Michael Thomas v. Charles Truitt; Kenneth Osborne; Charlotte Abelita; Helen...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS MICHAEL THOMAS, ) ) Plaintiff, ) ) v. ) No. 1:24 C 174 ) CHARLES TRUITT; KENNETH OSBORNE; ) Judge Rebecca R. Pallmeyer CHARLOTTE ABELITA; HELEN ) BRUCKNER; and WEXFORD HEALTH ) SOURCES, INC., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER In December of 2022, Plaintiff Michael Thomas—who was then incarcerated in Stateville Correctional Center, an Illinois Department of Corrections facility—woke up with burning pain in his right ear and reduced hearing. He sought out medical care, and medical staff extracted a cockroach from his ear. But Thomas continued to experience pain, and despite his complaints, staff failed for several days to provide treatment for an ear infection that Thomas believes resulted from the cockroach. In this lawsuit, Thomas brings various 42 U.S.C. § 1983 claims against Defendants, arguing that the conditions of his confinement violated his Eighth Amendment rights.

Specifically, Thomas claims medical staff at Stateville Correctional Center denied him adequate medical treatment for the ear infection. Thomas also alleges that the unsanitary living conditions at Stateville, which he claims caused the infection, violated the Constitution’s prohibition on cruel and unusual punishment. Defendants have moved for summary judgment, arguing that Thomas failed to exhaust his administrative remedies—a prerequisite, under the Prison Litigation Reform Act, to his filing suit. See 42 U.S.C. § 1997e(a). For the reasons outlined here, the motions are denied.

BACKGROUND For the purposes of summary judgment, the court’s account presents the facts in the light most favorable to Thomas, the non-moving party, and draws all reasonable inferences in his favor.

See Bell v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016).

Between 2011 and 2024, Michael Thomas was incarcerated in Stateville Correctional Center (“Stateville”), an Illinois Department of Corrections (“IDOC”) facility in Joliet, Illinois that has since closed.1 (Am. Compl. [46] ¶ 12.) Throughout the later months of 2022, Thomas alleges, he complained to Warden Charles Truitt and Assistant Warden of Programs Kenneth Osborne (both named Defendants here) on multiple occasions about unsanitary living conditions in his housing unit, including “a severe roach infestation, the presence of rodents and other insects, and numerous birds flying around the cell block and the mess hall.” (Id. ¶ 14.) Truitt and Osborne responded (presumably in oral conversations, though Thomas does not provide detail about these communications) that they would attempt to improve the living conditions, but that they would need time. (Id. ¶ 15.)

In November of 2022, Thomas began experiencing pain in his right ear and intense headaches. He sought medical care in several visits to Stateville’s medical facilities. (Id. ¶ 17– 22.) Thomas’s symptoms persisted into December, and worsened significantly when, on December 20, 2022, Thomas was awoken by a burning pain in his right ear. (Id. ¶ 23–25.)

Thomas also realized that he had difficulty hearing from that side. (Id. ¶ 23–25.) Thomas submitted a sick call request and was seen the same day by Defendant Charlotte Abelita, a nurse at Stateville, to address his worsening symptoms. (Id. ¶ 26; Abelita Mot. Summ. J. [95] ¶ 4.)

Abelita conducted a medical assessment in which she inserted a tool into his right ear and began pulling something from his ear canal. (Am. Compl. [46] ¶¶ 26, 27.) Thomas turned and observed that Abelita had removed a cockroach from inside his ear.2 (Id. ¶¶ 27–28.) Abelita assured Thomas that he would be called to the Health Care Unit for further examination and treatment by a doctor before the end of the day. (Id. ¶ 30.) But Thomas was not called back to the Health Care Unit until the following day, December 23, 2022, when he saw Nurse Practitioner Helen Bruckner, an employee of Wexford Health Sources (both named Defendants here). (Id. ¶ 9, 33– 34.) According to Thomas’s Amended Complaint [46], Bruckner performed a medical examination in which she inserted an instrument and liquid into his ear. (Id. ¶ 34–37.) She told Thomas that she would refer him for lab testing but refused his requests for medication that could ease his symptoms. (Id. ¶ 37–39.) Thomas’s condition worsened, impacting both his physical and mental health. (Id. ¶ 41–47.) He was unable to sleep, and became “depressed and paranoid.” (Id. ¶ 42–43.) Finally, on January 17, 2023, he was prescribed antibiotics for an ear infection by Doctor Evaristo Aguinaldo, whom he saw for treatment of an unrelated medical issue. (Id. ¶ 41–47;

These cases reflect only a sample of at least seventeen cases where Stateville prisoners alleged they had suffered from insects crawling into their ears.

Thomas Dep. [115-1] at 159:23–160:5.) The antibiotics cleared the infection, but Thomas still struggles with ear pain, hearing loss, and mental health issues arising from this injury. (Am. Compl. [46] ¶ 47–48.)

On December 24, 2022, Thomas filed an emergency grievance with the facility complaining of “unconstitutional living conditions” and complaining that he was not given adequate medical attention to address the pain in his right ear. (PSOF Ex. 2 [115-2] at 2–33).

Two weeks later, Warden Truitt determined that the grievance was not an emergency. (Am. Compl. [46] ¶ 40, Truitt and Osborne SOF ¶ 6.) Thomas’s grievance counselor then received and reviewed this grievance on February 9, 2023, and responded 14 days later, on February 23, 2023.

The response stated that “[e]very effort is made to ensure wildlife do not enter” the housing units, but that this could not be completely prevented as the animals enter from open doors and windows. The response also advised that Thomas could put in a request with security staff to have his cell “sprayed for bugs,” and that if he was still feeling sick, he should “submit a sick call slip.” (PSOF Ex. 2 [115-2] at 2–3.)

The next step in the grievance procedure requires that a prisoner who is dissatisfied with the response he has received must appeal the counselor’s decision up the chain-of-response to the grievance officer. Whether Thomas took this next step is disputed. Thomas claims that he did so. (PSOF [115] ¶ 6; Thomas Dep. [115-1] at 104:11–104:16, 213:13–214:5.) But Defendants Abelita, Bruckner, and Wexford argue that Thomas did not, citing an apparent lack of documentary evidence presented by Thomas or in the prison’s records. (Abelita Mot. Summ. J. [95] ¶ 8, 19; Abelita Reply [123] at 5; Wexford and Bruckner Mot. Summ. J. [104] at 6; Wexford and Bruckner Reply [125] at 2.) Defendants Truitt and Osborne more reservedly state that it is

It is also undisputed that on August 28, 2023, some six months after receiving that response, Thomas filed a second grievance regarding the same issues he outlined in his initial grievance. (PSOF Ex. 3 [120-3] at 3–4.) He asserted in that second grievance that eight months had passed and “clinical service have not responded nor returned my grievance.” (Id. at 4.)

Thomas requested that Stateville officials return his initial grievance to him with an explanation as to why they had yet to respond. In the event that his initial grievance had been lost, Thomas asked that his second grievance be processed as timely. (Id. at 3.) The grievance counselor reviewed Thomas’s second grievance and deemed it untimely on September 4, 2023. (Id.) Thomas appealed to the grievance officer, but that officer reached the same conclusion. (Id. at 2.) Finally, on November 9, 2023, Thomas appealed to the Administrative Review Board (“ARB”), attaching a copy of his first grievance as well as his second. The ARB deemed both grievances untimely.4 (Id. at 1; PSOF Ex. 2 [120-2] at 1.)

Thomas then filed suit in this court. His Amended Complaint [46] brings 42 U.S.C. § 1983 claims against Defendants for violations of his Eighth Amendment rights. Specifically, he alleges

DISCUSSION I. Standard of Review Failure to exhaust is an affirmative defense that a defendant “has the burden of proving.”

Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005). In moving for summary judgment on this issue, Defendants must show “that there is no genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If Defendants meet this burden, Thomas must then “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In deciding whether to grant summary judgment, the court “may not weigh conflicting evidence or make credibility determinations.” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (cleaned up); see also Jones v. Lamb, 124 F.4th 463, 467 (7th Cir. 2024) (“[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

II. Analysis The PLRA imposes the requirement that, before filing suit regarding prison conditions, a prisoner must exhaust all administrative remedies available to him. 42 U.S.C. § 1997e(a); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (holding that to properly exhaust, “a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require”). Importantly, the statute contains a “built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not ‘available.’” Ross v. Blake, 578 U.S. 632, 635– (2016). When “prison employees do not respond to a properly filed grievance,” they render that remedy “unavailable” for the purposes of analyzing exhaustion. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016) (quoting Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)).

IDOC’s grievance procedures are set forth in 20. ILL. ADMIN CODE § 504.800, and in Administrative Directive 04.01.114. (Truitt and Osborne Reply Ex. 1 [127-1].) The procedures include three steps that a prisoner must take in order to fully exhaust his administrative remedies.

First, the prisoner must submit a grievance to a grievance counselor within 60 days of the events at issue. 20 ILL. ADMIN. CODE § 504.810(a). Second, if he is unsatisfied by the counselor’s response, he must forward his initial grievance to the grievance officer, though both the Administrative Code and Directive are silent regarding the time frame for this step. (Truitt and Osborne Reply Ex. 1 [127-1] at 4.) Within two months of receiving an appeal of a grievance counselor’s response, the grievance officer reviews the counselor’s reply, makes his own determination, and forwards the grievance and the officer’s response to the chief administrative officer. 20 ILL. ADMIN. CODE § 504.830(e). The chief administrative officer reviews the grievance officer’s determination, and either ratifies or remands, also within two months of his receipt.6 (Truitt and Osborne Reply Ex. 1 [127-1] at 5–6.) The chief administrative officer then sends the grievance back to the prisoner. (Id.) Third, if the prisoner remains unsatisfied with the response, he has thirty days to appeal the grievance to the ARB. (Id.) Defendants argue that summary judgment is warranted because Thomas failed to exhaust his administrative remedies. Specifically, Defendants Abelita, Wexford, and Bruckner contend that Thomas failed to properly appeal the counselor’s response to his first grievance. (See Abelita Mot. Summ. J. [95] ¶ 8; Wexford and Bruckner Mot. Summ. J. [104] at 1–2.) In the alternative, all Defendants argue that regardless of whether Thomas did or did not properly appeal the counselor’s response, the six-month delay between Thomas’s receipt of the grievance counselor’s response and the filing of his second grievance shows that Thomas was “sitting on his hands,” which, they contend, amounts to non-exhaustion. (Wexford and Bruckner Reply [125] at 3; Truitt and Osborne Mot. Summ. J. [107] at 6; Abelita Reply [123] at 7.) The court addresses each of these arguments in turn.

A. Failure to Appeal Thomas insists, both in his pleadings and during his deposition, that he did in fact appeal the counselor’s February 23, 2023, response. (Opp’n [112] at 4–67; PSOF [115] ¶ 6; Thomas Dep. [115-1] at 104:11–104:16 (“I got the first phase back. But when we appeal to the grievance office, that part didn’t come back.”), 213:13–214:5. (Q: “So when you received your response from

This second grievance, taken together with Mr. Thomas’s pleadings and his statements under oath during his deposition, present sufficient “evidence on which the jury could reasonably find for [Thomas].” Anderson, 477 U.S. at 247–48, 252 (outlining that a genuine dispute of material fact can be supported by documents in the record including pleadings and depositions).

This quintessential genuine dispute of material fact is one that a jury, not the court, must resolve.

See Deets v. Massman Const. Co., 811 F.3d 978, 982 (7th Cir. 2016) (reversing the district court's grant of summary judgment because a factual dispute existed regarding whether defendant ever made the discriminatory statement at issue).

B. Failure to Follow Up Defendants argue, in the alternative, that even if Thomas did seek review of his first grievance, he failed to exhaust his remedies by doing nothing to follow up in the six months from the time that he allegedly appealed his first grievance to August 28, 2023, when he filed his second grievance. A requirement that a prisoner follow up in response to silence might have merit, but no such requirement appears in the grievance processes outlined by the institution.

See generally 20 ILL. ADMIN. CODE § 504.810. To successfully exhaust administrative remedies, “[a] prisoner must comply with the specific procedures and deadlines established by the prison's policy,” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015), overruled on other grounds, Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020), but he need not go beyond them. William v. Wexford, 957 F.3d 828, 834 (7th Cir. 2020) (finding that, though a prisoner “must take all the steps the prison offers” in order to properly exhaust, he need not “go beyond the established system and guess at some other way of attracting the attention of the prison authorities”); see also Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016) (“The PLRA does not . . . demand the impossible.”).

Still, to engage Defendants’ point, it is worthwhile to lay out a timeline. After appealing his decision to the grievance officer sometime in late February,8 all Thomas needed to do was wait for a response. The Administrative Code and Administrative Directive outlining the grievance process are ambiguous as to whether the grievance office had two months or four months to respond to Thomas’s appeal. See 20 ILL. ADMIN. CODE § 504.830; (Truitt and Osborne Reply Ex. [127-1] at 5–6); supra at 8 n.6. Moreover, not even this deadline appears to be a firm one; the

CODE § 504.830; (Truitt and Osborne Reply Ex. 1 [127-1] at 3–5), but the court will assume that if Thomas did appeal the counselor’s decision, he did so soon after receiving it. officer is expected to provide his findings and recommendations to the Chief Administrative Officer within two months “when reasonably feasible under the circumstances,” 20 ILL. ADMIN. CODE § 504.830, and the Chief Administrative Officer need only “make reasonable efforts [to complete his review] within two months of the receipt of the grievance.” (Truitt and Osborne Reply Ex. 1 [127-1] at 5.) Reading this ambiguity in the light most favorable to Thomas, it was reasonable for Thomas to wait to hear back for several months.9 And shortly thereafter, when he failed to hear back, Thomas attempted to follow up via a second grievance filed in late August. Therefore, for the bulk of the six-month gap that Defendants point to, the ball was in the prison’s court.

Defendants cite to several unpublished cases to support their contention that a prisoner who simply “sits on his hands” has failed to exhaust, see e.g., Salley v. Parker, No. 18-CV-5700, 2020 WL 4736412, at *9 (N.D. Ill. Aug. 14, 2020); Hill v. Bond, No. 13 CV 7305, 2015 WL 1166053, at *3 (N.D. Ill. March 11, 2015); Goldsmith v. Zolecki, No. 12 C 3965, 2013 WL 5699302, at *5 (N.D. Ill. Oct. 18, 2013), but those cases are easily distinguishable. In Salley, Hill, and Goldsmith, plaintiffs failed to pursue their grievances after they did not hear back, instead proceeding to file a lawsuit without taking any further steps. Thomas, in contrast, did attempt to follow up: he filed a new grievance after not hearing back and exhausted the grievance process with regard to that grievance. Cf. Salley, 2020 WL 4736412, at *9 (suggesting that “fil[ing] a new grievance” would have been adequate to demonstrate that the prisoner followed up on his grievance). Thomas’s actions are thus more analogous to the actions of the plaintiff in Dole v. Chandler, 438 F.3d 804, 807 (7th Cir. 2006), who, after failing to hear back from the ARB, inquired into the status of a grievance he had appealed. The ARB responded to his inquiry and told him they had no record of his appeal, and Dole then filed suit without re-filing his grievance. Id. at 807–08. The Seventh

Circuit held that Dole had exhausted his remedies by following up with the ARB. Id. at 812 (“By properly mailing his ARB complaint, alerting the ARB that the complaint was mailed, and filing suit only after the ARB failed to clarify what he should do next, Dole had done all that was reasonable to exhaust his administrative remedies.”). Because the record, construed in the light most favorable to Thomas, demonstrates that Thomas followed up on his first grievance after not hearing back, the court must deny summary judgment on the issue of exhaustion.

C. Hearing Defendants Wexford and Bruckner argue that, if the court concludes there are questions of material fact that preclude summary judgment, the court should hold an evidentiary hearing to test the credibility of Thomas’s evidence that he adequately exhausted his administrative remedies. (Wexford and Bruckner Mot. Summ. J. [104] at 7 (citing Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), abrogated by Perttu v. Richards, 605 U.S. 460 (2025)).) Thomas agrees with this proposition. (Opp’n [112] at 6.) In Perttu, however, the Supreme Court made clear that “parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” In light of that holding, the court declines to conduct a Pavey hearing. 605 U.S. at 468. The question of when the issue of exhaustion is “intertwined” with the merits of a claim remains uncertain under Seventh Circuit jurisprudence. See Breyley v. Fuchs, 156 F.4th 845, 849 (7th Cir. 2025) (declining to resolve the issue of whether the issue of exhaustion was intertwined with the merits of a prisoner’s claim, but remanding to the district court with instructions to make such a determination). At this phase, the court interprets this uncertainty generously in favor of Thomas: because the substantive § 1983 claim that Thomas brings is intertwined with his evidence of exhaustion (in that a fact finder would need to assess the credibility of the same witnesses on both questions), Thomas’s claim will proceed to a jury trial on all issues, including exhaustion. See Murphy v. Bailey, 794 F. Supp. 3d 556, 575 (C.D. Ill. 2025) (holding that “it is sufficient for exhaustion and merits issues to be intertwined when a fact-finder must make” common credibility determinations on both issues).

CONCLUSION Defendants’ motions [94, 102, 105] for summary judgment are denied. A status conference remains set for February 23, 2026, and the court will set a trial date at that time.

ENTER: Date: February 3, 2026 Xs HR 4 REBECCA R. PALLMEYE United States District Judge