DONALD G. WILKERSON, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel 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. § 1997e(a). For the reasons set forth below, it is
Plaintiff Darrell Warren filed the pending action pursuant to 42 U.S.C. § 1983 alleging while he was confined at Lawrence Correctional Center Defendants were deliberately indifferent to his serious medical condition (Doc. 1). The Court conducted a threshold review pursuant to 28 U.S.C. § 1915A and Warren was allowed to proceed on the following claims:
On September 19, 2013 Warren sought medical treatment from the Lawrence Health Care Unit for a large and painful keloid tumor on his left earlobe (Doc. 1, p. 9). The nurse who saw him at that time told him to purchase Tylenol at the commissary to treat his pain. On September 23, 2013, Warren saw Dr. Coe for the first time (Doc. 1, p. 9). Although Dr. Coe did not prescribe Warren anything for the pain, he made a referral on September 24, 2013 for Warren to have surgery to remove the tumor (Doc. 1, p. 9). That request for surgery was denied through the collegial review process (Doc. 46, ¶¶ 9, 12, 14). Subsequently, Dr. Coe submitted appeals and additional recommendations for surgery to collegial review on March 27, 2014, November 10, 2014, and February 10, 2014 (Doc. 46, ¶¶ 9, 12, 14). All of the collegial reviews resulted in a denial of the requested surgery (Doc. 46-1, pp. 4, 6, 7; Doc. 46-1, pp. 11, 13, 16).
During this time, Warren continued to suffer pain from the condition. Warren consistently requested surgery and filed several grievances (Doc. 46-2, pp. 16-17, 19-20, 21-22). Dr. Martin, the director of the Health Care Unit at Lawrence, responded to the first grievance, telling the grievance officer that Warren "has been seen by the MD and is scheduled for follow-up next week. Once assessment is made, plan of care will be implemented." (Doc. 44-5, p. 2). Warren's second grievance, dated January 20, 2015, detailed the pain he was living with and its effects on his daily life (Doc. 1, pp. 6, 47-48). He was no longer able to engage in exercise because any motion of his body would trigger the pain, and as a consequence he was gaining weight (Doc. 1, pp. 6, 47-48). He could not sleep well because if he turned onto his left side, the tumor would hurt so intensely that it would wake him up, and the continued pain would prevent him from falling back to sleep (Doc. 1, pp. 6, 47-48). The pain persisted until Warren was transferred to Illinois River CC on April 24, 2015, where he obtained a different treatment (Doc. 1, p. 11).
Dr. Shicker, the Medical Director for the IDOC, was informed of Warren's condition when Warren's mother wrote to him in November 2014 (Doc. 1, p. 43). Dr. Shicker sent a general response to Warren's mother to say that the prison medical providers were "following" Warren's condition, and that "[w]hen there is a clinical need to excise a mass then the procedure is undertaken." (Doc. 1, p. 43). After learning of these comments, Warren wrote directly to Dr. Shicker on January 9, 2015 informing him that he was in severe pain on a daily basis due to the tumor and the only pain relief he was given by Lawrence providers was Tylenol, which did not help (Doc. 1, pp. 44-46). Warren asked Dr. Shicker to make sure that Lawrence providers approve surgery to remove the tumor (Doc. 1, pp. 44-46).
Summary judgment is proper only where the moving party can demonstrate that no genuine issue of material fact exists 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); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). All facts and reasonable inferences must be construed in favor of the non-moving party. Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing Calumet River Fleeting, Inc. v. Int'l Union of Operating Eng'rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48 (7th Cir. 2016)). The judge's role at summary judgment is not to weigh the evidence or assess the facts, but simply to determine whether there is a genuine issue for trial. Id. at 259. The question is can there be only one reasonable conclusion based on the evidence, or could reasonable minds differ? Id. at 250-51.
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust all administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a); Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). Proper exhaustion requires an inmate to "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). Defendants, however, bear the burden of proving a failure to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d at 809.
The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In Pavey v. Conley, the Seventh Circuit instructed District Courts to conduct a hearing to determine whether a plaintiff has exhausted his remedies. 544 F.3d 739, 742 (7th Cir. 2008). If a plaintiff has exhausted his remedies, the case will proceed on the merits. Id. If, however, a plaintiff has not exhausted, the Court may either allow the plaintiff to exhaust or terminate the matter. Id.
Under the Illinois Administrative Code, an inmate must first attempt to resolve a complaint informally with his Counselor. ILL. ADMIN. CODE TIT. 20, § 504.810(a). If the complaint is not resolved, the inmate may file a grievance within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance. Id. § 504.810(b). The grievance form must contain 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 the complaint. Id. The grievance officer is required to advise the Chief Administrative Officer at the facility in writing of the findings on the grievance. Id. § 504.830(d). The Chief Administrative officer shall advise the inmate of the decision on the grievance within two months of it having been filed, where reasonably feasible under the circumstances. Id.
An offender may appeal in writing to the ARB within 30 days after the date of the Chief Administrative officer's decision. Id. § 504.850(a). An inmate's administrative remedies are not exhausted until the appeal is ruled on by the Administrative Review Board. See Id. § 504.850(a); See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006).
An inmate is required to exhaust only those administrative remedies available to him. See 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative remedies become "unavailable" when prison officials fail to respond to inmate grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). The availability of a remedy does not depend on the rules and regulations as they appear on paper, but on "whether the paper process was in reality open for the prisoner to pursue." Wilder v. Sutton, 310 Fed.Appx. 10, 13 (7th Cir. 2009). If further remedies are unavailable to the prisoner, he is deemed to have exhausted. Id. Prisoners are required only to provide notice to "responsible persons" about the complained-of conditions. See Wilder, 310 Fed.Appx. at 15 (citing Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). An inmate forfeits the grievance process, however, when he causes the unavailability of a remedy by not filing or appealing a grievance. See Kaba, 458 F.3d at 684.
It is undisputed that Warren appealed multiple grievances to the Administrative Review Board regarding the treatment of his keloid tumor (Doc. 44, ¶¶ 7, 8). Defendants Martin and Shicker's only argument is that none of those grievances mention them by name (Doc. 44, ¶ 9). As stated above, a prisoner is required to name of each person who was involved or was the subject of his complaint in the grievance. 10 Ill. Adm. Code § 504.810(b). When the name of an individual is unknown, the inmate must describe the identity of the person and their alleged actions. Id.
Providing notice to those who may later be sued, however, is not one of the purposes of the exhaustion requirement. Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)). Rather, the goal is to alert the State to potential problems and allow the prison system the opportunity to resolve some or all of the issues prior to involving the courts. Id. at 721; Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). In addition, when administrative decisions are at issue, prisoners are not required to identify the specific individual responsible for the decision in order to exhaust administrative remedies. Glick, 385 Fed.Appx. at 582.
Here, the grievances were sufficient to put Warren on notice in his role as the health care unit administrator. In his January 20, 2015 grievance, Warren states "from 9/19/13 to up-to-date I have complained to the healthcare staff concerning my severe pain which is caused by a steady [sic] growing Keloid/tumor on my left ear" (Doc. 44-5, p. 3). Warren's grievance is thus complaining about the overall lack of services he received from the health care unit at Lawrence. Prisoners are only required to provide notice to "responsible persons" about the complained-of conditions. See Wilder, 310 Fed.Appx. at 15 (citing Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). As the Health Care Unit Administrator, and thus the person responsible for running the unit, the language of the grievance was sufficient to put Martin on notice that the grievance implicated him. There is no evidence in the record that Warren had seen Dr. Martin or was aware that he was the individual responsible for the overall services provided by the health care unit. Thus, there is no way Warren could have specifically named Martin in his grievance.
Further, it is undisputed that Martin actually responded to the grievance, telling the grievance officer that Warren "has been seen by the MD and is scheduled for follow-up next week. Once assessment is made, plan of care will be implemented." (Doc. 44-5, p. 2). As a result, the evidence shows that Martin was aware of both the grievance itself and Warren's substantive complaints.
Martin argues, however, that because Warren did not file a subsequent grievance objecting to his grievance response, Warren failed to exhaust his administrative remedies (Doc. 44, p. 7). The Court finds this argument disingenuous. The Court is aware of no authority, and Martin provides none, creating a requirement that an inmate object to a parties response to his grievance in order to exhaust administrative remedies. As stated above, the goal of the exhaustion requirement is to alert the State to potential problems and allow the prison system the opportunity to resolve some or all of the issues prior to involving the courts. Maddox, 655 F.3d at 721. Here, Martin was made aware of Warren's complaints about the insufficiency of the medical services he was receiving for both his tumor and pain. As the healthcare administrator for Lawrence, he was certainly capable of following up on the services being provided to Warren and therefore had an opportunity to resolve the issue prior to Warren filing suit. As such, Warren has exhausted his administrative remedies with regard to Dr. Martin.
Conversely, Warren's failure to specifically name Dr. Shicker results in a failure to exhaust administrative remedies. The evidence shows that Warren wrote directly to Shicker on January 9, 2015 explaining his concerns about the tumor and describing his severe pain (Doc. 1, pp. 44-45). This letter was written approximately ten days before Warren filed the January 20, 2015 grievance described above. Thus, unlike Dr. Martin, Warren was aware of who Dr. Shicker was and his role in the administration of medical services. Had Warren intended to include Shicker and his failure to respond to the letter in his grievance, he was able to specifically name him. ILL. ADMIN. CODE TIT. 20, § 504.810(b). Further, unlike Dr. Martin, there is no evidence Dr. Shicker was ever made aware of the January 20, 2015 grievance.
It is therefore
It is undisputed that Dr. Coe requested surgery to remove Warren's tumor on September 23, 2013, March 27, 2014, November 10, 2014, and February 10, 2014 (Doc. 46, ¶¶ 6, 9, 12, and 14). Those requests were reviewed through the "collegial review" process that involved Dr. Coe discussing the request with another physician — either Dr. Garcia or Dr. Ritz (Doc. 46, ¶¶ 7, 9, 10, 12, 14). According to the record, surgery was "denied" as a result of each of those collegial reviews (Doc. 46-1, pp. 4, 6, 7; Doc. 46-1, pp. 11, 13, 16). Defendants Garcia, Ritz and Wexford argue, however, that Warren did not exhaust his administrative remedies with regards to them because he did not name them specifically in his grievances (Doc. 46, pp. 7-9).
Providing notice to those who may later be sued is not one of the purposes of the exhaustion requirement. Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)). Rather, the goal is to alert the State to potential problems and allow the prison system the opportunity to resolve some or all of the issues prior to involving the courts. Id. at 721; Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). In addition, when administrative decisions are at issue, prisoners are not required to identify the specific individual responsible for the decision in order to exhaust administrative remedies. Glick, 385 Fed.Appx. at 582.
Warren was not obligated to specifically name Dr. Garcia in order to exhaust his administrative remedies. On September 23, 2013 Dr. Coe submitted a referral for Warren to have surgery to remove the tumor on his ear (Doc. 46-1, p. 9). Dr. Garcia conducted the "collegial review" of that request that resulted in denial of the procedure (Doc. 46-1, p. 11). Approximate three weeks later, on October 23, 2013, Warren filed a grievance complaining that he needed to be sent to a specialist to have the tumor on his ear removed (Doc. 46-2, p. 1). The counselor's response, signed off on by the Chief Administrative Officer, denied the grievance based on the collegial review decision (Doc. 46-2, p. 1). Thus, the grievance and related responses show the prison was aware of Warren's complaint that he was not being provided with surgery to remove his tumor and the reason for that denial was a decision in the collegial review process with which Dr. Garcia was undeniably involved.
Further, despite Dr. Garcia's direct involvement in the decision to deny surgery, nothing in the record indicates that Warren was aware of his involvement. Garcia argues that because a letter written nine months after the grievance (on July 1, 2014) references Dr. Garcia by name, that Warren must have had knowledge of Dr. Garcia's involvement in his collegial review process and therefore his name should have been included in the original grievance (Doc. 46, p. 7; Doc. 46-2, p. 24). The Court disagrees. The fact that Warren referenced Dr. Garcia's name after he filed his grievance but before his appeal to the ARB only establishes that Warren became aware of Dr. Garcia's involvement sometime after he filed his original grievance.
The September 23, 2013 grievance, therefore, complained of an administrative decision by a person unknown to Warren. As such, Warren was not required to specifically name Dr. Garcia in order to exhaust his administrative remedies.
It is undisputed Dr. Ritz was involved in the November 10, 2014 collegial review denying surgery to remove Warren's tumor (Doc. 46-1, p. 6). The records indicate notice of the denial of that collegial review was sent to Warren on November 26, 2014 (Doc. 46-1, p. 17). Less than sixty days later, on January 20, 2015, Warren filed a grievance complaining of ongoing difficulty getting his tumor treated, and specifically referencing denials of surgery through the collegial review process (Doc. 46-2, pp. 16-17). Although Dr. Ritz was not specifically identified in that grievance, there is no evidence that Warren was aware Dr. Ritz had conducted the collegial review as opposed to Dr. Garcia.
Wexford argues Warren failed to exhaust his administrative remedies because he did not name Wexford specifically (Doc. 46, pp. 8-9). As discussed above, at least two grievances alleged Warren had been denied necessary surgery for his tumor and one grievance specifically references the denial of his surgery through the collegial review process (Doc. 46-2, pp. 16-17, 21-22). Given that Wexford was responsible for providing the medical care at Lawrence, including conducting the collegial review process, the state certainly would have been aware that the grievance implicated Wexford. Warren was not required to put Wexford on notice they might be sued, or to identify Wexford as the administrative entity responsible for denying him the medical care he believed necessary.
Wexford also argues Warren failed to exhaust his administrative remedies because his grievances did not specifically state the denial of his surgery was due to a Wexford policy or procedure (Doc. 46, pp. 8-9). The Seventh Circuit has stated, however, that prisoners are not required to articulate specific legal theories in order to exhaust their administrative remedies. Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002); See also ILL. ADMIN. CODE TIT. 20, § 504.810 (prisoner must include factual details regarding "what happened, when, where and the name of each person . . ."). Warren's grievance references the denial of his surgery due to the collegial review process. Thus, the grievance was sufficient to place Wexford on notice that Warren was complaining about that practice. It was not necessary for Warren to identify it as a "practice" in the grievance in order to exhaust administrative remedies. Thus, Warren has exhausted his administrative remedies against Wexford.
For the reasons set forth above, it is
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. Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003).
