United States District Court, C.D. Illinois, Rock Island Division
ORDER GRANTING SUMMARY JUDGMENT ON THE ISSUE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES
DARROW UNITED STATES DISTRICT JUDGE
filed this lawsuit on December 5, 2016. Pursuant to 28 U.S.C.
§1915A, the Court found that Plaintiff stated claims for
deliberate indifference to a serious medical need against
Defendants Hilgendorf and Purcell, retaliation claims against
Defendants Gans, Jones, Bryant, and Carrothers, and a
procedural due process claim against Defendants Millard and
King. Defendants Gans, Sheppard, Jones, Bryant,
Carrothers, Millard, and King now move for summary judgment
on the grounds that Plaintiff failed to exhaust
administrative remedies. (Doc.18). Plaintiff did not respond
to Defendants' motion, and, therefore, the Court accepts
Defendants' assertion of fact in their motion as
undisputed. See Fed. R. Civ. P. 56(e)(2).
judgment should be granted “if the movant shows 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). All facts must be construed in the light
most favorable to the non-moving party, and all reasonable
inferences must be drawn in his favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
The party moving for summary judgment must show the lack of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In order to be a
“genuine” issue, there must be more than
“some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “Only disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
to exhaust is an affirmative defense, and therefore the
burden of proof lies with the defendants. Turley v.
Rednour, 729 F.3d 645, 650 (7th Cir. 2013). The Court
must hold an evidentiary hearing if a disputed issue of
material fact exists, see Pavey v. Conley, 544 F.3d
739, 742 (7th Cir. 2008), but where none is present, an
evidentiary hearing is unnecessary and the issue of
exhaustion may be decided as a matter of law. Doss v.
Gilkey, 649 F.Supp.2d 905, 912 (S.D. Ill. 2009).
The Prison Litigation Reform Act (PLRA) provides:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.
42 U.S.C. § 1997e(a) (2013). The purpose of this
requirement is to “alert the state to the problem and
invite corrective action.” Turley, 729 F.3d at
649 (internal citations omitted). The Seventh Circuit has
adopted a strict compliance standard to exhaustion, and to
exhaust remedies “a prisoner must properly use the
prison's grievance process.” Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). In other
words, “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). If the prisoner fails to follow
the grievance procedures, “the prison administrative
authority can refuse to hear the case, and the prisoner's
claim can be indefinitely unexhausted.” Id.;
see Dole, 438 F.3d at 809 (quoting same). “The
‘applicable procedural rules' that a prisoner must
properly exhaust are defined not by the PLRA, but by the
prison grievance process itself.” Maddox v.
Love, 655 F.3d 709, 721 (7th Cir. 2011) (citing
Jones v. Bock, 549 U.S. 199, 218 (2007)).
Illinois Administrative Code establishes the grievance
procedures for Illinois Department of Corrections inmates.
Inmates unable to resolve their issues informally with prison
staff may file a written grievance on a form provided by the
prison. 20 Ill. Admin. Code § 504.810(a). The grievance
must be filed “within 60 days after the discovery of
the incident, occurrence, or problem that gives rise to the
grievance.” Id. § 504.810(a). A grievance
officer, however, shall consider a grievance filed outside of
the 60-day time period if the inmate “can demonstrate
that a grievance was not timely filed for good
cause….” Id. A grievance officer
considers each grievance and submits a recommendation to the
Chief Administrative Officer, who notifies the inmate of his
decision. Id. § 504.830(d). An inmate may
appeal the CAO's decision to the Director, but must do so
within 30 days of the decision. Id. §
504.850(a). Once an appeal is received, the Administrative
Review Board reviews the appeal and provides the Director
with a written report of its findings and recommendations.
Id. § 504.850(e). An inmate may also submit a
request for a grievance to be handled on an emergency basis
by forwarding it directly to the Chief Administrative Officer
(“CAO”). Id. § 504.840. If
determined to be a non-emergency, the CAO must notify the
inmate that he or she may resubmit the grievance via the
normal procedures. Id. 504.840(c).
filed seven (7) grievances relevant to his claims in this
lawsuit. Of those grievances, Plaintiff fully exhausted only
one prior to filing suit: a grievance dated October 19, 2016,
addressing claims that Defendant Hilgendorf used excessive
force and subsequently denied medical treatment. (Doc. 19-3
at 33-34). The grievance mentions other prison officials, but
Plaintiff did not identify them by name or description as
required by Illinois Administrative Rule 504.810(c), or the
prison official is no longer a defendant in this case.
rest of the grievances were still pending review at the time
Plaintiff filed suit, or filed after the date Plaintiff filed
his complaint. See (Doc. 19-3 at 1-32). A prisoner
may not exhaust grievances while a lawsuit is pending.
Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004)
(“To prevent [the] subversion of efforts to resolve
matters outside of court, it is essential to keep courthouse
doors closed until those efforts have run their
course.”). In addition, no evidence exists in the
record suggesting that the process was unavailable to
Plaintiff. Therefore, the Court finds that Plaintiff failed
to exhaust all available administrative remedies prior to
filing suit as required by the PLRA. Defendants' motion
for summary judgment is granted.
IS THEREFORE ORDERED:
1) Defendants' Motion for Summary Judgment  is
GRANTED. Plaintiff's claims against Defendants Gans,
Sheppard, Jones, Bryant, Carrothers, Millard, and King are
dismissed without prejudice. ...