Zepeda v. Jeffreys

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

FRANCISCO ZEPEDA, )

)

Plaintiff, )

)

vs. ) Case No. 3:22-cv-03040-GCS

)

VIPIN SHAH and )

SARAH STOVER, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff, an inmate of the Illinois Department of Corrections (“IDOC”), brings the

underlying civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights while incarcerated at Lawrence Correctional Center (“Lawrence”).

(Doc. 1).1 Now before the Court is a Motion for Summary Judgment for Failure to Exhaust

Administrative Remedies and Memorandum of Law in Support by Defendants Dr. Vipin

Shah and Sarah Stover. (Doc. 31, 32). Plaintiff filed a Response and supplemental exhibit.

(Doc. 38, 39). Defendants filed a Reply. (Doc. 40). For the reasons delineated below,

Defendant’s Motion for Summary Judgment is DENIED. (Doc. 31).

1 Plaintiff, at all times relevant, was incarcerated at Lawrence Correctional Center. Plaintiff

was then transferred to Pinckneyville Correctional Center. (Doc. 1). On January 13, 2025, Plaintiff

notified the Court that he is currently incarcerated at Centralia Correctional Center. (Doc. 43).

PROCEDURAL BACKGROUND

Plaintiff filed his Complaint on December 12, 2022, related to medical care Plaintiff

received from October 18, 2018, to June 18, 2021, for ongoing ear-related medical issues,

including pain, hearing loss, and bleeding. (Doc. 1, p. 3-5). The Complaint alleges that

Plaintiff submitted requests for medical screenings on October 18, 2018, December 30,

2018, February 8, 2019, April 1, 2019, May 15, 2019, June 25, 2019, May 27, 2020, and June

15, 2020. Id. Following these requests, Plaintiff claims that he received inadequate medical

consultations and treatment from various providers, including Defendants Shah and

Stover. Id. Specifically, Plaintiff alleges that on November 27, 2018, Shah ignored

Plaintiff’s complaints of ear pain and difficult hearing because Plaintiff’s appointment

was in regard to blood pressure, not ear problems. Id. at p. 2. Plaintiff also alleges that he

saw Stover on August 15, 2019, and June 22, 2020, where she found an infection in

Plaintiff’s ears and prescribed antibiotics and ear drops. Id. at p. 3. Plaintiff argues

Defendants failed to adequately address his ear issues at those appointments, and he also

experienced a delay in receiving necessary hearing aids. Id. Due to the inadequate

medical treatment he received, Plaintiff alleges he filed grievances on July 15, 2019,

August 9, 2019, and January 1, 2021. Id.

On August 4, 2023, the Court conducted its preliminary review of Plaintiff’s

Complaint pursuant to 28 U.S.C. § 1915A. (Doc. 11). The Court allowed Plaintiff to

proceed on the following claim:

Claim 1: Eighth Amendment deliberate indifference claim against

Defendants Dr. Shah, and Stover for their handling of Plaintiff’s ear

problems.

(Doc. 11, p. 4). 2

FACTUAL BACKGROUND

Plaintiff’s grievance records, obtained from the Administrative Review Board

(“ARB”) contain a total of 123 pages, while his records from Pinckneyville Correctional

Center contain a total of 138 pages.3 (Doc. 32, p. 2). In response to Defendants’ subpoena,

the ARB produced Plaintiff’s grievance records from January 1, 2018, to the date of

issuance. (Doc. 32, Exh. A). According to Plaintiff’s grievance records, Plaintiff submitted

a total of zero (0) grievances at Lawrence in 2018 and zero (0) grievance records in 2019.

(Doc. 32, Exh. A, B.) Plaintiff’s first recorded grievance was filed on July 30, 2020.

Defendants have identified three (3) grievances, namely Grievance Nos. 08-20-001,

01-21-036, 01-21-296, which articulate complaints related to Plaintiff’s medical issues

involving his ears. (Doc. 32, p. 3-4). Plaintiff’s Response, however, fails to identify a

specific grievance supporting his claims. (Doc. 38).4 Instead, Plaintiff submits 149 pages

2 The Court dismissed Plaintiff’s claims as to Rob Jeffreys, Dee Dee Brookhart, and Lori

Cunningham. (Doc. 11, p. 8-9).

3 Defendants’ Motion notes that Plaintiff was transferred from Lawrence to Pinckneyville,

which resulted in Plaintiff’s grievance records being transferred to Pinckneyville as well. (Doc.

32, p. 4). For the sake of clarity, the Court will refer to Plaintiff’s grievance records as to the

Lawrence facility as the “Lawrence Records.”

4 Plaintiff later submitted Exhibit C, which was originally omitted from his Response. (Doc.

39). This exhibit includes Wexford’s Provider Handbook, comprising twenty-four (24) pages,

excluding the cover page. Id.

of exhibits, which include Grievance No. 01-21-036 and a rejected grievance, No. 2581-09-

22.5

A. Grievance No. 08-20-001

Plaintiff submitted his first relevant grievance, Grievance No. 08-20-001, on July

30, 2020. (Doc. 32, Exh. A, p. 97-98). This grievance primarily concerns Plaintiff’s

unfulfilled request for a CPAP machine and sleep study to treat his sleep apnea. Id. at p.

97-98. Plaintiff describes his conversations with non-party, Dr. Pittman, regarding these

requests. Id.

Beyond sleep apnea issues, Plaintiff alleges that, since his arrival at Lawrence, he

has had “several medical issues and treatments” that have been ignored, including

delayed medications and lack of access to healthcare despite ongoing ear bleeding over a

period of months. (Doc. 32, Exh. A, p. 97-98). He claims this lack of care led to hearing

loss and ear damage, as evidenced by blood leakage. Id. Plaintiff further states that, after

being evaluated by an “audiologist on 6/25/20” where “it was determined that [Plaintiff]

has hearing loss[,]” he was recommended hearing aids, which he had yet to receive. Id.

He also stated that his “blood pressure [was] being allowed to stay in the stroke range.”

Id.

On August 5, 2020, Grievance No. 08-20-001 was classified as an emergency and

granted expedited review. (Doc. 32, Exh. A, p. 100). On August 13, 2020, healthcare unit

5 Plaintiff’s exhibits include, without explanation or specific reference, amongst other

documents, a mixture of the grievances listed, as well as handbooks, unrelated case information

for cases not before this Court, counseling summaries, patient notes, communication plans.

Defendants’ Motion, as mentioned previously, however, is for summary judgment on the basis

that Plaintiff did not exhaust administrative remedies prior to filing the Complaint. (Doc. 32).

administrator Cunningham reviewed Plaintiff’s medical chart and recommended that

Plaintiff consult an “ENT to discuss audiology report 6/25/2020.” Id. at p. 96. On August

24, 2020, the reviewing grievance officer recommended the grievance be deemed moot

considering Plaintiff was to be seen by an “ENT” to discuss the audiology report. Id. at p.

110. On August 31, 2020, the Chief Administrative Officer (“CAO”) concurred with the

grievance officer’s recommendation. Plaintiff subsequently appealed to the ARB. Id. at p.

96.

On September 8, 2020, Plaintiff submitted a “[Rebuttal] to [Grievance] Counselor’s

Recommendations and Findings” in response to the grievance officer’s decision

regarding Grievance No. 08-20-001. (Doc. 32, Exh. A, p. 112). These materials were

included in Plaintiff’s appeal to the ARB. (Doc. 32, p. 3).

In his letter, Plaintiff reiterated his sleep apnea diagnosis and continued efforts to

obtain a CPAP machine. (Doc. 32, Exh. A, p. 112). He specifically named Dr. Shah, but

only in connection with his difficulty obtaining the CPAP: “[t]he current Doctor, Shah,

told me I needed my sleep study from my family physician to get my CPAP.” Id. Plaintiff

asserted that he signed three medical release forms to obtain his previous sleep study but

still faced delays and difficulties in receiving treatment. Id. He further expressed concerns

about potential fluid buildup due to the lack of treatment. Id.

Plaintiff’s letter also alleged instances of “medical neglect” which Plaintiff

believed to be deliberate. (Doc. 32, Exh. A, p. 112). He referenced an October 2018 incident

where he sought treatment for a possible ear infection accompanied by blood leaking

from his ears, though he did not identify any specific medical provider. Id. Plaintiff

claimed it took over six months to obtain a consultation and that, over two years, he

suffered from three ear infections despite having no prior history of such issues before

arriving at Lawrence. Id. The letter further alleges that when Plaintiff was eventually

evaluated by an audiologist—on an unspecified date after two years of requests—he was

diagnosed with mild hearing loss, likely due to untreated ear infections. (Doc. 32, Exh. A,

p. 112). He concluded his letter by requesting proper medical care. Id.

The ARB subsequently received Plaintiff’s appeal on September 14, 2020. (Doc. 32,

Exh. A, p. 95). The ARB denied Grievance No. 8-20-001 on March 24, 2021. Id. The decision

marked the Grievance as related to “sleep study, hearing loss” and found that “the issue

was appropriately addressed by the facility Administration.” (Doc. 32, Exh. A, p. 95).

B. Grievance No. 01-21-036

On January 1, 2021, Plaintiff submitted Grievance No. 01-21-036, citing an incident

from May 22, 2020, in which he claimed he submitted a request slip to healthcare

reporting ear pain, bleeding, and difficulty hearing. (Doc. 32, Exh. A, p. 122). He stated

that he requested a hearing test but received no immediate response. Id.

That Grievance also alleged that on May 23, 2020, Plaintiff was treated for an ear

infection over a three-day period. (Doc. 32, Exh. A, p. 122). He claimed that he was later

seen by an audiologist on June 25, 2020, who diagnosed him with hearing loss due to a

severe infection and recommended hearing aids. Id. at p. 122-123. Plaintiff stated that he

was referred to an ear, nose, and throat (“ENT”) specialist for further evaluation before

receiving the hearing aids, but he did not see the specialist until October 28, 2020. Id.

Despite requesting hearing aids again on November 23, 2020, Plaintiff stated that, as of

the date of his grievance, he still had not received them. Id.

The reviewing grievance officer received Plaintiff’s grievance on January 8, 2021,

and reviewed it on January 15, 2021. (Doc. 32, Exh. A, p. 122). The reviewing grievance

officer deemed Plaintiff’s grievance moot given Plaintiff’s hearing aid fitting was “in the

process of being scheduled.” Id. at p. 121. The CAO agreed with the grievance officer’s

determination on January 16, 2021. Id. The ARB subsequently received Plaintiff’s

grievance on January 22, 2021, and determined the grievance be likewise deemed moot.

Id. at p. 118.

C. Grievance No. 01-21-296

On January 18, 2021, Plaintiff submitted Grievance No. 01-21-296 regarding

concerns about dry sinuses and treatment by Nurse Practitioner Luking. (Doc. 32, Exh.

A, p. 116). Plaintiff’s grievance was received by the reviewing grievance officer on

January 22, 2021. The reviewing grievance officer received the grievance on January 22,

2021, and deemed it moot, noting that Plaintiff had already been seen and treated by a

medical doctor on the same day. Id. at p. 115. The Chief Administrative Officer (CAO)

concurred, and the ARB, upon receiving the grievance on March 12, 2021, upheld the

mootness determination. Id. at p. 118.

On March 18, 2021, the ARB provided written response to Grievance No. 01-21-

296, dated January 18, 2021, which was based on medical treatment for sinus related

issues on November 27, 2020, December 15, 2020, December 24, 2020, January 9, 2021, and

January 12, 2021. (Doc. 32, Exh. A, p. 114). The grievance was denied on the basis that

“actual treatment / medications ordered is not within the jurisdiction of” the ARB “and

must be ordered by the attending physicians.” 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 National Athletic Sportswear, 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, it is up to the Court to 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.6 Id. at 742. Alternatively, if the Court determines that the failure

to exhaust was the prisoner’s fault, the case is over. Id.

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 attempting to exhaust 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

6 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).

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.”7 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

7 This 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. See 20 ILL. ADMIN. CODE § 504.810(a).

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 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

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

Defendants argue that Plaintiff failed to exhaust his administrative remedies as

required by the PLRA because his grievances fail to identify Defendants Shah or Stover

and were filed outside of the 60-day window.8 (Doc. 32, p. 10-11). Ultimately, the Court

finds these arguments unpersuasive because Plaintiff’s grievances were resolved on the

merits and are thus considered exhausted.

Plaintiff’s case presents issues similar to those in Maddox v. Love, 655 F.3d 709 (7th

Cir. 2011). In that case, the Seventh Circuit held that an inmate’s failure to name or

8 20 ILL. ADMIN. CODE § 504.810(c) requires grievances contain “factual details… including

what happened, when, where and the name of each person who is the subject of or who is

otherwise involved in the complaint.”

describe the defendants, a prison chaplain and prison wardens, in his grievance

concerning denial of religious fellowship did not bar his claim where prison

administrators resolved his grievance on the merits and did not reject it for procedural

deficiencies. See 655 F.3d at 722. The Seventh Circuit explained that the PLRA’s

exhaustion requirement is designed to provide prison officials an opportunity to address

inmate complaints internally, rather than serve as a procedural trap that bars meritorious

claims. Id. When prison officials review a grievance on the merits rather than rejecting it

for procedural defects, the Seventh Circuit held that the grievance has fulfilled its

purpose under the PLRA, such that defendants cannot later argue non-exhaustion. Id.

Furthermore, the Maddox Court reasoned that a grievance need only provide enough

information to allow prison officials to investigate the issue, even if a specific defendant

is not explicitly named in the original grievance. Id.

Here, the Court finds that Plaintiff’s Grievances “serve[d their] function of alerting

the state and inviting corrective action.” Maddox, 655 F.3d at 722.9 In Grievance No. 08-

20-001, Plaintiff complained of months-long “ongoing ear bleeding” and insufficient

medical treatment, which resulted in hearing loss and ear damage. (Doc. 32, Exh. A, p.

97-98). Additionally, in his “Rebuttal” letter, Plaintiff complained that in October 2018 he

sought treatment for a possible ear infection and blood leaking from his ears, but did not

9 Grievance No. 01-21-296, in which Plaintiff complained of dry sinuses, nose bleeds, dry

skin, and treatment provided by non-party Luking, does not appear to grieve Plaintiff’s ear issues

as identified in the Complaint. (Doc. 32, Exh. A, p. 114-117). As the Court finds that Plaintiff

exhausted his administrative remedies based on Grievances Nos. 08-20-001 and 01-21-036, it

declines to address this otherwise unrelated Grievance.

receive a consultation for over six months and suffered from three ear infections during

the two years that followed. Id. at p. 112. Similarly, Grievance No. 01-21-036 complained

that the lack of care Plaintiff received for his ongoing ear bleeding claims led to hearing

loss and ear damage. Id. at p. 97-98. Plaintiff claimed that, after being identified by an

“audiologist on 6/25/20,” “it was determined that [Plaintiff] has hearing loss” and likely

needed hearing aids. Id.

Based on the information provided in these grievances, the Court cannot say that

the prison was prevented from fairly addressing Plaintiff’s complaints. Not naming

defendants in a grievance itself is “ ‘a mere technical defect’ where the inmate sufficiently

describes the alleged wrongdoing to allow prison officials a fair opportunity to

respond.”Saffold v. Illinois Department of Corrections, No. 18 C 3301, 2021 WL 4477930, at

*7 (N.D. Ill. Sept. 30, 2021) (quoting Maddox, 655 F.3d at 722). Plaintiff’s grievances and

his Rebuttal letter identify treatment he received for his ongoing ear issues beginning in

October 2018 that persisted into June 2020. (Doc. 32, Exh. A, p. 97-98, 112). Shah and

Stover, who allegedly saw Plaintiff for ear issues in November 2018, August 2019, and

June 2020, could potentially be identified based on the aggrieved time frame and conduct.

Nevertheless, the Court ultimately need not determine whether Plaintiff’s

grievances lacked information or were untimely because it is too late for Defendants to

raise the issue of exhaustion now. Like in Maddox, Plaintiff’s grievances were reviewed

on the merits at every level of administrative review, and no procedural deficiencies were

cited as a reason for denial. (Doc. 32, Exh. A, p. 95, 118).This alone is sufficient to rebut

Defendants’ argument that Plaintiff failed to exhaust. See, e.g., Maddox, 655 F.3d at 722

(explaining that “[w]here prison officials address an inmate's grievance on the merits

without rejecting it on procedural grounds, the grievance has served its function of

alerting the state and inviting corrective action, and defendants cannot rely on the failure

to exhaust defense.”) (citing Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004); Ford, 362

F.3d at 398). Accordingly, the Court finds Plaintiff has exhausted his administrative

remedies.

CONCLUSION

For the reasons outlined about the Court DENIES Defendants’ Motion for

Summary Judgment for Failure to Exhaust Administrative Remedies. (Doc. 31).

IT IS SO ORDERED.

DATED: March 31, 2025. G b ert C pay sjoned by

Sison

GILBERTC.SISON

United States Magistrate Judge

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