Exum v. Jeffreys

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JERRY D. EXUM, JR.,

Plaintiff,

Case No. 23-cv-01994-SPM

v.

PERCY MYERS,

Defendant.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Jerry Exum, an inmate of the Illinois Department of Corrections, initiated this

action pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights. In the Complaint,

Plaintiff alleges that while incarcerated at Pinckneyville Correctional Center he injured his knee

while playing basketball on June 9, 2022, and was not provided adequate medical care for his

injury. (Doc. 1, 11). Notably, he did not receive an MRI until the end of July 2022, and his first

knee surgery on August 1, 2022, was performed unsuccessfully, necessitating a second surgery in

February 2023. Plaintiff is currently proceeding on an Eighth Amendment claim against Defendant

Dr. Percy Myers for deliberate indifference to his knee injury.

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

exhaustion filed by Dr. Myers. (Doc. 30). Along with the motion, Myers filed a Rule 56 Notice

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

(Doc. 31). Plaintiff did not file a response in opposition. For the reasons set forth below, the motion

for summary judgment is granted.

LEGAL STANDARDS

Summary judgment is proper only if the moving party can demonstrate “that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”

See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining a

summary judgment motion, the Court views the facts in the light most favorable to, and draws all

reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck &

Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted). Courts generally cannot resolve factual

disputes on a motion for summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (“[A]

judge’s function at summary judgment is not to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.”) (internal quotation marks and

citation omitted). However, when the motion for summary judgment pertains to a prisoner’s failure

to exhaust administrative remedies, the Seventh Circuit has instructed courts to conduct an

evidentiary hearing and resolve contested issues of fact regarding a prisoner’s efforts to exhaust.

Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Roberts v. Neal, 745 F. 3d 232, 236 (7th Cir.

2014). Where there is no disputed issue of fact, as in this case, a hearing is not necessary.

II. Exhaustion of Administrative Remedies

Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform

Act (“PLRA”). 42 U.S.C. § 1997e(a). The PLRA 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. The Seventh Circuit requires strict adherence to the

PLRA’s exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). “To exhaust

remedies, a 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).

Furthermore, exhaustion of available administrative remedies must occur before the suit is filed.

Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).

III. Grievance Procedures

As an inmate in the custody of IDOC, Plaintiff was required to follow the grievance

procedure laid out in the Illinois Administrative Code (“grievance procedures”). 20 ILL. ADMIN.

CODE § 504.800, et seq. The grievance procedures direct an inmate is to file a grievance first with

the Counselor within 60 days of the discovery of an incident. See 20 ILL. ADMIN. CODE §

504.810(a). The grievance form must:

[C]ontain factual details regarding each aspect of the offende’'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 a 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 must submit his findings to the Chief

Administrative Officer (CAO) within two months after receiving the grievance. 20 ILL. ADMIN.

CODe § 504.830(e). The CAO then reviews the findings and recommendation of the Grievance

Officer and issues a written decision to the inmate. Id. If the inmate is not satisfied with the

response, he can file an appeal with the Administrative Review Board (ARB). See 20 ILL. ADMIN.

CODE § 504.850(a). The ARB must receive the appeal within 30 days after the date of the decision

by the CAO, and copies of “the Grievance Officer’s report and the Chief Administrative Officer’s

decision should be attached.” Id. Only after a grievance is reviewed by the ARB is it deemed

exhausted. See Pozo, 286 F.3d at 1023–24.

ANALYSIS

As discussed, Plaintiff was informed by Myers of the consequences of failing to respond

to the motion for summary judgment. Plaintiff was also advised in the Initial Scheduling and

Discovery Order that “failure to respond to the motion for summary judgment may result in an

Order granting the motion.” (Doc. 20, p. 4). Despite these warnings, Plaintiff did not put forth any

arguments in opposition of Myer’s motion for summary judgment and has not filed anything with

the Court since May 2024. (Doc. 24, 25). Pursuant to Federal Rule of Civil Procedure 56(e), “[i]f

a party fails. . . to properly address another party’s assertion of fact” the Court may “consider the

fact undisputed for purposes of the motion.” Thus, the Court deems Plaintiff’s failure to respond

as an admission to the material facts of the motion for summary judgment on exhaustion filed by

Myers. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288

(7th Cir. 1995) (noting that a failure to respond constitutes an admission that there are no

undisputed material facts). Based on this admission, the Court finds that Plaintiff failed to properly

exhaust his administrative remedies as to his Eighth Amendment claim for unconstitutional

medical care against Myers.

