# Massey Jr. v. Hardy

> District Court, N.D. Illinois · April 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10148663

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** April 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10148663

## How later opinions describe it (automated extraction)

- holding that administrative remedies become “unavailable” when prison offi- cials fail to respond to inmate grievances
- rejecting argument that pris- oner needed to allow more time for response because prisoner had no reason to believe that anyone was looking into his grievances

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Yarii Ameer Massey, Jr. (R72867), )
)
Plaintiff, )
) Case No. 1:21-CV-00560
v. )
) Honorable Edmond E. Chang
Marcus Hardy, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

In this pro se civil-rights lawsuit, 42 U.S.C. § 1983, Plaintiff Yarii Ameer Mas-
sey, Jr., a state prisoner, alleges that he was housed under unconstitutional condi-
tions at Stateville Correctional Center. The State has moved for summary judgment,
arguing that Massey failed to exhaust administrative remedies under the Prison Lit-
igation Reform Act, 42 U.S.C. § 1997(e). For the reasons discussed in this Opinion,
the motion is denied.
I. Summary Judgment Standard
Summary judgment must 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). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating sum-
mary judgment motions, courts must view the facts and draw reasonable inferences
in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378
(2007). The Court may not weigh conflicting evidence or make credibility determina-
tions, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011),
and must consider only evidence that can “be presented in a form that would be ad-

missible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment
has the initial burden of showing that there is no genuine dispute and that they are
entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d
451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the ad-
verse party must then “set forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 256.

II. Local Rule 56.1
Local Rule 56.1 governs how to present and to dispute facts in litigating mo-
tions for summary judgment in this District. The rule is intended “to aid the district
court, ‘which does not have the advantage of the parties’ familiarity with the record
and often cannot afford to spend the time combing the record to locate the relevant
information,’ in determining whether a trial is necessary.” Delapaz v. Richardson,

634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a) requires the
moving party to provide a statement of material facts that complies with Local Rule
56.1(d). LR 56.1(a). Local Rule 56.1(d) requires that “[e]ach asserted fact must be
supported by citation to the specific evidentiary material, including the specific page
number, that supports it. The court may disregard any asserted fact that is not sup-
ported with such a citation.” LR 56.1(d)(2).
The opposing party must then respond to the movant’s proposed statements of
fact. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); LR 56.1(e).
In the case of any disagreement, “a party must cite specific evidentiary material that

controverts the fact and must concisely explain how the cited material controverts
the asserted fact. Asserted facts may be deemed admitted if not controverted with
specific citations to evidentiary material.” LR 56.1(e)(3). “[M]ere disagreement with
the movant’s asserted facts is inadequate if made without reference to specific sup-
porting material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). The party oppos-
ing summary judgment may also submit “a statement of additional material facts
that complies with LR 56.1(d).” L.R 56.1(b)(3). “All material facts set forth in the

statement required of the moving party will be deemed to be admitted unless contro-
verted by the statement of the opposing party.” Id. A plaintiff’s pro se status does not
excuse him from complying with Local Rule 56.1. See Cady v. Sheahan, 467 F.3d 1057,
1061 (7th Cir. 2006).
The Defendants filed a Rule 56.1 statement of material facts with their motion
for summary judgment. R. 122. Consistent with the local rules, the Defendants also

provided Massey with a pro se Local Rule 56.2 Notice, which explains what Local Rule
56.1 requires of a litigant opposing summary judgment. R. 124-1. Massey responded
to the Defendants’ statement of material facts. R. 137. Massey’s response also in-
cludes a “separate statement of additional facts.” R. 137 at 10–13. But the “additional
facts” are actually just a repeat of his statements when disputing certain of the De-
fendants’ statements of material fact. The facts are not actually “additional” facts.
What comes next, then, in the factual background is derived only from the Defend-
ants’ statements of fact and Massey’s response to those statements, at least insofar
as his response is properly supported with specific evidentiary material.

III. Factual Background
On December 14, 2016, Massey was transferred to Stateville Correctional Cen-
ter. R. 122, ¶ 2. Massey contends that he submitted three grievances on three sepa-
rate dates, September 20, 2019; December 24, 2019; and March 10, 2020, all related
to unconstitutional conditions of confinement. Id. ¶ 5.
On September 20, 2019, Massey submitted an emergency grievance directly to
the Chief Administrative Officer about conditions of his confinement. Id. ¶¶ 7, 9. The

emergency grievance does not include the names or descriptions of any individuals,
including any of the Defendants. Id. ¶ 8. On September 30, 2019, the Chief deter-
mined that the grievance was not truly an emergency and that Massey should submit
the grievance “in the normal manner.” Id. ¶ 10. That same day, Massry submitted
the September 20, 2019 grievance directly to the Illinois Administrative Review
Board. Id. ¶ 13. Around five weeks later, on October 29, 2019, the Review Board re-

turned Massey’s grievance to him because it did not include a counselor’s response
and it did not include a grievance officer’s response or the Chief Administrative Of-
ficer’s response. Id. ¶ 14.
On December 24, 2019, Massey submitted a second grievance about the condi-
tions of confinement. Id. ¶ 15. The grievance again does not specify the names (or
physical or job-title descriptions) of any of the Defendants. Id. ¶ 16. On February 18,
2020, Massey submitted the December 24, 2019 grievance to the Review Board with-
out first receiving a response from the grievance counselor, grievance officer, or the
Chief Administrative Officer. Id. ¶ 17. On March 5, 2020, the Review Board again

returned the December 24, 2019 grievance, again similarly saying, “Grievance is
dated 12/24/2019. There are no facility responses. Therefore, making this past time
frame.” Id. ¶ 19.
Massey received a response to the December 24, 2019 grievance from his coun-
sel on July 27, 2020. Pl.’s Resp. ¶ 17; R. 137 at 14. Next, many months later, Massey
received a response to the December 24, 2019 grievance from the grievance officer on
March 20, 2021. Pl.’s Resp. ¶ 17; R. 137 at 16. The grievance form says that the griev-

ance officer received the grievance on August 20, 2020. Id. Around three weeks later,
Massey received a response to the December 24, 2019 grievance from the Chief Ad-
ministrative Officer on April 7. 2021. (Id.) In the December 24, 2019 grievance, Mas-
sey said that he resubmitted his September 20, 2019 grievance as directed by the
Review Board but he had not received a response. Pl.’s Resp. ¶ 11; R. 137 at 15.
On March 10, 2020, Massey submitted a third grievance on the conditions of

his confinement. Id. ¶ 20. The March 10, 2020 grievance once again did not specify
the names of any Defendants. Id. ¶ 21. But this third grievance at least did mention
job titles, saying that Massey has told “C/O’s” (presumably correctional officers) about
the poor living conditions dating back to late November 2019, and that the “Lt’s. and
Sgt’s work orders” have been ignored. Pl.’s Resp. ¶ 21; R. 137 at 17. On April 30, 2020,
the grievance counselor responded to the grievance. Id. ¶ 23. On July 2, 2020, the
grievance counselor denied the grievance. Id. ¶ 24. On July 10, 2020, the Chief Ad-
ministrative Officer denied the grievance. Id. ¶ 25. On July 11, 2020, Massey submit-
ted the grievance to the Administrative Review Board. Id. ¶ 26. On December 30,

2020, the Review Board returned the grievance because it was “[n]ot submitted in the
timeframe outlined in Department Rule 504 therefore, this issue will not be ad-
dressed further.” Id. ¶ 27. The Review Board went on to say, “no date cited in the
written gr[ievance] within 60-day timeframe for review.” Id.
IV. Analysis
A. PLRA Exhaustion
The Prison Litigation Reform Act (often referred to as the PLRA) prohibits

prisoners and detainees from filing suit in federal court to challenge prison or jail
conditions “until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). When contested, exhaustion is a threshold issue. Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008). The contention that a prisoner has failed to exhaust
administrative remedies is an affirmative defense, so like almost all affirmative de-
fense, the defense has the burden of proving it. Reid v. Balota, 962 F.3d 325, 329 (7th

Cir. 2020).
To exhaust administrative remedies, a prisoner must take all the steps re-
quired by the prison’s grievance system. Ford v. Johnson, 362 F.3d 395, 397 (7th Cir.
2004). In other words, the PLRA “requires proper exhaustion.” Woodford v. Ngo, 548
U.S. 81, 93 (2006). Inmates must meet appropriate deadlines and follow “other criti-
cal procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Id. at 90–91. The
only limitation to the exhaustion requirement is baked into the statute: remedies
must be “available.” Ross v. Blake, 578 U.S. 632, 639 (2016).

Broadly speaking, there are at least three categories of circumstances when a
prison’s administrative remedy can be considered unavailable under the PLRA. Ross,
578 U.S. at 643. First, if an administrative procedure “operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates”—then it is not available to inmates. Id. at 643. Second, if administrative
rules are so opaque or confusing that “no reasonable prisoner can use them,” then
they are not considered available. Id. at 644 (cleaned up). For vagueness to render a

remedy unavailable, however, genuine murkiness is required; if administrative rules
simply have multiple reasonable interpretations, then “Congress has determined that
the inmate should err on the side of exhaustion.” Id. Third, if prison administrators
or staff “thwart inmates from taking advantage of a grievance process[,]” then the
process is not available. Id. This can happen through “affirmative misconduct,” such
as refusing to provide or respond to grievance forms or threatening inmates with neg-

ative consequences for grieving. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016);
see also Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (grievance process not avail-
able when correctional staff refused to provide grievance forms to plaintiff); Kaba v.
Stepp, 458 F.3d 678, 684–86 (7th Cir. 2006) (grievance process not available to inmate
who alleged that prison officials would not provide him with grievance forms unless
he “pre-disclosed the topic of the grievance” and it was not about the prison officials).
Administrators can also relegate a remedy into the depths of unavailability by simply
failing to inform inmates of grievance processes, leaving inmates ignorant of the rem-
edy. Hernandez, 814 F.3d at 842.

B. Rules of the Illinois Department of Corrections

The rules governing administrative remedies for Illinois prisoners are set out
in 20 Illinois Administrative Code § 504.800, et seq. Under these provisions, a pris-
oner must submit a grievance to his institutional counselor “within 60 days after the
discovery of the incident, occurrence, or problem that gives rise to the grievance.” 20
Ill. Admin. Code § 504.810(a). The written grievance must “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.” 20 Ill. Admin. Code § 504.810(c). If the prisoner does not know the
names of individuals who allegedly harmed him, then he may still file a grievance,
but he “must include as much descriptive information about the individual as possi-
ble.” Id. If the institutional counselor does not informally resolve a grievance, the
Grievance Officer reviews the grievance, provides a written response to the prisoner,

20 Ill. Admin. Code § 504.830(a), and sends written findings and recommendations
to the Chief Administrative Officer, 20 Ill. Admin. Code § 504.830(e). The Chief Ad-
ministrative Officer then sends a written decision to the prisoner “within two months
after receiving the written grievance, when reasonably feasible under the circum-
stances.” 20 Ill. Admin. Code § 504.830(e). If the prisoner is still dissatisfied, he may
appeal in writing to the Director or his or her designees on the Administrative Review
Board within 30 days after the date of the decision. 20 Ill. Admin. Code § 504.850(a).
The Review Board “shall submit to the Director a written report of its findings and
recommendations.” 20 Ill. Admin. Code § 504.850(d). The final step is for the Director

of the Illinois Department of Corrections to review the Board’s findings and recom-
mendations and make a final determination “within six months after receipt of the
appealed grievance, when reasonably feasible under the circumstances.” 20 Ill. Ad-
min. Code § 504.850(e).
An inmate also may request that a grievance be handled as an emergency by
sending it directly to the warden. 20 Ill. Admin. Code § 504.840. The grievance is
handled as an emergency if the warden determines that “there is a substantial risk

of imminent personal injury or other serious or irreparable harm to the [inmate].” If
the warden determines that the grievance does not need to be handled as an emer-
gency, then the inmate is notified in writing that he “may resubmit the grievance as
non-emergent, in accordance with the standard grievance process.” Id.
C. The Grievances
Massey argues that the administrative process was not available to him be-

cause correctional staff failed to respond to grievances or failed to timely respond to
his grievances.
1. September 20, 2019 Grievance
Remember that the September 20, 2019 grievance was returned to him after it
was deemed not to be an emergency. Massey seems to concede (as he must) that send-
ing that denied emergency grievance directly to the Review Board was not in
compliance with the grievance procedure. Massey argues, however, that he also did
resubmit the grievance through the proper process but he failed to receive any re-
sponse to that resubmitted grievance. Although Massey did not provide a copy of that

resubmitted grievance, his subsequent grievance does include a statement that he
resubmitted the earlier grievance and had not yet received a response. The correc-
tional staff’s failure to respond to the resubmitted grievance would have rendered the
grievance process unavailable. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.
2002) (holding that administrative remedies become “unavailable” when prison offi-
cials fail to respond to inmate grievances). At the summary judgment stage, the Court
does not weigh the credibility of admissible evidence. Omnicare, Inc., 629 F.3d at 704.

This is especially true of the averment of a party to the existence of a fact on which
he would have personal knowledge. So Massey has established a genuine dispute of
material fact on whether he resubmitted the rejected emergency grievance and that
staff then failed to respond to the grievance. Having said that, as explained next, the
other two grievances defeat the exhaustion defense on their own, so there is no ap-
parent need for a hearing on whether Massey really resubmitted the September 2019

grievance.
2. December 24, 2019 Grievance
Massey also argues that the grievance process was rendered unavailable due
to the delay in receiving the responses throughout the grievance process. Massey sub-
mitted a grievance on December 24, 2019, but did not receive a response from his
counselor until July 27, 2020—over eight months later. Massey continued the
grievance procedure by sending the grievance to the grievance officer, who received
it on August 20, 2020. But then Massey did not receive a response from the grievance
officer for over seven months. That is 15 months of waiting time. Massey filed this

lawsuit on February 1, 2021, after waiting more than 15 months for his grievance to
go through just two steps of the grievance process with no resolution. The unex-
plained delay was unreasonable and rendered the grievance process unavailable. See
Reid v. Balota, 962 F.3d 325, 330-331 (7th Cir. 2020) (rejecting argument that pris-
oner needed to allow more time for response because prisoner had no reason to believe
that anyone was looking into his grievances); Banks v. Patton, 743 F. App'x 690, 695
(7th Cir. 2018) (non-precedential disposition) (explaining that a remedy can be

deemed unavailable when jail officials do not respond to the grievance); Lewis, 300
F.3d at 833 (“[W]e refuse to interpret the PLRA so narrowly as to … permit [prison
officials] to exploit the exhaustion requirement through indefinite delay in respond-
ing to grievances.”) (internal citation omitted).
3. March 10, 2020 Grievance
The March 10, 2020 grievance went through the grievance process in nine

months. The Review Board ultimately denied the grievance because it had not been
submitted within the 60-day timeframe (that is, within 60 days after the underlying
incident) required by the Administrative Code. The grievance says that Massey has
been living in poor conditions since “late Nov. 2019” and that he has submitted mul-
tiple grievances about the issue with no results. At this point, Massey had already
submitted two grievances challenging his living conditions with no result. Submitting
the third grievance after the 60-day timeframe was brought about not by his lack of
diligence, but the lack of action by correctional staff. In essence, prison administra-
tors and staff thwarted Massey’s ability to file this third grievance with the 60-day

timeframe rendering the grievance process unavailable. Ross, 578 U.S. at 644.
D. Identification of Defendants by Name
Lastly, the Defendants argue that Massey failed to exhaust his administrative
remedies because he failed to name the Defendants in any of the grievances. Under
IDOC procedure, a written grievance must “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 com-

plaint.” 20 Ill. Admin. Code § 504.810(c). If the prisoner does not know the names of
individuals who allegedly harmed him, then he may still file a grievance, but he “must
include as much descriptive information about the individual as possible.” Id.
Having said that, the PLRA does not categorically require an inmate to name
prospective defendants in his grievance—even if the prospective defendants were
known to him when the grievance was written. See, e.g., Donald v. Varga, No. 17-cv-

50368, 2019 WL 2525856, at *5 (N.D. Ill. June 19, 2019). This is especially true where
the state-prison procedures themselves authorize—as they do here—the filing of
grievances that contain enough information to put the prison on notice of the problem
and to describe (as best as the prisoner can) the officials at issue. The purpose of
Administrative Code § 504.810(c) is to put prison officials on notice of an issue at the
prison. Kyles v. Beaugard, No. 15-cv-8895, 2017 WL 4122708, at *8 (N.D. Ill. Sept.
18, 2017). Put another way, Massey need not have named each Defendant by name
in the grievance so long as the grievance sufficiently “raise[d] the issue which is the
subject of the lawsuit.” Id.

Here, Massey’s grievances do contain sufficient detail on the multiple issues
with the conditions of confinement. Also, in the March 10, 2020 grievance, Massey
described by job title (correctional officers, sergeants, and lieutenants) the officials
who were are aware of the problems. When read in context, the grievances supplied
enough information to put Stateville officials on notice of the allegedly poor living
conditions. This basis for summary judgment is rejected.
V. Conclusion

In light of the record evidence, the Court denies the Defendants’ motion for
summary judgment [121]. As explained in the Opinion, it appears that the December
2019 and March 2020 grievances definitively defeat the exhaustion defense—even if
the evidence is viewed in the Defendants’ favor and even if the Defendants were given
the benefit of reasonable inferences. It is true that Massey did not formally cross-
move for summary judgment against the exhaustion defense. But it appears that the

Defendants mustered all of the evidence and arguments they had on the defense, and
even if the summary judgment standard were applied in their favor, no factfinder
could find in the defense’s favor. And the December 2019 and March 2020 grievances
sufficiently exhaust the conditions alleged in the September 2019 grievance, and
would cover the damages and limitations period asserted in the September 2019
grievance. All of this is to say that summary judgment against the exhaustion defense
is entered and the case is ready to move on. If the Defendants believe that there is a
way to resist summary judgment in light of this Opinion, then they may file a motion
to reconsider and present the argument without the burden of the usual reconsider-

ation standard. The motion to reconsider, if any, is due on April 20, 2023.
It appears that some merits-related discovery remains to be completed in light
of the stay that was entered back on October 24, 2022. See R. 127. Discovery should
resume as needed and discovery supervision remains referred to the magistrate
judge. The Court also notes that the magistrate judge is probably better positioned to
evaluate whether the remaining discovery is too difficult for Massey to complete on
his own, notwithstanding the Court’s previous denials for attorney representation. If

another motion for attorney representation is filed, then the Court probably will refer
it to the magistrate judge for consideration (or of course the magistrate judge may
sua sponte recruit counsel).

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge

DATE: April 6, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10148663. Public record. Not legal advice.