United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Summary Judgment filed by
Defendants Mike Geier and Stephen Duncan (Doc. 26).
Defendants assert that they are entitled to summary judgment
on the basis that Plaintiff Otis Stewart failed to exhaust
administrative remedies before filing suit. For the following
reasons, the motion is DENIED.
brings this action pursuant to 42 U.S.C. § 1983 alleging
a single Eighth Amendment conditions of confinement claim
against the defendants. According to Plaintiff's
Complaint, on June 26, 2015, the toilet in his cell at
Lawrence Correctional Center (“Lawrence”) stopped
working and remained nonfunctioning for seven days (Doc. 2,
p. 13). The prison was on lockdown at the time. Id.
As a result, Plaintiff and his cellmate were forced to live
and eat right next to the toilet as it became increasingly
full of human excrement. Id. Plaintiff asserts that
Stephen Duncan, the Lawrence warden, and Mike Geier, the
Lawrence plumber, violated his rights under the Eighth
Amendment by failing to fix the problem sooner.
facts relevant to the grievance issue appear are largely
undisputed. On July 1, 2015, Plaintiff filed an emergency
grievance addressing the toilet problem (Doc. 27-1, p. 1). On
July 7, 2015, Defendant Duncan denied that the grievance was
an emergency and directed Plaintiff to pursue the grievance
through the normal non-emergency procedures. Id.
Shortly thereafter, Plaintiff appealed that denial to the
Illinois Department of Corrections (“IDOC”)
Administrative Review Board (“ARB”) (Doc. 27-2,
p. 1). On August 4, 2015, the ARB denied the appeal on the
basis that it was procedurally defective because Plaintiff
did not submit the grievance through the normal non-emergency
grievance procedure. Id. Plaintiff filed suit on
December 2, 2015.
assert that Plaintiff did not properly exhaust and that he
should have resubmitted his emergency grievance through the
normal non-emergency channels after it was denied by the
warden. Plaintiff disagrees, asserting that he properly
exhausted his remedies when he appealed the denial of his
emergency grievance directly to the ARB.
Prison Litigation Reform Act (“PLRA”) requires
prisoners to exhaust available administrative remedies before
filing a lawsuit regarding prison conditions. 42 U.S.C.
§ 1997e. Prisoners are not required to plead or
demonstration exhaustion in their complaint, but defendants
may raise a prisoner's failure to exhaust as an
affirmative defense. Jones v. Bock, 549 U.S. 199,
212 (2007). The Seventh Circuit has taken a “strict
compliance” approach to exhaustion under the PLRA.
Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006).
“To exhaust remedies, a prisoner must 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). However
a prisoner is only required to exhaust available
administrative remedies. Remedies will be deemed unavailable
if prison officials take unfair advantage of the grievance
process or “use affirmative misconduct to prevent a
prisoner from exhausting.” Dole, 438 F.3d at
809. Finally, “[e]xhaustion is an affirmative defense,
and the burden of proof is on the defendants.”
IDOC implements a three step grievance process for general
prison grievances (i.e., non-emergency grievances and
grievances not subject to direct ARB review pursuant to Ill.
Admin. Code tit. 20, § 504.870). First, the prisoner
must attempt to resolve the issue informally with their
counselor. Ill. Admin. Code tit. 20, § 504.810(a). If
the prisoner is dissatisfied with the counselor's
response they may proceed to step two by filing a written
grievance with the institution's grievance officer.
Id. The grievance officer will then “consider
the grievance and report his or her findings and
recommendations in writing to the [warden].” Ill.
Admin. Code Tit. 20, § 504.830(d). The warden will then
issue a decision in writing to the prisoner. Id. If
the prisoner is dissatisfied with the warden's decision
they may appeal the grievance to the ARB. Ill. Admin. Code
Tit. 20, § 504.850(a). This is the third and final step.
The grievance process is then completed when the ARB issues a
grievances are handled differently. IDOC regulations state
that “[a]n offender may request a grievance be handled
on an emergency basis by forwarding the grievance directly to
the Chief Administrative Officer [the prison warden].”
20 Ill. Admin.Code § 504.840. The warden may then either
treat the grievance as an emergency or decline to treat it as
such and return the grievance to the prisoner. Id.
If the warden declines to treat the grievance as an
emergency, the prisoner may appeal the warden's denial
directly to the ARB. Thornton v. Snyder, 428 F.3d
690, 694 (7th Cir. 2005). This appeal will complete the
exhaustion process. Id., see also Glick v.
Walker, 385 F.App'x 579, 583 (7th Cir. 2010)
(“In Thornton … we explained that an
inmate who seeks emergency review under § 504.840 has no
obligation to resubmit the grievance through normal channels,
even if the warden concluded that expedited review was
Plaintiff utilized the IDOC emergency grievance process.
After the Warden declined to treat the grievance as an
emergency, Plaintiff appealed directly to the ARB. Pursuant
to the Seventh Circuit's holdings in Thornton
and Glick, this is an acceptable way to complete the
IDOC grievance process. Thus, Plaintiff was not required to
resubmit the grievance through the normal non-emergency
procedures. Accordingly, Defendants' motion is denied.