DONALD G. WILKERSON, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District 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 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
Mr. Todd is a diagnosed insulin-dependent diabetic who receives 30 units of 70/30 insulin two times a day via injection (Doc. 26, p. 3). Mr. Todd does not receive an appropriate diabetic diet and is not on a meal plan designed for diabetics, rather, he receives the same meals as other, non-diabetic inmates (Doc. 26, p. 3).
Mr. Todd inconsistently receives a diabetic snack bag only after his evening insulin injection, despite also getting an objection in the morning (Doc. 26, p. 4). Further, the diabetic snack bag contains food that does not properly manage the impact the insulin injection has on Todd's blood sugar (Doc. 26, p. 4). As a result, Mr. Todd's blood sugars are not well controlled and his insulin requirements are increasing (Doc. 26, p. 4).
Todd has requested an appropriate diabetic diet multiple times from various individuals. Specifically, Todd asked Dr. Shah, Dr. Scott, Dr. Kayira, Mr. Blum, Nurse Rector, Nurse Shultz, and Nurse Hughes to put him on an appropriate diabetic diet in conjunction with his insulin regimen (Doc. 26, p. 4). They all either refused to put him on an appropriate diabetic diet or ordered an appropriate diabetic diet but, after receiving notice from Todd that he was not in fact receiving the ordered diabetic diet, failed to investigate and/or took no action to follow up on the order (Doc. 26, p. 4). Further, if an appropriate diabetic diet was in fact ordered, Defendants Fisher and Harris failed to ensure Todd in fact was placed on the diabetic diet, despite Todd's specific requests to both to do so (Doc. 26, p. 4).
Because his insulin medication and diet are not coordinated, Mr. Todd has on multiple occasions suffered from uncontrolled blood sugar (both hypoglycemia and hyperglycemia), resulting in symptoms which include, among other things: fatigue, pallor, shakiness, irritability, light-headedness, dizziness, confusion, loss of sleep, uncontrolled sweating, anxiety and frequent urination (Doc. 26, p. 4). Todd also suffers from diabetic neuropathy (nerve pain), which is exacerbated by uncontrolled blood sugar (Doc. 26, p. 5).
On May 2, 2017 who filed an Amended Complaint (Doc. 26), which is the operative complaint in this case. The Amended Complaint alleges deliberate indifference to a serious medical need against all listed Defendants for failing to address Todd's diabetes, including failing to investigate and order an appropriate diabetic diet (Doc. 26).
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, 286 F.3d at 1024). If a plaintiff has exhausted all remedies, the case will proceed on the merits. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). If a plaintiff has not exhausted, the Court may either allow the plaintiff to exhaust or terminate the matter. Id.
An inmate, however, is required to exhaust only those administrative remedies available to him. See 42 U.S.C. § 1997e(a). 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). When prison officials fail to provide inmates with the forms necessary to file an administrative grievance, administrative remedies are not available. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). A remedy also becomes `unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
Defendants argue Todd only filed one grievance relating to the pending claims, on October 10, 2015, and that grievance did not exhaust Todd's administrative remedies (Doc. 92, p. 3). Todd disagrees, arguing there are multiple grievances that exhaust administrative remedies against the defendants (Doc. 98, p. 19).
Defendants argue this grievance was untimely and therefore cannot have exhausted Todd's administrative remedies. Further, even had the grievance been timely, it only names Defendants Shah and Rector (Doc. 92, p. 8), and therefore Todd has not exhausted against the other Defendants.
Todd submitted the October 10, 2015 grievance as an emergency (Doc. 92-1, p. 24). For some unknown reason the grievance was not reviewed for a month (Doc. 92-1, p. 24).
Defendants argue that because Todd did not request an appeal within the 30-day time limit, he failed to exhaust his administrative remedies. However, Todd has presented evidence he was not provided with the CAO's decision until January 12, 2016, and that he signed the document requesting an appeal the same day he received it (Doc. 98-1). It is uncontroverted that a remedy becomes `unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Here, the uncontested evidence from Todd is that he was denied an opportunity to review the decision on the grievance or to request an appeal until after the timeline had run. As a result, the process was rendered unavailable to Todd and he therefore exhausted his administrative remedies with regard to this grievance.
Defendants argue that at the most, this grievance exhausted administrative remedies against Defendants Shah and Rector because they are the only Defendants specifically named in the document (Doc. 92, p. 8). However, the grievance also references "Wexford Health Care staff" (Doc. 92-1, p. 25).
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). Here, Todd specifically identified that Wexford health care staff were involved in the denial of his (medical needs). Thus, the State was placed on notice that the Wexford health care employees providing Todd with his medical care were implicated by the grievance.
Further, while it is true that the Illinois Administrative Code requires inmates to list individuals by name or description, the form filled out by Todd only instructed him to provide a "Brief Summary of Grievance" (See Doc. 92-1, p. 32). The Seventh Circuit has held an inmate is not required to specifically name individuals where the form only requested a brief summary of the events, the prisoner was never told his grievance was deficient, and prison officials acted on his grievance. Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011). That is precisely what happened here. The Court declines Defendants' request to allow the prison to retroactively object to the form a grievance it previously felt capable addressing on the merits.
Thus, the Court finds the October 10, 2015 grievance sufficient to exhaust administrative remedies against Wexford Health Care employees providing healthcare service to Todd.
In this grievance Todd complains about not getting adequate nutritious meals for his diabetes and ties the failure to get appropriate meals to his inability to get proper medical treatment (Doc. 92-1, p. 33). While difficult to read, the Court is able to make out references to Angel Rector specifically, as well as several references to "nurses" and "health care officers" (Doc. 92-1, pp. 32-33).
The grievance was submitted as an emergency on December 4, 2015, but the CAO determined it was not an emergency five days later (Doc. 92-1, p. 32). The Counselor recommended denial of the grievance almost two months later, but completely failed to address any of Todd's claims about his diabetic meals (Doc. 92-1, p. 31). Regardless, the CAO concurred with the counselor's recommendation on February 16, 2016 and Todd signed for an appeal five days later (Doc. 92-1, p. 31). He then mailed the written appeal within a few days of signing (Doc. 109-1, p. 2). Thus, Plaintiff appears to have appealed the denial of his grievance in a timely manner.
For some reason, however, the ARB did not receive the appeal until May 19, 2016 and as a result denied it as untimely (Doc. 92-1, p. 30). At the time Todd appealed his grievance, the Illinois Administrative Code required prisoners "to appeal" to the ARB within 30 days. 20 IL. ADMIN. CODE § 504.850(a).
Thus, the Court finds the December 4, 2015 grievance sufficient to exhaust administrative remedies against Angel Rector, "nurses" and other health care staff.
Although the above grievances are sufficient to exhaust administrative remedies against the medical Defendants who treated or interacted with Todd around the time of the grievance, two of the named Defendants allege they were not involved with his treatment until much later and therefore the grievances could not have served to exhaust administrative remedies against them.
Lochard submitted an affidavit stating his involvement in Todd's medical care was limited to ordering a new Quad Cane for him on April 14, 2017; after the above grievances were filed (Doc. 106-6, pp. 1-2). Hughes does not allege that he was not employed at Pinckneyville during the time Todd was being denied a diabetic diet, just that he did not provide any treatment for his diabetes. This claim, however, contradicts Todd's allegations in his Complaint that he requested Defendant "Hughes" put him on an appropriate diabetic diet and that he failed to do so (Doc. 26, ¶ 23). Because Lochard was employed at Pinckneyville at the time covered by the grievances, and is alleged to have participated in the denial of a medically necessary diet, he is encompassed within the grievances filed by Todd. Whether Todd is ultimately successful in proving his case against Lochard is unrelated to whether he exhausted administrative remedies against him.
Blum alleges he did not begin working at Pinckneyville until May 22, 2017.
As a general rule, grievances cannot exhaust administrative remedies for actions that happen after they are filed. Palmer v. Fenoglio, 510 Fed.Appx. 476, 478 (7th Cir. 2013); Mayo v. Snyder, 166 Fed.Appx. 845, 848 (7th Cir. 2006). Where the underlying grievance alleges a continuing violation, however, a more nuanced analysis is necessary. The Seventh Circuit has been clear that prisoners do not need to file multiple grievances raising the same issues where the objectionable condition is ongoing. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). The inmate must file separate grievances only if "the underlying facts or the complaints are different." Id. Further, the purpose of a grievance is to alert prison officials to a problem, not provide particular individuals with notice they might be sued. Id. at 649. Once a prison has received notice of, and an opportunity to correct a problem, the prisoner has satisfied the purpose of the exhaustion requirement. Id. at 650.
Where a particular defendant acted subsequent to the filing of the complaint, the analysis becomes more difficult. Courts addressing this issue have generally found that a continuing violation has a "shelf life" that continues until some further action has been taken to address the problem. Zirko v Ghosh, 2015 WL 6447768, at *9 (N.D. Ill. Oct. 26, 2015; Burt v. Harrington, 2017 WL 468211, at *5 (S.D. Ill February 3, 2017) (citing Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). In Owens v. Duncan, the plaintiff filed an emergency grievance alleging ongoing problems with receiving his medication from a health care employee named Kimmel. Owens v. Duncan, 2017 WL 895591, at *6 (S.D. Ill. March 7, 2017). Ten days later, a different health care employee named Dowty, also refused to provide the plaintiff with his medication. Id. The Court found that because the failure to provide medication was a continuing violation that was not resolved until after both Kimmel and Dowty's actions, it was not necessary for the plaintiff to file a separate grievance addressing Dowty's actions. Id.; See also Armbruster v. Wexford Health Sources, Inc., 2017 WL 2418724, at *5 (S.D. Ill. June 5, 2017) ("Plaintiff did not need to file a new grievance each time he was seen by a new nurse as his complaint was the same.").
Where the prison has taken steps to address the continuing problem, however, any subsequent actions cannot be considered to be part of a continuing violation. Zirko, 2015 WL 6447768, at *10 (N.D. Ill. October 26, 2015) (grievance filed in February, 2010 complaining of a continuing failure to treat back pain could not exhaust administrative remedies after March, 2010 when plaintiff was provided with medication, a back brace and x-rays); Burt v. Harrington, 2017 WL 468211, at *5 (S.D. Ill. February 3, 2017) (grievance filed in November, 2012 complaining of a continuing denial of pain medication, could not exhaust administrative remedies after the plaintiff was provided with Motrin several days later).
Additionally, where there is a change in treatment provider and the complaint is specific to that provider's actions, rather than regarding an ongoing policy or practice, a new grievance is required. Burt v. Berner, 2015 WL 1740044, at *5 (S.D. Ill. Apr. 14, 2015); Barrow v. Wexford Health Sources, Inc., 2015 WL 5674892, at *4 (S.D. Ill. September 28, 2015) (where the complaints against a defendant are not related to a policy, but rather specific to the treatment of that particular defendant, a separate grievance must be filed).
Here, Todd's grievances complain of an unresolved continuing violation that encompasses Blum's alleged inaction. In Owens, the grievance stated a continuing failure to provide medication by one medical professional, but the court found that grievance covered the subsequent failure to provide medication by another health care provider because the problem had not yet been resolved by the prison. Owens v. Duncan, 2017 WL 895591, at *6 (S.D. Ill. March 7, 2017). Similarly, here Todd's grievances allege a continuing violation of his need for diabetic food to control his diabetes. Todd's affidavit states he still does not receive diabetic meals (Doc. 98-1). Thus, there is no basis for finding a break in the continuing violation that would have lead the State to believe the problem had been resolved prior to Blum's involvement. Further, unlike Burt and Barrow, this is a complaint about the general policy or practice of failing to provide medically necessary meals, and not the specific treatment provided by Blum. See Burt v. Berner, 2015 WL 1740044, at *5 (S.D. Ill. Apr. 14, 2015); Barrow v. Wexford Health Sources, Inc., 2015 WL 5674892, at *4 (S.D. Ill. September 28, 2015).
As such, requiring Todd to file another grievance each time a new health care provider continued in the ongoing denial of his request for medically necessary meals is contrary the Seventh Circuit's holding in Turley v. Rednour, that prisoners do not need to file multiple grievances where a continuing violation exists. Turley, 729 F.3d at 650. Thus, the Court finds the above discussed grievances are sufficient to exhaust Todd's administrative remedies against Blum.
For the above stated reasons, it is
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written
