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 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. § 1997e(a). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and the Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 30) filed by Defendants Brown and Jaimet be GRANTED.

FINDINGS OF FACT

Plaintiff Celester Edwards, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was incarcerated at Pinckneyville Correctional Center ("Pinckneyville"). Following threshold review, Plaintiff proceeds on the following Counts:

Defendants Brown and Jaimet filed a motion for summary judgment asserting Plaintiff failed to properly exhaust his administrative remedies as to his claims against either of them prior to filing this lawsuit (Doc. 30). Specifically, Defendant contends Plaintiff was familiar with the grievance process but failed to file any grievances as to either of them regarding the allegations in his Complaint. Plaintiff timely filed a Response (Doc. 36).

Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on January 30, 2019. Plaintiff testified at the hearing he filed two grievances that exhausted his administrative remedies as to these two Defendants. The Court reviews the following grievances:

March 10, 2017: This grievance was marked as an emergency. The grievance states that Plaintiff is not receiving adequate medical attention from Dr. Scott for his sleep apnea. Plaintiff states that he underwent a sleep study on June 5, 2016, which indicated he had sleep apnea. Plaintiff grieves that he needs a CPAP machine, but Scott has refused to order one. Plaintiff states that his apnea is worsening, and he needs to be sent to a sleep specialist. The requested relief is to be referred to a sleep specialist, to receive a CPAP machine, to be provided a lower bunk permit, and to be moved to a unit with a pain button or close to the health care unit.

There is no indication the emergency grievance was received by IDOC personnel. However, there is a second copy of the March 10, 2017 grievance on which the date was modified to March 30, 2017, and Plaintiff marked off the "emergency" portion and indicated he was submitting the grievance through the regular grievance process.

On March 31, 2017, the Counselor responded to the March 30, 2017 grievance, stating that it was a duplicate of multiple previous grievances and that he needed to wait until he received a response from the Grievance Office on the previous grievances before taking it to the next level. Both the March 10, 2017 original grievance, and the March 30, 2017 modified grievance, were received by the ARB, along with a packet of additional grievances on April 18, 2017. On June 1, 2017, the ARB denied the grievances as moot because the offender received a new CPAP machine and mask on May 9, 2017.

August 7, 2017: This grievance states that Warden Jaimet and HCU Administrator Brown have not responded to any of his correspondence about his lack of treatment for sleep apnea. Plaintiff states that he filed an emergency grievance and letter on this issue on March 21, 2016, but they refused to respond or take any action. There is no indication this grievance was received by any IDOC personnel. Plaintiff alleges he did not receive a response to his August 7, 2017 grievance.

LEGAL STANDARD

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 determining a summary judgment motion, the 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), inmates 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 two 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.

CONCLUSIONS OF LAW

Plaintiff argues the March 10, 2017/March 30, 2017 grievance exhausted his administrative remedies as to Warden Jaimet and Health Care Unit Administrator Brown because, as administrators, they were both put on notice of his complaints regarding treatment of his sleep apnea and they were responsible for denying his grievance. Plaintiff also argues he specifically named Jaimet and Brown and the allegations against them in the August 7, 2017 grievance and did not receive a response; therefore, he exhausted the administrative remedies made available to him. Plaintiff testified that he personally handed the August 7, 2017 grievance to the counselor at Pinckneyville. Plaintiff could not recall the name of the counselor. Plaintiff testified that he did not further pursue the grievance after handing it to the counselor.

Defendants argue Plaintiff did not specifically name Defendants Jaimet or Brown in the March 10, 2017 grievance. Defendants also argue there is no record that the August 7, 2017 grievance was ever received by any IDOC personnel. Defendants point out that Plaintiff attached thirty-four pages of exhibits and grievances to his Complaint, but the August 7, 2017 grievance naming Jaimet and Brown was not produced until after Defendants Jaimet and Brown filed their motion for summary judgment.

Based on the lack of documentation, the lack of recall, and the fact that the August 7, 2017 grievance was not included with Plaintiff's original grievances submitted, the Court does not find credible Plaintiff's testimony that he filed the August 7, 2017 grievance with IDOC personnel. Not only is there no record of IDOC receiving the grievance, but Plaintiff's Cumulative Counseling Summary which contains documentation of Plaintiff's interactions with his counselor, does not include any reference to this grievance. The Cumulative Counseling Summary includes documentation of two other grievances filed and responded to in August 2017, but there is no mention of the August 7, 2017 grievance.

The March 10, 2017/March 30, 2017 grievance did not exhaust Plaintiff's administrative remedies as to Defendants Jaimet and Brown because he failed to identify either of them by name or title and failed to grieve the allegations against them. Notice of a grievance which contains no allegations against the reviewer does not serve to exhaust remedies as to the reviewer. Additionally, Plaintiff presented no evidence that he filed a grievance against Defendant Jaimet regarding the allegations of retaliation. Defendants Jaimet and Brown are entitled to summary judgment on the issue of failure to exhaust administrative remedies.

RECOMMENDATIONS

Based on the foregoing, it is RECOMMENDED that the Motion for Summary Judgment based on Plaintiff's Failure to Exhaust Administrative Remedies filed by Defendants (Doc. 30) be GRANTED, that Plaintiff's claims against Defendants Jaimet and Brown be DISMISSED WITHOUT PREJUDICE; and that the Court adopt the foregoing findings of fact and conclusions of law.

It is further RECOMMENDED that Defendant Jane Doe be DISMISSED for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). On July 9, 2018, the Court entered an Order giving Plaintiff a deadline of November 9, 2018 to file a motion for leave to amend and identify the Jane Doe Defendant (Doc. 26). On November 8, 2018, the Court granted Plaintiff an extension of time until November 26, 2018 to identify Jane Doe (Doc. 38). Plaintiff has failed to timely identify the Jane Doe Defendant. It is recommended Plaintiff's claims against Defendant Jane Doe be DISMISSED WITH PREJUDICE.

If the Court adopts this Report and Recommendation, the remaining claims will be:

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).

You should e-file/mail your OBJECTIONS to the Clerk, U.S. District Court at the address indicated below: