Sultan v. Duncan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHARLES SULTAN, )

)

Plaintiff, )

)

vs. ) Case No. 3: 17-CV-418-NJR-MAB

)

STEPHEN DUNCAN, LISA TARR, )

BRIAN KELLER, ZACHARY MAXEY, )

ROBERT WEAVER, CHRISTOPHER )

GIPSON, DARRELL SELBY, CHAD )

JENNINGS, JASON FREEMAN, )

PATRICIA POTTS, WILLIAM )

BYFORD, KEVIN JOHNSON, ETHAN )

CLARY, DON HARRIS, ALLAN )

DALLAS, and NATHAN WHEELER, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

Currently pending before the Court is Defendant Patricia Potts’ motion for

summary judgment on the issue of exhaustion (Doc. 117). For the reasons stated below,

the motion is granted.

BACKGROUND

Plaintiff Charles Sultan (“Plaintiff”) brought this action pursuant to 42 U.S.C.

§1983 alleging various deprivations of his constitutional rights that occurred while he

was incarcerated at Lawrence Correctional Center (Doc. 11; Doc. 13). In particular,

Plaintiff alleged that officials at Lawrence placed him in a segregation cell with an inmate

who was mentally ill and had a known propensity for violence. According to Plaintiff,

this cell assignment was in retaliation for a lawsuit he previously filed against the Orange

Crush Tactical Team. Plaintiff’s cellmate became angry with him, and Plaintiff asked

multiple officers to move him to another cell or get him a crisis team because of “a

conflict” with his cellmate, but they refused. He also asked Defendant Potts, a nurse at

Lawrence, to get him a crisis team, but she also refused. On the evening of September 13,

2015, after Plaintiff had been trying for two days to get help, Plaintiff was assaulted by

his cellmate (Doc. 13).

Following a threshold review of the complaint pursuant to 28 U.S.C. § 1915A,

Plaintiff was permitted to proceed on the following counts:

Count 1 - Eighth Amendment deliberate indifference claim against

Defendants William Byford, Ethan Clary, Allan Dallas, Stephen Duncan,

Jason Freeman, Christopher Gipson, Don Harris, Kevin Johnson, Chad

Jennings, Brian Keller, Zachary Maxey, Patricia Pots, Darrell Selby, Lisa

Tarr, Robert Weaver, and Nathan Wheeler for failing to intervene and

protect Plaintiff from an attack by Inmate Esther on or around September

13, 2015.1

Count 2 - Eighth Amendment deliberate indifference claim against

Defendants Clary, Selby, and Harris for using excessive force against

Plaintiff when cuffing him on and after September 28, 2015.

Count 4 - Conspiracy claim against all Defendants under the common law

and/or 42 U.S.C. § 1985.

Count 5 - First Amendment retaliation claim against all Defendants for

placing Plaintiff in a cell with Inmate Esther because Plaintiff sued the

Orange Crush Tactical Team.

(Doc. 13).

1 The threshold order also lists a Defendant named Austin, however, Lisa Tarr was later substituted in for

Defendant Austin (Doc. 73).

Nurse Potts is the only Defendant who filed a motion for summary judgment on

the issue of exhaustion (Doc. 117). She argues that Plaintiff failed to reference her by name

or description in any of his grievances (Doc. 118, p. 9). His grievances instead focus

exclusively on the conduct of correctional officers (Id. at p. 10). Plaintiff, through

appointed counsel, filed a response in opposition to Nurse Potts’ motion (Doc. 138).

Nurse Potts then filed a reply to Plaintiff’s response (Doc. 141). An evidentiary hearing,

pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was not required based on the

record and the parties’ briefs.

LEGAL STANDARDS

Summary Judgment

Summary judgment is proper if there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The

moving party bears the initial burden of demonstrating the lack of any genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported

motion for summary judgment is made, the adverse party must set forth specific facts

showing there is a genuine issue. 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 determining a summary

judgment motion, the 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).

Normally, the court cannot resolve factual disputes on a motion for summary

judgment; they must be decided by a jury. E.g., Roberts v. Neal, 745 F.3d 232, 234 (7th Cir.

2014) (“[A] trial is the standard means of resolving factual disputes . . . .”) The opposite

is true, however, when the motion for summary judgment pertains to a prisoner’s failure

to exhaust. The Seventh Circuit has instructed courts to conduct an evidentiary hearing

in order to resolve contested issues of fact regarding a prisoner’s purported failure to

exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing Pavey v. Conley, 544

F.3d 739 (7th Cir. 2008)). Accord Roberts, 745 F.3d at 234. Here, the parties’ briefs

demonstrate that there are no contested issues of fact and so a hearing is not required.

Exhaustion

The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit

about prison conditions unless and until he has exhausted all available administrative

remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)). The

purpose of the exhaustion requirement is to “alert prison officials to perceived problems

and to enable them to take corrective action without first incurring the hassle and expense

of litigation.” Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) (per curiam)

(citations omitted). See also Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (quoting Jones

v. Bock, 549 U.S. 199, 219 (2007)). In order for a prisoner to properly exhaust his or her

administrative remedies, the 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); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion is an

affirmative defense, which the defendants bear the burden of proving. Pavey, 663 F.3d at

903 (citations omitted).

As an inmate in the IDOC, Plaintiff was required to follow the grievance process

outlined in the Illinois Administrative Code to exhaust his claims. 20 ILL. ADMIN. CODE §

504.800, et seq. (2015).2 Pertinent to this case is the regulation regarding emergency

procedures. 20 ILL. ADMIN. CODE § 504.840 (2015). Under § 504.840, a prisoner can request

a grievance be handled on an emergency basis by forwarding the grievance directly to

the warden. Id. The warden then reviews the grievance to determine if it is truly an

emergency. See Id. If the warden determines there is “a substantial risk of imminent

personal injury or other serious or irreparable harm,” the warden will process and

respond to the grievance on an expedited basis. Id. If the prisoner is unsatisfied with the

warden’s expedited decision, he can appeal to the ARB for a final determination from the

Director of the IDOC. Id. at 504.850(a), (g) (“In those instances where an offender is

appealing a grievance determined by the [warden] to be of an emergency nature, the ARB

shall expedite processing of the grievance.”).

On the other hand, if the warden determines that the grievance is not based on an

emergency, the regulation does not indicate how things are supposed to proceed. See 20

ILL. ADMIN. CODE §§ 504.840, 504.850 (2015). The Seventh Circuit held in an unpublished

2 Illinois amended its grievance procedures, effective April 1, 2017. See 41 Ill. Reg. 3909–10 (March 31, 2017)

(amending 20 Ill. Admin. Code § 504.810). However, the grievances at issue here were written in 2015, well

before the amended grievance procedures took effect. Consequently, the previous version of the grievance

procedures—the one that was in effect from April 2003 to April 2017—applies here. See 27 Ill. Reg. 6285–86

(April 11, 2003) (promulgating the version of 20 Ill. Admin. Code § 504.810 in effect from April 2003 to April

2017). That is the version cited and referred to throughout this Order.

case that “after the warden concludes that the grievance does not present an emergency

. . . Illinois rules do not require [the prisoner] to appeal that decision to the [ARB].” 718

Fed. Appx. 413, 418 (7th Cir. 2017) (unpublished). See also Boyce v. Illinois Dep’t of Corr.,

661 Fed. Appx. 441, 443 (7th Cir. 2016) (noting that prisoner “submitted grievances

directly to the warden as emergencies, and our decision in Thornton v. Snyder implies that

this may have been enough.”). Judges in this district have elected to follow the holding

in Bentz. E.g., Cox v. Lashbrook, No. 16-CV-1096-NJR-DGW, 2018 WL 4520272, at *4 (S.D.

Ill. Sept. 21, 2018); Viverette v. Wexford Health Sources Inc., No. 17-CV-586-JPG-DGW, 2018

WL 3526501, at *4 (S.D. Ill. July 23, 2018).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Nurse Potts provided the Court with a select portion of Plaintiff’s grievance

records from the Administrative Review Board and Western Correctional Center, as well

as a cumulative counseling summary from Western (Docs. 118-1, 118-2, 118-3). Nurse

Potts highlighted six potentially relevant grievances dated July 28, 2015; September 28,

2018; October 6, 2015; October 8 (maybe 18), 2015; November 18, 2015; and December 14,

2015 (Doc. 118, pp. 2–3). She argued that none of these grievances contain any reference

whatsoever to her, and therefore they are insufficient to exhaust as to her (Doc. 118). After

reviewing these grievances, the Court also agrees that these grievances are insufficient to

exhaust as to Nurse Potts.

To begin with, the grievance dated November 18, 2015 concerns medical care that

Plaintiff received at Western Correctional Center (Doc. 118-1, pp. 19–20). It is wholly

unrelated to the claims in this case and therefore cannot exhaust as to Nurse Potts.

The other five grievances—July 28, September 28, October 6, October 8 (maybe 18),

and December 14, 2015—make clear that Plaintiff was only complaining about purported

misdeeds by correctional officers. There is no indication in any of these grievances that

Plaintiff was complaining about a nurse or anyone else on the healthcare staff harassing

him, threatening him, or otherwise retaliating against him in any way for his ongoing

lawsuit against the Orange Crush.

Illinois law specifies that a prisoner's grievances 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(b) (2015). If the offender does not know

the names of individual, he “must include as much descriptive information about the

individual as possible.” Id. The grievance forms used by Plaintiff likewise asked for “a

description of what happened, when and where it happened, and the name or identifying

information for each person involved” (see Doc. 118-1). In short, the grievance must

provide sufficient information to identify the defendant as the target of the complaint or

to implicate them in the alleged wrongdoing. See Roberts v. Neal, 745 F.3d 232, 234 (7th

Cir. 2014) (explaining “fatal defect” in grievance was “the absence of anything in it to

indicate that [the defendant] was the target.”); see also Ward v. Hoffman, 670 Fed. Appx.

408, 410 (7th Cir. 2016) (affirming summary judgment based on prisoner’s failure to

exhaust where he complained only about the procedures used by the adjustment

committee and did not mention excessive force or the defendants); Ambrose v. Godinez,

510 Fed. Appx. 470, 472 (7th Cir. 2013) (affirming the dismissal of prison officials where

the plaintiff’s grievance failed to mention the officials by name or otherwise implicate

them in the alleged constitutional violation).

Here, in the July 28, 2015 emergency grievance, Plaintiff alleges he was put into

segregation on investigative status but not given any explanation. When officers tried to

take him back to general population, Plaintiff refused out of fear that officers involved in

his lawsuit against the Orange Crush were “gunning for having me hit. . . .” and were

going to “have [him] set-up and have one of the inmates with mental illness . . . do it for

them.” Plaintiff indicates that he feared for his life at Lawrence and begged to be placed

in protective custody.

The emergency grievance dated September 28, 2015 explicitly states that it is about

officers Clary, Ethan, Selaby, and Harris harassing Plaintiff and using excessive force

against him, amongst other things, all in retaliation because Plaintiff filed a lawsuit.

In the emergency grievances dated October 6 and October 8, 2015, Plaintiff

contests the proceedings at the Adjustment Committee hearing on September 23, 2015 for

a disciplinary ticket that he received after his cellmate assaulted him. He asks to have the

ticket expunged from his record and to be transferred out of Lawrence.

The emergency grievance dated December 14, 2015 was submitted after Plaintiff

was transferred to Western Correctional Center. It is substantially the same as the

September 28, 2015 grievance discussed above in that Plaintiff complains about officers

Clary, Ethan, Selaby, and Harris harassing him and using excessive force against him,

amongst other things, all in retaliation for filing a lawsuit.

Because these grievances clearly focus on the actions of correctional officers and

none of them even remotely suggest that members of the healthcare staff were also

involved in the misdeeds or somehow at fault, they cannot serve to exhaust Plaintiff’s

claims against Nurse Potts.

The six grievances highlighted by Nurse Potts are not the end of the story,

however. In his response to the motion for summary judgment, Plaintiff claims he filed

another grievance on September 23, 2015 (Doc. 138). This grievance, which was attached

to Plaintiff’s amended complaint, was marked as an emergency (Doc. 11-1, pp. 13–15, 30).

In the grievance, Plaintiff describes a conflict with his cellmate in segregation. Plaintiff

indicates he began notifying officers of the conflict on the night of September 12, 2015 and

continued notifying other officers the next day. He further indicates that on September

13th, he was taken to the medication line where he asked “Nurse (Jane Doe #1)” to put

him in a crisis cell, but the nurse told him she did not have time to do it right then because

she had other stuff to do, but she would come back later with the zone lieutenant to do a

crisis move. The nurse, however, never followed through.

The unknown nurse referred to in the September 23rd grievance very well could

be Nurse Potts. However, there is no evidence that Plaintiff ever filed this grievance, let

alone exhausted it. For example, there is no indication on the face of the grievance the

warden ever received it or determined whether it constituted an emergency (see Doc. 11-

1, pp. 13–15, 30). There is also no indication on the face of the grievance that it was ever

received by Plaintiff’s counselor, the grievance office, or the ARB (see id.). There is also no

record of this grievance in the materials submitted by Nurse Potts (see Docs. 118-1, 118-2,

118-3). Furthermore, Plaintiff also did not provide a declaration asserting that he

submitted this grievance, that he did not understand how to do so, or that he was

thwarted from doing so by prison officials; there is also no argument to this effect in his

response brief (see Doc. 138). See Ross v. Blake, 136 S. Ct. 1850, 1860, 195 L. Ed. 2d 117 (2016)

(explaining that grievance process is unavailable and exhaustion is not required when

“prison administrators thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.”); Ramirez v. Young, 906 F.3d

530, 535 (7th Cir. 2018) (holding that grievance process is “available only if a prisoner has

been notified of [its] existence” and the process has been “communicated in a way

reasonably likely to be understood.”).

In short, Plaintiff failed to provide the Court with any evidence to support his

suggestion that he filed and fully exhausted the September 23, 2015, and therefore failed

to show a genuine issue of fact existed as to whether he exhausted his administrative

remedies with respect to Nurse Potts. Consequently, Nurse Potts is entitled to summary

judgment.

CONCLUSION

The motion for summary judgment on the issue of exhaustion filed by Defendant

Patricia Potts (Doc. 117) is GRANTED. Potts is DISMISSED without prejudice.

IT IS SO ORDERED.

DATED: February 11, 2020

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge