Blake v. Wexford Health Sources Inc

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

PAUL BLAKE, )

)

Plaintiff, )

)

v. ) Cause No. 3:20-cv-03261-SLD-JEH

)

)

WEXFORD HEALTH )

SOURCES, INC., )

)

Defendant. )

REPORT AND RECOMMENDATION

I.

A.

This cause is before the undersigned magistrate judge on referral from Chief

United States District Judge Sara L. Darrow for a Report and Recommendation on

whether the Plaintiff exhausted his administrative remedies. Plaintiff, Paul Blake, an

inmate with the Illinois Department of Corrections (IDOC) at Western Illinois

Correctional Center (Western), filed a complaint alleging that Defendant, Wexford

Health Sources, Inc. (Wexford), which is a private corporation contracted by the State of

Illinois and the IDOC to provide medical care to inmates, violated his Constitutional

rights related to the medical care (or lack thereof) that he received for his hernia while

at Western. D/E 1. More specifically, Plaintiff alleges that the medical staff at Western

refused to provide any other medical treatment or care to him because Wexford, in

order to save money, maintained a policy or practice of denying treatments for hernias

with the exception of providing an ineffective hernia belt, even though the medical staff

whom Wexford employs knew that the hernia belts are ineffective and knew that other

treatments are necessary, such as surgery. See 42 U.S.C. § 1983; Monell v. Department of

Social Services of the City of New York, 436 U.S. 658 (1978). On January 4, 2024, Wexford

filed a motion for summary judgment based upon the issue of exhaustion as required

by the Prison Litigation Reform Act (PLRA), arguing that Plaintiff filed only two

grievances relevant to his Monell claim and those two grievances were procedurally

defective. D/E 35. On August 6, 2024, the undersigned conducted an evidentiary

hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), and the exhaustion

issue is now ripe for resolution. For the reasons stated, infra, the undersigned

recommends the motion for summary judgment be GRANTED.

B.

Although Plaintiff submitted several grievances while at Western, he submitted

only two grievances that are relevant to his Monell claim in this case. The first grievance

is Grievance Number 19-2572. Grievance Number 19-2572 is dated November 4, 2019,

and the Administrative Review Board (ARB) received that Grievance on November 26,

2019. This Grievance was misplaced by an IDOC employee, and the Grievance is not in

Plaintiff’s ARB file. However, Grievance Number 19-2572 was entered into the

cumulative counseling summary system. Ultimately, Grievance Number 19-2572 was

returned to Plaintiff on December 2, 2019, for failure to include the original grievance,

the response, and dates of the incident being grieved.

The second grievance is Grievance Number 20-1794. Grievance Number 20-1794

is dated May 22, 2020, and the ARB received that Grievance on August 5, 2020. In

Grievance Number 20-1794, Plaintiff alleged that, in May 2013, while at the Stateville

Correctional Center, Plaintiff noticed what he believed to be a hernia. In 2015, Plaintiff

reported his hernia to sick call, and he was told that the medical personnel could only

issue a hernia belt to him because Wexford only repairs hernias in emergency

situations. While at Stateville Correctional Center, Plaintiff was seen in the healthcare

unit multiple times from April 23, 2015, through September 20, 2016, and he received a

hernia belt on October 8, 2015.

On November 3, 2016, Plaintiff was transferred to Western. While at Western,

Plaintiff was seen at the healthcare unit for his hernia multiple times from June 22, 2017,

through December 2019. Plaintiff was also seen in a local hospital’s emergency

department on December 5, 2019, and on December 7, 2019, due to his hernia

protruding and not retracting.

Thereafter, Plaintiff received further medical treatment, but Plaintiff believed

that the medical treatment that he received was inadequate and did not alleviate his

hernia pain. Accordingly, Plaintiff submitted Grievance Number 20-1794 on May 22,

2020. Based on his review of Plaintiff’s Grievance, the Grievance Officer recommended

that Plaintiff’s Grievance be denied as moot on July 29, 2020, and the Chief

Administrative Officer (CAO) concurred with that recommendation on July 30, 2020.

On August 21, 2020, the ARB returned Plaintiff’s Grievance to him because he failed to

submit the Grievance in the timeframe outlined in Department Rule 504.

II.

In its summary judgment motion, Wexford argues that neither of these two

Grievances satisfies Plaintiff’s exhaustion requirements. Initially, Wexford argues that

the filing of these two Grievances—along with the numerous other grievances that

Plaintiff submitted—demonstrate that the grievance process was available to him. As

for Grievance Number 19-2572, Wexford argues that the Grievance did not satisfy

Plaintiff’s exhaustion requirements because Plaintiff failed to comply with Illinois’

exhaustion rules, in that, he did not provide the original written Grievance, a copy of

the Grievance, and the dates for which the incidents occurred to the ARB.

As for Grievance Number 20-1794, Wexford contends that this Grievance does

not satisfy Plaintiff’s exhaustion requirement either. Similar to Grievance Number 19-

2572, Plaintiff failed to submit this Grievance in a timely matter to the ARB as required

by Illinois’ administrative remedies. Accordingly, Wexford argues that Plaintiff failed to

properly exhaust his administrative remedies as to his Monell claim against it, and

therefore, Wexford is entitled to summary judgment.

In response, Plaintiff asserts that, during the relevant time, Tara Goins was a

grievance officer at Western. D/E 38. Plaintiff further alleges that Ms. Goins would

routinely respond to his questions about his grievances by advising him that his

grievances were being reviewed or processed, but then, the deadlines for his grievances

would expire and would be denied on that basis.

In addition, Plaintiff states that Ms. Goins would frequently discard inmates’

grievances, including his. As is relevant to his claim against Wexford, Plaintiff states

that Ms. Goins discarded a grievance that he submitted in August of 2018 to which he

never received a response. As such, Plaintiff argues that he has done all that he could do

in order to exhaust his administrative remedies, and the fact that he may not have done

so properly is not attributable to him. Rather, the administrative review process was

unavailable to him due to Ms. Goins’ actions and inactions, and therefore, the Court

should deny Wexford’s summary judgment motion.

III.

A.

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be

granted if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Ruiz-Rivera v.

Moyer, 70 F.3d 498, 500-01 (7th Cir. 1995). The moving party has the burden of providing

proper documentary evidence to show the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the moving party has met its

burden, the opposing party must come forward with specific evidence, not mere

allegations or denials of the pleadings, which demonstrates that there is a genuine issue

for trial. Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 294 (7th Cir. 1997). “[A] party

moving for summary judgment can prevail just by showing that the other party has no

evidence on an issue on which that party has the burden of proof.” Brazinski v. Amoco

Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993).

Accordingly, the non-movant cannot rest on the pleadings alone, but must

designate specific facts in affidavits, depositions, answers to interrogatories or

admissions that establish that there is a genuine triable issue; he must do more than

simply show that there is some metaphysical doubt as to the material fact. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 261 (Brennan, J., dissenting) (1986)(quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Hot Wax, Inc. v. Turtle Wax,

Inc., 191 F.3d 813, 818 (7th Cir. 1999). Finally, a scintilla of evidence in support of the

non-movant’s position is not sufficient to oppose successfully a summary judgment

motion; “there must be evidence on which the jury could reasonably find for the [non-

movant].” Anderson, 477 U.S. at 252.

B.

The PLRA requires an inmate to exhaust the available administrative remedies

before filing a § 1983 lawsuit. 42 U.S.C. § 1997e(a) (“[n]o action shall be brought with

respect to prison conditions . . . by a prisoner . . . until such administrative remedies as

are available are exhausted.”); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000).

Exhaustion is mandatory. Woodford v. Ngo, 548 U.S. 81, 95 (2006)(“The benefits of

exhaustion can be realized only if the prison grievance system is given a fair

opportunity to consider the grievance. The prison grievance system will not have such

an opportunity unless the grievant complies with the system’s critical procedural

rules.”); Dole v. Chandler, 43 F.3d 804, 809 (7th Cir. 2006).

No futility, sham, or substantial compliance exception exists to this requirement,

and a plaintiff seeking only monetary damages for ongoing conditions must still utilize

the grievance procedure in place before filing suit. Massey, 259 F.3d at 646 (inmate

alleging failure to repair a hernia timely must exhaust administrative remedies even

though surgery was performed and only money damages claim remained); Booth v.

Churner, 532 U.S. 731, 736-37 (2001)(the PLRA requires administrative exhaustion even

where grievance process does not permit award of money damages, if “some action” in

response to a grievance can be taken). Likewise, the exhaustion requirement includes

claims that only seek equitable relief. Falcon v. United States Bureau of Prisons, 52 F.3d

137, 139 (7th Cir. 1995).

Exhaustion means properly and timely taking each step in the administrative

process established by the applicable procedures. Pozo v. McCaughtry, 286 F.3d 1022,

1025 (7th Cir. 2002)(failure to file timely administrative appeal constitutes failure to

exhaust administrative remedies and bars a § 1983 suit). “[I]f a prison has an internal

administrative grievance system through which a prisoner can seek to correct a

problem, the prisoner must utilize that administrative system before filing a claim.”

Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999). A dismissal for failure to exhaust is

without prejudice, so reinstatement is not barred unless the time for exhaustion has

expired. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).

If issues of fact exist in determining whether an inmate has exhausted his

administrative remedies, a judge should hold a hearing and resolve these factual

disputes. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). The Court is permitted to

make findings of fact and credibility assessments of witnesses at such an evidentiary

hearing. Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011). If the Court finds that the

prisoner exhausted his administrative remedies, “the case will proceed to pretrial

discovery, and if necessary a trial, on the merits.” Pavey, 544 F.3d at 742. If the Court

finds that the prisoner did not exhaust his administrative remedies, the Court

determines whether: (a) the plaintiff has unexhausted remedies, and so he must go back

and exhaust; (b) or, although he has no unexhausted remedies, the failure to exhaust

was innocent (as where prison officials prevent a prisoner from exhausting his

remedies), in which event he will be allowed to go back and exhaust; or (c) the failure to

exhaust was the prisoner’s fault, in which event the case is over. Id.

Illinois has established an internal administrative grievance system for prisoners

to complete in order to correct a problem that the prisoner encounters within the prison

setting. 20 Ill. Admin. Code § 504.810 et seq. Under the current grievance procedures, a

prisoner may file a written grievance with his grievance officer within sixty (60) days of

discovery of the dispute. Id. The grievance should include “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 . . . [or] as much descriptive information about the individual as possible.” Id.

The grievance officer is then required to review the grievance and report

findings and recommendations to the Chief Administrative Officer (“CAO”). 20 Ill.

Adm. Code § 504.810(c). The prisoner then has the opportunity to review the CAO’s

response. 20 Ill. Adm. Code § 504.830(e). If the prisoner is unsatisfied with the

institution’s resolution of the grievance, he may file an appeal to the Director through

the AR within thirty (30) days of the CAO’s decision. 20 Ill. Adm. Code § 504.850. The

ARB is required to make a final determination of the grievance within six months after

receiving it. Id. Completion of this process exhausts a prisoner’s administrative

remedies.

C.

The undersigned finds that Plaintiff failed to exhaust properly his administrative

remedies before he filed this lawsuit as required by the PLRA. The undersigned further

finds that neither Grievance Number 19-2572, nor Grievance Number 20-1794 satisfied

Plaintiff’s exhaustion obligation before he filed this lawsuit.

As for Grievance Number 19-2572, that Grievance is dated November 4, 2019,

and the ARB received Grievance Number 19-2572 on November 26, 2019. The ARB

retuned Grievance Number 19-2572 to Plaintiff on December 2, 2019, for failure to

provide the original written Grievance, for failure to provide a copy of the Grievance,

and for failure to provide the dates on which the incidents occurred. As such, Grievance

Number 19-2572 cannot satisfy Plaintiff’s exhaustion requirements because Plaintiff

failed to follow IDOC’s administrative procedures with respect to this Grievance. 20 Ill.

Admin. Code § 504.850(A).

“To exhaust remedies, a prisoner must file complaints and appeals in the place,

and at the time, the prison’s administrative rules require.” Pozo, 286 F.3d at 1025. “[A]

prisoner who does not properly take each stop within the administrative process has

failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating.” Id.

“[P]ursuing a premature, procedurally flawed grievance through the entire

administrative process does not constitute exhaustion. The rules governing the filing

and prosecution of a grievance, including the appeal, must be followed to achieve

exhaustion; substantial compliance is insufficient.” Wilder v. Sutton, 2008 WL 515506, * 9

(S.D. Ill. Feb. 22, 2008)(citing Lewis v. Washington 300 F.3d 829, 833-834 (7th Cir. 2002)).

Because Plaintiff did not properly follow Illinois’ grievance procedure, Grievance

Number 19-2572 cannot serve as the basis for satisfying his exhaustion requirements.

As for Grievance Number 20-1794, that Grievance is dated May 22, 2020, and the

ARB received it on August 5, 2020. Although Grievance Number 20-1794 was related to

Wexford’s alleged unconstitutional policies and the effect those alleged unconstitutional

policies had on the treatment that he received for his hernia, the evidence shows that

Plaintiff failed to submit Grievance Number 20-1794 to the ARB timely. 20 Ill. Admin.

Code § 504.810. According to Grievance Number 20-1794, Plaintiff was grieving the lack

of medical treatment that occurred (or failed to occur) sometime between October of

2018 and January of 2019. By the time the CAO reviewed Grievance Number 20-1794

nearly two years later, the issue had been mooted by the treatment that Plaintiff

received.

Regardless, the evidence is clear that Plaintiff did not submit Grievance Number

20-1794 within sixty (60) days of discovery of the issue that was the subject of the

grievance as required by Illinois law. 20 Ill. Admin. Code § 504.810. Accordingly,

Grievance Number 20-1794 cannot serve as the basis for satisfying his exhaustion

requirements.

Finally, the Court finds, based upon the evidence presented, that the grievance

process was available to Plaintiff. Plaintiff filed several grievances during the relevant

timeframe, and therefore, he would be hard-pressed to argue that the grievance process

was unavailable to him for lack of an understanding of the grievance requirement.

Furthermore, the Court finds Tara Goins’ testimony to be more credible than

Plaintiff’s testimony. Plaintiff argues that the grievance process was unavailable to him

because Ms. Goins (who was a correctional counselor and a grievance officer at the

relevant time) lost or destroyed his grievances. Plaintiff further contends that Ms. Goins

lulled him into a belief that his grievances would be timely resolved, and Ms. Goins’s

assurances that his grievances would be processed properly is the reason why his

grievances were denied by the ARB for procedural issues.

But Ms. Goins denied that she ever destroyed Plaintiff’s Grievances. See Hrg. Tr.

pgs. 30-32. In addition, Ms. Goins denied that she had any personal animosity towards

Plaintiff that would cause her to interfere with Plaintiff’s ability to complete the

grievance process properly. Id. Upon having the opportunity to hear Ms. Goins’

testimony on this issue and to observe her when she provided this testimony, the

undersigned finds Ms. Goins to be more credible on this issue than Plaintiff. Based

upon this finding, the Court further finds that the administrative review process was

not unavailable to Plaintiff based upon his allegation that Ms. Goins destroyed his

relevant grievances.

Finally, the Court rejects Plaintiff’s argument (to the extent that he is making

such an argument) that the administrative review process was unavailable to him based

upon any alleged conversations that occurred between Ms. Goins and Plaintiff. Plaintiff

testified that he spoke with Ms. Goins about his hernia issues while he was in Ms.

Goins’s office. See Hrg. Tr. at pgs. 63-64. But simply speaking with an IDOC correctional

officer about an issue does not satisfy the prisoner’s exhaustion requirements. Pozo, 286

F.3d at 1025. And again, the undersigned finds Ms. Goins to be more credible than

Plaintiff on whether she assured him that his grievances would be processed while they

spoke in Ms. Goins’s office. See Hrg. Tr. at pgs. 31-32. Ms. Goins denied that she ever

had a conversation with Plaintiff regarding his grievances that was not documented,

and based upon this testimony which the undersigned credits over Plaintiff’s testimony,

the undersigned finds that the administrative review process was available to Plaintiff.

Id.

V.

For the reasons stated, supra, the undersigned finds Plaintiff failed to exhaust his

administrative remedies related to the claims he makes in this case and, therefore,

recommends that Wexford’s motion for summary judgment be GRANTED. D/E 35.

The Parties are advised that any objection to this Report and Recommendation

must be filed—in writing—with the Clerk of the Court within fourteen (14) days after

being served with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1).

Failure to object will constitute a waiver of objections on appeal. Video Views, Inc. v.

Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986).

It is so Recommended.

Entered this 23rd day of August, 2024

s/Jonathan E. Hawley

JONATHAN E. HAWLEY

UNITED STATES MAGISTRATE JUDGE