According to the Complaint and the Motion for Summary Judgment, Plaintiff filed six

grievances relevant to the allegations in this case: Grievances #1610-02-22, #1631-06-22, #1655-

06-22, #1670-06-22, #1772-06-22, and #507-02-23. (Doc. 1, p. 6; Doc. 30).1 Myers argues that

none of these grievances serve to properly exhaust Plaintiff’s claim against him. He first argues

1 In the Complaint, Plaintiff also references and attaches Grievance #1630-06-22. (Doc. 1, p. 19-20). In this grievance,

Plaintiff complains about correctional staff in the gym “disregarding” their duty of care after he fell and injured his

knee. The grievance does not contain any details or complaints regarding Plaintiff’s medical care and does not exhaust

his claim against Myers.

that Grievances #1655-06-22, #1670-06-022, #1772-06-22, and #507-02-23 were procedurally

deficient. Grievances #1655-06-22 and #1670-06-22 were denied by the ARB because Plaintiff

failed to provide copies of the institutional grievance responses along with the grievances,

Grievance #507-02-23 was denied by the ARB as untimely, and Grievance #1772-06-22 was never

appealed to the ARB. (Doc. 30-1, p. 10, 13, 17). As for the remaining two grievances, #1610-02-

22 and #1631-06-22, Myers acknowledges that Plaintiff properly followed the grievance

procedures in submitting and appealing the grievances and that he received a determination on the

merits by the ARB. (Doc. 30, p. 9). Myers contends, however, that these two grievances do not

exhaust Plaintiff’s administrative remedies because the grievances do not mention or describe

Myers in any conceivable way. (Id.).

The record supports Myers’s argument that Plaintiff did not comply with the grievance

procedures when filing and appealing Grievances #1655-06-22, #1670-06-022, and #177-06-22.2

Thus, these grievances did not fulfill Plaintiff’s exhaustion requirement. See Hernandez v. Dart,

814 F. 3d 836, 842 (7th Cir. 2016) (a prisoner exhausts his administrative remedies by “adhering

to the specific procedures and deadlines established by the prison’s policy”).

The Court disagrees, however, that Grievance #507-02-23 must be disregarded as untimely

filed. In Grievance #507-02-23, dated January 6, 2023, Plaintiff complains about the outside

orthopedic group, Orthopedic of Southern Illinois, who performed his first knee surgery. (Doc. 30-

1, p. 18). He states that if the second surgery, which was also scheduled to be performed by

Orthopedic of Southern Illinois, does not fix his knee, then he asks to be sent to another medical

provider for treatment. (Id.). The grievance was addressed on the merits by the grievance officer,

2 Contrary to Myers’s argument, his exhibits show that Plaintiff did appeal Grievance #1772-06-22 to the ARB. (See

Doc. 30-1, p. 15-16). Grievance #1776-06-22 was submitted along with Grievance #1670-06-22. The ARB considered

both grievances together and denied them for failure to provide the necessary institutional responses. (Id. at p. 9, 13).

Grievance #1772-06-22, therefore, was still not filed in accordance with grievance procedures.

who denied the grievance. (Doc. 30-2, p. 27). The COA concurred in the denial, and Plaintiff

appealed to the ARB. (Id.). The ARB did not consider the merits of Plaintiff’s grievance but rather

denied the grievance as not submitted in the timeframe outlined in the grievance procedures. (Doc.

30-1, p. 17).3

As this Court has observed, “when officials at the correctional facility address a grievance

on the merits, the ARB cannot ‘later examine the grievance on procedural grounds to cure the

error.’” Walls v. Nalewjka, No. 21-cv-01369-SPM, 2023 WL 6147525, at *4 (S.D. Ill. Sept. 20,

2023) (quoting Kane v. Santos, No. 17-cv-01054, 2020 WL 967878, at *1 (S.D. Ill. Feb. 28, 2020)).

Because the grievance officer denied Grievance #507-02-23 on the merits, Myers cannot assert

that “Plaintiff failed to exhaust his administrative remedies because the ARB rejected the

grievances as untimely.” Ford v. Wexford Health Source, No. 13-cv-42-JPG, 2014 WL 685841, at

*5 (S.D. Ill. Feb. 20, 2014). That being said, Grievance #507-02-23 cannot serve to exhaust

Plaintiff’s claims against Myers. Grievance #507-02-23, dated January 6, 2023, specifically names

“Wexford” and complains that Wexford was again sending him for a second knee surgery to the

same orthopedic group who had previously operated on his knee and did so improperly. The

grievance gives no clear indication that Plaintiff was unhappy with the medical care during the

time he was treated by Myers, which according to the Complaint was from June 2022, following

his knee injury, through August 2022, when he received his first surgery. (Doc. 1, p. 8-9, 11-12).

Thus, Grievance #507-02-23 could not have put prison official on notice that Myers provided

inadequate medical treatment in the months preceding the grievance and does not exhaust

Plaintiff’s claim against Myers.

3 The ARB checked the box indicating that the grievance was “[n]ot submitted in the timeframe outlined in

Department Rule 504,” as opposed to the box specifying that the grievance was deficient because the ARB “received

the appeal 30 days past date of Chief Administrative Officer’s decision.” (See Doc. 30-1, p. 17).

For similar reasons, Grievances #1610-06-22 and #1631-06-22 also do not contain

sufficient information to exhaust the allegations in this lawsuit. The Illinois Administrative Code

requires a certain amount of detail when utilizing the administrative process. The grievance must

“contain factual details regarding each aspect of the [inmate’s] complaint, including…the name of

each person who is the subject of or who is otherwise involved in the complaint.” 20 ILL. ADMIN.

CODE § 504.810(c). If the inmate does not know the name of the individual involved in the

incident, then he or she must use as much descriptive information about the individual as possible.

Id. The Seventh Circuit has emphasized that the purpose of the exhaustion requirement is “to alert

prison officials to perceived problems and to enable them to take corrective action without first

incurring the hassle and expense of litigation.” Cannon v. Washington, 418 F.3d 714, 719 (7th Cir.

2005). Thus, the content of the grievance must include enough information to provide “prison

officials a fair opportunity to address” the inmate’s complaint. Maddox v. Love, 655 F. 3d 709,

722 (7th Cir. 2013).

In Grievances #1610-06-22, dated June 10, 2022, and #1631-06-22, dated June 13, 2022,

Plaintiff requests an MRI in the days following his knee injury, which occurred on June 9, 2022,

and complains about not being given ice and being in pain. Responding to the grievances

collectively on June 27, 2022, the Grievance Officer writes that Plaintiff had an appointment with

a physician assistant on June 13, 2022, who issued Plaintiff a brace, an ice permit, and pain and

anti-inflammatory medication. The physician assistant also submitted Plaintiff for an MRI. The

Grievance Officer states that an “MRI is scheduled for the end of July which is the soonest

appointment available.” (Doc. 30-1, p. 23). The Grievance Officer notes that Plaintiff had been

placed on the “provider line for a follow up on June 23, 2022.” (Id.). Thus, the prison corrected

the problem Plaintiff complained about – being scheduled for an MRI and providing him treatment

for his symptoms in the meantime. Plaintiff’s first interaction with Myers was not until after the

filing of these grievances on June 23, 2024, (Doc. 1, p. 8), and there is simply nothing in the

grievances to suggest that Plaintiff was complaining about Myers’s conduct as alleged in the

Complaint – that Myers deliberately cancelled an MRI appointment that had been scheduled for

June 13 to save money and subsequently refused to have him examined by an outside specialist.

There was no way for prison officials to know from Grievances #1610-06-22 and #1631-06-22

that Plaintiff was disgruntled with the care provided by Myers and further correction action was

need. Accordingly, the grievances did not sufficiently alert prison officials to the issues alleged in

this case and do not exhaust Plaintiff’s claim.

Because there is no evidence that Plaintiff properly exhausted his administrative remedies

regarding the claim in this case, the motion for summary judgment is granted.

DISPOSITION

For the reasons provided, the Court GRANTS the motion for summary judgment (Doc.

29) filed by Defendant Dr. Percy Myers. COUNT 1 and this ENTIRE CASE are DISMISSED

without prejudice for failure to exhaust. The Clerk of Court is DIRECTED to close this case and

enter judgment accordingly.

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);

Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-

59 (7th Cir. 1999); Lucien, 133 F.3d at 467. Moreover, if the appeal is found to be nonmeritorious,

Plaintiff may also incur a “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.

IT IS SO ORDERED.

DATED: February 13, 2025

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge