The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY EGNER, #S14263, )
)
Plaintiff, )
)
v. ) Case No. 19-cv-1213-RJD
)
JEFFREY DENNISON, et al., )
)
Defendants. )
)
ORDER
DALY, Magistrate Judge:
This matter comes before the Court on Defendant Bettis’ Motion for Summary Judgment
(Doc. 32). Plaintiff filed a Response (Doc. 41). As explained further, Defendant’s Motion is
GRANTED.
BACKGROUND
Plaintiff Egner, an inmate within the Illinois Department of Corrections, originally filed
suit along with two other inmates in SDIL Case No. 19-cv-482 on April 30, 2019.1 In their
Complaint, Plaintiffs alleged that inmates placed on crisis watch at Shawnee Correctional Center
(“Shawnee”) suffered unconstitutional conditions of confinement. The windows were broken in
the crisis watch cells, causing extreme hot/cold temperatures. The lights in their cells were never
turned off. There was human excrement on the walls, mattresses, and floors. The Complaint
further alleged that Plaintiff Egner qualified for the designation of “SMI” (serious mental illness)
from 2016-2018, and mental health professionals improperly determined he no longer qualified
1 Plaintiffs first filed suit in the Northern District of Illinois, and the Court transferred their suit to this Court.
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for the SMI designation in 2019 (SDIL Case No. 19-cv-482, Doc. 1, p. 5, 8). Plaintiffs also
alleged that inmates on crisis watch received inadequate mental health treatment due to
understaffing issues. Plaintiffs sued employees of the Illinois Department of Corrections
(“IDOC) and Wexford Health Sources, Inc. (a private contractor that provides healthcare to
inmates within IDOC).
On May 10, 2019, the Court issued an Order warning the three plaintiffs of potential
negative consequences related to group litigation (SDIL Case No. 19-cv-482, Doc. 10). The
Court gave the three plaintiffs the opportunity to withdraw from the case (or have their claims
severed) without having to pay a filing fee for Case No. 19-cv-482 (Id.). Plaintiff Egner submitted
a pleading to the Court on May 28, 2019 that stated he wished to remain as a plaintiff in the group
lawsuit (SDIL Case No. 19-cv-482, Doc. 23). On that same date, Plaintiff Egner filed a notice
informing the Court that he had transferred from Shawnee Correctional Center to Pinckneyville
Correctional Center (SDIL Case No. 19-cv-482, Doc. 22).
Pursuant to 28 U.S.C. §1915A, the Court conducted a threshold review of the Complaint
in Case No. 19-cv-482 and determined Plaintiffs failed to plead a cognizable claim (SDIL Case
No. 19-cv-482, Doc. 37). Plaintiffs were granted leave to file an amended complaint. (Id.). On
September 19, 2019, Plaintiff Egner filed a motion to sever his claims (SDIL Case No. 19-cv-482,
Doc. 39). He also filed his First Amended Complaint, which named Defendant Bettis as a mental
health professional who authorized his placement in an unsanitary and unsafe crisis watch cell.
He further alleged that Defendant Bettis falsified his records to make it appear as though he was
receiving appropriate mental health treatment, but she spent less than five minutes at a time with
him. Finally, he alleged that Defendant Bettis improperly changed his SMI designation in 2019.
Following a threshold review pursuant to 28 U.S.C. §1915A, Plaintiff’s claims against Defendant
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Bettis proceeded on the following counts:
Count 1: Eighth Amendment deliberate indifference claim for subjecting
Plaintiff to unconstitutional conditions of confinement.
Count 2: Eighth Amendment claim for deliberate indifference to Plaintiff’s
serious mental health needs.
The Court found that Plaintiff’s allegation against Defendant Bettis regarding the SMI designation
did not sufficiently state a cognizable claim.
Defendant Bettis filed the instant motion, contending that Plaintiff failed to exhaust his
administrative remedies prior to filing suit. Defendant points to Plaintiff’s Grievance #2019-04-
128 that Plaintiff submitted at Shawnee on April 15, 2019 and then appealed to the Administrative
Review Board (Doc. 32-5). The Administrative Review Board (“ARB”) issued a decision on
Grievance #2019-04-128 on August 6, 2019-more than three months after Plaintiff filed suit in
SDIL Case No. 19-cv-482.
In his written Response to Defendant Bettis’ Motion for Summary Judgment, Plaintiff
“concedes the facts” but claims that he feared retaliation from Defendants. Plaintiff’s First
Amended Complaint includes a retaliation claim against Defendant Bernard. On March 14, 2019,
Plaintiff submitted Grievance #2019-03-145 regarding Defendant Bernard at Shawnee (Doc. 32-
17). In the grievance, Plaintiff claimed that Defendant Bernard acted unprofessionally when
Plaintiff described his medical conditions. Plaintiff further claimed that he feared he may have a
seizure in his cell and Defendant Bernard would “leave him to die.” According to the grievance
officer’s response, Defendant Bernard denied the allegations. In his First Amended Complaint,
Plaintiff alleges that Defendant Bernard struck him on May 2, 2019 and prepared a false
disciplinary report regarding Plaintiff. Plaintiff further alleges that Defendant Bernard retaliated
against Plaintiff for using the prison grievance process.
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Pavey Hearing
On February 23, 2021, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008). Plaintiff testified that he submitted a grievance in April 2019 regarding his mental
health treatment and conditions on crisis watch, and then he “proceeded to jump” to the Court
because he hoped to eliminate the threats being made against him for using the grievance process
and potential retaliation. Plaintiff explained that after he submitted a grievance against Defendant
Bernard, Bernard retaliated against Plaintiff on multiple occasions when the crisis watch inmates
took showers. Plaintiff testified that Bernard excessively cuffed him and slammed him against
the showers and said, “this is what happens to people who write grievances on me.” Plaintiff
spoke with Internal Affairs about this situation and submitted an emergency grievance to Warden
Dennison. Plaintiff testified that if he had been represented by counsel at the Pavey hearing, he
could have subpoenaed other inmates to testify regarding the threats of retaliation inmates faced
for utilizing the grievance process at Shawnee.
Plaintiff also feared that if he submitted a grievance regarding his mental health treatment,
there would be a disruption in his mental health services. He recounted an incident where a
mental health professional made a seemingly arbitrary decision to deny him the ability to read a
book while on crisis watch. He testified that the mental health professionals would know he
submitted a grievance about them because they would get a chance to respond. When he
submitted the April 15, 2019 grievance regarding his mental health treatment, he did not submit it
as an emergency.
Defendant Bettis called Chalene Hale to testify. Ms. Hale is a correctional counselor and
litigation coordinator at Pinckneyville Correctional Center. She testified regarding her familiarity
with Plaintiff’s counseling summary, which reflects that Plaintiff submitted seven grievances at
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Shawnee Correctional Center in March 2019. Additional entries on the cumulative counseling
summary reflect that Plaintiff submitted four grievances in April 2019, including the April 15,
2019 grievance that describes Plaintiff’s mental health treatment (or lack thereof).
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
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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)
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 or problem to his or her
institutional counselor, unless certain discrete issues are being grieved. 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 provThe ision 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
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(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
preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007).
An inmate may request that a grievance be handled as an emergency by forwarding it
directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a
substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is
handled on an emergency basis, which allows for expedited processing of the grievance by
responding directly to the offender. Id. Inmates may further submit certain types of grievances
directly to the Administrative Review Board, including grievances related to protective custody,
psychotropic medication, and certain issues relating to facilities other than the inmate’s currently
assigned facility. Id. at § 504.870.
Discussion
Defendant’s summary judgment motion raises two issues for the Court to consider. The
first issue is whether Plaintiff complied with the PLRA’s requirement that an inmate must exhaust
administrative remedies prior to filing suit. Plaintiff exhausted his administrative remedies
against Defendant Bettis after filing SDIL Case No. 19-cv-482. The PLRA does not permit a “sue
first, exhaust later” approach. Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020).
However, when an inmate files an amended complaint that raises a new claim against a
new defendant, the inmate may proceed if he exhausted his administrative remedies after filing his
original complaint, but before he filed the amended complaint. Id. That is not the case here.
Plaintiffs’ original complaint in Case No. 19-cv-482 alleged that IDOC and Wexford employees
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subjected inmates on crisis watch at Shawnee to unconstitutional conditions of confinement.
Plaintiff further alleged that inmates on crisis watch received inadequate mental health treatment.
Plaintiff makes those same allegations against Defendant Bettis in the First Amended Complaint.
Plaintiff’s alleged interactions with Defendant Bettis occurred prior to April 30, 2019 (the date
Plaintiffs filed the original Complaint), as evidenced by the allegations in the original Complaint
and Grievance No. 2019-04-128 (submitted by Plaintiff on April 15, 2019).2 Consequently, the
PLRA required Plaintiff to exhaust his administrative remedies against Defendant Bettis on or
before April 30, 2019.
The Court acknowledges that this issue is somewhat complicated because Plaintiff is now
proceeding in a different case than the one in which he filed a Complaint on April 30, 2019.
However, Plaintiff never sought dismissal of his claims in Case No. 19-cv-482. Apart from the
action it took pursuant to threshold review, the Court never dismissed Plaintiff’s claims in Case
No. 19-cv-482. Upon his request, and for his convenience, the Court simply severed Plaintiff’s
claims into the current case.
The next issue is whether administrative remedies were available to Plaintiff. An inmate
is only required to exhaust the administrative remedies that are available to him. Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002). If a prison official engages in “affirmative
misconduct” to prevent an inmate from submitting grievances, then administrative remedies are
not available to that inmate. See id. at 834-35.
Plaintiff testified that he feared retaliation or a disruption in his mental health services if
he submitted grievances against Defendants from March-May 2019. At the hearing, Plaintiff
2 Plaintiff does not identify Defendant Bettis by name in the grievance or in the original Complaint but refers to mental
health professionals collectively.
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argued that if he had an attorney he could have presented witnesses to corroborate his fears of
retaliation. Plaintiff’s lack of witnesses (apart from himself) at the Pavey hearing does not affect
the Court’s decision. The Court has no reason to discredit Plaintiff’s testimony regarding the
threats of retaliation or disruption in mental health services. Regardless, these threats did not
render the grievance process unavailable to Plaintiff. He continued to utilize the grievance
process during this time. His counseling summary indicates that he submitted ten grievances at
Shawnee in March-April 2019. Plaintiff testified that he submitted a grievance regarding his
mental health services on April 15, 2019. Instead of completing the grievance process, Plaintiff
filed suit on April 30, 2019. Plaintiff testified that he believed filing suit on that date might
provide him protection against retaliation. This belief does not create an exception to the PLRA’s
exhaustion requirement.
CONCLUSION
Defendant Bettis’ Motion for Summary Judgment for Failure to Exhaust Administrative
Remedies (Doc. 32) is GRANTED. Counts 1 and 2 against Defendant Bettis are dismissed
without prejudice. The Clerk of Court is directed to enter judgment accordingly at the close of
the case. Plaintiff’s claims against Defendants Bernard, Justice, and Dennison remain pending.
IT IS SO ORDERED.
DATED: February 24, 2021
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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