Daniels v. Brown

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARRIAN DANIELS,

#K91046,

Plaintiff,

v. Case No. 19-cv-01341-SPM

TYSON BROWN,

JOHN BALDWIN, and

FRANK LAWRENCE,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

This matter is before the Court the Motion for Summary Judgment filed by Defendants

Brown, Lawrence, and Baldwin. Defendants argue that Plaintiff Darrian Daniels failed to exhaust

his administrative remedies prior to filing suit. (Docs. 48, 49). Daniels filed a Response in

opposition to the Motion. (Doc. 53). On November 4, 2020, the Court held an evidentiary hearing.

Defense Counsel Davis appeared on behalf of Defendants, and Plaintiff Daniels did not attend.

BACKGROUND

Plaintiff Darrian Daniels, an inmate of the Illinois Department of Corrections (“IDOC”)

who is currently incarcerated at Menard Correctional Center (“Menard”), commenced this action

by filing a Complaint pursuant to 42 U.S.C. § 1983 alleging that from September 5, 2019, through

November 2019, he was served contaminated food and denied meals. (Doc. 1). Following

preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, Daniels is proceeding with

the following claims:

Count 1: Eight Amendment claim of cruel and unusual punishment against

Brown, Baldwin, and Lawrence for serving Daniels contaminated

food and denying him food.

Daniels for filing a lawsuit by serving him contaminated food and

denying him food.

In the Motion for Summary Judgment, Defendants argue that Daniels has only filed one

grievance relating to the issues alleged in the Complaint. In grievance #377-10-19, Daniels grieves

that since August 2018, he has been refused food trays while in segregation, served a food tray

with feces in it, and threatened on a daily basis by Officer Brown. (Doc. 49, p. 2). Daniels filed

the grievance October 30, 2019, and marked it as an emergency. (Doc. 49-1, p. 2-3). It was

determined not to be an emergency by the Chief Administrative Officer, and Daniels was

instructed to submit the grievance according to normal procedures. Rather than resubmitting the

grievance in accordance with the standard grievance process, Daniels sent the grievance directly

to the Administrative Review Board, along with a letter addressed to the “Director.” (Id. at p. 4-

5). The Administrative Review Board determined that the grievance was not submitted in the

timeframe outlined in Department Rule 504. (Id. at p. 1). The Illinois Administrative Code requires

that “a grievance must be filed with the counselor or grievance officer. . . within 60 days after the

discovery of the incident, occurrence or problem that gives rise to the grievance.” (Doc. 49, p. 7)

(quoting ILL. ADMIN. CODE § 504.810). In the grievance, Daniels states that the incidents with his

food began in August 2018, but he did not file his grievance until October 30, 2019. Defendants

argue that because Daniels failed to fully comply with the grievance procedures and to submit his

grievance within the required timeframe, the October 30, 2019 grievance was not fully exhausted.

Defendants further argue that the October 30, 2019 grievance does not meet the provisions

of the Illinois Administrative Code requiring a grievance to “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.” (Doc. 49, p. 8)

(quoting ILL. ADMIN. CODE § 504.810(c)). They state that Daniels cannot rely on this grievance to

with his claims of food contamination and denial of meals.

Daniels filed a Response to the Motion for Summary Judgment. He argues that when he

received the October 30, 2019 grievance back from the warden, after it was determined not to be

an emergency, he filed it with the grievance officer. (Doc. 53, p. 4). The grievance officer returned

the grievance back to him and instructed him to send it to the Administrative Review Board. He

sent it to the Administrative Review Board but did not receive an answer. (Id. at p. 5). Daniels also

claims he attempted to exhaust the prison’s administrative remedies by filing an emergency

grievance on September 5, 2019, and an emergency grievance on November 3, 2019. (Id. at pp. 2,

12-15). He claims he sent these two grievances to the warden and the Administrative Review Board

but did not receive any responses. Because these grievances were ignored, he argues his

administrative remedies were exhausted.

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)

(citing FED. R. CIV. P. 56(c)). 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, 322 (1986). Once a

properly supported motion for summary judgment has been filed, 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, 248 (1986) (citations omitted). 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

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

Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform

Act (“PLRA”). 42 U.S.C. § 1997e(a). Pursuant to the PLRA, prisoners are required to exhaust

administrative remedies prior to filing lawsuits in federal court. Id. 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”). “To

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).

“[A] prisoner who does not properly take each step within the administrative process has failed to

exhaust state remedies, and thus is foreclosed by § 1997(e) from litigation.” Id. at 1024.

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 Seventh Circuit

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

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.

As an inmate confined within the Illinois Department of Corrections, Daniels 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. 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. 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 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

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 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).

The Court must first address Daniels’s refusal to participate in the hearing. With plenty of

notice to the parties, on September 24, 2020, the Court scheduled a hearing on the Motion for

Summary Judgment via video conference for November 4, 2020. (Doc. 55). Two weeks prior to

the hearing, Daniels notified the Court that he has severe hearing loss and requested special

accommodations so that he could participate at the hearing. (Doc. 61). At the Court’s direction,

Defendants contacted Menard to inquire about the availability of an assistive listening device.

(Doc. 63). Their inquiry revealed that at a previous hearing the only assistive listening device

available to Daniels, an amplified telephone, did not sufficiently help Daniels to hear. The Court

then arranged for Daniels to have access to a real time transcription of the proceedings. (Doc. 64).

On November 4, 2020, the Court waited for Daniels to appear through video conference. After

contacting Menard, the Court was informed that following multiple attempts by staff to bring

Daniels to the videoconferencing room, Daniels was refusing to leave his cell and participate in

the hearing.

Daniels has litigated other cases in this district as a pro se plaintiff and has participated in

court hearings before, including in this case.1 (See Doc. 32). Therefore, he is aware that a hearing

is his opportunity to present arguments and evidence before the Court and demonstrate his

credibility. Daniels was provided with sufficient notice of the hearing and special accommodations

by this Court so he could fully participate, yet he chose not to appear. Accordingly, Daniels has

missed his opportunity to refute the evidence presented by Defendants, and the Court will rule on

the Motion for Summary Judgment based on the briefings and Defendants’ arguments made at the

hearing.

1 See Daniels v. Mitchell, No. 13-cv-00609-SCW (S.D. Ill. 2013); Daniels v. Mezo, No. 14-cv-01058-SMY-RJD (S.D.

Ill. 2014); Daniels v. Menard Corr. Ctr., No. 19-cv-00394-RJD (S.D. Ill. 2019); Daniels v. Lawrence, No. 20-cv-

00096-DWD (S.D. Ill. 2020).

November 3, 2019, were not fully exhausted. At the hearing, Defendants argued that there is no

evidence of these grievances being properly submitted for review by the warden. (See Docs. 27-3,

49-2, 49-3). Defendants stated that when a grievance is filed at Menard, they are logged in the

Cumulative Counseling Summary by a counselor. As these grievances are not recorded in the

Cumulative Counseling Summary, then it can be inferred they were not properly filed. Defendants

pointed out that in Daniels’s Cumulative Counseling Summary a counselor documented the receipt

of the October 30, 2019, emergency grievance, as well as others, demonstrating that the two

grievances presented by Daniels were never actually submitted for review.

In his Response, Daniels argues that the Cumulative Counseling Summary (Doc. 49-2) and

ARB IGRV Inmate History (Doc. 49-3) submitted by Defendants have been falsified because the

various grievance and counseling records are inconsistent. (Doc. 53, p. 5-6). To demonstrate this

argument, he submitted a grievance log filed as an exhibit by the defendants in another civil case

showing two grievances he filed on May 31, 2018, and one on August 8, 2018. (Doc. 53, p. 21).

He states that his ARB IGRV Inmate History submitted by Defendants in this case does not record

these three grievances but includes a record of four other entirely different grievances from 2018,

none of which are in the exhibit he has presented. (Doc. 49-3, p. 1).

These inconsistencies, however, do not show that the Cumulative Counseling Summary

submitted by Defendants in this case is false. The three grievances Daniels’s references from the

exhibit are in fact recorded in his Cumulative Counseling Summary filed by Defendants (Doc. 49-

2, pp. 3, 4), and their absence from the ARB IGRV Inmate History only demonstrates that they

were either not sent to the ARB for appeal, or viewing the evidence in light most favorable to

Daniels, were not logged by the ARB. Daniels has not submitted any admissible evidence to

support this claim that the records maintained by Menard have been falsified and that he properly

warden at Menard. Rather, the Court finds that the evidence presented demonstrates that Daniels

knew how to properly file an emergency grievance and did so twice during the fall of 2019. He

successfully submitted emergency grievances dated October 30, 2019, and November 22, 2019,

demonstrating his ability to access the procedural mechanisms at Menard. (See Doc. 49-2, p. 1).

There is no evidence that Daniels was prevented from filing grievances. Therefore, he has not

shown that the grievance process was unavailable to him as to the emergency grievances dated

September 5, 2019, and November 3, 2019.

The Court further finds that the emergency grievance dated October 30, 2019, was also not

exhausted. Contrary to the determination by the ARB and Defendants’ arguments, the grievance

was timely filed and adequately put Defendants on notice of Daniels’s complaints. Pyles v.

Nwaobasi, 829 F. 3d 860, 867 (7th Cir. 2016) (“The purpose of the exhaustion requirement is to

ensure that prisons have a fair opportunity to correct their own errors through the grievance

process.”) (citations omitted). Daniels stated in the grievance that “since 2018” he had been

threatened by Brown, refused of food trays, and served food trays with feces. (Doc. 49-1, p. 3).

The ARB failed to recognize that Daniels complaints were not isolated incidents but ongoing in

nature. See Wilder v. Sutton, 310 F. App’x 10 (7th Cir. 2009). Because Daniels claimed he was

still being denied food and served contaminated meals at the time the grievance was filed, “he was

within sixty days of an incident underlying his complaint,” Id., and his grievance was timely.

Daniels also sufficiently alerted “the prison to the nature of the wrong for which redress is

sought[.]” Westerfer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005) (quoting Strong v. David, 297

F.3d 646, 650 (7th Cir. 2002)). As mentioned, Daniels grieved he was being threatened by Brown,

receiving contaminated food, and denied meal trays. He also stated that the warden and IDOC

director “have a history of being deliberately indifferent to his unconstitutional treatment.” (Doc.

afforded Menard an opportunity to correct the problems prior to the commencement of litigation.

See Love v. Myers, 2020 WL 4747714, at *4 (S.D. Ill. 2020) (“Exhaustion is not intended to

provide individual notice to each prison official who might later be sued; it is designed to provide

the prison with notice of the problem and give them an opportunity to fix it.”) (citing Maddox v.

Love, 655 F.3d 709, 722 (7th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)); Turley

v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013)).

That being said, the October 30, 2019 emergency grievance was not filed in accordance

with the procedures established by the Illinois Administrative Code, and thus, the grievance was

not fully exhausted. Defendants argued at the hearing that after the CAO determined that the

grievance was not an emergency, and rather than resubmitting the grievance in the normal manner,

Daniels appealed the grievance to the ARB, failing to comply with proper grievance procedure.

(Doc. 49, p. 7). In his Response, Daniels confirms that he received the grievance back with the

determination from the CAO. (Doc. 53, p. 4). He argues, however, that he then submitted the

grievance to a grievance officer, who instructed him to send the grievance directly to the ARB. He

sent the grievance to the ARB, and then he did not receive response. (Id. at p. 5).

Daniels’s claim that he was misinformed about the proper procedures by a grievance officer

is not supported by the record, and it is undisputed that he received the grievance back from the

CAO with instructions to “resubmit the grievance in a normal manner.” (Doc. 49-1, p. 2).

Additionally, there is nothing in the Illinois Administrative Code that allows for an appeal to the

ARB of a determination by the CAO that the grievance is not an emergency, and Daniels does not

claim that he did not know the grievance process. See Smith v. Asselmeier, 762 F. App’x 342, 344

(7th Cir. 2019). Whether Daniels received a response from the ARB is immaterial, as the lack of

response did not prevent him from completing the administrative process by resubmitting the

Accordingly, because Daniels did not refile the October 30, 2019 emergency grievance through

the normal process, he failed to exhaust the administrative remedies that were available to him.

Based on the record, the Court concludes that Daniels did not fully exhaust his emergency

grievances in accordance with IDOC procedures and was not prevented from doing so by actions

taken by Defendants. As he has not exhausted his claims in this action, the Court grants the Motion

for Summary Judgment and finds that dismissal of all claims against all Defendants is appropriate

at this time.

CONCLUSION

For the reasons stated above, the Motion for Summary Judgment (Doc. 48) is GRANTED

as to Defendants Brown, Lawrence, and Baldwin. The Clerk is DIRECTED to close the case and

enter judgment accordingly.

IT IS SO ORDERED.

DATED: November 6, 2020

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge