The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
DEMARO BROWNLEE, )
)
Plaintiff, )
)
vs. ) Case No. 3:19-cv-774-GCS
)
DYLAN YATES, and )
SHAWN KANADY, )
)
Defendants. )
MEMORANDUM & ORDER
SISON, Magistrate Judge:
On July 17, 2019, Plaintiff Demaro Brownlee filed suit alleging that Defendants
Dylan Yates and Shawn Kanady used excessive force against him on December 20, 2018,
while he was incarcerated at Dixon Springs Boot Camp Detention Center. Defendants
filed a motion for summary judgment on the issue of exhaustion of administrative
remedies on January 10, 2020. (Doc. 20). The Court previously warned Brownlee that the
failure to respond to a motion for summary judgment on the issue of exhaustion may
result in an order granting any such motion. (Doc. 15). Nevertheless, the deadline for
Brownlee’s response passed, and he did not file a response to Defendants’ motion. For
the reasons delineated below, the Court grants Defendants’ motion for summary
judgment.
FACTUAL BACKGROUND
Pursuant to Local Rule 7.1(c), the failure to file a timely response to a motion may,
in the Court’s discretion, be considered an admission of the merits of the motion.
Nonetheless, a brief recitation of the facts is of assistance in demonstrating that the
exercise of that discretion is appropriate here.
At all times relevant to his complaint, Plaintiff Demaro Brownlee was incarcerated
at Dixon Springs Boot Camp Detention Center, and Defendants Dylan Yates and Shawn
Kanady worked as correctional officers at the facility. Brownlee alleges that Yates and
Kanady used excessive force against him on December 20, 2018, when they pulled him
out of a chair and slapped him so hard that he almost lost consciousness.
Defendants aver, and the record reflects, that Brownlee filed two grievances
related to the use of force in December 2018. The first was filed in April 2019 and the
second in June 2019. No grievances, related to the use of force or otherwise, were filed by
Brownlee between December 2018 and March 2019.
LEGAL STANDARDS
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”). See 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).
Generally, the Court’s role on summary judgment is not to evaluate the weight of
the evidence, to judge witness credibility or to determine the truth of the matter. Instead,
the Court is to determine whether a genuine issue of triable fact exists. See Nat’l Athletic
Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, however, 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, 740-741 (7th Cir. 2008).
The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. See, e.g., 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. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff 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 use a prison’s grievance
process properly, “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.
In Pavey, the Seventh Circuit set forth procedures for a court to follow in a situation
where failure to exhaust administrative remedies is raised as an affirmative defense. The
Seventh Circuit stated the following:
(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.
Pavey, 544 F.3d at 742.
As an inmate confined within the Illinois Department of Corrections, Plaintiff was
required to follow the regulations contained in the Illinois Department of Correction’s
Grievance Procedures for Offenders (“grievance procedures”) to exhaust his claims
properly. See 20 ILL. ADMIN. 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. See 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
names of individuals are not known, but the offender must include as much
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. See 20 ILL. ADMIN. CODE
§504.820(a). The grievance officer will review the grievance and provide a written
response to the inmate. See 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. See
20 ILL. ADMIN. CODE §504.850(a). 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 appealed grievance, when reasonably
feasible under the circumstances. The offender shall be sent a copy of the Director’s
decision.” 20 ILL. ADMIN. CODE §504.850(e).
The grievance procedures also allow an inmate to file an emergency grievance. See
20 ILL. ADMIN. CODE §504.840. 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 [such that] 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 what action shall be or has been
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
Based on the record before the Court, it is appropriate to exercise discretion and
deem Brownlee’s failure to respond to Defendants’ motion for summary judgment an
admission of the merits of the motion. The conduct giving rise to Brownlee’s complaint
occurred on December 20, 2018. In order to exhaust his administrative remedies,
Brownlee was required to file a grievance related to the conduct on or before February
18, 2019, but he did not file his first relevant grievance until April 2019. He filed no
grievances between December 2018 and March 2019. As a result, there is no evidence in
the record to suggest that Brownlee exhausted his administrative remedies in a timely
manner prior to filing suit in July 2019.
CONCLUSION
For the above-stated reasons, the Court GRANTS Defendants’ motion for
summary judgment (Doc. 20). This action is dismissed without prejudice in its entirety
due to Plaintiff Demaro Brownlee’s failure to exhaust administrative remedies.
IT IS SO ORDERED. Digitally signed by
Magistrate Judge
Dated: February 25, 2020. AlLink So, Gilbert C. Sison
Date: 2020.02.25
09:42:54 -06'00'
GILBERT C. SISON
United States Magistrate Judge
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