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`E-FILED
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` Thursday, 19 November, 2009 04:18:54 PM
` Clerk, U.S. District Court, ILCD
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`URBANA DIVISION
`______________________________________________________________________________
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`Case No. 08-CV-2232
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`JEFFREY ORR, et al.,
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`Plaintiffs,
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`v.
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`WILLARD O. ELYEA, MICHAEL
`PUISIS, and WEXFORD CORP.,
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`Defendants.
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`OPINION
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`Plaintiffs, present and former inmates of the Illinois Department of Corrections (IDOC) with
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`Hepatitis C, filed their Complaint (#1) in this matter on September 29, 2008, claiming that, pursuant
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`to 42 U.S.C. § 1983, Defendants Willard O. Elyea (former IDOC Medical Director), Michael Puisis
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`(current IDOC Medical Director), and Wexford Corporation were deliberately indifferent to their
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`serious medical needs in violation of the Eighth Amendment of the Constitution of the United States.
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`On January 14, 2009, Defendant Elyea filed a Motion for Summary Judgment (#20). A
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`Supplemental Motion for Summary Judgment (#84) was filed by Defendant Elyea on July 21, 2009.
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`The other co-defendants also joined in this motion. Plaintiffs have filed their Response (#92) and
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`Defendants have filed their Reply (#93). The motion is now ready to be ruled upon by this court.
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`For the reasons that follow, Defendants’ Motion for Summary Judgment (#20), (#84) is GRANTED
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`in part and DENIED in part.
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`BACKGROUND
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`Plaintiffs filed their Complaint (#1) alleging that they are all inmates or former inmates of
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`-1-
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`2:08-cv-02232-HAB-DGB # 100 Page 2 of 15
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`the IDOC whose civil rights were violated because Defendants were deliberately indifferent to
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`Plaintiffs’ medical condition in that they did not receive needed medical treatment for Hepatitis C.
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`Defendant Elyea was the Agency Medical Director of the IDOC1 and personally adopted the policy
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`which denied medical treatment to Plaintiffs. Specifically, Plaintiffs were told that after receiving
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`a diagnosis for Hepatitis C based on blood work, they had to wait one year before receiving a liver
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`biopsy and beginning treatment. This meant that if they had less than a year to go on their IDOC
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`sentence, they were denied treatment for Hepatitis C. Plaintiffs charged this was deliberate
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`indifference on Defendants’ part to the substantial risk of serious harm faced by Plaintiffs. Plaintiffs
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`claim they have exhausted their administrative remedies and that “Defendants have adopted a policy
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`that all grievances in this matter are to be denied without consideration making further
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`administrative efforts futile.”
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`Defendants filed their Supplemental Motion for Summary Judgment (#84) on July 21, 2009.2
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`In the motion, Defendants assert that 150 of the 165 Plaintiffs involved have not exhausted their
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`administrative remedies, contrary to the claim made in Plaintiffs’ Complaint, and thus summary
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`judgment is compelled in favor of Defendants against those Plaintiffs. Defendants attached to their
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`motion the Affidavit of Terri L. Anderson.
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`Affidavit of Terri L. Anderson
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`1Defendant Puisis succeeded Elyea as Agency Medical Director of the IDOC and
`continued his policy relating to treatment for Hepatitis C. Wexford provided medical staffing
`and services to the IDOC, and is charged with aiding and abetting Defendants Elyea and Puisis
`with implementing their policy and “in the process denying Plaintiffs their constitutional rights.”
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`2This supplemented an earlier Motion for Summary Judgment (#20) filed on January 14,
`2009. The arguments advanced by Defendants in both motions are the same. This court, via an
`Order (#72) entered May 29, 2009, allowed Defendants to supplement the summary judgment
`motion with more factual support.
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`Terri L. Anderson, an employee of the IDOC since 1985, is currently employed as a Public
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`Service Administrator (Administrative Review Board Chairperson), who, as part of her duties,
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`reviews the appeals of inmate grievances. Inmates may files grievances in accordance with
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`department rules. They must first attempt to resolve grievances through their counselors. If the
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`issue remains unresolved after such informal efforts, the inmate may submit a written grievance on
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`a grievance form to the facility Grievance Officer. The Grievance Officer may personally interview
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`the inmate and/or witnesses as deemed appropriate and obtain relevant documents to determine the
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`merits of the inmate’s grievance. After completing the investigation, the Grievance Officer’s
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`conclusions and possible recommended relief are forwarded to the Chief Administrative Officer
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`(CAO). The CAO’s decision is then submitted to the grieving inmate.
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`Following receipt of the CAO’s decision, the inmate may appeal in writing to the Director
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`of the Department by submitting the Grievance Officer’s report and the CAO’s decision. The
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`Administrative Review Board (ARB), as the Director’s designee, reviews the appeal and first
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`determines whether the inmate’s grievance can be handled without the necessity of a hearing. If so,
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`then the inmate is so advised. Other matters are then scheduled for an in-person ARB hearing
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`involving an interview of the grieving inmate, examining relevant documents, and, at the ARB’s
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`discretion, calling witnesses. The ARB then submits a written report of its findings and
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`recommendations to the Director, who then reviews the report and makes a final determination on
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`the grievances. A copy of the ARB’s report and Director’s final decision is sent to the grieving
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`inmate. The originals of these documents remain in the ARB’s files. Department Rule 504F,
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`Grievance Procedures for Committed Persons, which governs the grievance process, provides no
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`further means for review beyond this step.
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`An inmate may request a grievance be handled on an emergency basis by forwarding the
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`grievance directly to the CAO and, if the CAO determines that there is a substantial risk of imminent
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`personal injury or serious irreparable harm to the inmate, the CAO may choose to handle the
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`emergency. In such a situation the CAO’s decision may be appealed to the ARB.
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`Anderson then discussed the offender tracking system (OTS), which is a database where
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`various information about inmates in the IDOC is stored and made accessible to IDOC employees.
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`Information in the OTS includes offender movement history as well as particulars such as an
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`offender’s incarceration status. Anderson, through the course of her duties, is familiar with the OTS
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`and regularly uses it. During May and June 2009, in conjunction with this litigation, she searched
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`the ARB records for each of the named Plaintiffs and Intervenors in this case, Orr v. Elyea, 08-CV-
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`2232, for grievances filed and appealed to the ARB at any time during an offender’s incarceration
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`up to and including June 17, 2009, involving medical care for Hepatitis C. During July 2009 she
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`searched the OTS records for each of the 165 named Plaintiffs and Intervenors to ascertain their
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`incarceration status as of the date of the lawsuit’s filing: September 29, 2008.
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`Anderson’s search resulted in the following regarding the Hepatitis C issue:
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`1) Inmates who exhausted their administrative remedies with the ARB as of the date of the
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`filing of the lawsuit, September 29, 2008:
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`Everado Alegria, John Beeson, Lewis C. Henry, Ronald Lee, John L. Markiewicz, Robert
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`Quinn, Deborah Weaver, David Williams, Jacalyn Arati, Kevin Dean, Fernando Hernandez,
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`Guadalupe Lopez, Philip McVitty, Lavertis Stewart, and Claxton Williams.
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`2) Inmates who exhausted their administrative remedies with the ARB as of May and June
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`2009 but did not exhaust prior to the filing of the lawsuit on September 29, 2008:
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`Ernest Blossom (12/11/08), Stacy Bock (1/27/09), Robert Cook (6/1/09), Chase Copelen
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`(3/18/09), Gary L. Daily (6/30/09), Donald Dawson (12/22/08), Terry Dibble (4/28/09), Cleveland
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`Garner (1/7/09), Robert Garrett (1/15/09), Willie Adkins (6/8/09), Timothy Giancana (3/30/09),
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`Ronnie Johnson (4/15/09), Clarence R. Jones (2/19/09), William Horton (4/16/09), Bobby Phillips
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`(1/7/09), Luis Reyes (1/12/09), LeAnn Vaughn (6/11/09), Jerome Zamp (4/21/09), Daniel Duane
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`(6/30/09), Geoffrey Truss (4/13/09).
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`3) The following inmates are no longer incarcerated in the IDOC:
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`Jeffrey Armstrong, Linda Armstrong, Greg Bashares, Vito Basile, Kenneth Bauza, Brian
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`Bennett, Debra Blanchard, Joseph Carillo, Paul Carter, Robert Cook, Michael E. Denning, Phillip
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`Day, David Dickson, Joseph Dilts, Ronald Dooley, Serafin Flores, Jay C. Frame, Nancy Gray, John
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`Gouyd, Chansouk Haksasila, Michael Hayes, Harold Higgens, Richard Jackson, Sturgis Jones,
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`Raymond Kasper, Ronald Lee, Terrence (Terry) Lee, Raymond Locke, Philip McVitty, Lawrence
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`Moye’, Jeffrey Orr, Ronnie F. Ortiz-Stookey, Scott Padrick, Ernesto Perez, Robert Quinn, Mason
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`Reid, Jesse Rice, Daniel Rohlfs, Wendell Ross, Michael D. Roy, Donald R. Rutherford, Forrest
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`Sanders, Miquel Santos, Michael Sheehan, Daniel Sims, John Small, Michael D. Smith, and Quinten
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`B. Smith, Anthony Stewart-Bey, David Walker, Edward Walker, Stephen William, Michael
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`Wippert, Darryl Wooding, David Workman, and Herbert Zachary.
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`4) Anderson’s search of the ARB records indicated that the following inmates did not
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`exhaust their administrative remedies with the ARB in that they have not filed grievances or did not
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`follow proper procedure when filing a grievance regarding medical care for treatment of Hepatitis
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`C:
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`Jeffrey Armstrong, Linda Armstrong, Milton Barber, Greg Bashares, Vito Basile, Kenneth
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`Bauza, Daniel Baxter, Norman Bell, Brian Bennett, Jeffrey Bennett, Renea Berndt, Debra
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`Blanchard, Adam Borreggine, Jeffrey Bowen, Fred Bragonier, Cori Butler, Paul Carter (Williams),
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`Dustin L. Collins, Calvin Cox, Brad Creason, James Debarbara, Michael DeBerry, Michael E.
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`Denning, Vicente Diaz, Jr., Joseph Ditts, Christopher Evans, Kent L. Fields, Christopher Fogarty,
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`Jay C. Frame, Edward B. Franco, John Gould, Nancy Gray, Chansouk Haksasila, Jeff Hammer,
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`Kelly Ray Hart, Michael Hayes, Nicholas Helman, David Henson, Richard Herman, Richard
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`Jackson, Billy Ray Johnson, Sturgis Jones, Raymond Kasper, Linda Kern, John Lathon, Terrence
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`(Terry) Lee, Wade Lesher, Willis McEwen, Clarence Eugene Miller, Jesus Miranda, Arthur
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`Mitchell, Michael Montgomery, Joshua Mueller, Jeffrey Orr, Ronnie F. Ortiz-Stookey, Scott
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`Padrick, Ernesto Perez, Allen Peters, Terry Reeves, Mason Reid, David Peterson, Jesse Rice, Jon
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`K. Roberts, Clayton Rockman, Steven Roden, Daniel Rohlfs, Wendell Ross, Michael D. Roy,
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`Donald R. Rutherford, Gilbert Sanabria, Forrest Sanders, Miquel Santos, Roger Scott, Bruce Sharp,
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`Michael Sheehan, Daniel Sims, John Small, Michael D. Smith, Quinten B. Smith, Eugene Smola,
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`Eugene Spagnola, Anthony Stewart-Bay, Kevin Taylor, Gregory Thomson, Kenneth Ray Timbs,
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`Gerald Tysko, Andre Villanueva, Edward Walker, Stephen William, Brian Lee Wilson, Dennis
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`Wilson, Fred Wilson, Michael Wippert, Darryl Wooding, David Workman, Herbert Zachary, Eric
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`Zike, Lamar Ewing, Richard Barnes, John Rossi, Dolan Hinton, Lawrence Moye, Serafin Flores,
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`Harold Higgens, Phillip Day, Jason Goldblum, Ronald Dooley, William Bouton, Derrick Morgan,
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`Jeffrey Jackson, Joseph Carillo, Charles Palmer, Raymond Locke, Rodney Graves, James Bourque,
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`David Walker, Dennis Haradon, Oscar Bustamante, Edward Walker, Lafayette Goins, James Hart,
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`Cornelius Lewis, and David Dickson.
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`5) Anderson’ search of the ARB and OTS records also indicated that Robert Quinn, Philip
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`McVitty, and Ronald Lee timely exhausted but are no longer incarcerated.
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`6) Joseph Carillo timely exhausted after the September 29, 2008, lawsuit filing, but he is no
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`longer incarcerated.
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`7) As of the date of the filing of the lawsuit, the following inmates were no longer
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`incarcerated:
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`Jeffrey Armstrong, Greg Bashares, Robert Cook, Chase Copelen, David Dickson, Serafin
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`Flores, Jay Frame, Nancy Gray, Chansouk Haksasila, Richard Herman, Harold Higgens, Dolan
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`Hinton, Sturgis Jones, Joshua Mueller, Jeffrey Orr, Scott Padrick, Ernesto Perez, Robert Quinn,
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`Daniel Rohlfs, Wendell Ross, Donald Rutherford, Forrest Sanders, Michael Sheehan, Michael
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`Smith, Thomas Tisdale, and David Walker.
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`8) The following inmates have filed a grievance with the ARB, but the grievance process is
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`not yet completed:
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`Lonnie Arsberry (3-19-09), Willie Harper (3-23-09), Al Hatley (6-4-09), Robert Kolonski
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`(3-2-09), Thomas Mescall (3-18-09), Gerrick Scott (5-11-09), and Thomas Tisdale (4-16-09).
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`Defendants’ Argument
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`In their summary judgment motion, Defendants argue that the appropriate remedy for the 150
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`Plaintiffs’ failure to exhaust, in accordance with the case law and statute, is dismissal from the case.
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`Defendants want: 1) the 123 Plaintiffs that did not exhaust prior to the lawsuit’s filing on September
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`29, 2008, dismissed; 2) the 20 Plaintiffs who did exhaust but not prior to September 29, 2008
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`dismissed; and 3) the 7 Plaintiffs who filed a grievance to the ARB, but the grievance process is not
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`yet completed, be dismissed as well.
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`Defendants further ask the court to allow discovery on exhaustion for the inmates who
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`Anderson’s search of ARB records revealed had exhausted their administrative remedies for the
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`Hepatitis issue with the ARB and to allow Defendants to file the appropriate dispositive motion
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`following such discovery. Defendants argue that it does not necessarily follow that these Plaintiffs
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`have exhausted with respect to the named Defendants and, in order to properly ascertain this, the
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`individual grievances need to be examined. Further, Defendants believe there may be a statute of
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`limitations issue with regard to these Plaintiffs, but that can only be done by deposing the individual
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`Plaintiffs to discover if they are alleging a continuing violation, so as to avail themselves of a tolling
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`argument with respect to the statute of limitations.
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`Plaintiffs’ Argument
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`Plaintiffs respond that, under Jones v. Berge, 172 F.Supp.2d 1128 (W.D. Wis. 2001) and
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`Lewis v. Washington, 265 F.Supp.2d 939 (N.D. Ill. 2003), where one member of the group or
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`class has satisfied the exhaustion requirement, all of the members are deemed to have exhausted
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`the requirement. Further, under Greig v. Goord, 169 F.3d 165 (2nd Cir. 1999), the statute
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`requiring exhaustion of administrative remedies is not applicable to those Plaintiffs who are no
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`longer prisoners.
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`Plaintiffs also argue that their need is an emergency medical need, so that the exhaustion
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`standard is relaxed. Shaw v. Breen, 2008 WL 4279650 (W.D. Wis. 2008). Plaintiffs contend
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`that responses to grievance filings lagged 6 months behind. Plaintiff David Henson, who was
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`listed as not having exhausted, had his grievance just disappear, as did Plaintiff Dustin Collins.
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`Plaintiff also alleges that, by policy, Defendant Elyea ordered all Hepatitis C grievances be
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`denied.
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`ANALYSIS
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`Under Federal Rule of Civil Procedure 56(b), “a party against whom relief is sought may
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`move at any time, with or without supporting affidavits, for summary judgment on all or part of
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`the claim.” Fed. R. Civ. P. 56(b). Summary judgment is appropriate “if the pleadings, the
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`discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
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`as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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`The Prison Litigation Reform Act (PLRA) holds that:
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`“No action shall be brought with respect to prison conditions under
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`section 1983 of this title, or any other Federal law, by a prisoner confined in any
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`jail, prison, or other correctional facility until such administrative remedies as are
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`available as exhausted.” 42 U.S.C. § 1997e(a).
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`Complaints about medical treatment in prison are complaints about “prison conditions.”
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`Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 534 (7th Cir. 1999), citing
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`McCarthy v. Bronson, 500 U.S. 136 (1991). A suit filed by a prisoner before administrative
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`remedies have been exhausted must be dismissed because the district court lacks discretion to
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`resolve the claims on the merits, even if the prisoner exhausts intra-prison remedies before
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`judgment. Perez, 182 F.3d at 535. The PLRA does not say that exhaustion of administrative
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`remedies is required before a case may be decided, rather “[t]he actual statute makes exhaustion
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`a precondition to suit.” Perez, 182 F.3d at 534-35 (emphasis in original).
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`In the instant case, it is uncontested that 150 of the 165 Plaintiffs have not exhausted their
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`administrative remedies as required under the PLRA. Some of the Plaintiffs never initiated the
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`grievance process, others initiated it before the filing of the suit but did not complete it, and still
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`others initiated the grievance process, but only after the filing of the suit. The law on this subject
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`is clear: when inmates complain of an Eighth Amendment violation due to medical treatment,
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`they must have exhausted their administrative remedies before the filing of the suit, or face the
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`dismissal of their complaints. Perez, 182 F.3d at 535. Based on Terri L. Anderson’s affidavit,
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`the following Plaintiffs have exhausted their administrative remedies prior to the filing of the
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`lawsuit and will be allowed to remain in the case:
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`Everado Algeria, Jacalyn Arati, John Beeson, Kevin Dean, Lewis C. Henry, Fernando
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`Hernandez, Ronald Lee, Guadalupe Lopez, John L. Mankiewicz, Philip McVitty, Robert Quinn,
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`Lavertis Stewart, Deborah Weaver, Claxton Williams, and David Williams.
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`Defendants claim that almost all of the 150 named by Defendants have not exhausted
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`their administrative remedies prior to the filing of this suit. Plaintiffs do, however, raise several
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`objections to Defendants’ summary judgment motion.
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`First, Plaintiffs cite the proposition that where a group brings a cause of action seeking
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`invalidation of the same rule or regulation, where one member of the group or class has satisfied
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`the exhaustion requirement, all of the members are deemed to have satisfied the same. See Jones
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`v. Berge, 172 F.Supp.2d 1128, 1131 (W.D. Wis. 2001). The court need not address the merits of
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`the claim, however, as the court, in an Opinion (#98) dated November 16, 2009, denied
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`Plaintiffs’ Amended Motion to Certify Class (#47). There is no class, so Plaintiffs’ argument on
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`this point is moot.
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`Second, Plaintiffs argue that the concept of exhaustion of administrative remedies “is one
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`imposed by statute and not common law” and is not applicable to those Plaintiffs who are no
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`longer prisoners. In support of this contention, Plaintiffs cite to Greig v. Goord, 169 F.3d 165
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`(2nd Cir. 1999), where the United States Court of Appeals for the Second Circuit held that prison
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`litigants who file prison condition actions after release from confinement are no longer
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`“prisoners” for purposes of § 1997e(a) of the PLRA and, therefore, need not satisfy the
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`exhaustion requirements of this provision. Greig, 169 F.3d at 167. However, this only applies if
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`the litigant was already out of prison at the time the suit was filed. If the litigant was still
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`imprisoned as of the date of the suit’s filing, but was then later released, the litigant was still
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`required to exhaust the administrative remedies before the filing of the suit. Dixon v. Page, 291
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`F.3d 485, 489 (7th Cir. 2002). Therefore, those Plaintiffs who were not in IDOC custody on the
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`date of the suit’s filing and did not exhaust their administrative remedies will be allowed to
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`remain in the suit. Those who are no longer in IDOC custody, but were in custody on the date of
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`the suit’s filing and did not exhaust their administrative remedies prior to that date, will be
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`dismissed from the suit. After a cross-check of Terri L. Anderson’s affidavit, the following
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`Plaintiffs did not exhaust their administrative remedies but were not incarcerated as of the date
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`of the suit’s filing. These Plaintiffs will be allowed to remain in the case with those earlier
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`named Plaintiffs who exhausted their administrative remedies prior to the suit’s filing:
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`Jeffrey Armstrong, Greg Bashares, Robert Cook, Chase Copelen, David Dickson, Serafin
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`Flores, Jay Frame, Nancy Gray, Chansouk Haksasila, Richard Herman, Harold Higgens, Dolan
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`Hinton, Sturgis Jones, Joshua Mueller, Jeffrey Orr, Scott Padrick, Ernesto Perez, Daniel Rohlfs,
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`Wendell Ross, Donald Rutherford, Forrest Sanders, Michael Sheehan, Michael Smith, Thomas
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`Tisdale, and David Walker.
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`These 25 Plaintiffs join the other 15 Plaintiffs, raising the number of Plaintiffs remaining
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`the suit to 40.
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`Third, Plaintiffs claim that exhaustion standards are relaxed because this is an
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`emergency, citing Shaw v. Breen, 2008 WL 4279650 (W.D. Wis. 2008). However, in that case,
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`District Court Judge Barbara B. Crabb was not even sure she had the power to modify
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`exhaustion requirements in an emergency, writing “[e]ven if I assumed that a court had authority
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`to modify exhaustion requirements in the face of an emergency, e.g. Marvin v. Goord, 255 F.3d
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`40, 43 (2nd Cir. 2001), petitioner has not alleged any facts suggesting his situation is so dire.”
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`Shaw, 2008 WL 4279650, at *1. However, the case mentioned in Shaw, Marvin v. Goord, 255
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`F.3d 40 (2nd Cir. 2001), does not exactly spell out what constitutes an emergency so as to relax
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`conditions, as all that is mentioned was the need for a root canal for an oral infection. Hepatitis
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`C, as has been discussed, can vary widely as to treatment times, symptoms, and immediate
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`seriousness. Plaintiffs have not made a case for relaxing the exhaustion standard.
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`Fourth, Plaintiffs claim that the failure to exhaust administrative remedies does not
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`deprive the court of its jurisdiction to issue injunctions. In their Complaint (#1), the injunctive
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`relief requested by Plaintiff was that the court issue an order to administer Hepatitis C treatment
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`and follow Federal guidelines in treating Hepatitis C. Plaintiffs reiterated these requests in their
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`Amended Motion for a Permanent Injunction (#49), which this court denied in full in an Opinion
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`(#99) dated November 16, 2009. Plaintiffs’ arguments here must fail.
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`Fifth, Plaintiffs claim that the IDOC’s failure to timely respond to grievances acts as
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`exhaustion. Plaintiffs claim that final appeal responses to grieving Plaintiff Cornelius Lewis
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`were running six months behind, outside of the time line set by the regulations. Also, Plaintiffs
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`contend that Plaintiff David Hanson filed a grievance that was found to be an emergency, but the
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`grievance then disappeared. Plaintiffs filed supporting grievance documentation for both Lewis
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`and Hanson.
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`In Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999), the United States Court of Appeals for the
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`Fifth Circuit held that a prisoner’s administrative remedies are deemed exhausted when a valid
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`grievance has been filed and the state’s time for responding thereto has expired. Powe, 177 F.3d
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`at 394. Here, Plaintiffs claim that the IDOC’s response to a grievance filed by Cornelius Lewis
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`is running six months behind. However, an examination of the documentation concerning
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`Lewis’s grievance reveals that the grievance in question was not even filed until October 8,
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`2008, more than a week after the September 29, 2008, filing of this suit. There was no chance
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`that Lewis ever could have exhausted before the filing of the suit, thus rendering Plaintiffs’
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`argument in this regard moot.
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`As for Dustin Collins, Plaintiffs have provided his grievance but nothing more. They
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`have provided no information or documentation suggesting that the grievance was ignored or
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`that no action had been taken by the IDOC. Plaintiffs argument here must be rejected as well.
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`Finally, Plaintiffs argue that since they are asking for monetary damages, and monetary
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`damages are not available through the grievance process, and that Defendant Elyea ordered that
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`all grievances on this issue be denied, there was no administrative remedy available and
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`exhaustion would have been futile. In support they cite to Booth v. Churner, 532 U.S. 731
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`(2001). Plaintiffs misapprehend Booth. In that case, the U.S. Supreme Court considered a claim
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`from an inmate who was seeking only money damages and who argued that because he could not
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`obtain money damages through the prison grievance process, any attempt to exhaust would be
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`futile and thus not required. Booth, 532 U.S. at 735. The Court disagreed, holding that the
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`PLRA requires administrative exhaustion even where the grievance process does not permit
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`award of money damages and the prisoner seeks only money damages, as long as the grievance
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`tribunal has authority to take some kind of responsive action, as one “exhausts” processes, not
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`relief. Booth, 532 U.S. at 739-41. Thus, under Booth, even though Plaintiffs seek money
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`damages, they must still exhaust their administrative remedies. As to their argument concerning
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`Defendant Elyea’s order that all grievances on the Hepatitis C treatment issue be denied,
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`Plaintiffs have provided no evidence or proof of such a standing order applied in a blanket
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`manner to all grievances involving Hepatitis C treatment. Plaintiffs make reference to Elyea’s
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`testimony in the prior case before Judge Baker, but a review of the pages cited concerning
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`grievances do not indicate a blanket, standing order from Elyea on Hepatitis C-related grievances
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`that deny each one outright so as to make them futile.
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`IT IS THEREFORE ORDERED:
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`(1) Defendants’ Motion for Summary Judgment (#20) and Supplemental Motion for
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`Summary Judgment (#84) are GRANTED in part and DENIED in part.
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`(2) The motion is GRANTED as to all those Plaintiffs who were incarcerated as of the
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`date of this litigation’s commencement, September 29, 2008, and had not exhausted their
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`administrative remedies prior to the suit’s filing.
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`(3) The motion is DENIED as to those who exhausted their administrative remedies
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`before the filing date of September 29, 2008, and it is DENIED as to those Plaintiffs who may
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`not have exhausted their administrative remedies, but were no longer incarcerated as of the
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`September 29, 2008 filing date.
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`(4) Therefore, the following Plaintiffs remain in the suit:
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`Jeffrey Armstrong, Greg Bashares, Robert Cook, Chase Copelen, David Dickson, Serafin
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`2:08-cv-02232-HAB-DGB # 100 Page 15 of 15
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`Flores, Jay Frame, Nancy Gray, Chansouk Haksasila, Richard Herman, Harold Higgens, Dolan
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`Hinton, Sturgis Jones, Joshua Mueller, Jeffrey Orr, Scott Padrick, Ernesto Perez, Daniel Rohlfs,
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`Wendell Ross, Donald Rutherford, Forrest Sanders, Michael Sheehan, Michael Smith, Thomas
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`Tisdale, and David Walker.
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`Everado Alegria, John Beeson, Lewis C. Henry, Ronald Lee, John L. Markiewicz, Robert
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`Quinn, Deborah Weaver, David Williams, Jacalyn Arati, Kevin Dean, Fernando Hernandez,
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`Guadalupe Lopez, Philip McVitty, Lavertis Stewart, and Claxton Williams.
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`(5) All other Plaintiffs are hereby DISMISSED from this case for failure to exhaust
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`administrative remedies before commencement of the litigation.
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`(6) This case is referred to Magistrate Judge David G. Bernthal for further proceedings in
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`accordance with this opinion.
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`ENTERED this 19th day of November, 2009
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`s/ Michael P. McCuskey
`MICHAEL P. McCUSKEY
`CHIEF U.S. DISTRICT JUDGE
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