Francisco Zepeda v. Wexford Health Care Sources, Inc., et al.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

FRANCISCO ZEPEDA, )

)

Plaintiff, )

)

vs. ) Case No. 24-CV-818-MAB

)

WEXFORD HEALTH CARE )

SOURCES, INC., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the Motion for Summary Judgment on

the Issue of Exhaustion of Administrative Remedies filed by Defendant Latoya Hughes,

in her official capacity as the Director of the Illinois Department of Corrections (Doc. 45),

as well as Plaintiff’s Motions for Recruitment of Counsel (Docs. 51, 53) and Motion for

Status (Docs. 54). For the reasons set forth below, Defendant Hughes’ Motion for

Summary Judgment on the Issue of Exhaustion of Administrative Remedies is

GRANTED (Doc. 45), Plaintiff’s Motion for Recruitment of Counsel is GRANTED (Doc.

53), Plaintiff’s Motion to Appoint Counsel is DENIED as MOOT (Doc. 51), and Plaintiff’s

Motion for Status is GRANTED (Doc. 54).

BACKGROUND

Plaintiff Francisco Zepeda filed this action pursuant to 42 U.S.C. § 1983 for alleged

deprivations of his constitutional rights while incarcerated at Pinckneyville Correctional

Center (“Pinckneyville”) (see Docs. 1, 10). Plaintiff’s First Amended Complaint alleges

that he suffers from sleep apnea and uses a CPAP machine to breathe at night (Doc. 11,

p. 2). On January 28, 2022, Plaintiff tested positive for Covid-19 (Id.). One day later, a Jane

Doe nurse and John Doe Correctional Officer came to Plaintiff’s cell and confiscated his

CPAP machine (Id.). Although Plaintiff attempted to explain that he needed a CPAP

machine to help him breathe while suffering from Covid-19, the nurse insisted that the

CPAP machine had to be confiscated for 21 days due to Plaintiff’s Covid-19 diagnosis

(Id.).

On February 7, 2022, Plaintiff requested pain medication to help alleviate the

severe headaches he developed due to the loss of his CPAP machine (Id. at p. 3). On

February 23, 2022, Plaintiff spoke with a nurse and requested his CPAP machine be

returned because more than 21 days had lapsed since it was confiscated (Id.). Plaintiff’s

wife also called the prison on that date and spoke with Defendant Christine Brown, the

Healthcare Unit Administrator at Pinckneyville (Id.). Plaintiff’s wife asked Defendant

Brown when Plaintiff’s CPAP machine would be returned because Plaintiff was suffering

from pitting edema, headaches, fatigue, and increased hypertension (Id.). Defendant

Brown told Plaintiff’s wife that the prison was in the process of returning all of the

confiscated CPAP machines (Id.).

On March 3, 2022, an inmate told Plaintiff that his confiscated CPAP machine had

been returned to him (Id.). Although Plaintiff sent a request to healthcare, medical records

from that time indicate Plaintiff’s CPAP machine was either lost or deemed non-

functional due to mold (Id.; see also Doc. 47 at pp. 83, 85-86). On March 11, 2022, Plaintiff

was informed by a nurse that his CPAP machine would have to be reissued to him (Doc.

11 at p. 3). Two days later, Plaintiff wrote to Defendant Christel Crow, an Assistant

Warden at Pinckneyville, informing her of his medical issues and his efforts to have his

CPAP machine returned (Id.). Plaintiff then spoke with a counselor, who notified Plaintiff

on March 24, 2022, that his CPAP machine had been lost and a new machine was already

ordered (Id. at pp. 3-4). Plaintiff filed a grievance thereafter (Id. at p. 4). Finally, on May

17, 2022, Plaintiff received a replacement CPAP machine (Id.).

Plaintiff filed his initial Complaint on March 20, 2024 (Doc. 1). Thereafter, Plaintiff

filed the operative, First Amended Complaint on June 24, 2024 (Doc. 10). The Court

conducted a preliminary review of the First Amended Complaint pursuant to 28 U.S.C.

§ 1915A and Plaintiff was allowed to proceed on the following claims:

Count 1: Eighth Amendment deliberate indifference claim against Jane

Doe Nurse and John Doe Officer for initially confiscating

Zepeda’s CPAP machine.

Count 2: Eighth Amendment deliberate indifference claim against

Christine Brown for delaying the return of Zepeda’s CPAP

machine.

Count 3: ADA and/or RA claim against [Defendant Latoya Hughes, in

her official capacity as the Director of the IDOC] for the initial

confiscation and the delay in returning Zepeda’s CPAP

machine.

