# Van Pelt v. Butler

> District Court, S.D. Illinois · January 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10151501

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** January 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

RONALD M. VAN PELT, )
)
Plaintiff, )
)
v. ) Case No. 17-cv-1226-RJD
)
RYAN W. ZEIGLER, )
)
Defendant. )

ORDER
DALY, Magistrate Judge:
Plaintiff Ronald Van Pelt, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), brings this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional
rights were violated while he was incarcerated at Menard Correctional Center (“Menard”). In his
complaint, Plaintiff set forth various allegations concerning interference with his religious
practice, placement in an unsanitary cell, and deprivation of his legal property. Plaintiff proceeds
in this action on an Eighth Amendment deliberate indifference claim against Defendant Ryan
Zeigler, for failing to remedy unsanitary conditions in Plaintiff’s segregation cell on November 28,
2015.
Now before the Court is the Motion for Summary Judgment filed by Defendant Zeigler
arguing Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit (Doc. 41).
Plaintiff timely filed his response on October 28, 2019 (Doc. 44). For the reasons set forth below,
the Motion is DENIED.
Background
There is one grievance in the record concerning the conditions at issue in this lawsuit.
Page 1 of 6
Plaintiff dated this grievance November 28, 2015, and signed it on January 17, 2016 (Doc. 42-1 at
18). The counselor marked the grievance as received on February 1, 2016, and found it was
submitted beyond the required 60-day timeframe as it concerned events that occurred on
November 28, 2015. Plaintiff appealed the grievance to the Administrative Review Board
(“ARB”), which received the grievance on June 8, 2016 (Id. at 17). The ARB returned the

grievance on July 9, 2016 without a decision on the merits. The ARB indicated it was not
submitted in the timeframe outlined in Department Rule 504.
In response to Defendant’s motion, Plaintiff asserts he signed off on his grievance on
January 17, 2016 and placed it in the counselor’s box on that date. Plaintiff was transferred out of
Menard Correctional Center on April 28, 2016. Plaintiff did not receive this grievance until about
May 17, 2016, at which time he submitted it to the ARB on appeal.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the
issue of exhaustion on January 21, 2020. At the hearing, Plaintiff testified that the November 28,
2015 grievance was the first grievance he had filed. Plaintiff explained he placed it in the

grievance box on January 17, 2016, and he indicated he did not have any information as to when
the counselor received the grievance. Plaintiff testified he did not receive this grievance back
from his counselor until after he transferred to Pinckneyville Correctional Center on April 28,
2016. After his transfer, Plaintiff testified he received all of his grievances in the mail. Plaintiff
subsequently took the grievances to the law library to make copies and was told by the law clerks
that he should send the grievances to the ARB. Thereafter, Plaintiff submitted his January 17,
2016 (dated November 28, 2015) grievance to the ARB for review.
Legal Standards

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Summary judgment is appropriate only if the moving party can demonstrate “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of

material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). In considering a summary judgment motion, the district court views
the facts in the light most favorable to, and draws all reasonable inferences in favor of, the
nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013)
(citation omitted).

Exhaustion Requirements
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available
administrative remedies prior to filing lawsuits in federal court. “[A] prisoner who does not
properly take each step within the administrative process has failed to exhaust state remedies.”
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before
administrative remedies have been exhausted must be dismissed; the district court lacks discretion
to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before
judgment.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll
dismissals under § 1997e(a) should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401
Page 3 of 6
(7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance within 60 days after the discovery of the incident, occurrence or problem, to his
or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN.
CODE § 504.810(a). 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 Chief
Administrative Officer — usually the Warden — within 2 months of receipt, “when reasonably
feasible under the circumstances.” Id. §504.830(e). The CAO then advises the inmate of a
decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within
30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); 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 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and

(e).
An inmate may request that a grievance be handled as an emergency by forwarding it
directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a
substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is
handled on an emergency basis, which allows for expedited processing of the grievance by
responding directly to the offender. Id. Inmates may further submit certain types of grievances
directly to the Administrative Review Board, including grievances related to protective custody,
psychotropic medication, and certain issues relating to facilities other than the inmate’s currently
assigned facility. Id. at § 504.870.
Page 4 of 6
Discussion
Based on the evidence in the record, the Court finds Plaintiff exhausted his administrative
remedies prior to filing this lawsuit.
It is undisputed that there is only one grievance relevant to the claims in this lawsuit. This
grievance was signed by Plaintiff on January 17, 2016. The Court finds Plaintiff’s testimony that

he submitted this grievance to the counselor on January 17, 2016 credible, and Defendant has
failed to provide any evidence to contradict Plaintiff’s testimony. Because the Court finds this
grievance was submitted on January 17, 2016, it was timely under the Illinois Administrative
Code. As such, the counselor should have responded to the merits of the grievance as it appears
the institution caused the delay in receipt. Notably, there is no provision in the Code requiring an
inmate whose grievance is rejected by a counselor to do anything further. Although the Court
recognizes Plaintiff attempted to appeal the grievance to the ARB, he was not required to take this
action. See Miller v. Baldwin, Case No. 3:17-cv-859-NJR-DGW, 2018 WL 6716065, *3 (Dec.
21, 2018 S.D. Ill.) (The Code is silent as to what happens once a counselor denies a grievance as

having no merit). Accordingly, the Court finds Plaintiff’s administrative remedies were
exhausted when he received the counselor’s response dated February 1, 2016.
Conclusion
Based on the foregoing, the Motion for Summary Judgment filed by Defendant Zeigler
arguing Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit (Doc. 41)
is DENIED.
IT IS SO ORDERED.
DATED: January 27, 2020

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s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151501. Public record. Not legal advice.