Adams v. Basler

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BYRON E. ADAMS, )

)

Plaintiff, )

)

vs. ) Case No. 3:23-cv-00738-GCS

)

JENNIFER BASLER & ABBY )

BENNETT, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Pending before the Court is Defendant Abby Bennett’s Motion for Summary

Judgment on the issue of exhaustion of administrative remedies. (Doc. 37). Defendant

Bennett filed the Motion and accompanying Memorandum of Support on January 2, 2024.

(Doc. 37, 38). Plaintiff filed three separate responses to Defendant’s Motion for Summary

Judgment. The first response was filed on January 8, 2024. (Doc. 41). Plaintiff’s second

and third responses were filed on January 29, 2024, and January 30, 2024, respectively.

(Doc. 44, 45). A hearing was held on the motion on August 19, 2024, wherein Plaintiff

testified. (Doc. 73). For the reasons delineated below, the Court GRANTS Defendant’s

Motion for Summary Judgment. (Doc. 37).

PROCEDURAL BACKGROUND

Plaintiff Byron E. Adams is an inmate of the Illinois Department of Corrections

(“IDOC”) who is currently incarcerated at Dixon Correctional Center. He brings this civil

action pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights while

he was at Big Muddy Correctional Center. (Doc. 1, p. 1). He claims that Defendants failed

to give him prescribed medications and to change his leg dressing as directed by his

doctor. Plaintiff claims that this conduct was undertaken in retaliation for Plaintiff having

filed grievances against the Defendants. (Doc. 1, p. 10-14).

Plaintiff filed his lawsuit on February 28, 2023. (Doc. 1). On August 11, 2023, the

Court completed its preliminary review of Plaintiff’s Complaint pursuant to 28 U.S.C. §

1915A. Plaintiff was permitted to proceed against Defendants on the following counts:

Count 1: Eighth Amendment deliberate indifference claim against

Basler for failing to provide Plaintiff with his prescribed medications on

December 31, 2022.

Count 2: Eighth Amendment deliberate indifference claim against

Bennett for failing to provide Plaintiff with his prescribed leg dressing

changes on January 9, 2023, and his medications on February 23, 2023.

Count 3: First Amendment retaliation claim against Basler and Bennett

for denying Plaintiff’s medications and against Bennett for denying

Plaintiff’s leg dressing changes because Plaintiff filed grievances and/or

lodged complaints against them.

(Doc. 19, p. 3). On April 5, 2024, Defendant Basler moved to withdraw the affirmative

defense of failure to exhaust administrative remedies. (Doc. 54). On April 9, 2024, the

Court granted Defendant Basler’s Motion. (Doc. 57). As such, only Defendant Bennett is

pursuing the affirmative defense of failure to exhaust administrative remedies.

FACTUAL BACKGROUND

The following grievances have been provided to the Court by Plaintiff and

Defendant Bennett for review.

Grievance No. 3-1-23, dated December 31, 2022, complained that on that date Co-

Defendant Jennifer Basler failed to give Plaintiff his proscribed medication during

morning rounds and subsequently refused to provide him that medication when she

wrapped his leg later in the healthcare unit. (Doc. 38, Exh. 1, p. 8-9). The grievance was

deemed an emergency on January 9, 2023. Id. at p. 8. On January 23, 2023, the Grievance

Officer denied the grievance, stating that “all departmental policy and procedures related

to the matter” had been followed and that “no evidence of wrongdoing can be

substantiated.” Id. at p. 7. On January 24, 2023, the Chief Administrative Officer

concurred with the Grievance Officer. Id. The Administrative Review Board (“ARB”)

received Grievance No. 3-1-23 on January 30, 2023. Id. at p. 6. The Grievance was denied

on February 27, 2023. Id.

Grievance No. 84-1-23, dated January 6, 2023, complained generally that the

Licensed Practical Nurses at Big Muddy Correctional Center had failed to wrap or put a

compression sock on Plaintiff’s leg as proscribed by Dr. Larson.1 (Doc. 38, Exh. 2, p. 1-2).

Additionally, the grievance notes that on January 6, 2023, that LPN Jones and LPN Sandy

did not wrap Plaintiff’s leg. Id. The grievance also recounted how Plaintiff had filed a

previous grievance about Defendant Basler for failing to provide him with his

medication. Id. at p. 2. On January 20, 2023, the Counselor replied to Plaintiff’s grievance

indicating that “there was no documentation of treatment noted in [the] medical file” and

that “Nursing Staff have been directed to follow MD orders and document when

treatment is completed.” Id. at p. 3. On January 25, 2023, the Grievance Officer

1 “Dr. Larson ordered that my left leg and compression sock be put on every day, but his

medical orders are being ignored by the LPN.” (Doc. 38, Exh. 2, p. 2).

recommended that the grievance be deemed moot, as the issue was being addressed by

healthcare. Id. at p. 4. On January 30, 2023, the Chief Administrative Officer concurred

with the Grievance Officer and deemed the grievance moot. Id.

Grievance No. 80-1-23, dated January 9, 2023, complained that on that date

Defendant Bennett failed to wrap or put a compression sock on Plaintiff’s leg. (Doc. 38,

Exh. 1, p. 3-4). The grievance was deemed an emergency on January 11, 2023. Id. at p. 3.

On January 24, 2023, the Grievance Officer recommended that Plaintiff’s grievance be

denied as, “all departmental policy and procedures related to this matter ha[d] been

followed.” Id. at p. 2. The Chief Administrative Officer concurred with the Grievance

Officer’s determination and denied the Grievance on January 24, 2023. Id. The ARB

received Plaintiff’s grievance on February 6, 2023, and denied the grievance on March 16,

2023, noting that the “warden is to reiterate staff’s compliance with A.D. 04.03.110.” Id. at

p. 1.

Grievance No. 160-2-23, dated February 24, 2023, complained that Defendant

Bennett failed to provide Plaintiff with his medication that morning. (Doc. 38, Exh. 2, p.

18-19). The grievance was deemed an emergency on February 27, 2023. Id. at p. 18. On

March 6, 2023, the Grievance Officer recommended that Plaintiff’s grievance be denied,

as no wrongdoing could be substantiated. Id. at p. 17. The Chief Administrative Officer

concurred with the Grievance Officer and denied the Grievance on March 10, 2023. Id.

LEGAL STANDARDS

Summary judgment is proper when a moving party cannot establish the presence

of a genuine dispute of material fact. See FED. R. CIV. PROC. 56(a). To survive a motion for

summary judgment, the non-moving party must provide admissible evidence which

would allow a reasonable jury to find in his or her favor. See Maclin v. SBC Ameritech, 520

F.3d 781, 786 (7th Cir. 2008). Generally, in determining the outcome on a motion for

summary judgment, the Court’s role is not to evaluate the weight of the evidence, judge

witness credibility, or determine the truth of the matter, but instead is to determine

whether a genuine issue of material fact exists. See Nat’l Athletic Sportwear Inc. v. Westfield

Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in Pavey v. Conley, 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.” 544 F.3d 739, 740-741 (7th Cir. 2008). Therefore, the Court must

evaluate whether a prisoner has exhausted his or her administrative remedies when the

affirmative defense of non-exhaustion is raised. If the Court determines that a prisoner

did not exhaust administrative remedies, the plaintiff is given the opportunity to exhaust

should time still permit or if the failure to exhaust was innocent.2 Id. at 742. Alternatively,

if the Court determines that the failure to exhaust was the prisoner’s fault, the case is

over. Id.

2 Pavey provides that an “innocent” failure to exhaust includes situations where prison

officials prevent prisoners from pursuing exhaustion of their administrative remedies. 544 F.3d

at 742. Further, if an inmate submits a grievance and does not receive a response, the inmate’s

attempts at exhaustion will be deemed thwarted, and the inmate will be allowed to proceed with

the lawsuit. See, e.g., Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008) (noting that an inmate is

not required to appeal his grievance if he submits the grievance to the proper authorities but

never receives a response); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (indicating that a

remedy can be unavailable to a prisoner if the prison does not respond to the grievance or uses

misconduct to prevent a prisoner from exhausting his remedies).

Under the Prison Litigation Reform Act (“PLRA”), which governs lawsuits filed

by inmates, “no action shall be brought with respect to prison conditions under § 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.”

42 U.S.C. § 1997e(a) (emphasis added). This comports with the PLRA’s statutory purpose

of “afford[ing] correction officials [the] time and opportunity to address complaints

internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93

(2006); see also Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1161 (7th Cir. 2012).

Additionally, it affords prison administrations an opportunity to fix the problem, reduce

damages, and shed light on the factual disputes that may arise in litigation. See Pozo v.

McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002).

When exhausting administrative remedies, prisoners must follow their prison’s

administrative rules. See Pozo, 286 F.3d at 1023. As an inmate confined within the IDOC,

Plaintiff is required to follow the regulations contained in the IDOC’s Grievance

Procedures for Offenders (“IDOC Grievance Procedures”) to properly exhaust his claims.

See 20 ILL. ADMIN. CODE § 504.800, et seq. The Seventh Circuit requires strict adherence to

a prison’s grievance procedures to satisfy the exhaustion requirement under the PLRA.

See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Accordingly, a prisoner cannot

satisfy the exhaustion requirement by filing untimely or otherwise procedurally defective

grievances. See Woodford, 548 U.S. at 83. Nor may a prisoner file a lawsuit while the

prisoner is simultaneously proceeding through the required grievance process. See Ford

v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Consequently, if a prisoner fails to use a

prison’s grievance process properly, “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.

To initiate the grievance process, the IDOC Grievance Procedures first require that

inmates file a grievance with a Counselor at their correctional institution within 60 days

of the discovery of an incident. See 20 ILL. ADMIN. CODE § 504.810(a). In the grievance, the

prisoner must provide: “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.”3 20 ILL. ADMIN. CODE § 504.810(a).

Should the prisoner not be satisfied with the Counselor’s response, the prisoner can then

submit a formal grievance to the prison’s Grievance Officer. Id. at (a)-(b). The Grievance

Officer must review the grievance and provide a written response to the inmate. See 20

ILL. ADMIN. CODE § 504.830(a). Within 60 days of receipt of the grievance, when

reasonably feasible under the circumstances, the Grievance Officer must report his or her

findings and recommendations in writing to the Chief Administrative Officer (“CAO”).

See 20 ILL. ADMIN. CODE § 504.830(e). The CAO shall review the findings and

recommendations from the Grievance Officer and advise the inmate of his or her decision

in writing. Id. If the prisoner is not satisfied with the CAO’s decision, the prisoner can

then formally appeal to the Director through the ARB within 30 days of the CAO’s

3 This does not preclude an inmate from filing a grievance when the names of individuals

are not known, but the inmate must include as much descriptive information about the individual

as possible. See 20 ILL. ADMIN. CODE § 504.810(a).

decision. See ILL. ADMIN. CODE § 504.850(a). The inmate must attach copies of the

Grievance Officer’s report and the CAO’s decision to the appeal. Id. The ARB then

submits its written recommendation to the Director, who is responsible for issuing the

IDOC’s final decision within six months. See 20 ILL. ADMIN. CODE § 504.850(d)–(e).

A separate procedure exists for emergency grievances. Inmates may file

emergency grievances directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The

CAO will determine if there is “a substantial risk of imminent personal injury or other

serious or irreparable harm” to the inmate that warrants the grievance being handled on

an emergency basis. Id. If the CAO classifies the grievance as an emergency grievance,

the CAO shall “expedite the process of the grievance and respond to the offender

indicating what action shall be or has been taken.” See 20 ILL. ADMIN. CODE § 504.840(b).

The inmate will also be informed by the CAO if it is determined that the grievance is non-

emergent. See 20 ILL. ADMIN. CODE § 504.840(c). In such a case, notification will be made

in writing that the inmate should “resubmit the grievance as non-emergent, in accordance

with the standard grievance process.” Id. When an inmate appeals a grievance that has

been deemed emergent by the CAO, the ARB “shall expedite the processing of the

grievance.” 20 ILL. ADMIN. CODE § 504.850(f).

Lastly, there are certain circumstances where a prisoner may exhaust his or her

administrative remedies by filing a grievance directly with the ARB. See 20 ILL. ADMIN.

CODE § 504.870. Those circumstances include grievances addressing: (1) placement in

protective custody; (2) involuntary administration of psychotropic medication; (3)

decisions regarding disciplinary proceedings that took place at an institution other than

where the inmate currently resides; and (4) all other issues, with the exception of personal

property issues, that occurred at a previous institution.” Id. The ARB “shall review and

process . . . [such] grievance[s] in accordance with Section 504.850.” Id.

DISCUSSION

Defendant Bennett concedes that Plaintiff filed two grievances that address her

conduct – namely, Grievance No. 80-1-23 and Grievance No. 160-2-23. (Doc. 38, p. 9).

However, Defendant argues that Plaintiff failed to exhaust his administrative remedies

as to those grievances. Id. In response, Plaintiff insists that he would not file a lawsuit

prior to completing the grievance procedures as described in the Illinois Administrative

Code. (Doc. 44, p. 6-7). Specifically, Plaintiff believes that he properly exhausted

Grievance No. 80-1-23 when he submitted it to the ARB before he filed the present

lawsuit. Id. at p. 8. Plaintiff also alleges that the ARB record for Grievance No. 160-2-23

was removed once it was received by the ARB. (Doc. 44, p. 9-10). Even if that were the

case, Plaintiff still would have failed to exhaust his administrative remedies for either

grievance because the lawsuit was filed prematurely before either grievance was or could

have been exhausted.

The PLRA provides that a prisoner may not bring a lawsuit about prison

conditions unless and until he has exhausted all administrative remedies. See 42 U.S.C. §

1997e(a); Pavey, 544 F.3d at 740; See also Woodford, 548 U.S. at 88, 93 (holding that

“complet[ing] the administrative review process” is “a precondition to [a prisoner]

bringing suit in federal court.”). “[A] prisoner who does not properly take each step

within the administrative process has failed to exhaust state remedies.” Pozo, 286 F.3d at

1024. Moreover, “exhaustion must precede litigation.” Ford, 362 F.3d at 398. Federal

courts strictly enforce this requirement. See Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir.

2016). Accordingly, if the prisoner files his lawsuit before his administrative remedies are

fully exhausted, the lawsuit must be dismissed, even if the prisoner anticipates the

grievance will soon be exhausted or will become exhausted during the pendency of the

lawsuit. See Hernandez, 814 F.3d at 841-842; Ford, 362 F.3d at 398.

Grievance No. 80-1-23 was received by the ARB on February 26, 2023, and it was

denied on March 16, 2023. (Doc. 38, Exh. 1, p. 1.). While it is true that the ARB received

Plaintiff’s grievance before the present lawsuit was filed on February 28, 2023, the ARB

did not make a final determination on the grievance until March 16, 2023. (Doc. 1); (Doc.

38, Exh. 1, p. 1). Because a decision by the ARB represents the final step in the grievance

process, Plaintiff did not exhaust Grievance No. 80-1-23 until March 16, 2023. See, e.g.,

Flournoy v. Brookhart, Case No. 3:22-cv-00049, 2024 WL 896278, at * 6 (S.D. Ill. Mar. 1, 2024)

(finding that a plaintiff “jumped the gun” by filing a lawsuit before the ARB announced

its decision on his grievance appeal). Thus, Plaintiff prematurely filed suit for his claims

addressed in Grievance No. 80-1-23.

Regarding Grievance No. 160-2-23, Plaintiff contends that he did submit the

grievance to the ARB after receiving a response from the CAO denying the grievance on

March 10, 2023. (Doc. 44, p. 8). He further asserts that the ARB threw away his grievance

once it was received. Id. at p. 10. The grievance record supplied by Defendants only shows

that Grievance No. 160-2-23 proceeded through the second level – ending with the denial

by the CAO. (Doc. 38, Exh. 2, p. 17). Even taking Plaintiff’s allegations as true, Plaintiff

still would have failed to exhaust Grievance No. 160-2-23, because like Grievance No. 80-

1-23, the Grievance would not have had the time to proceed through the final agency

determination before February 28, 2023. In fact, the grievance was drafted on February

23, 2023, just five days prior to Plaintiff filing the present lawsuit. (Doc. 38, Exh. 2, p. 18).

It would be impossible for Plaintiff to have exhausted the grievance in such a short period

of time. Accordingly, Plaintiff also failed to exhaust his administrative remedies for

Grievance No. 160-2-23.

Although not addressed by Plaintiff in his response or at the hearing, the Court

also finds that Grievance No. 84-1-23 did not grieve conduct attributable to Defendant

Bennet. According to IDOC Grievance Procedure, “the 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 otherwise involved in

the complaint.” 20 ILL. ADMIN. CODE § 504.810(c).When the names of individuals are not

known, “the offender must include as much descriptive information about the individual

as possible.” Id.

In the Summary of Grievance portion of Grievance No. 84-1-23, Plaintiff begins by

stating that he is “filing another grievance on the LPN of healthcare” and notes that he

“does not call [LPN’s] nurses because they are not nurses.” (Doc. 38, Exh. 2, p. 1-2). These

statements show that Plaintiff has a clear understanding of the differences between LPNs

and nurses at Big Muddy River. Plaintiff goes on to state that it is the LPNs who are

failing to follow Dr. Larson’s orders regarding care for his leg. Id. Plaintiff concludes the

Summary of Grievance by stating that he planned to use the grievance “against LPN

Jennifer.” Id. at p. 2. Plaintiff also specifically names two other LPNs in the grievance.

Additionally, the relief Plaintiff specifically requested in response to his grievance was

for “LPNs to follow Dr. Larson’s medical order.” Id. at p. 1. Nowhere in the grievance

does Plaintiff allege that Defendant Nurse Bennett, or any nurse at the facility failed to

comply with Dr. Larson’s orders.4 The grievance is limited to critiquing the conduct of

the LPNs at Big Muddy River.

These facts are like those in Taylor Walls v. Johnson, Case No. 16-CV-18-NJR-DGW,

2017 WL 603838, at *3 (S.D. Ill. Feb. 15, 2017). In Taylor Walls, the Court found that a

plaintiff’s failure to identify an unknown named individual by the correct title prevented

the plaintiff from exhausting his administrative remedies against that individual

defendant. Id. Specifically, the plaintiff in Taylor Walls identified the defendant in the

grievance at issue as the warden as opposed to the assistant warden. Id. Complicating

matters further, there were three wardens at plaintiff’s facility. Id. Despite the plaintiff

being aware of these circumstances, he failed to provide any other identifying details

about the assistant warden defendant. Id. Thus, the Court held that the plaintiff’s “vague

sentence” with “an incorrect title”, compounded by the clear evidence in the record that

plaintiff knew the name and title of the defendant before filing the grievance, resulted in

plaintiff failing to exhaust against the defendant. Id.

In this case, Plaintiff was aware that LPNs and nurses have different titles at Big

4 The Court acknowledges that Grievance No. 84-1-23 does state that “Dr. Larson ordered

that [Plaintiff’s] left leg be wrap[ped] and [his] compressing sock be put on everyday by a nurse.”

(Doc. 38, Exh. 2, p. 2).

Muddy River. Had Plaintiff wanted to grieve the conduct of a nurse in Grievance No. 84-

1-23, like Defendant Bennett, he could have, and should have made that distinction given

his knowledge of the medical staff. However, Plaintiff did not name a nurse in the

grievance, and the conduct he complains about is only attributed to LPNs at Big Muddy

River. In fact, Plaintiff specifically stated he wished to use the grievance against LPN

Jennifer. He also named two other LPNs, but he did not name Nurse Bennett.

Accordingly, the Court likewise finds that Plaintiff failed to exhaust Grievance No. 84-1-

23 as it could not be read to encompass any conduct by Nurse Bennett.

CONCLUSION

For the reasons delineated above, Defendant’s Motion for Summary Judgment is

GRANTED. (Doc. 37). The Clerk of Court is directed to enter judgment in favor of

Defendant Bennett at the conclusion of the case.

IT IS SO ORDERED.

DATED: September 10, 2024. leeds by

(Mklet ©. ate: 2024.09.10

13:51:21 -05'00'

GILBERTC.SISON

United States Magistrate Judge

Page 13 of 13