Count 4: Eighth Amendment deliberate indifference claim against

Wexford Health Sources, Inc. for having policies and practices

that led to the delays in returning Zepeda’s CPAP machine.

Count 5: Eighth Amendment deliberate indifference claim against

Warden Christel Crow for failing to ensure that Zepeda

received his CPAP machine.

(Doc. 11 at pp. 4-7).

As outlined in the Court’s Merit Review Order, John Barwick, the Warden of

Pinckneyville, was added as a Defendant, in his official capacity, to help identify the

unknown Defendants (Id. at p. 5). However, on April 24, 2025, Defendants John Doe

Officer and Jane Doe Nurse, as well as Defendant Barwick, were dismissed without

prejudice because Plaintiff failed to timely identify the unknown Defendants (Doc. 48).

Consequently, the claim in Count 1 which was proceeding against the unknown

Defendants was also dismissed without prejudice (Id.).

Meanwhile, on April 10, 2025, Defendant Hughes filed the instant Motion for

Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 45).

Plaintiff timely filed a Response in Opposition on April 23, 2025 (Doc. 47). Defendant

Hughes then filed a Reply in Support on May 1, 2025 (Doc. 49). None of the other

Defendants timely filed an exhaustion-based summary judgment motion.

Additionally, on May 1, 2025, Plaintiff filed a Motion to Appoint Counsel and

Response to the Court’s Order dismissing Defendant Barwick and the two unknown

Defendants (Docs. 51, 52). Approximately one month later, Plaintiff filed a second Motion

for Recruitment of Counsel (Doc. 53). Lastly, on November 6, 2025, Plaintiff filed a Motion

for Status (Doc. 54).

LEGAL STANDARD

I. Summary Judgment Standards

Summary judgment is appropriate if the movant shows there is no genuine issue

as to any material fact and they are entitled to judgment as a matter of law. FED. R. CIV.

P. 56(a). In making that determination, the Court “generally will construe all facts and

reasonable inferences in the light most favorable to the non-moving party.” Apex Digital,

Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013). Courts cannot resolve factual

disputes in favor of the party seeking 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). Nevertheless, “[t]he

nonmoving party must do more than simply show that there is some metaphysical doubt

as to the material facts.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010).

II. Exhaustion Requirements

As provided in the Prison Litigation Reform Act, “[a] prisoner may not bring a

federal suit about prison conditions unless he first has exhausted all available

administrative remedies.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011) (citing 42

U.S.C. § 1997e(a)). A remedy has not been exhausted if the prisoner has failed to abide by

the procedures for pursuing relief. Id. Thus, to properly exhaust one’s administrative

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).

However, an inmate is not required to exhaust administrative remedies that are

not actually available to him. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016)

(“Remedies that are genuinely unavailable or nonexistent need not be exhausted.”). The

Seventh Circuit has “found remedies unavailable in a number of instances in which the

inmate, through no fault of his own, could not have accessed the grievance procedure.”

Lanaghan v. Koch, 902 F.3d 683, 688 (7th Cir. 2018); see, e.g., Ramirez v. Young, 906 F.3d 530,

537 (7th Cir. 2018) (grievance procedure was unavailable where prisoner was not notified

of their existence because of his lack of English proficiency). Additionally, failure to

exhaust is an affirmative defense that the defendants carry the burden of proving.1

Ramirez, 906 F.3d at 533. “To meet their burden, the defendants must show beyond

dispute that remedies were available.” Id. at 534.

III. IDOC Grievance Procedures

Individuals incarcerated within the Illinois Department of Corrections (IDOC) are

required to follow the grievance procedure outlined in the Illinois Administrative Code

to exhaust their administrative remedies. See 20 Ill. Admin. Code § 504.800, et seq. (2017).

To initiate the normal grievance process, an inmate must file a grievance with their

institutional counselor within 60 days of the discovery of the incident. Id. at § 504.810(a).

After the counselor provides a response, an inmate may submit his grievance to a

grievance officer who is to report his or her findings and recommendations to the Chief

Administrative Officer (the “warden”) within two months. Id. at 504.830(e). The warden

reviews the grievance officer’s findings and recommendations, and then provides a

1 In most instances, when considering a motion for summary judgment based upon a prisoner’s alleged

failure to exhaust his or her 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.

Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)).

Accord Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014). However, an evidentiary hearing is not necessary

when there are no material factual disputes. See Doss v. Gilkey, 649 F. Supp. 2d 905, 912 (S.D. Ill. 2009) (no

hearing required where there are “no disputed facts regarding exhaustion, only a legal question”). Here,

the Court is able to rule upon Defendant Hughes’ motion without conducting a hearing as there are no

material issues of fact that require a hearing to resolve. See Robinson v. Budde, No. 18-CV-6998, 2021 WL

1722857, at *4 (N.D. Ill. Apr. 30, 2021) (“Since the parties agree on the facts, there is no need for a hearing.”).

written decision. Id. If an inmate is unsatisfied with the warden’s decision, he has 30 days

from the date of the warden’s decision to appeal to the Administrative Review Board

(ARB). Id. at § 504.850(a). The ARB then submits a written report to the Director of the

IDOC, who makes a final decision within six months, when reasonably feasible. Id. at §

504.850(e).

Alternatively, an inmate can request for his or her grievance to be handled on an

emergency basis by submitting the grievance directly to the warden. Id. at § 504.840. If

the warden determines the grievance should not be handled as an emergency, the inmate

is notified in writing that he or she may resubmit the grievance in accordance with the

standard grievance process. Id. at § 504.840(c). Conversely, if the warden determines the

grievance is an emergency, the warden must expedite processing of the grievance and

respond by indicating what action shall be or has been taken. Id. at § 504.840(b). Likewise,

if an inmate seeks to appeal the warden’s decision on a grievance that has been found to

be an emergency, the ARB is also required to expedite processing of the grievance. Id. at

§ 504.850(f).

Discussion

I. Defendant Hughes’ Motion for Summary Judgment on the Issue of Exhaustion

a. Grievance No. 980-04-22

Defendant Hughes has presented evidence, which Plaintiff has not disputed,

which demonstrates that only one grievance is potentially relevant to the issue of whether

Plaintiff exhausted his administrative remedies for his ADA/RA claim (see Doc. 45-1, pp.

1-2; Doc. 45-2, pp. 4-5) (Plaintiff’s ARB Grievance Log and a supporting affidavit from

ARB Chairperson Ryan Nothnagle). That grievance, Grievance No. 980-04-22, was dated

April 4, 2022, and deemed by the Warden to be an emergency one day later (Doc. 45-1 at

pp. 6-7). On the top of Grievance No. 980-04-22, Plaintiff marked that the nature of his

grievance was “Medical Treatment.” (Id. at p. 6). Plaintiff then provided a summary of

events, that is substantially similar to those contained in his First Amended Complaint,

which explained how his CPAP machine was confiscated by an officer and a nurse on

January 29, 2022 (Id.).

The grievance then summarized several of the subsequent events related to

Plaintiff’s CPAP machine, including: (1) Plaintiff’s February 7, 2022, request for pain

medication to assist with headaches he was constantly experiencing after his CPAP

machine had been confiscated; (2) his conversation with a nurse on February 23, wherein

the nurse indicated she did not know when the CPAP machines would be returned; (3)

his wife’s call with Defendant Brown on February 23 asking about Plaintiff’s CPAP

machine; (4) a request Plaintiff sent to healthcare on March 3 informing them of his

ongoing ailments related to the loss of his CPAP machine including pitting edema,

headaches, fatigue, and blood pressure, and requesting his CPAP machine be returned;

(5) Plaintiff learning that another inmate had his confiscated machine returned on or

before March 3; (6) the follow-up request Plaintiff sent to healthcare on March 10

repeating his medical issues and requesting his CPAP machine be returned; (7) Plaintiff

learning from a nurse on March 11 that his CPAP machine would have to be reissued; (8)

Plaintiff’s letter to Defendant Crow on March 13, informing her of his health issues

related to the loss of his CPAP machine and the need for it to be returned because it was

prescribed for a chronic illness; and (9) Plaintiff’s conversation with his counselor and his

counselor’s reply on March 24, 2022, which indicated that a replacement CPAP was

ordered (Id. at p. 7).

Plaintiff concluded the body of Grievance No. 980-04-22 by stating, “[i]t has been

approximately 65 days since my CPAP was taken and Pinckneyville C.C. has displayed

a deliberate indifference to my healthcare needs for a chronic illness that has been

confirmed and diagnosed by the [IDOC] by refusing to supply me with my prescribed

medical device, CPAP. This deliberate indifference has created additional comorbidities

and has exacerbated other health issues, which the CPAP treatment controlled for me.”

(Id.). Additionally, in the relief requested section, Plaintiff sought the immediate return

of his CPAP machine and all necessary supplies, as well as to not be retaliated against for

filing medical grievances. (Id. at p. 6).

Grievance Officer C. Hale reviewed Plaintiff’s grievance on April 13, 2022, and

determined that it should be affirmed (Id. at p. 4). The Grievance Officer contacted

Defendant Brown (the HCUA at Pinckneyville) who explained that healthcare was

instructed to not allow CPAP machines in cells with Covid-19 quarantines (Id. at p. 5).

Defendant Brown’s response then acknowledged that Plaintiff’s CPAP machine could

not be found and Wexford had ordered him a new machine and mask, which was to be

delivered to Plaintiff as soon as it was received. (Id.). The Warden concurred in the

Grievance Officer’s report and recommendation on April 15, 2022 (Id. at p. 4).

Plaintiff appealed the Warden’s decision to the ARB one week later (Id.). The ARB

board member who reviewed Plaintiff’s appeal contacted Pinckneyville to see if Plaintiff

had received a new CPAP machine to replace the one that had been lost after its

confiscation (see Doc. 47 at p. 96). Defendant Brown responded that a replacement CPAP

machine had been ordered on March 14 and, according to Wexford, takes 6 to 8 weeks to

arrive (Id.). As such, Defendant Brown wrote that she requested Wexford to check on it,

and they anticipated its arrival in the next week (Id.). Ultimately, the ARB determined

Plaintiff’s appeal to be MIXED, finding that “the facility affirm the machine was lost and

they have ordered a new machine on March 14th, however the facility was advised that it

would take up to 8 weeks for delivery.” (Doc. 45-1 at p. 3).

b. Analysis

Defendant Hughes argues that she is entitled to summary judgment on Count 3

because Grievance No. 980-04-22 failed to provide prison officials with notice of

Plaintiff’s ADA/RA claim (see generally Doc. 45). In response, Plaintiff emphasizes that

his grievance identified his chronic illness of sleep apnea and the harms he was suffering

due to the absence of his CPAP machine (see generally Doc. 47). Therefore, Plaintiff

contends that a factfinder could infer that he “would suffer an inability to sleep without

his prescribed CPAP machine and that such a denial prevented access to the established

program or activity of sleep.” (Id. at p. 8).

The statutory purpose of requiring inmates to exhaust administrative remedies is

to “give the prison administration an opportunity to fix the problem-or to reduce the

damages and perhaps to shed light on factual disputes that may arise in litigation even if

the prison’s solution does not fully satisfy the prisoner.” Pozo, 286 F.3d at 1024. A

grievance is sufficient “if it alerts the prison to the nature of the wrong for which redress

is sought.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002); Turley v. Rednour, 729 F.3d

645, 649 (7th Cir. 2013) (“The exhaustion requirement’s primary purpose is to alert the

state to the problem and invite corrective action.”) (internal quotation marks and citation

omitted). Notably, however, grievances that do not provide notice of an inmate’s actual

claim are insufficient to exhaust remedies as to that claim. See Ross v. Lamb, No. 19-CV-

577-DWD, 2021 WL 4820369, at *3 (S.D. Ill. Oct. 15, 2021) (A grievance that primarily

discussed a disciplinary ticket was “insufficient to alert prison officials that [the plaintiff]

was grieving the failure to protect him from a dangerous situation or the failure to get

him adequate medical care in its aftermath.”).

Having thoroughly reviewed Grievance No. 980-04-22, the Court finds that

grievance does not identify Plaintiff’s ADA/RA claim raised in Count 3 (see generally Doc.

45-1 at pp. 6-7). Significantly, Grievance No. 980-04-22 includes a lengthy discussion of

the removal of Plaintiff’s CPAP machine, the information Plaintiff was told relating to its

return, the harms he suffered due to its removal, and the “deliberate indifference” to his

medical needs displayed by prison officials in removing his CPAP machine and delaying

its return (Id.). Notably absent from Plaintiff’s grievance, however, is any direct

discussion of Plaintiff’s alleged disability, need for an accommodation, or belief that he

was being denied benefits, services, or activities (Id.). See Wagoner v. Lemmon, 778 F.3d

586, 592 (7th Cir. 2015) (“To establish a violation of Title II of the ADA, the plaintiff must

prove that he is a qualified individual with a disability, that he was denied the benefits

of the services, programs, or activities of a public entity or otherwise subjected to

discrimination by such an entity, and that the denial or discrimination was by reason of

his disability.”). Thus, in the same way the prison officials’ responses indicate that at the

time of review, they perceived Grievance No. 980-04-22 as solely identifying Plaintiff’s

deliberate indifference claims (see Doc. 45-1 at pp. 3-5), the Court’s own analysis leads to

the same conclusion. Quite simply, nothing in Grievance No. 980-04-22―from its

recollection of events and interactions related to his CPAP machine’s confiscation and

delayed return, to its request for relief―provided fair notice that Plaintiff was grieving an

ADA/RA issue. And to the extent it even needs to be stated, identifying an Eighth

Amendment deliberate indifference claim is not the same as identifying an ADA/RA

claim.2 See McDaniel v. Syed, 115 F.4th 805, 825 (7th Cir. 2024) (“As a general matter, the

ADA and the Rehabilitation Act do not apply to issues of allegedly inadequate medical

treatment.”).

Additionally, while not dispositive on its own, the Court notes that Plaintiff

specifically checked the box indicating the nature of his grievance was “Medical

Treatment” and left the “ADA Disability Accommodation” box next to it blank (see Id. at

p. 6).3 If Grievance No. 980-04-22 was intended to identify Plaintiff’s ADA/RA claim, then

2 Furthermore, Grievance No. 980-04-22 states that Plaintiff learned on March 3, 2022, that another inmate

had his CPAP machine returned to him by that date (see Doc. 45-1 at p. 7). Pertinently, such a distinction

from Plaintiff’s own situation could provide additional notice of Plaintiff’s deliberate indifference claims

because it highlights the unique, prolonged delay Plaintiff experienced. However, such a distinction

between Plaintiff and other inmates who use CPAP machines arguably undercuts Plaintiff’s contention

that Grievance No. 980-04-22 provided notice of his ADA/RA claim because it appears to demonstrate that

Plaintiff believed the delay he experienced was due to deliberate indifference unique to him, and not due

to a failure to accommodate a group of inmates who utilize CPAP machines.

3 To be clear, the Court is by no means implying that a grievance can only exhaust claims to which the

inmate has checked off the corresponding “Nature of Grievance” box on the top of his or her grievance.

Rather, in this specific instance, the Court emphasizes this point because it is readily distinguishable from

a past case that reviewed a similar exhaustion-based challenge to an ADA claim, wherein the district court

found that the ADA accommodation box having been “checked” supported the conclusion that the

grievance identified and exhausted the plaintiff’s ADA claim. Brady v. Illinois Dept. of Corr., 23-CV-00295-

identifying the nature of his grievance as including “ADA Disability Accommodation”

would certainly have aided prison officials in understanding as much. For example, in

Brady v. Illinois Dept. of Corr., the district court dealt with a similar challenge as to whether

a grievance identified the plaintiff’s ADA claim. 23-CV-00295-SMY, 2024 WL 4263103, at

*5 (S.D. Ill. Sept. 23, 2024). Significantly, in contrast to Plaintiff’s grievance in this case,

the grievance at issue in Brady specifically marked that it concerned an “ADA Disability

Accommodation.” Id. For this reason, as well as the fact that the plaintiff’s grievance

mentioned his “ADA watch” and directly identified the “ADA Coordinator,” the court

found the plaintiff had exhausted his administrative remedies as to that ADA claim. Id.

In fact, even Plaintiff’s strongest arguments show how readily distinguishable this

case is from Brady. For instance, Plaintiff argues that Grievance No. 980-04-22 identified

his disability by mentioning he had a “chronic illness.” (Doc. 47 at pp. 8-9). Yet, at no

point does Grievance No. 980-04-22 use the word “disability” or even specify what

Plaintiff’s chronic illness was (i.e., sleep apnea) (see Doc. 45-1 at p. 7). See Brown v. Fromolz,

21-CV-542-BHL, 2024 WL 4527288, at *3 (E.D. Wis. Oct. 18, 2024) (Finding a grievance did

not exhaust an inmate’s administrative remedies because “none of his inmate complaints

said that he was ‘disabled,’ that he had a condition so severe that it prevented him from

walking or standing, that he made an ADA/RA request that was improperly denied, or

that he believed his ADA/RA rights were even violated at all. The ICE therefore

SMY, 2024 WL 4263103, at *5 (S.D. Ill. Sept. 23, 2024); see also Cortez v. Wexford Health Source, Inc., 3:19-CV-

01238-SMY-MAB, 2022 WL 802282, at *2 (S.D. Ill. Feb. 23, 2022) (noting several grievances regarded ADA

disability accommodation and finding they served to identify and exhaust the plaintiff’s corresponding

ADA/RA claim).

reasonably construed the three inmate complaints from March 2021 as a ‘medical’ and/or

‘housing’ dispute, not a disability for which reasonable accommodations were denied

under the ADA.”).

Plaintiff’s argument that Grievance No. 980-04-22 identified that he was being

deprived of a program, activity, or service because it claimed he was being deprived of

sleep suffers from similar flaws (Doc. 47 at pp. 8-9). Namely, even when viewed in the

light most favorable to Plaintiff, the only portions of Grievance No. 980-04-22 that could

be construed as mentioning sleep are two instances where it listed “fatigue” alongside

several other symptoms Plaintiff allegedly informed prison officials he was experiencing

due to the lack of his CPAP machine (Doc. 45-1 at p. 7). In other words, Grievance No.

980-04-22 never once used the word “sleep” and, on the two occasions where it

mentioned “fatigue,” it did so in a context that would not have provided prison officials

with fair notice that Plaintiff was actually grieving the denial of access to sleep or sleeping

facilities by reason of his disability. See Hacker v. Dart, 62 F.4th 1073, 1084 (7th Cir. 2023)

(“Hacker never described or alluded to any problems with receiving medication, access

to Cermak Health’s medical services, or access to prison services more generally. Without

that link, prison officials did not have fair notice that Hacker wanted the personal

listening device because he could not hear medical staff calling out his name while

dispensing medication.”); Brown, 2024 WL 4527288 at *3 (“Brown’s inmate complaints

from March 2021, complaining about knee pain and that his cellmate’s walker posed a

‘fire hazard,’ would not have given the ICE notice that he was alleging that he was a

disabled inmate whose ADA/RA rights were violated.”).

For all these reasons, the Court finds that Grievance No. 980-04-22 failed to

adequately identify Plaintiff’s ADA/RA claim in Count 3. See Williams v. Baldwin, 239 F.

Supp. 3d 1084, 1092 (N.D. Ill. 2017) (“But plaintiff never formally complained about, or

even mentioned, the TABE test on his written grievance, even though it could have easily

been included, and that failure to comply with the clear requirements of the IDOC’s

grievance policy is what now forecloses his claim.”); Schillinger v. Kiley, 954 F.3d 990, 996

(7th Cir. 2020) (“Schillinger’s grievance raised two entirely different problems: no guards

were nearby when the attack occurred, and the responding guards took too long to come

to his aid. This did not give the prison notice of the claim at issue here, which concerns

events preceding the attack and conduct by officers who were not mentioned in the

grievance.”). Furthermore, Plaintiff has not disputed Defendant Hughes’ evidence or

attempted to argue that he filed other grievances which could have exhausted his

administrative remedies for his ADA/RA claim. Consequently, Plaintiff has failed to

exhaust his administrative remedies as to his ADA/RA claim in Count 3. As a result,

Defendant Hughes’ Motion for Summary Judgment on the Issue of Exhaustion of

Administrative Remedies is GRANTED (Doc. 45) and Count 3 is DISMISSED without

prejudice. Furthermore, because Count 3 was the only claim proceeding against

Defendant Hughes, Defendant Hughes is also DISMISSED without prejudice.

II. Plaintiff’s Motions for Recruitment of Counsel

Plaintiff has also filed a Motion to Appoint Counsel (Doc. 51) and Motion for

Recruitment of Counsel (Doc. 53). In those motions, Plaintiff argues that he should be

appointed counsel because he lacks the capabilities to continue representing himself, is

incarcerated, and suffers from numerous medical conditions that he must prioritize (see

Doc. 53 at pp. 1-2). Additionally, in Plaintiff’s “Motion to Appoint Counsel,” he also asks

the Court to reconsider its prior Order Dismissing John Doe Officer and Jane Doe Nurse

because he believes Defendants know who the unknown Defendants are, and Plaintiff

has no further means of identifying them (Doc. 51 at p. 1). The Court’s analysis of

Plaintiff’s motions focuses upon his later-filed Motion for Recruitment of Counsel (Doc.

53) because that motion includes additional, relevant documentation that supports his

request for counsel (compare Doc. 53 with Doc. 51).

Generally, when presented with a request to appoint counsel, the Court must

make the following inquiries: (1) has the indigent plaintiff made a reasonable attempt to

obtain counsel or effectively been precluded from doing so, and (2) given the difficulty

of the case, does the plaintiff appear competent to litigate it himself. See Pruitt v. Mote,

503 F.3d 647, 654-55 (7th Cir. 2007). Here, Plaintiff’s Motion for Recruitment of Counsel

demonstrates both Plaintiff’s indigency (see Doc. 53 at pp. 8-10) and his reasonable

attempts to obtain counsel on his own (Id. at pp. 4-7) (containing three letters Plaintiff

sent to prospective counsel and one rejection letter he received). For these reasons, the

Court finds Plaintiff has satisfied the first prong of Pruitt by demonstrating his reasonable

attempts to obtain counsel on his own.

Turning to the second prong of Pruitt, several factors warrant the recruitment of

counsel on Plaintiff’s behalf. For one, Plaintiff is no longer at Pinckneyville, the facility

where the events in question took place (see Doc. 38) (notifying the Court that Plaintiff

was moved from Pinckneyville to Centralia Correctional Center). As the Seventh Circuit

has explained, “a prisoner who is transferred to a facility where the events underlying

his claims did not take place faces additional hurdles.” Eagan v. Dempsey, 987 F.3d 667,

683 (7th Cir. 2021) (internal quotation marks and citation omitted). Additionally, while

Plaintiff’s filings to date have appeared competent, this matter is now moving beyond

exhaustion and into merits-based discovery, which involves substantially more

challenging tasks. “Taking depositions, conducting witness examinations, applying the

rules of evidence, and making opening statements are beyond the ability of most pro se

litigants to successfully carry out.” Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015).

Moreover, the Seventh Circuit has also “noted the increased complexity in

constitutional claims involving the state of mind of the defendant, such as deliberate

indifference.” Eagan, 987 F.3d at 683. And here, each of Plaintiff’s remaining claims are

deliberate indifference claims. In further support of his motion, Plaintiff has also

emphasized that his filings to date have been prepared with the assistance of other

inmates, but their assistance is not guaranteed or necessarily consistent, and they are

often transferred or otherwise unable to continue to assist him (see Doc. 53 at p. 10).4 For

4 However, the Court briefly notes that Plaintiff’s arguments about his ongoing medical issues are not

particularly persuasive. Numerous district courts within the Seventh Circuit have held that medical issues

such as migraines, chronic pain, and other physical disabilities are better addressed by granting extensions

of time rather than recruiting counsel. See, e.g., O’Quinn v. Vanderhove, No. 19-CV-01010-NJR, 2020 WL

1955254, at *3 (S.D. Ill. Apr. 23, 2020); Lovejoy v. Lashbrook, No. 19-CV-00016-SMY, 2019 WL 1452701, at *3

(S.D. Ill. Apr. 2, 2019); Yerks v. McArdle, No. 19-CV-595-WMC, 2021 WL 5161746, at *2 (W.D. Wis. Nov. 5,

2021); Voss v. Marathon Cnty., No. 18-CV-540-JDP, 2020 WL 68236, at *3 (W.D. Wis. Jan. 7, 2020) (“[Pain and

numbness] may require extensions of time in some situations, but Voss hasn’t submitted evidence showing

that he is incapable of representing himself.”).Thus, while this factor may provide limited, additional

support for Plaintiff’s motion, the other factors highlighted by Plaintiff provide the primary reasons why

the Court is granting Plaintiff’s motion.

all these reasons, the Court GRANTS Plaintiff’s Motion for Recruitment of Counsel (Doc.

53). An attorney will be recruited to represent Plaintiff in a separate order.

In light of this determination, as well as the deficiencies identified in Plaintiff’s

earlier-filed Motion to Appoint Counsel, that Motion is DENIED as MOOT (Doc. 51).

Additionally, to the extent Plaintiff’s Motion to Appoint Counsel seeks reconsideration

of the Court’s prior Order dismissing Defendants John Doe Officer and Jane Doe Nurse,

that request is DENIED (see Id.).

First and foremost, Plaintiff’s Motion to Appoint Counsel is titled “Re:

Memorandum and Order April 24, 2025.” (Doc. 51 at p. 1). Thus, on its face, it does not

purport to be a Motion for Reconsideration and does not provide fair notice of any such

request contained therein. Moreover, Plaintiff’s Motion focuses upon his request for

counsel, devoting the majority of the one and a half page filing to explaining why Plaintiff

is unable to litigate this matter on his own (see Id. at pp. 1-2). And most importantly,

Plaintiff’s motion does not direct the Court’s attention to any sufficient justification for

overturning the Court’s Order dismissing the unknown Defendants. Wilkins v. Just Energy

Group, Inc., 171 F. Supp. 3d 798, 801 (N.D. Ill. 2016) (“Rather, a motion to reconsider allows

a party to direct the court’s attention to manifest errors of fact or law, a significant change

in the law or facts, the court’s misunderstanding of a party’s argument, or party’s

contention that the court ruled on an issue that was not properly before it.”).

