Wallace v. Rauner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CORRIE WALLACE, and

RAVAEL E. SANTOS, JR.,

Plaintiffs,

v. Case No. 18-cv-1513-NJR

JOHN BALDWIN, et al.,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on Defendants’ Motion for Summary Judgment on

Exhaustion of Administrative Remedies (Docs. 155 and 156). Plaintiffs Rafael Santos, Jr.

(“Santos”) and Corrie Wallace (“Wallace”) filed a response (Doc. 164), and Defendants

filed a reply (Doc. 165).1 The Court held an evidentiary hearing on January 28, 2021.

BACKGROUND

On August 17, 2018, Plaintiffs Rafael Santos, Jr. and Corrie Wallace, inmates of the

Illinois Department of Corrections (“IDOC”) who are currently housed at Menard

Correctional Center (“Menard”), filed their original Complaint (Doc. 1) pursuant to

42 U.S.C. § 1983 alleging that at various times they have been housed in constitutionally

deficient cells located within the North I and North II cell houses at Menard. Plaintiffs,

who are represented by counsel, are proceeding on their Third Amended Complaint

1 After considering Local Rule 7.1(c), the Court will consider Defendants’ reply.

(Doc. 143), a purported class action, which includes the following claims:

Count I: Claim for permanent injunctive relief against Rob Jeffreys in

his official capacity as the Director of IDOC and Anthony

Wills2 in his official capacity as the Warden of Menard,

seeking an order permanently preventing IDOC from double-

celling inmates in the North I and North II cell houses.

Count II: Claim for permanent injunctive relief against Rob Jeffreys in

his official capacity as the Director of IDOC and Anthony

Wills in his official capacity as the Warden of Menard, seeking

an order requiring IDOC to fix the ventilation in the North I

and North II cell houses such that the cells are adequately

heated. In the alternative, if such repairs are impossible or

impractical, Plaintiffs seek an order barring IDOC from

housing inmates in the North I and North II cell houses.

Count III: Eighth Amendment claim against John Baldwin, Jacqueline

Lashbrook, Alex Jones, Jeffery Hutchinson, Rob Jeffreys, and

Kimberly Butler in their individual capacities, seeking

compensatory and punitive damages for the unconstitutional

conditions of confinement in North I and North II.

Count IV: Eighth Amendment claim against John Baldwin, Jacqueline

Lashbrook, Alex Jones, Jeffery Hutchinson, Rob Jeffreys, and

Kimberly Butler in their individual capacities, seeking

nominal and punitive damages for the unconstitutional

conditions of confinement in North I and North II (alternative

to Count III).

Defendants contend that Santos failed to exhaust his administrative remedies as

to all claims because (1) the grievance dated June 21, 2017 that Santos claims he submitted

was never submitted and, in the alternative, the grievance was not sufficiently detailed

and (2) the grievance dated December 25, 2018 that was received by Menard’s grievance

2 Anthony Wills was substituted for Alex Jones as an official capacity defendant in Counts I and

II pursuant to Federal Rule of Civil Procedure 25(d) (Doc. 169). At the time of substitution,

Anthony Wills was the Acting Warden of Menard. Id.

office was procedurally deficient.

Defendants concede that Wallace exhausted his administrative remedies with

respect to his official capacity claims in Counts I and II, and with respect to the claims

directed against Lashbrook and Baldwin in their individual capacities in Counts III and

IV. Defendants claim, however, that Wallace failed to exhaust his administrative

remedies as to the individual capacity claims directed against Butler, Hutchinson,

Jeffreys, and Jones in Counts III and IV. With respect to these claims, Defendants argue

that the grievance submitted by Wallace, dated January 12, 2018, could not have

exhausted individual capacity claims directed against Butler, Hutchinson, Jeffreys, or

Jones for their role as former wardens of Menard, because none of these officials was

employed as the warden of Menard at any time during the 60-day period preceding

Wallace’s January 2018 grievance. See Ill. Admin. Code § 504.810(a). Defendants further

contend that, for the same reasons, the June 21, 2017 grievance allegedly submitted by

Santos could not have exhausted any claims directed against Butler, Hutchinson, Jeffreys,

or Jones in their individual capacities.

Plaintiffs contend that the exhaustion requirement does not apply to them because

other inmates, such as Gregory Turley (Case No. 3:08-cv-00007-SCW), previously filed

grievances and lawsuits involving the same conditions at issue in the instant case.

According to Plaintiffs, these prior grievances and/or lawsuits put certain defendants on

notice of the conditions at issue in this case and relieved Plaintiffs of the duty to exhaust

because the administrative process was unavailable to them and/or because inmates

need not submit redundant grievances about ongoing conditions. Defendants disagree,

arguing that that the grievance process did not become unavailable or duplicative to

Plaintiffs merely because a different inmate previously complained about the same

conditions at Menard.

Alternatively, Santos contends that the grievance he allegedly submitted in June

2017 is sufficient to exhaust administrative remedies as to the claims at issue in this action.

Santos did not raise any argument regarding the grievance dated December 25, 2018.

Additionally, neither Plaintiff addressed Defendants’ argument regarding the individual

capacity claims directed against Butler, Hutchinson, Jeffreys, and Jones in Counts III and

IV.

PRELIMINARY MATTER

Prior to assessing whether each Plaintiff has exhausted his administrative

remedies with respect to the claims at issue in this case, the Court addresses a preliminary

matter as to Rob Jeffreys. On November 14, 2019, pursuant to Federal Rule of Civil

Procedure 25(d), Jeffreys was substituted as an official capacity defendant in Counts I and

II.3 On April 8, 2020, Plaintiffs filed their Third Amended Complaint naming Jeffreys as

a defendant in his individual capacity in Counts III and IV (Doc. 143). Plaintiffs, however,

have not served Jeffreys for the claims alleged against him in his individual capacity, and

counsel has only appeared for Jeffreys in his official capacity (Doc. 156 n.1). 4

3 The Court substituted Rob Jeffreys, as the Acting Director of IDOC, for John Baldwin (Doc. 110).

4 At the evidentiary hearing, Plaintiffs’ counsel indicated he would serve Jeffreys with process

“in short order.” To date, Jeffreys has not been served with process. Plaintiffs, however, have filed

a Motion for Leave to File Fourth Amended Complaint, stating that Jeffreys will be served with

process if leave is granted (Doc. 172).

Because Jeffreys has not been served with process or entered an appearance in his

individual capacity, he is a nonmovant with respect to Defendants’ Motion for Summary

Judgment as to Counts III and IV. The moving Defendants’ arguments, however, apply

with equal force to the claims made against Jeffreys in his individual capacity. In their

Motion, Defendants contend that Santos submitted no grievance sufficient to exhaust the

claims in the Third Amended Complaint. Additionally, Defendants argue that neither

Wallace nor Santos could have exhausted any individual capacity claims directed against

Jeffreys because he was not employed as the warden of Menard until May 2019—

approximately two years after the Santos June 2017 Grievance, five months after the

Santos December 2018 Grievance, and 16 months after the Wallace January 2018

Grievance (Doc. 156 n.4). Defendants’ Motion thus provides sufficient notice that both

Santos and Wallace failed to exhaust individual capacity claims as to Jeffreys.

Accordingly, the Court will assess whether Plaintiffs exhausted administrative remedies

as to the individual capacity claims directed against Jeffreys in Counts III and IV and, if

appropriate, grant summary judgment as to those claims. See Fed. R. Civ. P. 56(f) (“After

giving notice and a reasonable time to respond, the court may ... grant summary

judgment for a nonmovant.”).

LEGAL STANDARDS

A. Summary Judgment and Exhaustion

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. 2005). 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 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 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.

B. Illinois Exhaustion Requirements

As IDOC inmates, Plaintiffs were required to follow the regulations contained in

IDOC’s Grievance Procedures for Offenders (“grievance procedures”) to properly

exhaust their 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).

ANALYSIS

A. Plaintiffs Must Personally Exhaust Administrative Remedies

Plaintiffs contend they should be excused from the exhaustion requirement

because no administrative remedy was available for their duplicative cell size claims

and/or because prisoners are not required to submit redundant grievances about

ongoing conditions. To support this argument, Plaintiffs rely on grievances and lawsuits

filed by other inmates. Plaintiffs contend Menard officials have an extensive history of

rejecting complaints filed by other inmates pertaining to cell conditions in North I and

North II, and hence pursuit of their own administrative grievances would have been

duplicative or redundant. Plaintiffs also suggest that Menard’s allegedly systemic denial

of such grievances rendered the grievance process unavailable to them.

To the extent that Plaintiffs are arguing it would have been futile to file grievances

about their cell conditions, there is no futility exception to the exhaustion requirement.

See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e will not read futility or other

exceptions into statutory exhaustion requirements where Congress has provided

otherwise.”). An inmate cannot decide unilaterally that the grievance process is

unavailable and proceed directly to litigation. See Steiskal v. Lewitzke, 553 F. App’x 611,

616 (7th Cir. 2014) (“prisoners still must exhaust even if they believe the process will be

futile”); Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 536-37 (7th Cir. 1999). Thus,

Plaintiffs were required to make a good faith effort to exhaust, even if they believed the

process would be futile.

Any contention that Plaintiffs should otherwise be excused from the exhaustion

requirement because Menard officials were aware of and/or have previously rejected

similar complaints from other inmates is equally unavailing. The case law cited by

Plaintiffs regarding duplicative and/or redundant grievances does not suggest that other

inmates’ grievances can satisfy the PLRA’s exhaustion requirement. Further, outside of

the class action context, the Court has found no case law to support Plaintiffs’ contention

that grievances filed by third parties may satisfy this requirement. The Court, however,

did locate several cases in which district courts rejected similar arguments. See e.g., Gibert

v. S.C. Dep’t of Corr., 2019 WL 1302838, at *4 (D.S.C. Jan. 25, 2019) (other inmates’

grievances cannot satisfy the PLRA’s exhaustion requirement when the plaintiff himself

has not pursued his administrative remedies); Worthen v. Oklahoma Dep’t of Corr., 2007

WL 4563644, at *1 (W.D. Okla. Dec. 20, 2007) (one prisoner’s exhaustion of administrative

remedies is not sufficient to exhaust the same or similar claims filed by other prisoners;

“exhaustion of administrative remedies is an individualized issue that militates against

joinder”); Elliot v. Jowers, 2002 WL 32714551. At *1 (N.D. Tex. Sept. 16, 2002) (grievances

of other inmates cannot satisfy the exhaustion requirement for plaintiff’s claims).

The Court notes that, in the context of class actions, some courts have adopted a

theory of “vicarious exhaustion,” under which the PLRA’s exhaustion requirement will

be deemed satisfied for the entire class so long as the requirement has been met by at least

one class member. See e.g., Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004); Phipps

v. Sheriff of Cook County, 681 F.Supp.2d 899, 2009 WL 4146391, *5 (N.D. Ill., Nov. 25, 2009).

The Seventh Circuit has not addressed whether vicarious exhaustion is appropriately

applied in prisoner class actions. But even assuming the Appellate Court would apply

the doctrine to prisoner class actions, the instant case has not been certified as a class

action lawsuit, and the Court’s independent research has not located any case suggesting

that vicarious exhaustion extends to claims pursued by different plaintiffs in earlier filed

lawsuits. This is not surprising, as the rationale for excusing exhaustion by all members

of a plaintiff class is rooted in the similarity of claims and remedies as to all members of

the class. In re Household International Tax Reduction Plan, 441 F.3d 500, 501–502 (7th Cir.

2006). That rationale is simply not present outside of the class action context.

Accordingly, for the reasons described above, the Court finds that Plaintiffs cannot

establish exhaustion by relying on the grievances of different prisoners who previously

pursued similar claims. Rather, to survive summary judgment on the issue of exhaustion,

Santos and Wallace must each establish that they personally exhausted the grievance

process.

B. Exhaustion as to Plaintiff Santos

According to Santos, the grievance “at the center” of his claims is an emergency

grievance he submitted to Menard officials on June 21, 2017 by placing it in the bars of

his cell during third shift (Doc. 100, pp. 2-3; Doc. 100-1; Doc. 164, p. 6). Santos claims that,

after receiving no response, he submitted three follow-up letters directed to Lashbrook

dated July 1, 2017, July 17, 2017, and August 4, 2017 (Docs. 100; 100-1). Santos testified

that, as with the June 21, 2017 grievance, he submitted the letters by placing them in the

bars of his cell during third shift. Santos further testified that he does not know who

picked up the June 21, 2017 grievance or follow-up letters, and that he never attempted

to resubmit the June 21, 2017 grievance. Santos also testified that he does not recall where

he was housed when he wrote the June 21, 2017 grievance, but he has no reason to dispute

Defendants’ contention that he was housed in the east cell house. Finally, Santos testified

that the June 21, 2017 grievance did not specifically relate to an emergency in the North I

or North II cell houses but related generally to the living conditions he had encountered

in Menard as a whole.

The records of the Administrative Review Board (“ARB”) submitted by

Defendants (Doc. 94-1, Doc. 94-2, and Doc. 156 p. 9) reflect that no grievances were

submitted by Santos in 2017. Further, the kite log submitted by Defendants (Doc. 156-3)

and the accompanying declaration of Julie Eggemeyer (Doc. 170-1) show no records exist

suggesting that Santos ever submitted any of the alleged follow-up letters to Lashbrook.

The kite log does reflect, however, that Santos submitted letters unrelated to the instant

lawsuit on April 13, 2017 (requesting a family visit) and July 10, 2017 (regarding

“ECH/WCH swap”). Additionally, the cumulative counseling summary submitted by

Defendants (Doc. 156-5) indicates that, although Santos had access to his counselor on

June 26, 2017 (submitted phone list for approval) and had contact with other IDOC

employees on June 22 (communication regarding offender’s trust fund statement and a

recently cleared check) and July 27, 2017 (communication regarding trust fund statement,

aggression level, and visitation with Santos’s brother), he raised no concerns about his

pending emergency grievance or the conditions of his confinement.

Defendants also submitted records reflecting that Santos successfully filed an

“emergency” grievance dated December 25, 2018 pertaining to his conditions of

confinement (Doc. 156-4). Defendants argue, however, that Santos failed to properly

exhaust this grievance (Doc. 156). Santos does not respond to this argument and does not

mention the December 25, 2018 grievance at any point in his briefing.

By not responding to Defendants’ argument regarding the December 25, 2018

grievance, Santos concedes that this grievance does not establish exhaustion. See C & N

Corp. v. Kane, 756 F.3d 1024, 1026 (7th Cir. 2014); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466

(7th Cir. 2010). Accordingly, the only question before the Court is whether the June 21,

2017 grievance and subsequent follow-up letters satisfy the exhaustion requirement.

Considering the record as a whole, the Court finds that Santos’s claims regarding

submitting the June 21, 2017 grievance and subsequent follow-up letters lack credibility.

Defendants have submitted evidence showing that he never filed the subject grievance.

The ARB has no record of receiving the June 21, 2017 grievance, and no such grievance

was logged in the IGRV system. Likewise, the warden kite log has no record of receiving

the follow-up letters Santos allegedly wrote to the warden. The kite log does reflect that

Santos submitted two other letters to the warden in 2017. Additionally, Santos’s

cumulative counseling records indicate that although Santos communicated with his

counselor or other IDOC employees on June 22, June 26, and July 27, 2017, he did not

raise any concerns about his living conditions or about his pending emergency grievance.

For these reasons, the Court finds that Defendants have submitted sufficient evidence to

show that Santos did not file the June 21, 2017 grievance, and he did not submit the

alleged follow-up letters to the warden. Moreover, the Court finds there is no credible

evidence suggesting that Santos filed the June 21, 2017 grievance or sent the alleged

follow-up letters to the warden.

Accordingly, the Court finds that Santos failed to exhaust his administrative

remedies and will therefore dismiss all of his claims without prejudice.

C. Exhaustion as to Plaintiff Wallace

Defendants concede that Wallace’s grievance, dated January 12, 2018, is sufficient

to exhaust his administrative remedies with respect to Counts I and II (official capacity

claims against Jeffreys and Wills), and with respect to the claims directed against

Lashbrook and Baldwin in their individual capacities in Counts III and IV.

Defendants contend, however, that the January 12, 2018 grievance cannot serve to

exhaust Wallace’s claims directed against Butler (former warden of Menard from April

2014 through October 2016), Hutchinson (former warden of Menard from October 2016

through December 2016), and Jones (acting warden of Menard in January 2017 and

warden of Menard in 2019) in Counts III and IV in their individual capacities. Also, as

previously noted, Defendants also contend that the same argument prevents Wallace

from exhausting any individual capacity claims directed against Jeffreys (warden of

Menard in May 2019). According to Defendants, it is impossible for the grievance to count

towards exhausting administrative remedies related to the individual capacity claims

against Butler, Hutchinson, Jones, or Jeffreys because they were not employed at Menard

at any time during the 60-day period before the January 12, 2018 grievance. See 20 Ill.

Admin. Code § 504.810(a) (a written grievance must be filed within 60 days of the date

the inmate discovers the incident, occurrence, or problem giving rise to the grievance).

Additionally, Defendants contend that the grievance cannot reach into the future to

exhaust claims that arose when Jones and Jeffreys were employed at Menard in 2019.

In responding to Defendants’ Motion for Summary Judgment, Wallace did not

address this argument. At the hearing, counsel acknowledged that he failed to respond

to this argument but claimed that, despite the failure to submit a grievance, the individual

capacity claims are valid because, at some point, Wallace was housed in North I and

North II.5

The Court finds that Wallace could not have exhausted his administrative

5 At the hearing, the parties stipulated that Wallace did not submit a grievance concerning the

matters that are the subject of this lawsuit prior to January 12, 2018, and that Santos did not submit

a grievance concerning the matters that are the subject of this lawsuit prior to June 21, 2017.

Counsel for Plaintiffs further stated that he was not introducing any new evidence regarding any

grievances that are not already part of the record before the Court.

remedies as to the individual capacity claims directed against Butler, Hutchinson, Jones,

and Jeffreys because these officials were not employed at Menard at any time during the

60-day period before the January 12, 2018 grievance. See 20 Ill. Admin. Code § 504.810(a).

Further, as to Jones and Jeffreys, Wallace’s grievance cannot serve to exhaust claims

regarding conduct that occurred approximately one year after the grievance was filed.

See, e.g., Palmer v. Fenoglio, 510 F. App’x 476, 478 (7th Cir. 2013) (grievance submitted

before inmate ever saw defendant doctor could not have challenged the doctor’s conduct

a month later). Alternatively, the Court finds that Wallace forfeited any argument on this

issue. He did not respond to the argument in his briefing, and counsel’s attempt to

address the matter at the hearing was perfunctory and undeveloped. See Crespo v. Colvin,

824 F.3d 667, 674 (7th Cir. 2016) (“[P]erfunctory and undeveloped arguments, and

arguments that are unsupported by pertinent authority, are waived.”).

For these reasons, the Court finds that Wallace failed to exhaust his administrative

remedies with respect to the individual capacity claims directed against Butler,

Hutchinson, Jones, and Jeffreys in Counts III and IV and therefore will dismiss these

claims without prejudice.

CONCLUSION

For the reasons set forth above, the Court:

e GRANTS Defendants’ Motion for Summary Judgment on Exhaustion of

Administrative Remedies (Docs. 155);

e DISMISSES without prejudice Santos’s claims in Counts 1 through 4 for failure

to exhaust administrative remedies; and

e DISMISSES without prejudice Wallace’s claims in Counts II and IV against

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Butler, Hutchinson, Jones, and Jeffreys for failure to exhaust administrative

remedies.

e DIRECTS the Clerk to TERMINATE Santos, Butler, Hutchinson, and Jones as

parties in the Court’s Case Management/Electronic Case Filing (“CM/ECF”)

system.

e ADVISES the parties that the only claims remaining in this case are Wallace’s

official capacity claims directed against Jeffreys and Wills in Counts I and II, and

Wallace’s individual capacity claims directed against Lashbrook and Baldwin in

Counts III and IV.

IT IS SO ORDERED.

DATED: March 10, 2021 7 g 5

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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