that he submitted five other grievances does not overcome

summary judgment, absent additional information. See Devbrow v. Gallegos, 735 F.3d 584 (7th

Cir. 2013) (finding prisoner’s own conclusory assertions in verified complaint insufficient to

overcome summary judgment). In response to summary judgment, Plaintiff submitted an

unverified 3-page excerpt from his amended complaint that mentions grievances dated May 7,

2022, June 14, 2022, July 28, 2022, August 5, 2022, and September 2, 2022. (Doc. 54) (citing

Doc. 20, p. 7). Plaintiff states that he kept copies of each one, but did not produce them with his

amended complaint or his response. He did not describe them or summarize them. Thus, it is

unclear what he grieved, to whom he grieved, when he grieved, or what process he used to grieve.

He failed to include them with an affidavit, verified complaint, or other form of admissible

evidence describing the contents of each grievance and any response he received.

Finally, Plaintiff’s grievances dated September 2, 2022, October 6, 2022, and October 13,

2022—including all of those he sent directly to the ARB—post-date his filing of this action on

August 15, 2022. (Doc. 1). Under the PLRA, a prisoner must exhaust administrative remedies

before filing suit. Chambers v. Sood, 956 F.3d 979 (7th Cir. 2020). A “‘sue first, exhaust later’

approach is not acceptable.” Id. (quoting Ford v. Johnson, 362 F.3d 395, 398-400 (7th Cir. 2004)).

Whether filed at the institution or directly with the ARB, these grievances do not save Plaintiff’s

claims. Accordingly, Defendants’ motions for summary judgment will be granted.

CONCLUSION

The Motion for Summary Judgment on the Issue of Exhaustion of Administrative

Remedies filed by Defendants Anthony Wills and Amy Lang (Doc. 46) and Defendant Michael

Moldenhauer (Doc. 49) are GRANTED. COUNTS 1 and 3 are DISMISSED without prejudice.

Because this case does not survive summary judgment on the issue of exhaustion, Plaintiff’s

Motion to Supplement (Doc. 55) with briefing on the merits of his claims is DENIED. As no

claims remain pending, this case is DISMISSED without prejudice.

If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this Court

within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave to

appeal in forma pauperis should set forth the issues he plans to present on appeal. See FED. R.

APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $605.00 appellate

filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C.

§ 1915(e)(2). Moreover, if the appeal is found to be nonmeritorious, he may also incur another

“strike.” A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may

toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no

more than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot

be extended.

The Clerk is DIRECTED to close this case and enter judgment accordingly.

IT IS SO ORDERED.

DATED: July 11, 2024

s/ Staci M. Yandle

STACI M. YANDLE

United States District Judge