REPORT AND RECOMMENDATION

REONA J. DALY, Magistrate Judge.

The matter has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge David R. Herndon 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 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 RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and Defendants' Motions (Docs. 97 and 100) be GRANTED.

FINDINGS OF FACT

Plaintiff, an inmate in the custody of the Illinois Department of Corrections, filed this lawsuit pursuant to 42 U.S.C. §1983 alleging his constitutional rights were violated while he was incarcerated at Menard Correctional Center ("Menard"). It is undisputed that Plaintiff has been diagnosed with a small ventricular septal defect, or hole, between the right and left ventricles of his heart. Plaintiff has been seen by a cardiologist but alleges he is receiving inadequate medical care for his condition because he has not received surgical repair. Plaintiff is currently proceeding on the following claims:

Defendants Trost, Siddiqui and Wexford assert Plaintiff failed to properly and fully exhaust his administrative remedies and that Plaintiff failed to name Siddiqui or Wexford in his grievances. Defendants Brooks, Butler, Lashbrook and Walls assert Plaintiff did not follow proper procedure to fully exhaust his administrative remedies and did not properly identify them in his grievances.

The Court notes Plaintiff has attached grievances to multiple documents filed in this case. In addition to the grievances Plaintiff filed with his Response to the Motions for Summary Judgment based on Exhaustion (Doc. 104), Plaintiff attached grievances to his Complaint (Doc. 1) and as Exhibits to his Motion for Preliminary Injunction (Doc. 81). The Court reviews each of the following relevant grievances:

November 2, 2014: This grievance states that it concerns deprivations of Curry's medical treatment. He explains that he suffers from shortness of breath and that medical personnel have confirmed it is the result of a hole in his heart. Curry states that he was seen by Dr. Trost and referred to an outside hospital. However, following his visit to the outside hospital, Dr. Trost has not provided follow-up care. Curry requests he be provided with heart surgery to repair the hole.

The grievance was submitted as an emergency. The Warden reviewed the grievance on November 20, 2014 and denied that it was an emergency. The denial stated that the offender should submit the grievance in the normal manner. On November 21, 2014, the Nursing Supervisor reviewed the grievance and drafted a Memorandum to Curry stating that she reviewed his medical record. She noted his history of being stabbed in the heart, and that he had been given the results of echo testing on September 24, 2014 by the nurse practitioner. She told him to go to the health care unit if his symptoms worsened. There is no further documentation that Curry submitted the grievance to the Counselor or Grievance Officer in the normal manner. The grievance was appealed directly to the ARB on January 13, 2015. The ARB returned the grievance on January 30, 2015, seeking documentation from the Counselor and Grievance Officer if timely. There is no further record concerning this grievance.

May 18, 2015: This grievance states that it concerns improper medical treatment. Curry states that he continues to have "heart pains" and that he has repeatedly put in requests for sick call and been placed in the physician call line. He has been seen by Dr. Trost who recommended he receive a TEE, but the TEE was denied. His requested relief is to be sent to an outside hospital for the TEE recommended by Trost.

The grievance was reviewed by the counselor who responded on July 31, 2015 that he had submitted the grievance to the HCU Administrator Gail Walls. Walls stated that the request for the TEE was presented in collegial and denied and that Curry was being monitored on site. The Counselor noted that if Curry were to appeal the denial of the grievance, he needed to attach the Memorandum from Gail Walls. There is no further documentation concerning this grievance.

June 2, 2017: This grievance was submitted as an emergency. Curry states that he is being deprived of proper medical attention for his heart condition. He also states that he is subjected to unsanitary living conditions. He mentions that the nurses, doctors and medical administrators at Menard are aware of his condition and that he has been seen by Dr. Trost but that he has not received the recommended medical treatment. He seeks to be sent to a hospital for a TEE procedure as recommended by Dr. Trost. His requested relief was proper heart monitoring, sanitary living conditions, and a transfer to another prison for physical therapy. It appears this grievance was sent to the Warden as well as directly to the ARB.

The ARB first received the grievance on June 8, 2017, and responded on June 22, 2017, seeking documentation from the Counselor, Grievance Officer and CAO. The Warden received a copy of the emergency grievance on June 13, 2017 and determined it was an emergency and sent it to the Grievance Officer for expedited review. The Grievance Officer contacted HCU and per Dr. Siddiqui the offender was called to HCU on June 15, 2017 for evaluation of his grievance issues. The grievance was partially affirmed as the offender was taken to the HCU for evaluation of his grievance on June 15, 2017. The cell house supervisor was also contacted regarding his cell conditions and a health and safety check was conducted with no issues noted. The Grievance Officer's Report noted that the offender should contact his assigned Counselor to request a transfer review. The CAO concurred with the Grievance Officer's Report on June 22, 2017.

On July 13, 2017 the ARB received the June 2, 2017 grievance for a second time, this time with the responses from staff at the institution. The ARB responded on July 31, 2017, that the grievance was not submitted within the timeframe outlined in Department Rule 504 since the offender did not cite any dates of incidents. There is no further documentation concerning this grievance.

After a careful review of the arguments and evidence set forth in the parties' briefs, the Court determined that an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) was not necessary.

LEGAL STANDARDS

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). When deciding 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 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 also 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.

CONCLUSIONS OF LAW

Defendants argue Plaintiff failed to follow proper procedure to fully appeal the grievances he filed prior to filing suit. Plaintiff asserts medical and prison staff at Menard were well aware of his medical issues and that he filed and appealed multiple relevant grievances to the ARB to fully exhaust his administrative remedies. Plaintiff failed to properly exhaust any of the three grievances.

Plaintiff filed the November 2, 2014 grievance as an emergency and when it was denied as an emergency, he appealed directly to the ARB rather than following the written instructions to submit it through the normal process. In Thornton, a prisoner submitted an emergency grievance regarding the conditions of his cell in segregation and later received a letter stating that his grievance did not constitute an emergency. 428 F.3d at 692. He did not appeal the grievance and did not submit the grievance through the normal grievance process. Id. at 693. The prisoner was transferred to a different cell but proceeded to file an action regarding the conditions of the original cell, and the district court dismissed the action for failure to exhaust administrative remedies. Id. On appeal, the state defendants argued that the prisoner failed to complete the grievance process because he did not submit the grievance through the normal grievance process. Id. at 694. The Seventh Circuit Court of Appeals disagreed, noting, "There is nothing in the current regulatory text, however, that requires an inmate to file a new grievance after learning only that it will not be considered on an emergency basis."1 Id. The Seventh Circuit reversed the judgment of the district court on the basis that prisoners are not required to "appeal grievances that were resolved as [the prisoner] requested and where money damages were not available" because, in such instances, no further remedy is available. Id. at 695-97.

The instant case is distinguishable from Thornton. Although prisoners may not be required by regulation to submit a new grievance after learning only that it is not considered an emergency, Plaintiff received written instructions to submit the grievance through the normal non-emergency process. Notably, prisoners must follow the prison's rules to properly exhaust administrative remedies, Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), and Plaintiff failed to complete the normal grievance process after receiving reasonable instructions to do so is. Significantly, unlike Thornton, Plaintiff's grievance was not resolved as he had not received the surgery requested. Plaintiff did not exhaust his administrative remedies with the November 2, 2014 grievance.

With regard to the May 18, 2015 grievance, Plaintiff failed to appeal this grievance to the ARB; therefore, this grievance was not exhausted.

Plaintiff eventually followed the proper procedures with regard to filing the June 2, 2017 grievance. However, he did not properly exhaust his administrative remedies with this grievance either. The ARB response was sent to Plaintiff on July 31, 2017. Plaintiff filed this lawsuit on July 19, 2017, prior to receiving the response from the ARB. According to the Rule 504, 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. The inmate's administrative remedies are not exhausted until the Director rules on the appeal through the Board. Since the ARB's response to Plaintiff's June 2, 2017 grievance was not dated until July 31, 2017, Plaintiff's filing of this lawsuit on July 19, 2017 was premature.2

RECOMMENDATIONS

For the foregoing reasons, it is RECOMMENDED that Defendants' Motions for Summary Judgment (Docs. 97 and 100) be GRANTED, and that the Court adopt the foregoing findings of fact and conclusions of law.

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).

NOTICE

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.

Please note: You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.

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).