Sidwell v. Merchant

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BOWEN SIDWELL,

Plaintiff,

v. Case No. 19-cv-207-NJR

LANCE MERCHANT,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on a motion for summary judgment (Docs. 14 and

15) filed by Lance Merchant. Merchant argues that Plaintiff Bowen Sidwell, an inmate of

the Illinois Department of Corrections, failed to exhaust his administrative remedies prior

to filing suit as required. Sidwell was provided with notice of the motion (Doc. 16) and

had until September 30, 2019, to file a response. He failed to do so. The Court considers

Sidwell’s failure to respond an admission of the facts of Defendant’s motion. SDIL Local

Rule 7.1(c). See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58

F.3d 283, 288 (7th Cir. 1995) (a failure to respond constitutes an admission that there are

no undisputed material facts).

BACKGROUND

On February 14, 2019, Sidwell filed his Complaint against Merchant for use of

excessive force during an incident which occurred at the Dixon Springs Impact

Incarceration Program on November 20, 2018 (Docs. 1 and 8). Sidwell filed three

grievances related to the incident. On November 22, 2018, Sidwell filed an emergency

received by the Chief Administrative Officer (“CAO”) on November 26, 2018, labeled an

emergency, and forwarded to the grievance office (Id. at p. 8). On November 27, 2018, the

grievance officer reviewed the grievance and informed Sidwell that the incident with

Merchant was being referred to an outside source for investigation (Id. at p. 10). The

grievance was deemed moot as it was being investigated. The CAO concurred with the

determination, and the grievance was returned to Sidwell (Id.). There is no indication in

the record that Sidwell appealed the grievance to the Administrative Review Board

(“ARB”) (Id.; Doc. 15-3; Doc. 15-4, p. 3).

On December 6, 2018, Sidwell filed another grievance about Merchant’s use of

force (Doc. 1, pp. 11-12). The grievance is dated November 28, 2018. On January 2, 2019,

the counselor responded to the grievance, informing Sidwell that the issue was under

investigation and he would be notified of the results. Connie Houston, the clinical

services supervisor at Vienna Correctional Center (“Vienna”) and the counselor who

responded to Sidwell’s grievance, testified in an affidavit that she was also directed by

the ARB to write a note on the returned grievance, informing Sidwell that he needed to

forward the grievance directly to the ARB (Doc. 15-5, p. 2). The note does not appear on

the copy of the grievance submitted by Merchant, nor does it appear on the copy attached

to Sidwell’s Complaint (Doc. 15-1, p. 1-2; Doc. 1, pp. 11-13).

Sidwell’s December 12, 2018 grievance relates to the disciplinary ticket he received

for a staff assault while at Dixon (Doc. 1, pp. 14-15). The grievance does not identify

Merchant or the use of excessive force.

Summary Judgment is proper if the pleadings, discovery materials, disclosures,

and affidavits demonstrate no genuine issue of material fact such that [Defendants are]

entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467

(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison

Litigation Reform Act (“PLRA”). 42 U.S.C. §1997e(a). That statute states, in pertinent part,

that “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.”

Id. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA’s

exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that

‘[t]his circuit has taken a strict compliance approach to exhaustion”). Exhaustion must

occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Sidwell

cannot file suit and then exhaust his administrative remedies while the suit is pending.

Id. Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the

place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry, 286

F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to properly utilize a

prison’s grievance process, “the prison administrative authority can refuse to hear the

case, and the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.

Under Pavey, the Seventh Circuit held that “debatable factual issues relating to the

defense of failure to exhaust administrative remedies” are not required to be decided by

a jury but are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-41(7th Cir.

defense, the Court set forth the following recommendations:

The sequence to be followed in a case in which exhaustion is contested is

therefore as follows: (1) The district judge conducts a hearing on exhaustion

and permits whatever discovery relating to exhaustion he deems

appropriate. (2) If the judge determines that the prisoner did not exhaust

his administrative remedies, the judge will then determine whether (a) the

plaintiff has failed to exhaust his administrative remedies, and so he must

go back and exhaust; (b) or, although he has no unexhausted administrative

remedies, the failure to exhaust was innocent (as where prison officials

prevent a prisoner from exhausting his remedies), and so he must be given

another chance to exhaust (provided that there exist remedies that he will

be permitted by the prison authorities to exhaust, so that he’s not just being

given a runaround); or (c) the failure to exhaust was the prisoner’s fault, in

which event the case is over. (3) If and when the judge determines that the

prisoner has properly exhausted his administrative remedies, the case will

proceed to pretrial discovery, and if necessary a trial, on the merits; and if

there is a jury trial, the jury will make all necessary findings of fact without

being bound by (or even informed of) any of the findings made by the

district judge in determining that the prisoner had exhausted his

administrative remedies.

Id. at 742.

Illinois Exhaustion Requirements

As an inmate confined within the Illinois Department of Corrections, Sidwell was

required to follow the regulations contained in the Illinois Department of Corrections’

Grievance Procedures for Offenders (“grievance procedures”) to properly exhaust his

claims. 20 Ill. Administrative Code §504.800 et seq. The grievance procedures first require

inmates to file their grievance with the counselor within 60 days of the discovery of an

incident. 20 Ill. Admin. Code §504.810(a). The grievance form 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. This

provision does not preclude an offender from filing a grievance when the

descriptive information about the individual as possible.

20 Ill. Admin. Code §504.810(c). Grievances that are unable to be resolved through

routine channels are then sent to the grievance officer. 20 Ill. Admin. Code §504.820(a).

The Grievance Officer will review the grievance and provide a written response to the

inmate. 20 Ill. Admin. Code §504.830(a). “The Grievance Officer shall consider the

grievance and report his or her findings and recommendations in writing to the Chief

Administrative Officer within two months after receipt of the grievance, when reasonably

feasible under the circumstances.” 20 Ill. Admin. Code §504.830(e). “The Chief

Administrative Officer shall review the findings and recommendation and advise the

offender of his or her decision in writing. Id.

If the inmate is not satisfied with the Chief Administrative Officer’s response, he

or she can file an appeal with the Director through the Administrative Review Board

(“ARB”). The grievance procedures specifically state, “[i]f, after receiving the response of

the Chief Administrative Officer, the offender still believes that the problem, complaint

or grievance has not been resolved to his or her satisfaction, he or she may appeal in

writing to the Director. The appeal must be received by the Administrative Review Board

within 30 days after the date of the decision.” 20 Ill. Admin. Code §504.850(a). The inmate

shall attach copies of the Grievance Officer’s report and the Chief Administrative

Officer’s decision to his appeal. Id. “The Administrative Review Board shall submit to the

Director a written report of its findings and recommendations.” 20 Ill. Admin. Code

§504.850(d). “The Director shall review the findings and recommendations of the Board

and make a final determination of the grievance within six months after receipt of the

shall be sent a copy of the Director’s decision.” 20 Ill. Admin. Code §504.850(e).

The grievance procedures do allow for an inmate to file an emergency grievance.

In order to file an emergency grievance, the inmate must forward the grievance directly

to the Chief Administrative Officer (“CAO”) who may “[determine] that there is a

substantial risk of imminent personal injury or other serious or irreparable harm to the

offender” and thus the grievance should be handled on an emergency basis. 20 Ill.

Admin. Code §504.840(a). If the CAO determines the grievance should be handled on an

emergency basis, then the CAO “shall expedite processing of the grievance and respond

to the offender” indicating to him what action shall be taken. 20 Ill. Admin. Code

§504.840(b). If the CAO determines the grievances “should not be handled on an

emergency basis, the offender shall be notified in writing that he or she may resubmit the

grievance as non-emergent, in accordance with the standard grievance process.” 20 Ill.

Admin. Code §504.840(c). When an inmate appeals a grievance deemed by the CAO to

be an emergency, “the Administrative Review Board shall expedite processing of the

grievance.” 20 Ill. Admin. Code §504.850(f).

ANALYSIS

Simply put, Court finds that Sidwell failed to exhaust his administrative remedies.

Sidwell filed two grievances related to the incident with Merchant. His November 22,

2018 grievance was deemed an emergency and reviewed by the grievance officer but was

ultimately deemed moot because the incident was referred to an outside investigator.

Although Sidwell received the response from the grievance officer, the record

demonstrates, and Sidwell does not dispute, that he failed to appeal the grievance to the

ARB. Similarly, Sidwell received a response to his November 28, 2018 grievance from his

counselor but failed to appeal the grievance either to the grievance officer or the ARB.!

Sidwell does not dispute that he failed to exhaust his grievances. Pozo, 286 F.3d at 1025

(“a prisoner must file complaints and appeals in the place, and at the time, the prison

administrative rules require”). Because Sidwell failed to fully exhaust his grievances by

submitting them to the ARB, the Court finds that he failed to exhaust his administrative

remedies as to his excessive force claim against Lance Merchant.

CONCLUSION

For the reasons stated above, the Court GRANTS Lance Merchant's motion for

summary judgment. Sidwell’s Complaint is DISMISSED without prejudice for failure

to exhaust his administrative remedies. The Clerk is DIRECTED to enter judgment

accordingly and close this case.

IT IS SO ORDERED.

DATED: January 31, 2020

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

' Although Connie Houston testified in her affidavit that she wrote a note to Sidwell, instructing

him to submit the grievance directly to the ARB, the note is not attached to the grievances in the

record. In any event, there is no evidence in the record to suggest that Sidwell submitted the

grievance to either the ARB or the grievance officer.

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