Glick v. Walker

385 F. App'x 579
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 13, 2010
DocketNo. 09-2472
StatusPublished
Cited by67 cases

This text of 385 F. App'x 579 (Glick v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glick v. Walker, 385 F. App'x 579 (7th Cir. 2010).

Opinion

ORDER

Dennis Glick, an Illinois prisoner formerly housed at Menard Correctional Facility, claims in this civil-rights action that current and former employees of the Department of Corrections denied him medical care, disregarded risks to his health and safety, and retaliated against him for filing grievances. The district court granted summary judgment for the defendants on the ground that Glick had not exhausted his administrative remedies before filing suit. See 42 U.S.C. § 1997e(a).

This is the second time Glick’s lawsuit has reached this court. In the previous appeal we remanded four of Glick’s five claims after the district court had dismissed the entire action at screening for failure to state a claim. Glick v. Walker, 272 Fed.Appx. 514, 521 (7th Cir.2008). We concluded that Glick’s complaint stated claims under the Eighth Amendment based on his allegations that the defendants prevented him from receiving prescribed mental-health treatment, housed him with a heavy smoker despite his known heart condition; and ignored threats from a different cell mate who later attacked him. In addition to these three claims, we also remanded Glick’s claim that the defendants had violated the First Amendment by retaliating against him for voicing his grievances. The complaint named as defendants the director of the Department of Corrections, the chairperson of the Administrative Review Board (“ARB”), and several Menard employees, including the warden, a grievance officer, a grievance counselor, an unidentified internal-affairs officer, and the administrator of the prison’s healthcare unit.

On remand the defendants moved for summary judgment on the ground that Glick had failed to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a). They submitted an affidavit from Melody [581]*581Ford, the defendant chairperson of the ARB, who faulted Glick for what she characterized as procedural missteps during each of the grievance proceedings underlying the claims we remanded. With respect to Glick’s claims that the defendants violated the Eighth Amendment by refusing him mental-health treatment and bunking him with a smoker, Ford asserted that Glick had been required by regulation, see 20 Ill. Admin. Code § 504.810(b), to identify in his grievances all of the responsible prison employees but failed to name any defendant he sued. Ford added that the grievance concerning the assault by his cell mate, which Glick had given directly to the warden asking for emergency review, see id. § 504.840, should have been but was not resubmitted to a grievance officer after ARB upheld the warden’s determination that no emergency existed. As for the First Amendment retaliation claim, Ford averred that the ARB had no record of receiving an administrative appeal from Glick after his grievance was denied at the institutional level. The district court conducted a telephonic hearing on the issue of exhaustion, see Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.2008), but the proceeding was not recorded, and so the evidence before us is limited to Ford’s affidavit and the paperwork from Glick’s grievances.

In granting summary judgment on all claims, the district court accepted the defendants’ premise that three of Glick’s four grievances were deficient because he did not name specific employees. For that reason, the court concluded, Glick had failed to exhaust his First Amendment retaliation claim and his Eighth Amendment claims concerning his mental health and exposure to second-hand smoke. As for the remaining grievance, which Glick had submitted to the warden for emergency review, the district court endorsed the defendants’ position that Glick had not followed “necessary procedure” after the warden decided against expedited review. It followed, said the court, that Glick had not exhausted his Eighth Amendment claim concerning the assault by his cell mate. Glick argues in this court that all four claims should have survived summary judgment.

The Prison Litigation Reform Act requires that inmates with grievances about the conditions of their confinement exhaust all available administrative remedies before turning to the courts. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004). Failure to exhaust is an affirmative defense that must be pleaded and proved by the defendant. Pavey, 544 F.3d at 740-41; Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.2006). The contours of the exhaustion requirement are set by the prison grievance system in each state, see Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), and the procedure in Illinois is a three-step process which begins with an attempt by the inmate to resolve the issue informally through a prison counselor, then proceeds to review at the institutional level, and finally ends with an administrative appeal to the director of the Department of Corrections, who has delegated review authority to the ARB. 20 Ill. Admin. Code. §§ 504.810(a), 504.850(a).

We start with Glick’s claims that he was denied mental-health treatment and exposed to second-hand smoke. In his grievance underlying the first of these claims, Glick complained that his security classification was too restrictive and kept him from participating in group therapy prescribed by a prison psychiatrist. He asked for a lower escape-risk level and a transfer to a facility that could accommodate group therapy. In his grievance underlying the claim about being housed with a smoker, Glick explained that he was [582]*582being treated at Menard for a heart condition and wanted to be moved to a nonsmoking cell to avoid the risks associated with second-hand smoke. Both grievances were denied on the merits at Menard, and both times the decision was upheld by the ARB on administrative review.

The district court’s exhaustion analysis for these two claims turns on the court’s reading of § 504.810(b), which provides in relevant part:

The grievance shall 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 or who is otherwise involved in the complaint. This provision does not preclude an offender from filing a grievance when the names of individuals are not known, but the offender must include as much descriptive information about the individual as possible.

20 Ill. Admin. Code § 504.810(b). The court, at the urging of the defendants, read this language with selective emphasis on the first sentence. But the identification requirement in the first sentence is softened by the second sentence, which clarifies that prisoners need identify names only to the extent practicable.

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Bluebook (online)
385 F. App'x 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glick-v-walker-ca7-2010.