Here, Plaintiff’s only argument for reconsideration, other than that he would

benefit from the assistance of counsel, is that he does not yet know the unknown

Defendants and Defendants have failed to provide him with the unknown Defendants’

identities (Doc. 51 at pp. 1-2). However, the John Doe Scheduling Order required

Defendant Barwick (in his official capacity only) to either provide the identities of the

unknown Defendants, OR, if Defendant Barwick was unable to make a specific

identification, to provide documents or files that could assist Plaintiff in their

identification (Doc. 36 at p. 3). And crucially, the Court’s Order stated that Plaintiff’s

“[f]ailure to file a motion to substitute by this date will result in the dismissal of the Jane

Doe Nurse and John Doe Officer without prejudice.” (Id.).

Yet, no motion to substitute, or even a motion for extension of time, was filed by

Plaintiff on or before February 11, 2025. In fact, only one filing was made by Plaintiff

between the date the Initial Scheduling Order was entered and the deadline for Plaintiff

to file a motion to substitute (see Doc. 37). That filing was a motion for counsel and it

made no reference to any delays or failure on Defendants’ part to provide documents or

identification information of the unknown Defendants (see Id.).

Admittedly, Plaintiff also filed a Notice on February 25, 2025, which discusses the

Scheduling Order (Doc. 40). However, that Notice came approximately two weeks after

the deadline to file a motion to substitute had lapsed and it neither sought an extension

of the substitution deadline nor otherwise attempted to substitute the unknown

Defendants (Id.). In addition, while that Notice alludes to an alleged failure by

Defendants to provide certain medical records, it at no points indicates that such records

were necessary to identify the unknown Defendants and/or comply with the Court’s

deadline to substitute. Ultimately, if Plaintiff had intended to notify the Court of issues

in complying with the deadline to substitute the unknown Defendants, he should have

notified the Court of such prior to the deadline lapsing and done so in an appropriate

motion. However, he did not do so. Consequently, to the extent Plaintiff’s instant Motion

to Appoint Counsel can even be construed as a motion to reconsider, that request is

DENIED (Doc. 51).

III. Plaintiff’s Motion for Status

Finally, Plaintiff has filed a Motion for Status, which inquires into the status of

Defendant Hughes’ Motion for Summary Judgment on the Issue of Exhaustion of

Administrative Remedies, as well as his request for the Court to reconsider its prior ruling

dismissing Defendants John Doe Officer and Jane Doe Nurse (Doc. 54; see also Doc. 48).

The Court GRANTS Plaintiff’s Motion for Status (Doc. 54) and provides him with the

following status update.

In light of the Court’s determinations made in this Order, Plaintiff’s Complaint

will proceed as follows:

• Count 2 against Defendant Christine Brown;

• Count 4 against Defendant Wexford Health Care Source, Inc.;

• Count 5 against Defendant Christel Crow;

(see also Doc. 11 at pp. 4-7; Doc. 48). Meanwhile, Defendants John Doe Officer and Jane

Doe Nurse, as well as Count 1, were previously DISMISSED for the reasons specified in

the Court’s Order dated April 24, 2025 (Doc. 48), and nothing in Plaintiff’s instant filings

warrants reconsideration of that ruling. Finally, Count 3 is DISMISSED without

prejudice for the reasons specified above. Consequently, Defendant Latoya Hughes is

DISMISSED without prejudice and judgment will be entered in her favor at the

conclusion of this case.

Finally, the Court notes that this action is now moving beyond the exhaustion of

administrative remedies phase and Plaintiff is to be recruited counsel. Accordingly, after

Plaintiff’s recruited counsel has entered his or her appearance and had time to familiarize

himself/herself with the case, the Court will hold a status hearing. At the hearing, the

Court will discuss with counsel, amongst other things: lifting the stay on merits-based

discovery and entering a Final Scheduling Order.

CONCLUSION

For the reasons discussed above, Defendant Hughes’ Motion for Summary

Judgment on the Issue of Exhaustion of Administrative Remedies is GRANTED (Doc.

45) and Count 3 is DISMISSED without prejudice. Consequently, Defendant Hughes is

likewise DISMISSED without prejudice.

Additionally, Plaintiff’s Motion for Recruitment of Counsel is GRANTED (Doc.

53) and Plaintiff’s earlier-filed Motion to Appoint Counsel is DENIED as MOOT (Doc.

51). Finally, Plaintiff’s Motion for Status is GRANTED (Doc. 54), consistent with the

status update provided above. An attorney will be recruited to represent Plaintiff by

separate order. After Plaintiff’s recruited counsel has entered his or her appearance and

had time to familiarize himself/herself with the case, the Court will hold a status hearing

to discuss, among other things, lifting the stay on merits-based discovery and entering a

Final Scheduling Order.

IT IS SO ORDERED.

DATED: January 6, 2026

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge