REONA J. DALY, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge Staci M. Yandle pursuant to 28 U.S. C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997(e)(a). It is
Plaintiff Kent Stubbs, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was incarcerated at Lawrence Correctional Center ("Lawrence"). Plaintiff alleges he fell from his top bunk on April 10, 2017. Plaintiff sustained injuries to his back, head, and left wrist and finger. Plaintiff alleges he was provided inadequate medical treatment to address his injuries. Plaintiff is proceeding on the following claims:
Defendant Dr. Vipin Shah filed a Motion for Summary Judgment for Plaintiff's Failure to Exhaust Administrative Remedies on December 28, 2018 (Doc. 43). Plaintiff filed his response on January 25, 2019 (Doc. 49). Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on August 7, 2019. Based on the record before the Court, the following grievances are related to the issues in this lawsuit
Summary judgment is appropriate only if the moving party can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In considering a summary judgment motion, the district 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).
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative remedies prior to filing lawsuits in federal court. "[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies." Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). "[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment." Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). "[A]ll dismissals under § 1997e(a) should be without prejudice." Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a written grievance within 60 days after the discovery of the incident, occurrence or problem, to his or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not resolved through a counselor, the grievance is considered by a Grievance Officer who must render a written recommendation to the Chief Administrative Officer — usually the Warden — within 2 months of receipt, "when reasonably feasible under the circumstances." Id. §504.830(e). The CAO then advises the inmate of a decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within 30 days to the Administrative Review Board for a final decision. Id. § 504.850(a); see also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). The ARB will submit a written report of its findings and recommendations to the Director who shall review the same and make a final determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
An inmate may request that a grievance be handled as an emergency by forwarding it directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is handled on an emergency basis, which allows for expedited processing of the grievance by responding directly to the offender. Id. Inmates may further submit certain types of grievances directly to the Administrative Review Board, including grievances related to protective custody, psychotropic medication, and certain issues relating to facilities other than the inmate's currently assigned facility. Id. at § 504.870.
Based on the evidence in the record and arguments set forth by the parties, the Court finds Plaintiff failed to exhaust his administrative remedies as to Count One against Dr. Shah prior to filing this lawsuit.
First, Plaintiff's May 7, 2017 and May 8, 2017 emergency grievances that were submitted to the ARB without any CAO response were not exhausted. According to Plaintiff, he submitted these grievances on May 7 and May 8, 2017, and after not receiving a CAO response, sent them to the ARB on May 15, 2017. Plaintiff testified he submitted these grievances to the ARB as he feared his deadline to grieve the issues set forth in his grievances was going to expire.
The Illinois Administrative Code previously required the warden to respond to emergency grievances within three days of receipt whenever possible; however, this requirement was removed from the regulation in 2001. See 22 Ill. Reg. 1206 (Jan. 9, 1988) (amending § 504.840 and adding three-day response deadline); see also 25 Ill. Reg. 10775 (Aug. 24, 2001) (amending § 504.840 and removing the three-day response deadline effective Sept. 1, 2001). As such, the Code currently does not prescribe a deadline for the CAO to respond to an emergency grievance. There is also only limited case law considering how long an inmate must wait to receive a response to his emergency grievance before his administrative remedies may be considered "unavailable." It is clear an inmate does not have to wait indefinitely for a response. However, an inmate must wait more than two days for a response, but less than fifty-one days. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (concluding inmate had to wait more than two days to file suit after submitting emergency grievance, particularly because "the danger [was] not of the greatest urgency."); see Muhammad v. McAdory, 214 F. App'x 610, 613 (7th Cir. 2007) (finding a genuine issue of material fact existed concerning whether prison officials thwarted the plaintiff's efforts to exhaust when they did not respond to his emergency grievance in fifty-one days). Here, the Court finds one week was not a sufficient amount of time to wait for the CAO's response. Indeed, the CAO responded to Plaintiff's emergency grievances just three days after Plaintiff submitted them to the ARB. Thus, the CAO's response came approximately ten days after Plaintiff had submitted the emergency grievances. In any event, it is apparent Plaintiff's administrative remedies were not "unavailable" due to Plaintiff's perceived delay in receipt of the CAO's response, as he was subsequently able to engage in the administrative review process. Because Plaintiff was able to continue with the administrative review process, he was obligated to perfect the same.
As set forth above, Plaintiff submitted the May 7 and May 8, 2017 grievances that were deemed to not be of an emergency nature by the CAO to the ARB. These grievances were received by the ARB on June 1, 2017, and returned on July 6, 2017 because Plaintiff had not provided a copy of the Grievance Officer's, Counselor's, or CAO's response. Because these grievances post-date the April 2017 amendment to the Administrative Code, such a determination is not sufficient to complete the administrative review process. See Smith v. Asselmeier, Case No. 3:17-cv-1237-JPG-DGW, 2018 WL 3533346 (July 23, 2018 S.D. Ill.), aff'd, No. 18-2832, 2019 WL 1568111, 762 F. App'x 342,344 (7th Cir. 2019) (remarking that the Seventh Circuit has "long required that inmates properly exhaust all available steps that have been made known to them" and noting that the Code provided a process through which the inmate could submit a non-emergency grievance).
Approximately one month after the ARB returned Plaintiff's May 7 and May 8, 2017 grievances that were deemed non-emergencies by the CAO, Plaintiff submitted them to his counselor for review. The counselor received them on August 7, 2017, and found they were submitted beyond the allowable timeframe. The Grievance Officer, CAO, and ultimately, the ARB, also found the grievances were out-of-time. The Court agrees. Again, these grievances post-date the April 2017 amendment to the Administrative Code. Said amendment effectively mandates that after the CAO determines a grievance should not be handled on an emergency basis, the grievance must be resubmitted as non-emergent in accordance with the standard grievance process. See Asselmeier, 762 F. App'x at 344. There is nothing in the Code that allows for an appeal to the ARB of the CAO's non-emergency determination, nor is there authority to allow for a tolling period while an inmate engages in such futile efforts.
Next, the Court considers Plaintiff's June 4 and June 7, 2017 grievances. Notably, the June 7, 2017 grievance is a copy of the June 4, 2017 grievance. The Court finds Plaintiff's June 7, 2017 grievance was fully exhausted on November 1, 2017, the date on which John Baldwin signed his concurrence with the ARB's decision that the issues grieved were appropriately addressed by Plaintiff's facility
The PLRA's exhaustion requirement was designed to afford prison officials a chance to address inmate complaints internally, prior to the filing of federal litigation. See, e.g., Kaba, 458 F.3d at 684 (citation omitted). In other words, the purpose of the grievance is to provide prison officials a "fair opportunity" to address an inmate's complaint. Maddox v. Love, 655 F.3d 709, 713 (7th Cir. 2011). Indeed, the Seventh Circuit has consistently reminded district courts that "all that the PLRA requires" is that a grievance alert "the prison to the nature of the wrong for which redress is sought," Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005) (citation omitted), and afford prison officials an opportunity to respond, see Pavey v. Conley, 663 F.3d at 905-06.
Here, Plaintiff's grievance names Dr. Shah, but not in the context of setting forth a specific issue concerning Dr. Shah's treatment. Indeed, Plaintiff indicates Dr. Shah adjusted his pain medication and he was receiving some relief before Dr. Ahmed discontinued his medication. A plain reading of this grievance does not notify the prison that Plaintiff had a complaint concerning Dr. Shah's treatment. Rather, it is apparent Plaintiff is complaining of Dr. Ahmed's treatment. Because the institution would not have been notified that Dr. Shah's treatment was at issue, officials did not have a "fair opportunity" to address Plaintiff's complaints regarding Dr. Shah that are now pending in this lawsuit.
The Court also finds Plaintiff's October 18, 2017 grievance insufficient as to Dr. Shah. Further, this grievance was returned to Plaintiff without a decision on the merits because it was not submitted within the required timeframe and the ARB had previously addressed the issues set forth in the grievance. The Court finds the ARB responded appropriate and, as this grievance was never responded to on the merits due to procedural insufficiencies, it was not exhausted.
Plaintiff's October 23, 2017 emergency grievance was fully exhausted on January 10, 2018, the date on which John Baldwin signed his concurrence with the ARB's decision that the grievance was moot based on the facility responses provided. This grievance does not name or describe Dr. Shah and the contents of this grievance do not address the allegations against Dr. Shah in this lawsuit. Plaintiff identified the nature of this grievance as "ADA Disability Accommodation" and, he complains that he has written dozens of requests to HCUA Cunningham, Dr. Ahmed, Assistant Warden Brookhart, and Warden Lamb asking to be assigned an "ADA-pusher." A plain reading of this grievance does not notify the prison that Plaintiff had a complaint concerning Dr. Shah's treatment. Rather, it is apparent Plaintiff is complaining that Cunningham, Ahmed, Brookhart, and Lamb have ignored his requests for an ADA attendant. Because the institution would not have been notified that Dr. Shah's treatment was at issue, officials did not have a "fair opportunity" to address Plaintiff's complaints regarding Dr. Shah that are now pending in this lawsuit.
Finally, the Court finds Plaintiff's January 20, 2018 grievance insufficient to exhaust the claims against Dr. Shah as it was not fully exhausted until June 19, 2018, well after Plaintiff filed this lawsuit on February 15, 2018.
Based on the foregoing, it is
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
PURSUANT to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the United States District Court for the Southern District of Illinois, any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen days of service.
Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).
