The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON WHITFIELD, R49366, )
)
Plaintiff, )
)
vs. )
)
WEXFORD HEALTH SOURCES, INC., )
MOHAMMED SIDDIQUI, ) Case No. 22-cv-1528-DWD
MARY JO ZIMMER, )
ALISA DEARMOND, )
ANTHONY WILLS, )
ANGELA CRAIN, )
MICHAEL MOLDENHAUER, )
)
Defendants. )
MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on Defendants’ (“Defendants”) affirmative defense
that Plaintiff Jason Whitfield failed to exhaust his administrative remedies prior to filing
this lawsuit as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).
After denying the Defendants’ written motions for summary judgment on the issue of
exhaustion (Doc. 56), the Court held a Pavey hearing on August 13, 2024, to make findings
about exhaustion in this case. See Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011); Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing from the parties and reviewing
the evidence on exhaustion, the Court finds that the Plaintiff failed to exhaust his
administrative remedies against all defendants so this matter must be dismissed without
prejudice.
BACKGROUND
Plaintiff signed his complaint on July 4, 2022, and signed his Amended Complaint
on February 7, 2023. (Doc. 1 at 21; Doc. 12 at 23) Upon initial review of the Amended
Complaint, the Court allowed three claims to proceed. (Doc. 15 at 13). The parties then
conducted discovery on the exhaustion of administrative remedies, and the Defendants
filed motions for summary judgment on this issue. (Docs. 43, 48). Plaintiff responded
(Doc. 53), and the Court found there remained genuine disputes of fact, so it denied the
motions and set the matter for a hearing. At the time of the Pavey hearing the following
claims and parties remained:
Claim 2: Eighth Amendment deliberate indifference against
Defendants Dearmond, Zimmer, and Moldenhauer for their
delays or denial or persistence with a course of care that did
not adequately address Plaintiff’s ACL injury;
Claim 3: Eighth Amendment deliberate indifference claim against
Defendants Dr. Siddiqui and Angela Crain for their
involvement in the course of care for Plaintiff’s ACL injury;
Claim 5: Monell claim against Wexford for maintaining policies or
practices—specifically understaffing, collegial review, nurse
sick call requirements, and pain medication policies—that
limited Plaintiff’s access to care for his ACL injury.
(Doc. 15 at 5-6).
For purposes of the Pavey hearing, the Court determined that there was a genuine
dispute of fact because the Defendants claimed there was no documentary evidence of
Plaintiff properly submitting and exhausting any relevant grievances, but Plaintiff
countered those assertions with his own sworn statements and exhibits. (Doc. 56).
Specifically, Plaintiff claimed that he repeatedly submitted relevant grievances but that
they turned up lost or missing.
FINDINGS OF FACT
At the evidentiary hearing, the Defendants called Plaintiff and called Kelly Pierce,
a grievance officer. Ms. Pierce testified that she has been employed as a grievance officer
at Menard since June of 2016. In her role as a grievance officer, she regularly receives,
processes, and reviews grievances from inmates. Grievances must be submitted at three
levels for review. First, a grievance must be placed in a portable box or a locked box on
the wall. The contents of the boxes are processed in the grievance office. Each grievance
is reviewed and logged. It is noted in the inmate’s counseling summary and the prison’s
internal grievance log, and the inmate is to receive a “CHAMP” note made by the
grievance officer, which serves as his receipt for filing a grievance. The first level of
review is done by a counselor, the second level is done by the grievance officer and chief
administrative officer, and the third level grievances are reviewed by the Administrative
Review Board (ARB).
In 2017 and 2018, Menard established a procedure for inmates to inquire about
grievances. If an inmate does not receive a receipt, he may write to his counselor to ask
for an update. Queries like this are also recorded in the counseling log, and the counselor
will respond to the inmate.
Relevant to this specific case, Pierce reviewed the internal grievance log
maintained at Menard by the grievance office. (Doc. 49-3). She testified that the log did
not reflect the receipt of any grievances from Plaintiff in December of 2021, January of
2022, or April of 2022. Because Pierce testified about the counseling summary and
CHAMP notes, the Court also directed that the counseling summary be submitted.
Plaintiff was called as the Defendants’ first witness, and he also testified on his
own behalf very briefly. Plaintiff’s testimony in both instances was consistent. He
testified that at the time of the events in this case, he was housed in a place where portable
grievance boxes should have been circulated to the inmates each night. However, he
claims the boxes were not circulated, which left him to place outgoing grievances in his
cell bars alongside his outgoing mail. He also testified that there were grievance boxes
affixed at various locations in the cellhouse, which could be used if an inmate was out of
cell for some kind of movement. Plaintiff indicated that he placed grievances in the boxes
on the walls at least a few times. For example, he testified that he placed his March 2021
grievance in a such a box but got no response.
His general understanding of the grievance process was that there were three
levels: 1) counselor review; 2) grievance office review; and 3) review in Springfield. He
learned this from the orientation manual and his lengthy incarceration. He believed that
when a grievance was filed, an inmate should get a receipt with a grievance number.
Plaintiff testified that he attempted to submit grievances about the issues in this case in
March, April and December of 2021, and in January and April of 2022, but he did not get
responses to any of these grievances. He testified that the contents of each grievance was
roughly the same and concerned his desire for an MRI and the ineffectiveness of physical
therapy. He mentioned Defendants Siddiqui, Zimmer, Dearmond and Moldenhauer in
relation to these missing grievances, but did not specifically mention Crain. Plaintiff
testified that when his grievances came up missing, he wrote his counselors about the
issue. He had a variety of housing locations, and so he wrote both to counselors Quick
and Weaver. Plaintiff’s contention that he wrote Quick and Weaver is consistent with
documents he appended to his Amended Complaint, which were alleged April 2021
letters to Quick and an April 2022 letter to Weaver about his grievances. In the letters he
wrote that he put grievances in the box himself. (Doc. 12 at 25-27).
Plaintiff testified that he tried to get copies of his grievances but was informed by
the law librarian that he could not get copies unless the grievance had proper responses
from the prison level. Plaintiff also testified that during his 20 years of incarceration, he
has never experienced a grievance processing problem like this. Given the irregularity
of the problem, he also tried to write to other prison officials like Defendant Crain and
the Warden.
The Defendants submitted Plaintiff’s counseling summary (Doc. 61), which does
not show any inquiries from Plaintiff about grievances submitted in March, April or
December of 2021, nor does it show inquiries about grievances submitted in January or
April of 2022. (Doc. 61-1 at 3-5). Although the counseling summary contains only brief
notes, it is significant in that it documents multiple face-to-face encounters between
Plaintiff and counselor Weaver where Plaintiff reported “no issues.” For example on
October 7, 2021, and November 30, 2021, Weaver recorded “no issues.” (Doc. 61-1 at 4).
Weaver again noted he saw Plaintiff on tour on March 15, 2022, and April 14, 2022, with
no issues recorded. (Doc. 61-1 at 3). There were also two face-to-face tours with counselor
Quick in March and April of 2021 with no recorded issues. (Id. at 5).
CONCLUSIONS OF LAW
A. Legal Standards
The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring
a lawsuit about prison conditions unless and until he has exhausted all available
administrative remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir.
2008). “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). “At Pavey
hearings, judges may hear evidence, find facts, and determine credibility. After finding
facts, the district court may allow a claim to proceed or dismiss it for failure to exhaust.”
Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (internal citations omitted).
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. As an inmate in the Illinois Department of Corrections
(IDOC), Plaintiff must follow the grievance process outlined in the Illinois Administrative
Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017). Under IDOC’s procedure, an inmate
initiates a grievance with his counselor, and he may then submit his grievance to a
grievance officer at his facility, and to the CAO at his facility. If an inmate is unsatisfied
with the outcome at the facility he must appeal to the ARB within 30 days. 20 ILL. ADMIN.
CODE § 504.850(a). However, “if prison employees do not respond to a properly filed
grievance or otherwise use affirmative misconduct to prevent a prisoner from
exhausting,” then the grievance procedure becomes unavailable. Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006) (finding that an inmate who placed a timely ARB appeal in
his chuckhole for mailing, but whose grievance was apparently lost, did all that he could
to follow exhaustion procedures).
Whether a claim has been exhausted pursuant to § 1997e(a) is a determination for
a judge—not a jury—to make. Pavey v. Conley, 544 F.3d 739, 741-42 (7th Cir. 2008). If a
Pavey hearing is held due to an issue of fact about exhaustion of administrative remedies,
the court hears evidence, finds facts, and determines credibility. Wilborn v. Ealey, 881 F.3d
998, 1004 (7th Cir. 2018). The burden of proof is on the defendants to demonstrate that
the prisoner failed to exhaust available administrative remedies. Turley v. Rednour, 729
F.3d 645, 650 (7th Cir. 2013). Generally, a defendant will need to do more to carry the
burden than plainly allege that no grievance exists, a defendant might meet said burden
by submitting additional evidence such as grievance logs, counseling summaries, or
evidence about the routine function of the grievance procedure. See e.g., Daniels v.
Prentice, 741 Fed. App’x 342, 343-44 (7th Cir. 2018) (not published in the Federal Reporter)
(finding that a defendant met her burden to show a lack of exhaustion by submitting
records of an inmate’s grievance activity, the inmate’s counseling record, and affidavits
on the prison grievance procedure to contradict the plaintiff’s own testimony about
grievances that allegedly went missing).
B. Analysis
The Court held a Pavey hearing in this matter to find facts and to review the
credibility of the witnesses. The Defendants carried their burden of establishing that the
grievance procedure was accessible to Plaintiff, and that it functioned in a routine fashion.
Ms. Pierce credibly testified that inmates could place grievances in fixed or portable
boxes, that the grievances would be processed by the grievance office, and that inmates
would receive CHAMP receipts. If there was a problem accessing a grievance box, an
inmate could write his counselor. If an inmate felt a grievance was missing after
submission to a box, he could write to his counselor to ask about it, he would receive a
response, and a note would be made in his counseling summary. Ms. Pierce’s credible
testimony about the reliable nature of the grievance process at Menard during the
relevant time is bolstered by the grievance records that were previously submitted (Doc.
49-3), as well as by the submission of the counseling summary (Doc. 61-1). This evidence
all credibly demonstrates that the grievance process was available, and that there was a
fail-safe mechanism for grievances that an inmate thought may be lost.
Plaintiff’s own testimony about his knowledge of the grievance process and his
understanding of the three levels of review aligned with Ms. Pierce’s and demonstrated
that he clearly understood how to submit grievances at Menard. Although he claims that
the portable grievance box was not regularly circulated, forcing him to deposit grievances
in his cell bars1, he also testified that on a few occasions he placed grievances directly in
the fixed box. Additionally, although he claimed that the offender orientation manual
did not tell him what to do if he believed a grievance was lost, his own testimony was
that he wrote to his counselors to ask about alleged lost grievances when he did not
1 Plaintiff’s testimony about the grievance boxes not being circulated is different from what he said in his
alleged letters to Quick and Weaver, where he indicated he had placed grievances in the boxes himself.
(Doc. 12 at 25-27).
receive receipts. This suggests that he understood how to proceed in the event of a lost
grievance, because this is the exact procedure that Pierce described for a potential lost
grievance.
Plaintiff testified that when his efforts proved fruitless, he then submitted a
grievance in June of 2021 directly to the ARB to try to cover his bases. He claims that he
did this because he had never experienced such problems with the grievance process
during his 20 years of incarceration. Although this contention was supported by
documentation at the summary judgment phase, and again by Plaintiff’s testimony, the
Court does not ultimately believe that the grievance Plaintiff submitted directly to the
ARB was something Plaintiff had tried to properly submit at Menard for months to no
avail.
If the Court credited Plaintiff’s testimony, it would have to believe not only that
one grievance got lost, but that as many as five grievances got lost over the span of a year.
It would also have to believe that he submitted at least three queries to his counselors
about the grievances, but that all these queries were lost, and that none of this activity
was documented in his grievance log whatsoever. The Court is simply not persuaded
that all these documents went missing, and that zero paper-trail remains at Menard, aside
from Plaintiff’s own documentation. The counseling summary contains no mention of
Plaintiff’s attempted grievances or his follow-up written correspondence to counselors
Weaver and Quick. It also reflects face-to-face interactions with Quick and Weaver
during the relevant time where no issues were reported. In the end, the Court does not
find Plaintiff’s testimony credible. Accordingly, the Court credits the Defendants’
evidence and Ms. Pierce’s testimony over Plaintiff's own, and it finds that he has failed
to exhaust his administrative remedies as to all defendants for all three claims.
It is worth noting, even if the Court believed that Plaintiff had done everything he
could to submit and exhaust grievances between March of 2021 and April of 2022, he did
not describe any of these grievances as discussing Defendant Crain’s involvement. As
such, he entirely failed to exhaust claims against Crain, regardless of the evidence
concerning the other defendants (Siddiqui, Dearmond, Zimmer, Moldenhauer,
Wexford).
DISPOSITION
Defendants have credibly established that Plaintiff failed to exhaust his
administrative remedies. Claims 1-3 are now DISMISSED without prejudice for
Plaintiff's failure to exhaust administrative remedies as is required by 42 U.S.C. §
1997e(a). The Clerk of Court is DIRECTED to enter judgment accordingly and to CLOSE
this case.
IT IS SO ORDERED. “
Dated: August 19, 2024
DAVIDW.DUGAN
United States District Judge
NOTICE
If Plaintiff wishes to contest this Order, he can either file a motion under Federal
Rules of Civil Procedure 59(e) or 60(b), or he can appeal to the Seventh Circuit Court of
Appeals within 30 days of the judgment or order appealed from, FED. R. App. P. 4(a)(1)(A).
The grounds under Rules 59(e) and 60(b) are quite narrow. For example, newly
discovered evidence that was not previously available is a basis for relief under either
rule, as is a manifest error of law. These rules are not intended as a forum to rehash
previously considered arguments. If Plaintiff chooses to appeal to the Seventh Circuit
Court of Appeals, he must file a notice of appeal in this Court, and he must pay a filing
fee of $505, or apply for in forma pauperis (IFP) status. FED. R. APP. P. 3(a), 3(e). An IFP
application must be accompanied by a prison trust fund account statement, as well as an
outline of the issues to be presented on appeal. FED. R. APP. P. 24(a)(1)(C). If IFP status
is granted, Plaintiff will be assessed a partial filing fee, with the balance due and owing
over time regardless of the outcome of his appeal.