The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRICE A. SIMPSON, #M31008, )
)
Plaintiff, )
)
v. ) Case No. 18-cv-2069-RJD
)
MATTHEW SWALLS and MARIBETH )
ETHRIDGE-HICKS, )
)
)
Defendants.
ORDER
DALY, Magistrate Judge:
This matter comes before the Court on Defendants’ Motion for Summary Judgment on
the Issue of Exhaustion (Doc. 32) and Supporting Memorandum of Law (Doc. 34). Plaintiff
responded (Doc. 39). This matter also comes before the Court on Plaintiff’s Motion to Appoint
Counsel (Doc. 38) and Motion for Leave to File an Amended Complaint (Doc. 40). As explained
further, Defendants’ Motion for Summary Judgment is GRANTED. Plaintiff’s Motion to
Appoint Counsel and Motion for Leave to File an Amended Complaint are DENIED.
Background
Plaintiff is an inmate incarcerated within the Illinois Department of Corrections. He was
housed at Vienna Correctional Center (“Vienna”) in 2018. Plaintiff alleges that in April and May
2018, he alerted a mental health official that he was in danger of being attacked by other inmates,
and Defendants Swalls (the warden at Vienna) and Ethridge-Hicks1 became aware that Plaintiff
1 Ethridge-Hicks’ position at Vienna in 2018 is unclear. She signed Plaintiff’s grievance as a grievance officer, but
Plaintiff’s counseling summary lists her as a counselor. In her Answer to Plaintiff’s Amended Complaint, she denied
that she was a counselor or a grievance officer.
Page 1 of 6
was in danger. Plaintiff was then involved in an altercation with other inmates on August 25,
2018. He claims that Defendants Swalls and Ethridge-Hicks violated his Eighth Amendment
rights by failing to adequately protect him from the August 25, 2018 altercation.
In their Motion for Summary Judgment, Defendants contend that Plaintiff failed to exhaust
his administrative remedies against Plaintiff. The Court reviews the following grievance
contained in the record:
August 30, 2018: Plaintiff filed a two-page grievance in which he recounted his
August 25, 2018 altercation with other inmates. He further noted that he believed
he had been unfairly disciplined for the altercation. Defendant Ethridge-Hicks
reviewed the grievance and recommended that the grievance be denied, finding that
Plaintiff’s discipline related to the altercation was within department guidelines.
Warden Swalls concurred with the recommendation. Warden Swalls signed the
grievance on September 18, 2018.
Doc. 15, p. 9-11.
Plaintiff filed this suit on November 18, 2018. Defendants argue that the August 30, 2018
grievance was never submitted to the Administrative Review Board (“ARB”), and that Plaintiff
did not identify Defendants or his complaints about them in the grievance. In his Response to
Defendants’ Motion for Summary Judgment, Plaintiff represents that by the time the grievance
was returned to him, more than 30 days had passed since Defendant Swalls reached his decision
and so he did not submit it to the ARB.
On November 9, 2020, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008). Plaintiff testified that he did not submit the August 30, 2018 grievance to the
ARB because by the time it was returned to him, more than 30 days had passed since Warden
Swalls signed it. Plaintiff also testified generally that he submitted other grievances against
Defendants.
Page 2 of 6
Legal Standards
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)
Page 3 of 6
should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (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. 20 ILL. ADMIN. CODE § 504.810(a). The grievance must contain
the following:
….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 § 504.870(b). 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). Inmates who intend to file suit are required to follow all steps and instructions in the
grievance process before filing with the Court in order to “[allow prisons] to address complaints
about the program [they administer] before being subjected to suit, [reduce] litigation to the extent
complaints are satisfactorily resolved, and [improve] litigation that does occur by leading to the
Page 4 of 6
preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007).
Discussion
The Court finds that Plaintiff failed to exhaust his administrative remedies against
Defendants Swalls and Ethridge-Hicks prior to filing suit. Plaintiff’s August 30, 2018 grievance
does not identify either Defendant Swalls or Ethridge-Hicks, nor does it mention Plaintiff’s
allegations against Defendants-that they knew he was in danger prior to the August 25, 2018
altercation. One of the purposes of the grievance requirement is to alert prison officials to issues
in the prison, and this grievance does not identify the alleged issue that Defendants failed to protect
Plaintiff from being attacked by other inmates. Consequently, because Plaintiff did not identify
Defendants Swalls and Ethridge-Hicks (or their alleged failure to protect him) in the August 30,
2018 grievance, he failed to exhaust his administrative remedies against them.
The Pavey hearing was the first time Plaintiff contended that he submitted other grievances
regarding the allegations in this lawsuit. He did not provide specific details regarding this
contention. The Court does not find this testimony credible. Accordingly, Defendants’ Motion
for Summary Judgment for Failure to Exhaust Administrative Remedies is GRANTED.
Plaintiff’s Motion for Leave to File Amended Complaint
Plaintiff filed a Motion for Leave to Amend his Complaint on October 14, 2020. On
November 9, 2020, the Court entered an Order, noting that Plaintiff did not submit a proposed
amended Complaint with the motion. This Court’s Local Rule 15.1 requires litigants to submit
the proposed amend pleading itself with a motion for leave to amend.2 Plaintiff was ordered to
submit a proposed amended complaint on or before November 30, 2020, or his motion would be
2 The Court had previously advised Plaintiff of Local Rule 15.1 and the proper procedure for filing a Motion for Leave
to Amend the Complaint in the Scheduling Order found at Doc. 29.
Page 5 of 6
denied. Plaintiff never submitted a proposed amended complaint. Plaintiff’s Motion for Leave
to Amend his Complaint is therefore DENIED.
Conclusion
For the above reasons, Defendants’ Motion for Summary Judgment on the Issue of
Exhaustion (Doc. 32) is GRANTED. Plaintiff’s Motion for Leave to Amend the Complaint (Doc.
40) is DENIED. Plaintiff’s Motion to Appoint Counsel (Doc. 38) is DENIED AS MOOT. This
matter is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to enter
judgment accordingly.
IT IS SO ORDERED.
DATED: December 22, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
Page 6 of 6