REPORT AND RECOMMENDATION

STEPHEN C. WILLIAMS, Magistrate Judge.

INTRODUCTION

Plaintiff Kyron Murdock, an inmate at Menard Correctional Center ("Menard"), brought this cause of action on June 9, 2017, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. At threshold review, pursuant to 28 U.S.C. § 1915A, the Court found that Plaintiff could proceed with four counts against the several named Defendants: (1) Plaintiff's claim that Defendants Lashbrook and Baldwin violated Plaintiff's Eighth Amendment rights by subjecting him to unconstitutional conditions of confinement; (2) Plaintiff's claim that Defendants Wexford Health Sources, Inc. ("Wexford"), Trost, Shicker, Walls, Baldwin, and Lashbrook violated Plaintiff's Eighth Amendment rights by acting with deliberate indifference to his serious medical needs; (3) Plaintiff's claim that Defendants Trost and Hill violated Plaintiff's Eighth Amendment rights by acting with deliberate indifference to his serious medical condition; and (4) Plaintiff's claim that Defendant Hill violated Plaintiff's Eighth Amendment rights by persisting in a course of treatment known to be ineffective in violation of Plaintiff's Eighth Amendment rights. (Doc. 6, pp. 11-16).

On March 23, 2018, Defendants Wexford and Trost filed a Motion for Summary Judgment on the grounds that Plaintiff failed to exhaust his administrative remedies prior to filing suit. (Doc. 34). The same day, Defendants Baldwin, Lashbrook, and Shicker filed their own Motion for Summary Judgment on the same grounds. (Doc. 38). Defendants Walls and Hill, who were specifically named and served in this suit later than the other Defendants, filed their own Motions for Summary Judgment based on failure to exhaust on July 24, 2018, and July 25, 2018, respectively. (Docs. 58, 61). Although there are four separate motions pending before the Court, each of the Defendants' motions rely on Plaintiff's alleged failure to properly submit a grievance to Menard personnel or the Administrative Review Board ("ARB").

Plaintiff filed timely Responses to all four of these motions. (Docs. 41, 64, 65). In his Complaint and his responses to Defendants' motions, Plaintiff maintains that he filed an emergency grievance detailing his complaints against the Defendants on January 6, 2017, which was never answered by Menard's Chief Administrative Officer ("CAO"). (Doc. 1, p. 2; Doc. 41, pp. 2-4). On October 31, 2018, the undersigned held an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Defendants' motions are now ripe for disposition. For the reasons stated below, the undersigned RECOMMENDS the Court DENY Defendants' Motions for Summary Judgment.

FACTS

Plaintiff filed his Complaint on June 9, 2017. (Doc. 1). Pursuant to the Court's threshold order, Plaintiff's Complaint contained four counts that survived review pursuant to 28 U.S.C. § 1915A: an Eighth Amendment conditions of confinement count against Defendants Lashbrook and Baldwin; an Eighth Amendment deliberate indifference to serious medical needs count against Defendants Wexford, Trost, Shicker, Walls, Baldwin, and Lashbrook; an Eighth Amendment deliberate indifference count against Defendants Trost and Hill; and an Eighth Amendment deliberate indifference count against Defendant Hill.1 (Doc. 6, pp. 11-16).

In his Complaint, Plaintiff details the issues he has experienced at Menard, including allegations regarding, among other things, the inadequate size of his cell, his lack of access to water and adequate ventilation, and the presence of vermin, black mold, and accumulation of human waste. (Id. at pp. 4-5). Plaintiff also sets forth allegations relating to the inadequacy of medical treatment he received from several Defendants relating to his severe knee and hip pain that he began experiencing in mid-to-late 2016. (Id. at pp. 5-7).

Plaintiff first claims to have submitted a grievance regarding these issues to Menard personnel on January 6, 2017. (Doc. 1, p. 2; Doc. 41, pp. 2-5). In both his response to Defendants' motions and his October 31, 2018 testimony, Plaintiff stated that the "grievance that Defendants claim that they did not receive" was actually submitted to Menard personnel by "put[ting the grievance] in the bars" of his cell, the location "where inmates are required to put their outgoing mail." (Doc. 41, p. 5). Plaintiff testified that he retained a handwritten copy of the January 6, 2017 grievance, which he drafted contemporaneously with the copy that he submitted to Menard by placing it in his cell's bars.

Plaintiff testified that he subsequently sent letters to Mendard's CAO on January 14th, January 22nd, January 31st, and February 6th regarding his January 6, 2017 emergency grievance, which he claims went unanswered. Plaintiff also contemporaneously made handwritten copies of these letters per his standard practice, and provided copies of these to the Court in his response to Defendants' motions. (Doc. 41, pp. 18-23).

Plaintiff ultimately filed a new emergency grievance on March 19, 2017, which was received and responded to by Menard personnel. (Doc. 36, p. 11). This grievance further detailed Plaintiff's complaints regarding his hip and knee pain, and requested to "be seen by a specialist and get an MRI on [Plaintiff's] knee and hip." (Id.). However, Menard's CAO determined that this grievance was moot, because Plaintiff's had been approved for consultation with an outside specialist and had been scheduled to do so. (Id.). Plaintiff did not appeal this response to the ARB. (Id.; Doc. 41, pp. 6-7).

At the evidentiary hearing held on Defendants' Motion for Summary Judgment, Plaintiff testified that he wrote and submitted his emergency grievance relating to all of his claims in the present lawsuit on January 6, 2017, and placed the grievance in his cell's bars, as was the customary practice for inmates to send grievances and mail while incarcerated at Menard. Plaintiff testified that, after submitting this grievance and not receiving a response, he wrote several letters to Menard's warden asking about the grievance and requesting a response. Plaintiff testified that his practice was to make contemporaneous copies of this sort of correspondence for his own records, which he submitted along with his Complaint and response to Defendants' motions.

At the hearing, Defendants elicited testimony from Kelly Pierce, a Corrections Clerk at Menard during the relevant time period, and Russell Niepert, a Correctional Counselor at Menard during the relevant time period who was Plaintiff's assigned Correctional Counselor. Ms. Pierce testified as to the grievance and record keeping processes at Menard, and testified that Menard had no record of receiving any January 6, 2017 grievance from Plaintiff. Mr. Niepert testified that he had never discussed the substance of Plaintiff's alleged January 6, 2017 grievance with him, and that the "Cumulative Counseling Summary" document, (Doc. 68-1), confirmed that. Mr. Niepert also testified that the proper grievance process was not to put grievances in a cell's bars, but instead to place grievances in the designated grievance dropbox or provide grievances directly to Menard personnel.

LEGAL STANDARDS

1. Summary Judgment Standard

Summary judgment is appropriate only if the admissible evidence considered as a whole shows there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014) (citing Fed.R.Civ.P. 56(a)). The party seeking summary judgment bears the initial burden of demonstrating — based on the pleadings, affidavits and/or information obtained via discovery — the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v. Khoury Enterpr. Inc., 753 F.3d 676 (7th Cir. 2014).

In assessing a summary judgment motion, the district court normally views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the Seventh Circuit has explained, as required by Rule 56(a), "we set forth the facts by examining the evidence in the light reasonably most favorable to the non-moving party, giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the evidence in [his] favor." Spaine v. Community Contacts, Inc., 756 F.3d 542 (7th Cir. 2014).

A Motion for Summary Judgment based upon failure to exhaust administrative remedies, however, typically requires a hearing to determine any contested issues regarding exhaustion, and a judge may make limited findings of fact at that time. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). The case may proceed on the merits only after any contested issue of exhaustion is resolved. Pavey, 544 F.3d at 742. While generally, the Court's role on summary judgment is not to evaluate the weight of the evidence, judge witness credibility, or determine the truth of the matter, but to determine whether a general issue of triable fact exists, a different standard applies to summary judgment on the issue of exhaustion. Nat'l Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, 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. Pavey, 544 F.3d at 740-41. In this instance, since the undersigned found debatable factual issues, an evidentiary hearing was held.

2. PLRA's Exhaustion Requirement

The affirmative defense of failure to exhaust depends on whether a plaintiff has fulfilled the PLRA's exhaustion requirement, which in turn depends on the prison grievance procedures set forth by the Illinois Department of Corrections. See Jones v. Bock, 549 U.S. 199, 218 (2007).

The PLRA provides that "no action shall be brought [under federal law] with respect to prison conditions . . . by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Under the PLRA, exhaustion of administrative remedies is mandatory, and unexhausted claims cannot be brought in court. Jones, 549 U.S. at 211. The case may proceed on the merits only after any contested issue of exhaustion is resolved by the court. Pavey, 544 F.3d at 742.

The Seventh Circuit takes a strict compliance approach to exhaustion; requiring inmates follow all grievance rules established by the correctional authority. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). A prisoner must therefore "file complaints and appeals in the place, and at the time, the prison's rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). But the PLRA's plain language makes clear that an inmate is required to exhaust only those administrative remedies that are available to him. 42 U.S.C. § 1997e(a). If the prisoner fails to follow the proper procedure, however, the grievance will not be considered exhausted. Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). The purpose of exhaustion is to give prison officials an opportunity to address the inmate's claims internally, prior to federal litigation. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

Additionally, exhaustion is a precondition to filing suit; a prisoner may not file suit in anticipation that his administrative remedies will soon become exhausted. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Rather, a prisoner must wait to bring a suit until after he completes the exhaustion process. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999) (citing 42 U.S.C. § 1997e(a)). A suit that is filed prior to the exhaustion of remedies must be dismissed, even if a plaintiff's administrative remedies become exhausted during the pendency of the suit. Id.

3. Exhaustion Requirement under Illinois Law

IDOC's process for exhausting administrative remedies is laid out in the Illinois Department of Corrections Grievance Procedures for Offenders. 20 Ill. Adm. Code § 504.810. Under the current grievance procedures, a prisoner may file a written grievance with the Grievance Officer within sixty (60) days of discovery of the dispute. Id. The grievance should include "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 . . . [or] as much descriptive information about the individual as possible." Id. The grievance officer shall review the grievance and report findings and recommendations to the Chief Administrative Officer. 20 Ill. Adm. Code § 504.810(c). The prisoner will then have the opportunity to review the CAO's response. 20 Ill. Adm. Code § 504.830(e). If the prisoner is unsatisfied with the institution's resolution of the grievance, he may file an appeal to the Director through the Administrative Review Board within 30 days of the CAO's decision. 20 Ill. Adm. Code § 504.850. The ARB is required to make a final determination of the grievance within six months after receiving it. Id. Completion of this process exhausts a prisoner's administrative remedies.

In emergencies, the Illinois Administrative Code also provides that a prisoner may request his grievance handled on an emergency basis by forwarding the grievance directly to the CAO. 20 Ill. Adm. Code § 504.840. The grievance may be handled on an emergency basis if the CAO determines that there exists a substantial risk of imminent personal injury or other serious or irreparable harm to the offender. Id. The request to have a grievance handled on an emergency basis may also be appealed to the ARB. 20 Ill. Adm. Code § 504.850(a).

Finally, where an inmate has attempted to utilize the grievance process and does not receive a response, then the inmate's attempts at exhaustion would be deemed thwarted and he would be allowed to proceed with his lawsuit. See Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2000) (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) (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 resources); Brown v. Darnold, 2010 WL 3702373, at *3 (S.D. Ill. 2010) ("The Seventh Circuit has held that administrative remedies become `unavailable' when prison officials fail to respond to inmate grievances.") (quoting Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)).

ANALYSIS

Having reviewed the parties' pleadings and the evidence in the record, the undersigned concludes that Plaintiff's testimony, that he submitted an emergency grievance on January 6, 2017, was credible. The timeline and contents of Plaintiff's testimony were consistent with his Complaint and his responses to Defendants' motions. Accordingly, the undersigned finds that Plaintiff did draft a grievance relating to his conditions of confinement and deliberate indifference to medical needs claims against the Defendants2 on January 6, 2017, and submitted this grievance to Menard personnel by placing it in his cell bars on that date.

In each of the Defendants' pending motions, Defendants point to Menard's grievance records, which do not contain entries for any grievances filed by Plaintiff in January 2017. Defendants also elicited testimony from Mr. Russell Niepert, Plaintiff's correctional counselor, who testified that he had not discussed any grievance or issues relating to the conditions of Plaintiff's confinement or Plaintiff's medical treatment during that time frame. Mr. Niepert relied in part on a document titled Cumulative Counseling Summary, which Defendants provided to the Court. (Doc. 68-1). Mr. Niepert's testimony was that he, as Plaintiff's counselor, would have been the point of contact for Plaintiff's grievances, and that the absence of an entry for Plaintiff's January 2017 grievance, combined with Mr. Niepert's inability to recall any such grievance or conversations regarding Plaintiff's issues during that time, show that Plaintiff did not file the January 2017 grievance.

There are at least two reasons that this document and Mr. Niepert's testimony do not conclusively show that Plaintiff did not submit the January 6, 2017 grievance. First, the document does not show that Mr. Niepert exclusively deals with any and all grievance-related interactions with Plaintiff. The very same document shows that Ms. Kelly Pierce, not Mr. Niepert, was the one that documented Plaintiff's subsequent March 19, 2017 grievance regarding his medical care. Second, this cannot account for the times that an inmate such as Plaintiff would be able to submit a grievance, whether to a different correctional officer on duty, directly into the grievance dropbox, or by leaving a grievance in the cell bars, as is customary.3 In short, the facts and evidence in the record introduced by Defendants fail to rebut Plaintiff's testimony that he submitted the January 6, 2017 grievance on that date.

The undersigned notes that the Defendants carry the burden of showing that Plaintiff did not submit a grievance, not that Menard administration did not receive a grievance. Nothing introduced by the Defendants contradicts Plaintiff's testimony that he wrote a grievance on January 6, 2017, made handwritten copies for his own records, and then submitted the grievance by placing it in his cell bars on that date. In a Pavey evidentiary hearing, the undersigned is tasked with evaluating the weight of the evidence, judging witness credibility, and determining the truth of the matter, at least as to the limited issue of exhaustion. Nat'l Athletic Sportwear Inc., 528 F.3d at 512. Simply put, the undersigned finds Plaintiff's testimony credible, and finds that Plaintiff indeed submitted the grievance in question on January 6, 2017.

Paradoxically, Defendants Wexford, Trost, and Hill each state in their motions that Plaintiff failed to exhaust his administrative remedies because he did not appeal his January 6, 2017 grievance to the ARB. (Doc. 36, p. 9; Doc. 62, p. 10). Even if "appeal[ing the CAO's] decision to the ARB" would typically be necessary to exhaust, Plaintiff did not receive a response from the CAO to appeal to the ARB in the first place. An inmate is not required to treat a corrections officer's or warden's failure to respond to a grievance as a "decision" that must be appealed to the ARB—instead, an institution's failure to respond to an inmate's grievance deems the grievance process unavailable, and signifies that the inmate has, in fact, exhausted all available administrative remedies. See Walker, 526 F.3d at 979.

Because the undersigned has concluded that Plaintiff did indeed submit a grievance on January 6, 2017, Menard's failure to respond to the grievance renders Plaintiff's administrative remedies unavailable. See Dole, 438 F.3d at 809 ("[A] remedy becomes `unavailable' if prison employees do not respond to a properly filed grievance. . . ."). Thus, Plaintiff's January 6, 2017 grievance served to exhaust his remedies as to Defendants Wexford, Trost, Lashbrook, Baldwin, Shicker, and Walls, because it contained complaints relating to his counts against these Defendants and was not responded to by Menard.

Defendant Hill points out that Plaintiff's January 6, 2017 grievance was submitted prior to Defendant Hill's involvement in Plaintiff's medical care, and could not have exhausted Plaintiff's administrative remedies as to Defendant Hill. (Doc. 62, pp. 8-9). Defendant's point is well taken. However, even if Plaintiff's January 6, 2017 grievance did not exhaust his administrative remedies as to Defendant Hill, Plaintiff's March 19, 2017 grievance did. This grievance set forth Plaintiff's complaints regarding treatment he received from the physical therapist he saw from January 2017 to March 2017, later identified as Defendant Hill, and requested a consultation with an outside specialist as well as an MRI. (Doc. 41, pp. 30-31).

Defendant Hill acknowledges Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005), in which the Seventh Circuit held that an inmate is "not required to file additional complaints or appeal favorable decisions" to exhaust his or her administrative remedies after the inmate's requested relief is granted. Defendant Hill argues that Thornton is distinguishable from the case at bar, namely because Plaintiff requested both an outside specialist consultation and an MRI, and that Plaintiff did not receive an MRI until May 2017, several weeks after Menard's CAO deemed Plaintiff's grievance was moot because Plaintiff was approved for an outside consult. (Doc. 62, pp. 11-13; Doc. 41, p. 29).

The undersigned disagrees. At the time of the CAO's response to Plaintiff, Plaintiff was indeed "scheduled for an outside consultation and is receiving medical treatment." (Doc. 41, p. 29). Plaintiff received this response on April 20, 2017, saw the outside treater, and ultimately underwent an MRI on May 16, 2017. (Doc. 62, p. 12). The Illinois Administrative Code gives Plaintiff 30 days to appeal the CAO's decision to the ARB. Ill. Adm. Code § 504.850(a). Plaintiff received all of his requested relief within this period of time—thus, Plaintiff had "already received what he requested in his grievances" pertaining to Defendant Hill, and had no obligation to appeal that to the ARB in order to exhaust his administrative remedies. Thornton, 428 F.3d at 696.

In sum, Defendants have the burden to show that Plaintiff failed to exhaust his administrative remedies, and the facts and testimony in the record do not support finding that Defendants have met their burden here.

Having found that the evidence in the record shows Plaintiff submitted a grievance on January 6, 2017 relating to his claims against Defendants Wexford, Trost, Lashbrook, Baldwin, Shicker, and Walls that was not responded to by Menard, and that Plaintiff's March 19, 2017 grievance relating to the treatment he received from Defendant Hill resulted in Plaintiff receiving the requested relief from that grievance (and therefore did not necessitate appeal to the ARB in order to exhaust Plaintiff's administrative remedies), the undersigned RECOMMENDS that the Court FIND that Plaintiff did properly exhaust his administrative remedies prior to filing his Complaint as to all Defendants.

CONCLUSION AND RECOMMENDATION

Accordingly, it is RECOMMENDED that the Court FIND that Plaintiff properly exhausted his administrative remedies prior to filing his Complaint as to all Defendants, and DENY Defendants' Motions for Summary Judgment.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Recommendation. The failure to file a timely objection may result in the waiver of the right to challenge this 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). Accordingly, Objections to this Report and Recommendation must be filed on or before December 3, 2018.

IT IS SO ORDERED.