# Gakuba v. Rains

> District Court, S.D. Illinois · June 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10152195

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** June 18, 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

PETER GAKUBA,

Plaintiff,

v. Case No. 19-cv-437-NJR

DAVID RAINS, ROGER MOSS,
MICHELLE NEESE,1

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:
This matter is before the Court on Defendants’ motion for summary judgment
(Doc. 39). Defendants David Rains, Roger Moss, and Michelle Neese argue that Plaintiff
Peter Gakuba failed to exhaust his administrative remedies prior to filing suit. Gakuba
filed a response (Doc. 40) in opposition to the motion. On June 16, 2020, the Court held
an evidentiary hearing.
BACKGROUND
Gakuba, an inmate of the Illinois Department of Corrections (“IDOC”) who is
currently housed at Vienna Correctional Center (“Vienna”), filed this Complaint
pursuant to 42 U.S.C. § 1983 alleging violations of his access to legal materials and
expenses while at Robinson Correctional Center (“Robinson”). Gakuba was allowed to
proceed on the following claims:
1 Defendant Moss has identified himself by his proper name, Roger Moss (Doc. 18). The Clerk is
DIRECTED to CORRECT the docket to reflect Defendant’s proper name.
Count 1: First and/or Fourteenth Amendment claims against
Defendants for interfering with Plaintiff’s access to the
courts from October 2016 until June 2018, by denying his
access to photocopies, legal supplies, postage, and a law
library.

Count 2: First Amendment retaliation claim against Defendants for
responding to Plaintiff’s complaints about legal mail
interference in September 2016, by barring additional legal
expenses, denying his access to legal supplies, and
transferring him to a prison with no law library.

Count 3: Claim against Defendants for conspiring to retaliate against
Plaintiff by denying meaningful access to the courts from
October 2016 until June 2018.

Count 5: Fourteenth Amendment equal protection claim against
Defendants for singling out Plaintiff for restrictions on
incurring legal expenses.

Defendants argue that Gakuba failed to exhaust his administrative remedies prior
to following suit. The parties agree that only one grievance is relevant to the claims in
this case:2
April 12, 2017 Grievance
Gakuba submitted an emergency grievance, dated April 12, 2017, and signed by
Gakuba on April 13, 2017, directly to the Administrative Review Board (“ARB”). The ARB
received the grievance on April 17, 2017 (Doc. 39-2, p. 154-155). The grievance alleges that
Wardens Rains and Moss complained about Gakuba’s legal debt and informed him that
he would not be allowed to incur any more legal costs (Id.). The ARB rejected the
grievance, noting that there was no justification provided for additional consideration
2 Defendants identified a number of additional grievances in their motion, but the parties agreed
at the evidentiary hearing that only the April 12, 2017 grievance was relevant to this case. Thus,
the Court will not discuss those additional grievances.
(Id. at p. 153). The ARB noted that “[t]his is a request, not a grievance.” (Id.).
Defendants note that the April 12 grievance includes allegations against Moss and

Rains, although it does not name or describe Neese. They argue that the April 12
grievance was not properly exhausted because it was submitted directly to the ARB and
did not include a response from the grievance officer or Chief Administrative Officer
(“CAO”). Gakuba, who was represented by counsel at the time the response was filed,
argues that the grievance was ruled on by the ARB on the merits rather than rejected on
procedural grounds. Gakuba also argues that he could submit the grievance directly to

the ARB because there was a risk of imminent personal harm because Gakuba suffers
from carpel tunnel syndrome and writing his criminal appeal by hand would hurt him.
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”). 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). A 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. 2002). 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.
2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative
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.
A. Illinois Exhaustion Requirements
As an IDOC inmate, Gakuba was required to follow the regulations contained in

the Illinois Department of Correction’s 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
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. 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 CAO’s response, he or she can file an appeal
with the Director through the 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
CAO’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 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 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).
Certain grievances are to be sent directly to the ARB. These include: “1) Decisions
regarding protective custody placement, including continued placement in or release
from protective custody. 2) Decisions regarding the involuntary administration of
psychotropic medication. 3) Decisions regarding disciplinary proceedings that were

made at a facility other than the facility where the offender is currently assigned. 4) Other
issues that pertain to a facility other than the facility where the offender is currently
assigned, excluding personal property and medical issues.” 20 Ill. Admin. Code
§504.870(a).
ANALYSIS

The parties agree that the only grievance at issue in this case is Gakuba’s grievance
dated April 12, 2017. Gakuba testified at the evidentiary hearing that he both placed the
April 12 grievance in the grievance box at Robinson, as well as submitted it directly to
the ARB. If Gakuba did submit his grievance at Robinson and never received a response,
then his attempts at exhaustion would be deemed thwarted, and he would be allowed to

proceed with his lawsuit. See Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2000) (an inmate
is not required to appeal his grievance if he submits the grievance to the proper
authorities but never receives a response); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006) (a remedy can be unavailable to a prisoner if the prison does not respond to the
grievance or uses misconduct to prevent a prisoner from exhausting his resources).
Although Gakuba testified that he submitted his grievance in the grievance box at

Robinson, the Court does not find his testimony to be credible. The only evidence he
offers in support of his claim is three other grievances he claims he submitted at Robinson
but never received a response. These include three grievances submitted in August 2019,
two years after his April 12, 2017 grievance was submitted, and the grievances are
unrelated to this case (Doc. 20, pp. 6-9). Although Gakuba testified that he had a history
of not receiving grievances back while at Robinson, nothing in the record supports this

statement. In fact, the records actually reflect that he did receive responses to a number
of grievances which were either marked as an emergency or submitted and returned by
the counselor (See Doc. 39-2, pp. 23, 33, 43, 46, 48, 50, 52, 54, 56, 60, 64, 68, 71, 73, 75, 77,
140, 144). He clearly had a history of properly receiving responses to his grievances if
they were submitted, despite his testimony otherwise. This suggests that he did not

submit the April 12 grievance as he testified.
Gakuba also offered a number of contradictory statements which undermine his
credibility. Although he testified that he submitted the grievance both to the grievance
box and directly to the ARB, he also stated that he submitted the grievance to the ARB
because they had oversight over the wardens at Robinson. He testified that it was

nonsensical to send someone on a fool’s errand of going through the grievance process,
by sending the grievance to the counselor, grievance officer, and warden, when the
warden had a conflict of interest because he was the subject of the grievance. His
statement that he believed there was a conflict of interest in the normal grievance process
and was a waste of his time suggests that he did not submit the grievance at Robinson
because it would be a “fool’s errand.” Instead, he submitted the grievance directly to the

ARB as the records indicate.
Gakuba also testified that Defendants failed to demonstrate that he was aware of
the grievance process. Not only does the argument that he was not aware of the grievance
process defy logic because his grievance records are lengthy (see Doc. 39-2, pp. 1-156),
Gakuba then contradicted himself by stating he submitted the grievance to the ARB
because he knew that the grievance process moved at a slow pace, demonstrating

knowledge of the grievance process at the time. Gakuba also acknowledged that he
entered IDOC in July 2015, and he filed this grievance in April 2017. The ARB’s grievance
logs shows grievances submitted by Gakuba as far back as January 2016 (Doc. 39-2, p. 3),
contradicting his statement that he lacked knowledge of the proper grievance process.
Because he offered contradictory testimony that was not backed by the evidence in the

record, the Court finds his testimony regarding his April 12, 2017 grievance lacking in
credibility. There is no evidence to suggest he submitted the grievance at Robinson, but
there is evidence suggesting that it was submitted directly to the ARB. Thus, the Court
finds that he did not submit his grievance to the grievance box but, instead, submitted it
to the ARB directly where it was received on April 17, 2017 (Doc. 39-2, p. 154).

By submitting the grievance directly to the ARB, the Court finds that Gakuba failed
to properly exhaust his April 12 grievance. The grievance process does allow for certain
grievances to be submitted directly to the ARB, including grievances about protective
custody, involuntary administrative of psychotropic medications, and disciplinary and
other issues at facilities other than the one an inmate is currently housed. See 20 Ill.
Admin. Code §504.870(a). Gakuba testified that he submitted the grievance directly to the

ARB because the ARB had oversight over the wardens. In his motion he argued that he
filed the grievance directly to the ARB because it was an emergency and there was a
substantial risk of imminent harm due to his carpal tunnel (Doc. 40, p. 3). Neither of these
grounds is a proper basis, however, for submitting the grievance directly to the ARB.
Further, the grievance was not considered on the merits by the ARB. “To exhaust
remedies, a prisoner must file complaints and appeals in the place, and at the time, the

prison administrative rules require.” Pozo, 286 F.3d at 1025. While the prison
administration can refuse to hear a grievance if the inmate fails to properly utilize the
grievance process, see Dole, 438 F.3d at 809, IDOC officials can excuse a prisoner’s non-
compliance and review the grievance on the merits. See, e.g., Riccardo v. Rausch, 375 F.3d
521, 524 (7th Cir.2004) (noting that an IDOC prisoner’s grievance was untimely, but that

IDOC officials nonetheless resolved the grievance on its merits). Gakuba argues that the
grievance was ruled on the merits because it was not returned to him with the check
marks indicating that he failed to properly attach his counselor and grievance office
response as with other grievances which were returned to him. Although Gakuba is
correct that the ARB could have also marked those boxes on the return because the

grievance did not include the proper responses, the grievance was returned for other
procedural issues. The ARB noted that it was being returned because it was not a
grievance but a request (Doc. 39-2, p. 153). The grievance was also returned on a “Return
of Grievance or Correspondence” form rather than a grievance response form, further
demonstrating that it was not decided on the merits (See Doc. 39-2, p. 153 compare with
Doc. 39-2, p. 15, 24, 41, 57, 61, and 83). Because the grievance was returned to Gakuba on
procedural grounds and not decided on the merits, the Court finds that he failed to
exhaust his administrative remedies.
CONCLUSION
For the reasons stated above, summary judgment (Doc. 39) is GRANTED as to
Defendants David Rains, Roger Moss, and Michelle Neese. The Clerk is DIRECTED to
close the case and enter judgment accordingly.

IT IS SO ORDERED.
DATED: June 18, 2020 g i

NANCY J. ROSENSTENGEL
Chief U.S. District Judge

Page 11 of 11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10152195. Public record. Not legal advice.