Wisnauski v. Jeffreys

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TIMOTHY WISNAUSKI,

#R27853,

Plaintiff, Case No. 23-cv-02261-SPM

v.

DR. PERCY MYERS, and

CHRISTINE BROWN,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

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

failure to exhaust administrative remedies filed by Defendant Christine Brown. (Doc.

35). Plaintiff Timothy Wisnauski filed a response in opposition. (Doc. 40). For the

following reasons, the motion for summary judgment is denied at this time.

BACKGROUND

Plaintiff Timothy Wisnauski, an inmate of the Illinois Department of

Corrections (“IDOC”) who is currently incarcerated at Hill Correctional Center,

initiated this action pursuant to 42 U.S.C. § 1983 for violations of his constitutional

rights that occurred while at Pinckneyville Correctional Center (“Pinckneyville”).

(Doc. 1, 13). Plaintiff alleges that prior to his transfer to Pinckneyville, because of a

previous injury, he received medical permits to be housed in a cell on a lower gallery

and assigned to a low bunk bed and knee braces. (Doc. 13, p. 6-7). Once Plaintiff was

transferred to Pinckneyville, the permits were no longer honored, and he was not

appointment with Nurse Christine Brown, during which he explained his need for a

low bunk/low gallery permit and knee braces. (Id. at p. 6). Despite showing her his

medical file, Brown did not conduct a medical evaluation and told Plaintiff that he

did not need the permit nor the knee brace. (Id.).

On November 11, 2021, Plaintiff was seen by Dr. Myers to discuss his blood

work results. (Doc. 13, p. 6). While with Dr. Myers, Plaintiff brought up his fall when

attempting to crawl down from his top bunk bed, which occurred because of Plaintiff’s

previous leg injury. Plaintiff showed Dr. Myers his bruised and swollen knees and

requested a low bunk/low gallery permit and knee braces. Dr. Myers stated that he

would only discuss Plaintiff’s blood work and would not give Plaintiff a low bunk/low

gallery permit nor knee braces. (Id.).

After the Court review of the First Amended Complaint, Plaintiff is proceeding

with the following claim.

Count 1: Eighth Amendment claim against Defendants Brown and

Myers for deliberate indifference to Plaintiff’s serious

medical need by failing to issue and/or honor his medical

permits for knee braces and a low bunk/low gallery

assignment.

(Doc. 18).

On October 11, 2024, Defendant Brown filed a motion for summary judgment

arguing that Plaintiff failed to exhaust his administrative remedies prior to initiating

this suit, as is required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

1997e(a). (Doc. 35).1 Brown argues that the administrative procedures at

1 Defendant Myers did not raise failure to exhaust as an affirmative defense and did not file a motion for summary

judgment on the issue of exhaustion. (See Doc. 26).

the October 14, 2021 grievance, the only grievance relevant to Plaintiff’s allegations

of deliberate indifference against her, cannot serve to exhaust Plaintiff’s claim

because Plaintiff did not appeal his grievance to the IDOC Director as the

Administrative Review Board and did not properly name or describe Brown. Because

Plaintiff bypassed the grievance process and filed this lawsuit before fully

exhausting, his claim should be dismissed.

In response, Plaintiff argues that he could not name Brown in his October 14,

2021 grievance because Brown did not wear an identifying badge and refused to

provide Plaintiff with her name during his appointment with her on September 18,

2021. (Doc. 40, p. 2). Plaintiff only became aware of Brown’s name once she was

promoted to Pinckneyville’s Medical Director. (Id). Plaintiff asserts that on November

23, 2021, he mailed the appeal for the October 14, 2021 grievance to the Director, Rob

Jeffreys. (Id.). Plaintiff states that Jeffreys stepped down from his position as Director

in April 2023 without ever responding to Plaintiff’s appeal. Because Plaintiff “did

everything within [his] power,” Plaintiff argues that he did not fail to exhaust his

administrative remedies and the motion for summary judgment should be denied.

(Doc. 40, p. 3).

LEGAL STANDARDS

I. Summary Judgment

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

resolved in favor of the nonmoving party. Lawrence v. Kenosha Cty., 391 F.3d 837,

841 (7th Cir. 2004). The moving party is entitled to judgment as a matter of law when

the pleadings, answers to interrogatories, depositions, and admissions, along with

affidavits, show that there is no genuine issue of material fact. FED. R. CIV. P. 56(c).

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);2 Roberts v. Neal, 745 F. 3d 232, 236 (7th Cir. 2014).

Where there is no disputed issue of fact, a hearing is not necessary.

II. Exhaustion of Administrative Remedies

Lawsuits filed by inmates are governed by the provisions of the 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

2 The Court's ability to conduct Pavey hearings for evidentiary disputes on exhaustion was altered slightly by the

Supreme Court’s holding in Perttu v. Richards, 605 U.S. ____, 145 S.Ct. 1793 (June 18, 2025) (holding that if a

factual dispute on exhaustion is intertwined with a factual dispute that goes to the merits of the underlying substantive

claim, then a jury trial is required on the intertwined issue(s)). In the present case, there is no Perttu intertwinement

issue.

438 F.3d 804, 809 (7th Cir. 2006) (noting that “[t]his circuit has taken a strict

compliance approach to exhaustion”). 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

The grievance procedure for IDOC inmates is laid out in the Illinois

Administrative Code (“grievance procedures”). 20 ILL. ADMIN. CODE § 504.800, et seq.

If the inmate’s grievance does not involve an emergency, the inmate must first file a

grievance with the counselor within 60 days of the discovery of an incident. Id. at §

504.810(a). The grievance form must contain factual details regarding what

happened, when, where, and the name of each person who is involved in the

complaint. Id. at 504.810(c). When the name of an individual is unknown, the inmate

must include as much descriptive information about the person as possible. Id.

Grievances that are unable to be resolved through the counselor are then sent

to the grievance officer. Id. at § 504.820(a). “The Grievance Officer shall consider the

grievance and report his or her findings and recommendations in writing to the Chief

Administrative Officer (“CAO”) within two months after receipt of the grievance,

when reasonably feasible under the circumstances.” Id. at § 504.830(e). The CAO then

reviews the findings and recommendation of the grievance officer and advises the

offender of his or her decision in writing. Id. If the inmate is not satisfied with the

response from the CAO, he can file an appeal the decision to IDOC Director at the

504.850(a).

ANALYSIS

The parties agree that relevant to the deliberate indifference claim in this case

is Grievance #3393-10-21, dated October 14, 2021. (Doc. 35-2). Defendant Brown

argues that this grievance cannot serve to exhaust Plaintiff’s deliberate indifference

claim because Plaintiff did not properly name Brown in the grievance and because

Plaintiff did not appeal his grievance to the ARB. (Doc. 35, p. 7). Brown claims that

Plaintiff had available remedies that he did not utilize in attempting to exhaust his

allegations in Count 1. See 42 U.S.C. § 1997e(a).

The Court finds the argument that the October 14, 2021 grievance cannot serve

to fully exhaust Plaintiff’s claim because it does not clearly identify Brown by name

or description not well taken. Indeed, Plaintiff did not name Brown in his grievance

nor his original Complaint, filed on June 29, 2023. However, Plaintiff explains he

could not name Brown because she wore “no identifying badges or name tag” and

“refused to identify herself.” (Doc. 35-2, p. 1); (Doc. 40, p. 2). The fact that Brown is

not identified by name in the grievance is not “fatal to the issue of exhaustion.” See

Arce v. Wexford Health Services, No. 18-cv-1348-SMY-GCS, 2019 WL 6702692, at *5

(Oct. 9, 2019). The grievance procedures instruct an inmate to name or at least

describe, “each person who is the subject of or who is otherwise involved in the

complaint,” 20 ILL. ADMIN. CODE §504.810(c), which is what Plaintiff did. In the

grievance, Plaintiff describes his interaction with a female “person from medical” on

September 18, 2021, who was rude and interrupted him as he attempted to explain

3-4). For relief, he requests a low bunk/low gallery permit, knee braces, and pain

management medication, and he states that since arriving at Pinckneyville he has

injured himself climbing in and out of the top bunk bed. (Id. at p. 4). Based on this

information, Plaintiff provided enough details to alert prison officials about his

dispute with medical staff and that he believed he was not being provided proper

medical care for his knee/leg/foot issues. Thus, the October 14, 2021 grievance meets

the content requirements of the grievance procedures.

Although the October 14, 2021 grievance provided sufficient notice of the

nature of Plaintiff’s claim against Brown, the Court finds that a disputed issue of fact

remains regarding whether the grievance process was available to Plaintiff in his

attempt to fully exhaust the October 14, 2021 grievance. An inmate “must exhaust

available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 578 U.S.

632, 642 (2016); Wallace v. Baldwin, 55 F.4th 535, 542-44 (7th Cir. 2022). And, “an

administrative scheme can be ‘unavailable’ to a prisoner when a prison fails to

respond to a prisoner’s grievance,” Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020),

as is alleged here by Plaintiff.

Brown argues that the October 14, 2021 grievance was fully reviewed at the

institutional level but that Plaintiff failed to appeal the grievance to the Director at

the ARB. (Doc. 35). Grievance records indicate that the grievance was returned to

Plaintiff on November 24, 2021 (Doc. 35-2, p. 10), but there is no record of the

grievance being received and reviewed by the ARB (see Doc. 35-1, p. 1). Plaintiff

contends that he received a copy of his grievance signed by the CAO on November 22,

copies, and mailed his appeal to the ARB using prepaid postage on November 23,

2021. (Doc. 40, p. 2, 6, 7). Plaintiff does not provide a copy of his prepaid postage

receipt, but he has provided a copy of the grievance officer’s report signed by the CAO

with the bottom portion “Offender’s Appeal to the Director” signed and dated

“11/23/2021.” (Id. at p. 7). Plaintiff claims that once mailed to the ARB the October

14, 2021 grievance was never returned to him, and he never received a response from

the Director. (Id. at p. 2). Plaintiff alleges in his sworn affidavit that he had fully

exhausted his administrative remedies at the time he filed the Complaint, as he

completed “all required steps of the grievance process.” (Doc. 40, p. 6). Given the

conflicting evidence, the Court cannot say as a matter of law that Brown has met her

burden of demonstrating that Plaintiff had available remedies that he did not utilize

in attempting to exhaust his claim in Count 1. Because there is a factual dispute as

to whether Plaintiff fully exhausted Grievance #3393-10-21, dated October 14, 2021,

prior to initiating this action, this matter will be set for a hearing in accordance with

Pavey, 544 F.3d at 742 .

If Brown would like to pursue this affirmative defense for failure to exhaust

administrative remedies any further at this point, she must request a Pavey hearing

within fourteen days. If a hearing is requested, the issues the Court will consider are

limited to whether Plaintiff abided by grievance procedures in appealing the October

14, 2021 grievance and whether the grievance went unanswered rendering the

grievance process unavailable to him. The parties will be expected to present evidence

only on these issues, if a Pavey hearing is held. If Brown does not request a Pavey

merits discovery, or the parties may request that the case be referred for a settlement

conference or mediation.

DISPOSITION

The motion for summary judgment on the issue of exhaustion of administrative

remedies filed by Defendant Brown is DENIED. (Doc. 35). Defendant Brown must

file a notice within fourteen days (14) of this Order either withdrawing the affirmative

defense of exhaustion or requesting a Pavey hearing. Failure to file a notice by

this deadline and in compliance with this Order will result in a waiver of

this affirmative defense.

IT IS SO ORDERED.

DATED: July 17, 2025

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge