Henderson v. Illinois Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ELROY HENDERSON, )

)

Plaintiff, )

)

vs. ) Case No. 3:19 -CV-00432 -MAB

)

ILLINOIS DEPARTMENT OF )

CORRECTIONS, ET AL., )

)

Defendants.

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on Defendants Frank Lawrence,1 Nicholas Bebout,

Donald Rountree, Brian Eisenhauer, Reva Engelage, Aimee Lang, Augusta Williams, and

Jonathan Webb’s motion, and supporting memorandum, for summary judgment (Docs.

27, 28). Plaintiff filed his response to the motion for summary judgment on September 10,

2020 (Doc. 35). For the reasons set forth below, the motion is GRANTED in part and

DENIED in part.

BACKGROUND

Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 18, 2019

for deprivations of his constitutional rights while incarcerated at Menard Correctional

Center (“Menard”) (Doc. 1, 6). Plaintiff claims that while he was housed at Menard,

1 Defendants list Frank Lawrence as a current Defendant in their motion, and supporting memorandum,

for summary judgment (Docs. 27, 28); however, he was dismissed through the Court’s Order entered on

July 24, 2020, filed after Defendants filed their motion for summary judgment (Doc. 30).

officials used excessive force upon him, failed to intervene, and were deliberately

indifferent to his serious medical needs (Docs. 1, 6). After a threshold review, pursuant

to 28 U.S.C. § 1915A, Plaintiff was allowed to proceed on four counts against Defendants:

Count 1: Eighth Amendment excessive force claim against Webb, Rountree,

Bebout, and Eisenhauer, as well as a failure to intervene claim against Lang

and Engelage;

Count 2: Eighth Amendment deliberate indifference to a serious medical

need claim against Lang and Engelage.

Count 3: Eighth Amendment failure to protect claim against Lang and

Engelage.

Count 4: Conspiracy claim against Defendants Bebout, Roundtree, Webb,

Eisenhauer, Lang, Engelage, and Williams.2

Defendants Webb, Rountree, Bebout, Eisenhauer, Lang, Williams, and Engelage

filed their motion for summary judgment on July 6, 2020, arguing that Plaintiff failed to

exhaust administrative remedies before filing this action (Docs. 27, 28). Plaintiff filed a

response to the motions for summary judgment on September 10, 2020 (Doc. 35). Because

the parties’ filings do not involve a genuine issue of material fact, no evidentiary hearing

pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) was necessary.

LEGAL STANDARDS

Summary Judgment

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

2 Certain John Doe Defendants were also included in Plaintiff’s claims; however, they were dismissed

through the Court’s July 24, 2020 Order (Doc. 30). Menard’s Warden, Frank Lawrence, was also dismissed

at this time, as he was added in his official capacity to help identify the John Doe Defendants (Doc. 6).

CIV. P. 56(a). In making that determination, the court must view the evidence in the light

most favorable to, and draw 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).

Courts generally cannot resolve factual disputes on a motion for summary judgment.

E.g., Tolan v. Cotton, 572 U.S. 650, 656, 134 S. Ct. 1861, 1866, 188 L. Ed. 2d 895 (2014) (“[A]

judge's function at summary judgment is not to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”) (internal

quotation marks and citation omitted). However, when the motion for summary

judgment pertains to a prisoner’s failure to exhaust, the Seventh Circuit has instructed

courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a

prisoner’s efforts to exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing

Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)). Accord Roberts v. Neal, 745 F.3d 232, 234 (7th

Cir. 2014). However, where there is no disputed issue of fact, no hearing is necessary.

Exhaustion

The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit

about prison conditions unless and until he has exhausted all available administrative

remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)).

Exhaustion is an affirmative defense, which the defendants bear the burden of proving.

Pavey, 663 F.3d at 903 (citations omitted).

In order for a prisoner to properly exhaust his or her administrative remedies, the

prisoner must “file complaints and appeals in the place, and at the time, the prison’s

administrative rules require.” Pozzo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see

also Woodford v. Ngo, 548 U.S. 81, 90 (2006). As an inmate in the IDOC, Plaintiff was

required to follow the grievance process outlined in the Illinois Administrative Code. ILL.

ADMIN. CODE, tit. 20, § 504.800, et seq. (2017). The regulations first require an inmate to

attempt to resolve the dispute through his or her counselor. Id. at § 504.810(a).3 If the

counselor is unable to resolve the grievance, it is sent to the grievance officer, who reports

his or her findings and recommendations in writing to the Chief Administrative Officer

(the warden). Id. at § 504.830(e). The warden then provides the inmate with a written

decision on the grievance. Id. If the inmate is not satisfied with the warden’s decision, he

or she has thirty days to appeal to the Director of the IDOC by sending the grievance to

the Administrative Review Board (“ARB”). Id. at § 504.850(a). The ARB submits a written

report of its findings and recommendations to the Director, who then makes a final

determination “within six months after receipt of the appealed grievance, when

reasonably feasible under the circumstances.” Id. at § 504.850(d), (e).

An inmate may also request that a grievance be handled as an emergency by

forwarding the grievance directly to the warden. 20 ILL. ADMIN. CODE § 504.840 (2017). If

the warden determines that “there is a substantial risk of imminent personal injury or

other serious or irreparable harm to the [inmate],” then the grievance is handled on an

emergency basis, meaning the warden will expedite processing of the grievance and

respond to the inmate, indicating what action shall be or has been taken. Id. On the other

hand, if the warden determines that the grievance should not be handled on an

3 There are exceptions to this rule. 20 ILL. ADMIN. CODE § 504.810(a), 504.870 (2017).

emergency basis, the inmate is notified in writing that he “may resubmit the grievance as

non-emergent, in accordance with the standard grievance process.” Id.

Though the Seventh Circuit requires strict adherence to the exhaustion

requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), an inmate is required to

exhaust only those administrative remedies that are available to him. 42 U.S.C. § 1997e(a).

Administrative remedies become “unavailable” to prisoners when prison officials fail to

respond to a properly filed grievance or when prison officials’ “affirmative misconduct”

thwarts a prisoner from exhausting. E.g., Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.

2002); Dole, 438 F.3d at 809.

FACTUAL BACKGROUND

At all relevant times, Plaintiff has been an inmate with the Illinois Department of

Corrections (“IDOC”). He is currently incarcerated at Pontiac Correctional Center

(“Pontiac”) (Doc. 28, p. 2). Plaintiff alleges that he was involved in a physical altercation

with several correctional officers and prisoners on or around April 23, 2017 while housed

at Menard (Doc. 6, p. 2). He was sprayed with oleoresin capsicum (“O.C.”) spray and

placed in restraints (Id.). While being escorted to the Healthcare Unit (“HCU”), he was

assaulted again by Defendant Webb and other unknown correctional officers.

Plaintiff contends that Defendants Williams and Engelage (HCU nurses) took him

to the exam room, where they were met by another nurse, Defendant Lang. Plaintiff says

that Williams then left the room while Lang filled out paperwork and Engelage rinsed off

the O.C. spray (Id.). Then, a few unknown correctional officers asked the nurses to leave

the room, which they did. Defendants Bebout, Rountree, Webb, Eisenhauer, and an

unknown correctional officer severely beat Plaintiff, including spraying O.C. into a

plastic bag and placing it over his head (Id.). Plaintiff sustained severe injuries that

required him to be rushed to the hospital, and Plaintiff contends he still has significant

permanent physical and mental injuries. Lastly, Plaintiff alleges that Defendant Williams

falsified an incident report to cover up the circumstances of the assault in the examination

room (Id.).

In the record, there are approximately seven grievances that Plaintiff filed after the

April 23, 2017 incident (Doc. 28-1, p. 1).4

Defendants contend that Plaintiff sent two relevant grievances to the

Administrative Review Board (“ARB”) about the issues in this case. The first, dated May

22, 2017, describes Defendant Bebout’s actions from the incident on April 23, 2017 (Doc.

28-1, p. 16). Plaintiff agrees that the May 22, 2017 grievance details issues related to cruel

and unusual punishment, as well as excessive force (Doc. 35, p. 1, 9). The second, dated

June 4, 2017, describes Plaintiff not receiving fair treatment at the adjustment committee

hearing related to the altercation that took place on April 23, 2017 (Doc. 28-1, p. 18).

Defendants argue that only the first grievance, dated May 22, 2017, was properly

exhausted prior to the filing of this lawsuit; therefore, Plaintiff can only proceed on his

excessive force claim related to Defendant Bebout (Doc. 28, p. 2).

4 The grievances are dated as received by the ARB on July 12, 2017 (grievance dated April 20, 2017); July

27, 2017 (grievance dated July 6, 2017); August 2, 2017 (grievance dated July 9, 2017); October 12, 2017

(grievance dated September 27, 2017); October 23, 2017 (grievance dated May 22, 2017 and June 4, 2017));

November 14, 2017 (grievance dated May 22, 2017); and June 11, 2018 (grievance dated April 22, 2018)

(Doc. 28-1, p. 1).

Plaintiff’s May 22, 2017 grievance describes the April 23, 2017 incident, where

Plaintiff was involved in an assault (Doc. 28-1, p. 16). He explains that multiple staff

members were involved, including naming Defendants Webb, Rountree, and Bebout

(Doc. 28-1, pp. 16-17). Plaintiff explains that once he was handcuffed, “staff commenced

to kicking him, standing on, and bending…[Plaintiff’s] arms and legs” (Doc. 28-1, pp. 16-

17). He details that staff placed him in one of the small operation rooms near the HCU,

where they then “perform[ed] torture tactics.” (Doc. 28-1, p. 17). Specifically, Plaintiff

outlines that Defendant Bebout placed a plastic bag over his head and then sprayed CO

spray into the bag repeatedly until Plaintiff passed out (Doc. 28-1, p. 17). Staff tightened

Plaintiff’s handcuffs, cutting off his circulation (Doc. 28-1, p. 17). Plaintiff contends that

Menard’s nurses were informed as to what happened, but “would not give aid to”

Plaintiff for his injuries, including a “bruised hip, bruised and swollen hands, bruised

ankle and foot, shoulder, and back pain” (Doc. 28-1, p. 17). Finally, Plaintiff explains he

was hospitalized for the injuries he suffered from this alleged attack by Menard staff

members (Doc. 28-1, p. 17).

Plaintiff’s June 4, 2017 grievance details that after the April 2017 incident, he was

immediately transferred to Pontiac from Menard (Doc. 28-1, p. 18). He was told that the

incident was an ongoing investigation, but then was issued a disciplinary ticket for the

incident, so he requested, in this grievance, to be provided with a “proper hearing in

accordance to 504” (Doc. 28-1, p. 18).

Plaintiff sent the May and June grievances together to the ARB, where they were

denied as the office found there was “no violation of the offender’s due process…[and

the] office is reasonably satisfied the offender committed the offense cited in the report”

(Doc. 28-1, p. 15).

As for Plaintiff’s other grievances, they do not appear to be related to the present

issues. Plaintiff’s July 6, 2017 grievance is unrelated to this case as it details issues with

his personal property after he was transferred to Pontiac from Menard (Doc. 28-1, p. 43).

Plaintiff’s July 9, 2017 grievance is about Plaintiff not receiving mental health-related

medications and names several mental health professionals, none of whom are named as

Defendants in this case (Doc. 28-1, p. 38). Plaintiff’s September 27, 2017 grievance details

issues stemming from a September 12, 2017 search of Plaintiff’s cell (Doc. 28-1, p. 35).

Finally, Plaintiff’s April 22, 2018 grievance details issues with Plaintiff being placed in

segregation while at Pontiac (Doc. 28-1, p. 3).

DISCUSSION

Under the Prison Litigation Reform Act (“PLRA”), all prison inmates bringing an

action under 42 U.S.C. §1983 with respect to prison conditions must first exhaust all

administrative remedies. See 42 U.S.C §1997e (a); Pavey v. Conley, 544 F.3d, 739, 740 (7th

Cir. 2008). Defendants contend that Plaintiff sent two relevant grievances to the ARB

about the issues in this case: the May 22, 2017 and June 4, 2017 grievances (Doc. 28-1, pp.

16-18). Defendants argue that Plaintiff’s grievances failed to either identify or speak of

any actions taken by Defendant Rountree, Eisenhauer, Engelage, Lang, Williams, or

Webb (Doc. 28, p. 4). With that said, Defendants concede that one of Plaintiff’s grievances

does allege the Defendant Bebout used pepper spray in a bag over Plaintiff’s head while

he was in the HCU; therefore, only Plaintiff’s excessive force claim against this one

Defendant can proceed (Doc. 28, p. 4).

Plaintiff contends he did not know all of the names of the current Defendants until

the case started and the parties exchanged written documents; therefore, he could not

include the specific names of individuals in his grievances (Doc. 35, p. 2). Additionally,

Plaintiff argues that he referred to Engelage, Lang, and Williams as “nurses” in his

grievance because he did not know their names at the time of filing the grievance (Doc.

35, p. 2).

The Court agrees with Defendants that the two relevant grievances are Plaintiff’s

May 22, 2017 and June 4, 2017 grievances. At some point between the April 2017 incident

and filing these grievances, Plaintiff was transferred from Menard to Pontiac, as evident

by Plaintiff listing “Pontiac” as his current facility on these grievances (Doc. 28-1, p. 16).

Normally, a prisoner cannot appeal a grievance directly to the ARB; rather, they must go

through internal channels of review at their facility before sending the grievance to the

ARB. But the Administrative Code provides that when a prisoner is grieving issues that

pertain to a facility “other than the facility where the offender is currently assigned,” the

prisoner may file his grievance directly with the ARB. ILL. ADMIN. CODE, Tit. §

504.870(a)(4).

As an initial matter, although the June 4, 2017 grievance briefly details the alleged

assault, the focus of the grievance is that Plaintiff was not provided with a fair hearing as

to his involvement in this assault, which is not at issue in this case (Doc. 28-1, pp. 18-19).

As such, the Court now turns its attention to the May 22, 2017 grievance.

Defendants admit that Plaintiff’s May 22, 2017 grievance was properly exhausted

prior to filing this lawsuit, but that this grievance only pertains to Plaintiff’s excessive

force claim against Defendant Bebout alone (Doc. 28, p. 2). It is unclear from Defendants’

motion for summary judgment why they believe this grievance only applies to one

Defendant and one claim, as Defendants’ substantive arguments on the matter are two

paragraphs in length and rely on conclusory statements (Doc. 28, pp. 4-5).

Grievances are intended to give prison officials notice of a problem and a chance

to correct it before they are subjected to a lawsuit; grievances are not intended to put an

individual defendant on notice of a claim against him. Jones v. Bock, 549 U.S. 199, 219

(2007) (“We have identified the benefits of exhaustion to include allowing a prison to

address complaints about the program it administers before being subjected to suit . . . .

{E]arly notice to those who might later be sued . . . has not been through to be one of the

leading purposes of the exhaustion requirement.”); Turley v. Rednour, 729 F.3d 645, 649

(7th Cir. 2013) (“The exhaustion requirement's primary purpose is to alert the state to the

problem and invite corrective action.”) (internal quotation marks and alterations omitted;

citation omitted); Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful

that the primary purpose of a grievance is to alert prison officials to a problem, not to

provide personal notice to a particular official that he may be sued; the grievance is not a

summons and complaint that initiates adversarial litigation.”).

The Illinois Administrative Code mandates that grievances include the name, or

at least a description, of the persons involved in the complaint, ILL. ADMIN. CODE, tit. 20

§ 504.810(c). Plaintiff writes the names of three Defendants in this May 22, 2017 grievance:

Rountree, Webb, and Bebout (Doc. 28-1, pp. 16-17). Additionally, he detailed that other

correctional officers were involved in the alleged beating (Id.). In terms of Plaintiff’s

descriptions of medical professionals in the HCU, he wrote, “Nurses was[sic] well

informed but would not give aid to…Henderson’s body at all injuries” (Doc. 28-1, p. 17).

He continues and states that his injuries would “go undocumented by Menard’s HCUnit

Nurses” (Id.).

Plaintiff argues in his response to Defendants’ motion for summary judgment that

he included the names of the individuals he knew at the time of filing his grievance (Doc.

35). Additionally, Plaintiff described in detail the alleged assault and how both

correctional officers and HCU nurses did not help him. The regulations instruct that

grievances should include “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.” ILL. ADMIN. CODE, tit. 20, §

504.810(c). Additionally, the Seventh Circuit indicates that an inmate should “articulat[e]

what facts the prison could reasonably expect from a prisoner in his position.” Glick v.

Walker, No. 09-2472, 385 Fed. Appx. 579, 2010 U.S. App. LEXIS 14361, at *6-7 (7th Cir. July

13, 2010). Plaintiff provided the specific names he knew and provided detailed

information about the incident he was grieving. Simply put, Plaintiff did the best he could

to grieve the situation as it unfolded based on what he knew at the time. Under these

circumstances, Plaintiff’s failure to specifically name all currently listed correctional

officer and nursing Defendants did not limit the usefulness of the exhaustion

requirement. Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011). Certainly the May 22, 2017

grievance applies to Defendants Bebout, Rountree, and Webb since they are specifically

named in it, but it also applies to Eisenhauer, as he was later identified as a correctional

officer involved in the April 2017 incident through Plaintiff’s complaint (Doc. 1). As for

Defendants Lang, Engelage, and Williams, the Court finds that this grievance also applies

to them, as Plaintiff named “nurses,” and described how they would not provide him

with care. In short, the May 22, 2017 grievance covers all current Defendants.

Plaintiff is currently proceeding on four claims, so now the Court must determine

which of those claims are covered by this grievance. The May 22, 2017 grievance details

the alleged assault by correctional officers and therefore applies to Plaintiff’s excessive

force claim against Defendants Webb, Rountree, Bebout, and Eisenhauer, and this claim

will continue (Doc. 28-1, p. 16). Also included in this first claim is a failure to intervene

claim against Defendants Lang and Engelage. However, Plaintiff’s grievance does not

give any indication of how the nurses were aware of the alleged assault and failed to stop

it. Rather, the main focus for the nurses is that they failed to provide him with medical

care. As such, the failure to intervene claim against Defendants Lang and Engelage in

count one will be dismissed, while Plaintiff’s second count, a deliberate indifference to a

serious medical need claim against Defendants Lang and Engelage will continue.

As for Plaintiff’s last two counts, which are a failure to protect claim against

Defendants Lang and Engelage and then a conspiracy claim against all Defendants,

including Williams; these claims will be dismissed without prejudice.5 As previously

5 The conspiracy claim is the only claim against Williams.

noted, the thrust of Plaintiff’s grievance against Defendants Lang and Engelage is that

they did not provide him with medical care. It cannot be used to exhaust a failure to

protect claim against the nurses. Moreover, the grievance is devoid of any information to

put prison officials on notice that the Defendants engaged in some sort of agreement to

hurt him or hide the assault. In other words, there is nothing about a conspiracy in the

grievance. While Plaintiff alleges in his complaint that Defendants Lang and Engelage

knew of the assault and did nothing to protect him, these types of details are missing

from the exhausted grievance. As such, counts three and four will be dismissed.

As for this grievance’s path from Plaintiff to the ARB, it was sent directly to the

ARB on June 8, 2017, as Plaintiff was incarcerated at Pontiac and grieving issues that

occurred at Menard. The Illinois Code details that offenders shall submit their grievances

directly to the ARB when grieving issues that occurred at another facility from the facility

in which they are currently incarcerated “except [grievances relating to] personal

property and medical issues” ILL. ADMIN. CODE., Tit. § 504.870(a)(4). Perhaps this is why

Defendants do not believe that some of Plaintiff’s claims can move beyond this stage, as

his grievance includes a description of some medical issues. But had Defendants made

this argument explicitly, it would still be unavailing.

The ARB responded to the substance of the May 22, 2017 grievance, detailing that

the grievance appeal was being denied as the ARB found that “staff misconduct

allegations were not substantiated” (Doc. 28-1, p. 15). When prison officials address an

inmate's grievance on the merits without rejecting it on procedural grounds, the

grievance has served its function of alerting prison officials, inviting corrective action,

and Defendants cannot rely on the failure to exhaust defense. Maddox, 655 F.3d at 722

(internal citations omitted). Here, the ARB did not notify Plaintiff that his medical claims

were improperly brought in front of the ARB; rather, the ARB responded to the content

of Plaintiff’s grievances. As such, this grievance was properly filed and the Court deems

the contents fully exhausted.

CONCLUSION

Defendants motion for summary judgment is GRANTED in part and DENIED in

part. Specifically, it is DENIED as to Plaintiff’s Eighth Amendment excessive force claim

against Defendants Webb, Rountree, Bebout, Eisenhauer (Count I); it is GRANTED as to

the failure to intervene claim contained in Count I against Defendants Lang and

Engelage. It is DENIED as to Plaintiff’s Eighth Amendment deliberate indifference to a

serious medical need claim against Defendants Lang and Engelage (Count II). It is

GRANTED as to Plaintiff’s failure to protect claim against Lang and Engelage (Count

III); and it is GRANTED as to Plaintiff’s conspiracy claim against all Defendants (Count

IV).

Defendant Williams is DISMISSED without prejudice from this action. The case

shall proceed only on the following counts:

Count 1: Eighth Amendment excessive force claim against Webb, Rountree,

Bebout, and Eisenhauer;

Count 2: Eighth Amendment deliberate indifference to a serious medical

need claim against Lang and Engelage.

All other claims are DISMISSED without prejudice for Plaintiff’s failure to

exhaust. The stay on merits-based discovery (see Doc. 24) is LIFTED and the parties can

proceed with discovery on the merits of Plaintiff’s claims. A new scheduling order will

be entered by separate order.

IT IS SO ORDERED.

DATED: April 19, 2021

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge