# Moore v. IDOC

> District Court, S.D. Illinois · December 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10151462

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** December 6, 2019
- **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/10151462

## How later opinions describe it (automated extraction)

- explaining the good cause and excusable neglect standards
- explaining the excusable neglect standard

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANTERRIAN MOORE,

Plaintiff,

v. Case No. 3:18-CV-1720-NJR-MAB

DUSTIN BOWLES,

Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Anterrian Moore, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), alleges that Defendant Dustin Bowles was deliberately indifferent
due to his failure to protect Moore from an attack by his cell mate. According to Bowles,
Moore’s claim cannot proceed because he failed to exhaust his administrative remedies
before filing suit. The Court held an evidentiary hearing on December 4, 2019.
FINDINGS OF FACT
Moore was incarcerated at Pinckneyville Correctional Center (“Pinckneyville”)
during the alleged incident. On May 1, 2018, Moore notified a correctional officer (”CO”)
that his cellmate was threatening to strangle him in his sleep using a cable cord (Doc. 1,
p. 6). The CO reported these threats to his superior, who arranged for a meeting with
internal affairs (“IA”) the same day. Id. Moore claims that IA Officer Dustin Bowles
offered him two options: he could refuse housing, which would result in a new cell
assignment after punishment with segregation for a disciplinary violation; or he could
sign a release stating that he did not fear for his safety and go back to his cell. Id. To avoid
segregation and his personal items being mishandled, Moore states he reluctantly chose

the latter option and was attacked by his cellmate on May 29, 2018, after a disagreement
regarding catching their cell door. Id. at 6-7. Moore says he sustained “minor” scrapes
and bruises and a “major” back injury during the scuffle, for which he was denied timely
treatment by “healthcare.” Moore asserts the entire incident could have been avoided if
he was reassigned to a new cell in when he requested. Id. at 6-8.
In November 2018, Bowles filed a motion for summary judgment for failure to

exhaust administrative remedies (Doc. 48). In that motion, Bowles submitted an affidavit
from Chalene Hale, a grievance officer, who searched Pinckneyville’s records for
grievances submitted by Moore in 2018 against Bowles involving Moore’s cell placement
or safety concerns about Moore’s cellmate (Declaration of Chalene Hale, Doc. 49-1). She
found one emergency grievance dated June 7, 2018, which was deemed a non-emergency

by the Chief Administrative Officer (“CAO”) and returned to Moore. Moore included
this denied emergency grievance in his response (Doc. 55, pp. 6-7).
Bowles also submitted an affidavit from Sarah Johnson, a chairperson for the
Administrative Review Board (“ARB”), who searched the ARB’s records for grievances
submitted by Moore in 2018 against Bowles involving Moore’s cell placement or safety

concerns about Moore’s cellmate. (Declaration of Sarah Johnson, Doc. 49-2). She found
one directly appealed grievance to the ARB dated June 7, 2018, concerning an incident
with Moore’s cellmate. Id. The grievance was received on June 18, 2018, but included no
facility response and was consequently denied. Id. Moore further requested a response
from the ARB in December 2018, and the ARB replied referencing their earlier denial. Id.
Moore included the ARB Return of Grievance Form along with the returned grievance in

his response (Doc. 55, p. 5). Johnson also testified to the same facts as her affidavit during
the hearing.
In his response to Bowles’s motion, Moore admits receiving his returned
emergency grievance (Doc. 55, p. 1). He claims that after receiving that response, he made
copies of the grievance and resubmitted it through the “normal grievance process.” Id. at
2. Moore then states almost a year later, on May 9, 2019, having received no response

regarding his grievance, he sent Assistant Attorney General Jeanine Armstrong a copy of
the grievance with a letter claiming that he resubmitted the grievance as advised by the
CAO and to the ARB and did not receive a response. Id. After waiting six months for a
response, he then wrote a letter to ARB, which responded, stating that his grievance was
returned in June 2018. (Doc. 55, p. 1, 11). Moore claims that he did attempt to exhaust all

his available remedies, and hints that the grievance process was unavailable to him. He
also claims that ARB’s response to his letter was deficient because it was not a “formal
response.” Moore also testified during the hearing, stating that when his emergency
grievance was rejected by the CAO, he sent the same grievance to his counselor through
the mailbox and to the ARB.

LEGAL STANDARDS
A. Summary Judgment
Summary judgment is proper only where the moving party can demonstrate no
genuine issue of material fact exists and the movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins
v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). All facts and

reasonable inferences must be construed in favor of the non-moving party. Blow v. Bijora,
Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing Calumet River Fleeting, Inc. v. Int’l Union of
Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48 (7th Cir. 2016)).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all
administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a);

Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). Proper exhaustion requires an inmate
to “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).
Under the procedures set forth in the Illinois Administrative Code, an inmate is
required to file a written grievance within 60 days of the “incident, occurrence or problem

that gives rise to the grievance.” 20 ILL. ADMIN. CODE § 504.810(a). The grievance must be
filed with the inmate’s counselor, unless certain discrete issues are being grieved. Id. If
the complaint is not resolved through a counselor, the grievance is considered by a
grievance officer who must render a written recommendation to the CAO (usually the
Warden) within two months of receipt, “when reasonably feasible under the

circumstances.” Id. at § 504.830(e). The Warden then advises the inmate of a decision on
the grievance. Id.
An inmate may also file an emergency grievance that is forwarded directly to the
Warden. Id. at § 504.840. If “there is a substantial risk of imminent personal injury or other
serious or irreparable harm to the offender,” consideration of the grievance will be
expedited. Id. at § 504.840(a) and (b). An inmate may appeal the Warden’s decision to the

IDOC Director. Id. at § 504.850(a). The appeal must be in writing, must be directed to the
ARB, and must be received by the ARB within 30 days of the date of the Warden’s
response. See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). The ARB will
submit a written report of its findings and recommendations to the Director who shall
review the same and make a final determination within six months of receipt of the
appeal. Id. § 504.850(d) and (e).

DISCUSSION
While it is true that defendants bear the burden of establishing the affirmative
defense of failure to exhaust administrative remedies, see Pavey v. Conley, 663 F.3d 899,
903 (7th Cir. 2011), Bowles has met that burden here. From an administrative perspective,
it does not appear that Moore filed a grievance concerning his fall with any counselor at

Pinckneyville. The records suggest that he filed an emergency grievance to the CAO and
the ARB directly. The CAO rejected his emergency grievance because it was considered
a non-emergency. The ARB grievance was rejected because it was submitted without the
required facility responses.
That leads to the question of whether the grievance procedures at Pinckneyville

were unavailable to Moore. In this case, the Court does not find Moore’s testimony
regarding attempted exhaustion credible. He was unable to provide plausible specifics
about the grievance he allegedly submitted “through the normal grievance process.”
Conversely, Hale and Johnson explained the process of searching their respective
databases for Moore’s grievance, coming up empty-handed in trying to locate a properly
exhausted grievance. Weighing the two conflicting sides, one based on testimony and
tangible, corroborating evidence with the other based purely on testimony without
corroborating evidence, the Court simply finds Bowles’s contention regarding exhaustion
more believable.
CONCLUSION
Simply stated, based on the documentary evidence and testimony, Moore's
emergency grievance and ARB grievance were not sufficient to exhaust his
administrative remedies. Accordingly, the Motion for Summary Judgment filed by
Bowles (Doc. 48) is GRANTED. Defendant Dustin Bowles is DISMISSED without
prejudice, and this entire action is DISMISSED.
The Clerk of Court is DIRECTED to close this case and enter judgment
accordingly.
IT IS SO ORDERED.
DATED: December 6, 2019

NANCY J. ROSENSTENGEL
Chief U.S. District Judge

Page 6 of 8

NOTICE
Out of an abundance of caution, the Court advises Moore as follows. If Moore
wishes to contest this Order, he has two options. He can ask the Seventh Circuit to review

the Order, or he can first ask the undersigned to reconsider the Order before appealing
to the Seventh Circuit. If Moore chooses to go straight to the Seventh Circuit, he must file
a notice of appeal within 30 days from the entry of judgment or order appealed from. FED.
R. APP. P. 4(a)(1)(A). The deadline can be extended for a short time only if Moore files a
motion showing excusable neglect or good cause for missing the deadline and asking for

an extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d
421, 424 (7th Cir. 2012) (explaining the good cause and excusable neglect standards);
Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807 (7th Cir. 2011) (explaining the
excusable neglect standard).
On the other hand, if Moore wants to start with the undersigned, he should file a

motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The
motion must be filed within twenty-eight (28) days of the entry of judgment, and the
deadline cannot be extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply
with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the Court should
reconsider the judgment. Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano v. Nw.

Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford Life &
Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to amend
judgment, a party must clearly establish (1) that the court committed a manifest error of
law or fact, or (2) that newly discovered evidence precluded entry of judgment.”) (citation
and internal quotation marks omitted).

So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-
day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock
will start anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P.
4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the 28-
day deadline or “completely devoid of substance,” the motion will not stop the clock for
filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v. CSX

Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–20 (7th
Cir. 1977). Again, this deadline can be extended only on a written motion by Moore
showing excusable neglect or good cause.
The Court has one more bit of instruction regarding the appeals process. If Moore
chooses to appeal to the Seventh Circuit, he can do so by filing a notice of appeal in this

Court. FED. R. APP. P. 3(a). The current cost of filing an appeal with the Seventh Circuit is
$505.00. The filing fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If
Moore cannot afford to pay the entire filing fee up front, he must file a motion for leave
to appeal in forma pauperis (“IFP motion”) along with a recent statement for his prison
trust fund account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the issues

Moore plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to
proceed IFP on appeal, he will be assessed an initial partial filing fee. 28 U.S.C.
§ 1915(b)(1). He will then be required to make monthly payments until the entire filing
fee is paid. 28 U.S.C. § 1915(b)(2).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151462. Public record. Not legal advice.