# Charleston v. Jones

> District Court, S.D. Illinois · April 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10153574

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** April 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALEB CHARLESTON, )
)
Plaintiff, )
)
vs. ) Case No. 19-cv-764-DWD
)
ALEX JONES, )
JOSHUA SCHOENBECK, )
PAMELA WESTERMAN, )
SARAH WOOLEY, )
JOHN MCCALEB, )
CHASE CARON, )
JEFFREY GARDINER, )
SHAUN GEE, )
HEATHER MCGHEE, )
PATRICK TROKEY, )
CALE YOUNG, )
JORDAN REES, and )
TANGELA OLIVER, )
)
Defendants. )
MEMORANDUM AND ORDER
DUGAN, District Judge:
Plaintiff Caleb Charleston, an inmate of the Illinois Department of Corrections
(“IDOC”), brings this 42 U.S.C. § 1983 action against Defendants following injuries
Plaintiff sustained at Menard Correctional Center (“Menard”) in 2017. On September 15,
2020, Defendants Caron, Gardiner, Gee, Jones, McCaleb, McGhee, Rees, Schoenbeck,
Trokey, Westerman, Wooley, and Young filed their Motion for Summary Judgment (Doc.
54) on the issue of Plaintiff's failure to exhaust administrative remedies. Defendant
Oliver did not participate in the Motion. Defendants filed a memorandum in support
(Doc. 55) and Plaintiff timely opposed the Motion (Doc. 58).

As narrowed by the Court’s threshold order (Doc. 10), Plaintiff proceeds on the
following counts:
Count 1: Eighth Amendment failure to protect claim against Jones and
correction officers Trokey, Young, and Rees.
Count 2: Eighth Amendment excessive force claim against Jones, Schoenbeck,
and Westerman for handcuffing plaintiff after he received injuries to
his arm.
Count 3: Eighth Amendment deliberate indifference to a serious medical need
claim against Jones, Westerman, Schoenbeck, Oliver, Wooley,
McCaleb, Caron, Gardiner, Gee and McGhee for failing to provide
plaintiff with adequate medical treatment following his attack.
On March 17, 2021, the Court denied Defendants’ Motion, in part, only as to Count
3 of Plaintiff's Complaint. (Doc. 71). On April 15, 2021, a hearing pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008) was held on the exhaustion arguments related to
Counts 1 and 2 of Plaintiff's Complaint. Following arguments, and for the reasons
delineated below, Defendants’ Motion for Summary Judgment directed at Count 1 and
Count 2 of Plaintiff's Complaint will be granted.
Background
In his complaint, Plaintiff presents the following factual allegations related to his
claims for failure to protect (Count 1) and excessive force (Count 2): On September 6,
2017, Plaintiff was stabbed in his arm by other inmates in the prison yard at Menard (Doc.
1; Doc. 10). Before the attack, Plaintiff expressed concerns for his physical safety to Jones,
Rees, Trokey, and Young, but they laughed at Plaintiff and did not permit him to leave
the yard (Doc. 10, p. 2). Various officers, including Jones, watched as Plaintiff was
stabbed (Id.). Following the attack, and despite explaining to Jones, Schoenbeck, and

Westerman that he was injured, Schoenbeck (as instructed by Jones) handcuffed Plaintiff
extra tight, causing him additional pain (Id.). On September 15, 2017, Plaintiff transferred
to Pontiac Correctional Center (“Pontiac”) (Doc. 55-1). While at Pontiac, Plaintiff drafted
at least two grievances relevant to this matter (Doc. 1, pp. 24-33; Doc. 55-4; Doc. 55-5; Doc.
55-9; Doc. 58, pp. 16-17, 20-24). The Grievances are dated September 29, 2017 and October
8, 2017 (Id.).
A. 9-29-17 Grievance
Plaintiff's 9-29-17 Grievance, in relevant part, provides: On September 6, 2017, at
Menard, Plaintiff was stabbed in his arm by an inmate while “Gym L.T. John Doe and 3
C/O’s (All John Does)” watched (Doc. 1, pp. 24-25). Plaintiff requested “further action
at a later day” and to have the evidence related to his injuries preserved (Id.). The 9-29-
17 Grievance was not reviewed by any official at Pontiac.! Plaintiff did, however, mail
the 9-29-17 Grievance directly to the Administrative Review Board (“ARB”) while at
Pontiac (Doc. 1, p. 24; Doc. 55, p. 2). The ARB received the 9-29-17 grievance on October
10, 2017 and returned the grievance to Plaintiff on October 16, 2017 stating that Plaintiff's
medical issues “are to be reviewed at your current facility prior to review by the
Administrative Review Board.” (Doc. 1, pp. 24, 26; Doc. 55, p. 2; Doc. 55-4, p. 1).
On March 15, 2018, Plaintiff transferred to Stateville Correctional Center
(“Stateville”) (Doc. 55-1). While at Stateville, Plaintiff submitted the 9-29-17 Grievance

1The records attached to Defendant’s Motion do not show that Pontiac received the 9-29-17
Grievance, and Plaintiff does not dispute this fact; instead Plaintiff argues that he was prevented
from submitting the 9-29-17 Grievance while at Pontiac because unidentified prison officials
refused him access to the grievance lockbox (Doc. 55-10; Doc. 58, p. 9).

for review (Doc. 1 p. 24; Doc. 55-5, p. 2). Stateville received the 9-29-17 Grievance on June
1, 2018 (Id.). On December 3, 2018, the grievance was denied as moot because Plaintiff
had received adequate medical treatment for his arm and could request further treatment

as needed (Doc. 1, pp. 24, 27; Doc. 55-5, pp. 1-2). The correctional officer also stated that
Stateville could not address any of the specific issues related to preservation of evidence
because the incident occurred at Menard (Id.). Plaintiff did not appeal this decision to the
ARB (Doc. 55-3; Doc. 58).
B. 10-8-17 Grievance
In Plaintiff’s 10-8-17 Grievance, he restates the narrative in the 9-28-17 Grievance,
and further complained of John Does 8-10’s failure to protect Plaintiff by not allowing
Plaintiff to leave the yard and then by failing to help Plaintiff while he was attacked (Doc.
1, pp. 28-32; Doc. 55-9, pp. 6-8, 14-15). Plaintiff further grieved the use of excessive force
by Westerman following the attack, which Plaintiff claimed was done at the instruction
of Jones and Schoenbeck so Plaintiff “could learn his lesson” and to further aggravate his
injury (Id.). Plaintiff maintains that he submitted the 10-8-17 Grievance for review while
at Pontiac by mailing it to his counselor and to the ARB (Doc. 58, p. 11; 58-1, pp. 2-3). In
support, Plaintiff provides a statement and his legal mail card showing multiple letters
sent to the ARB in 2017 (Doc. 58-1, pp. 2-3, 9). Defendants disagree, arguing that the ARB
did not receive the 10-8-17 Grievance in 2017 because it does not appear in Plaintiff's
Cumulative Counseling Summary or ARB records (Doc. 55-2). Plaintiff submitted the 10-
8-17 Grievance for review on June 1, 2018, after transferring to Stateville (Doc. 1, p. 28;

Doc. 55-9, p. 14). Stateville denied the 10-8-17 grievance as untimely on August 7, 20182
(Doc. 1, p. 33; Doc. 55-9, p. 5).
On October 20, 2018, Plaintiff mailed a letter to then Illinois Governor Bruce
Rauner complaining that Stateville wrongly denied his 10-8-17 Grievance as untimely
Doc. 1, pp. 35-38; Doc. 1-1). Plaintiff asked the Governor to investigate why the ARB and
Pontiac failed to respond to 10-8-17 Grievance in October 2017 (Id.). Plaintiff also sent the
Governor a new grievance, dated October 20, 2018, where Plaintiff alleged that the ARB
failed to timely respond to Plaintiff's 10-8-17 Grievance, even though the 10-8-17
Grievance raised issues related to staff conduct that Plaintiff was required to submit
directly to the ARB for review (Doc. 1, pp. 35-38; Doc. 1-1); see 20 IIL. Admin. Code §
504.870(a)(4) (Offenders shall submit grievances directly to the ARB when grieving issues
pertaining to a facility other than the facility where the offender is currently assigned,
excluding personal property and medical issues). The ARB received a copy of Plaintiff's
October 20, 2018 letter on November 15, 2018 (Doc. 55-9) and denied the new 10-20-18
grievance finding it untimely and improperly submitted (Doc. 55-9, p. 2). The ARB also
informed Plaintiff that it had never received his 10-8-17 Grievance:
ARB has received grievances from Offender dated 9/29/17, 10/12/17,
10/15/17 and 10/19/17 and all have been responded to by the ARB. The
grievance in question was sent in by an outside source (Governor's Office).
Offender failed to follow DR504F in filing grievances. The grievance dated
10/8/17 was never received by the ARB and is now 60 days past the time
frame for a review.
(Id.).

2The returned grievance incorrectly states that the grievance was returned on August 7, 2017.
(Doc. 1, p. 33; Doc. 55-9, p. 5).

Legal Standard
Defendants seek summary judgment pursuant to Fed. R. Civ. P. 56, arguing that
Plaintiff failed to exhaust his administrative remedies before filing this action. Summary
judgment is “proper only 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.” Fed. R. Civ. P. 56(a); Wragg v. Village of Thornton, 604 F.3d
464, 467 (7th Cir. 2010). A genuine issue of material fact exists if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Defendants bear the initial burden of demonstrating
a lack of genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
The Court considers the facts in a light most favorable to the non-movant, here Plaintiff.
Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009).
Courts generally cannot resolve factual disputes on a motion for summary
judgment. E.g., Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th
Cir. 2008). 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, 588-90 (7th Cir. 2015); see Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008). Lawsuits filed by inmates are governed by the Prison Litigation Reform
Act (“PLRA”). The PLRA provides, in relevant 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 correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. §1997e(a). The purpose of the PLRA
is to “afford corrections officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 92 (2006).
The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020); Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006). An inmate must take all the steps required by the prison’s
grievance system to properly exhaust his administrative remedies. Ford v. Johnson, 362
F.3d 395, 397 (7th Cir. 2004); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
However, an inmate is only required to exhaust those administrative remedies that are
available to him. 42 U.S.C. § 1997e(a); Reid, 962 F.3d at 329. Administrative remedies
become “unavailable” to prisoners when prison officials fail to respond to a properly filed
grievance. See e.g. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002).
As an inmate in the IDOC, Plaintiff was required to follow the three-step grievance
process outlined in the Illinois Administrative Code. See 20 III. Admin. Code § 504.800,
et seq. (detailing grievance procedure). In short, if a prisoner has a grievance, he must
first seek the assistance of an inmate counselor. Id. at § 504.810. If the counselor is unable
to resolve the grievance, it is sent to the grievance officer, who submits a recommendation
to the chief administrative officer (usually the warden). Id. at §§ 504.810; 504.830. If the
warden denies the prisoner’s grievance, the prisoner has 30 days in which to appeal the
decision to the IDOC Director by sending the grievance to the ARB. Id. at § 504.850. The
Illinois Administrative Code also requires certain grievances to be filed directly with the
ARB. See 20 Ill. Admin. Code § 504.870(a)(4) (“Offenders shall submit grievances directly

to the Administrative Review Board when grieving: 4) other issues that pertain to a
facility other than the facility where the offender is currently assigned, excluding
personal property and medical issues.”).
Discussion
Defendants argue that Plaintiff failed to exhaust his available administrative
remedies by improperly grieving the claims relevant to this dispute. Specifically, as to
the 9-29-17 Grievance, Defendants claim that the grievance fails to raise any allegations
as to Plaintiff's Count 2 (excessive force) and is deficient to exhaust Count 1 (failure to
protect) (Doc. 55, p. 9). Defendants further argue that Plaintiff failed to appeal the denial
of this grievance after it was denied as moot in December 2018 while he was at Stateville.
At the hearing on April 15, 2021, Plaintiff admitted that this grievance did not allege any
factual issues related to his excessive force claim, but maintains that the following
sentence in the grievance adequately raises his failure to protect claim: “Gym L.T. John
Doe and 3 C/O’s (All John Does)” watched the attack (Doc. 1, pp. 24-25). Plaintiff further
argues that he tried to appeal the decision denying the 9-29-17 Grievance to the ARB, but
ultimately had issues with the mail while at Stateville.
To succeed on a failure-to-protect claim, an inmate must first demonstrate,
objectively, that he is “incarcerated under conditions posing a substantial risk of serious
harm[,]” Farmer v. Brennan, 511 U.S. 825, 834 (1994), and a beating of one inmate by
another “clearly constitutes serious harm.” Brown v. Budz, 398 F.3d 904, 910 (7th Cir.
2005). Second, he must show that prison officials acted with deliberate indifference to

that risk, a subjective inquiry into a prison official's state of mind. Farmer, 511 U.S. at 838-
39.
“A prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837. A prisoner must demonstrate that
prison officials were aware of a specific, impending and substantial threat to his safety,
often “by showing that he complained to prison officials about a specific threat to his
safety.” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (quoting McGill v. Duckworth, 944 F.2d
344, 349 (7th Cir. 1991)); see also Sinn v. Lemmon, 911 F.3d 412, 420-21 (7th Cir. 2018)
(Complaints are not the only method plaintiffs can use to show subjective intent; instead
“what at matters is the relevant defendant’s subjective awareness, which includes the
inmate’s complaints along with any other information the defendant may have.”).
Plaintiff's 9-29-17 Grievance does not adequately present facts that would indicate
Defendants Trokey, Young, and Rees knew of a specific threat to his safety, whether by
his own complaints or some other source of subjective knowledge. While the 9-29-17
Grievance does allege that Defendants Trokey, Young, and Rees watched Plaintiff's
attack, there are no factual allegations in this grievance which would suggest that
Defendants Trokey, Young, and Rees were aware of the pending attack, or any other
threat to Plaintiff's safety, prior to the attack. Accordingly, the 9-29-17 does not factually
allege Plaintiff's failure to protect claim so to alert Defendants of this claim and exhaust

his administrative remedies. Therefore, the 9-29-17 Grievance did not exhaust Plaintiff's
claims as to Counts 1 and 2 of his Complaint.
The allegations in the 10-8-17 Grievance sufficiently support both Counts 1 and 2
of Plaintiff's Complaint. However, Defendants maintain that these claims were not
adequately exhausted because Plaintiff never submitted this grievance for review while
at Pontiac in October 2017, and therefore, it was rightly determined to be untimely when
Plaintiff later submitted it for review in June 2018, and then indirectly to the ARB in
October 2018 (Id. at pp. 11-12). In support, Defendants rely on various documents from
the ARB and IDOC that do not show that a 10-8-17 Grievance was filed by Plaintiff in
October 2017. Plaintiff responds, stating that he attempted to submit the 10-8-17
Grievance in October 2017 multiple times, but that he was thwarted by various
correctional officers at Pontiac who refused to bring him the grievance box so Plaintiff
could submit the grievance (Doc. 58, pp. 11-12; Doc. 58-1, pp. 2-3). Plaintiff also maintains
that he mailed copies of the 10-8-17 Grievance to both the ARB and his Pontiac counselor,
but received no response from either (Id.). Plaintiff concludes that he was unable to
comply with the available administrative remedies through no fault of his own.
At the April 15, 2021 hearing, Plaintiff testified that he has been incarcerated with
the IDOC for 12 years and is familiar with the IDOC grievance process. Plaintiff further
testified that he placed two copies of the 10-8-17 Grievance in the small opening of his
cell, intending for the grievance to be mailed both to his counselor and the ARB. Plaintiff
then relies on his legal mail card (Doc. 58-1, p. 9) (which shows that outgoing legal mail
was sent to the ARB on October 11, 2017) to conclude that he did mail the 10-8-17
10

Grievance to the ARB on October 11, 2017 (Id.). Plaintiff also referenced correspondence
he exchanged with his Pontiac Counselor in December 2017, where Plaintiff inquired
about the status of the 10-8-17 Grievance from the ARB, (Doc. 58-1, p. 11).
Plaintiff testified credibly as to his familiarity with the IDOC grievance process,
and the Court finds that Plaintiff had knowledge and experience with IDOC’s
administrative procedures. Indeed, Plaintiff has successfully submitted a multitude of
grievances both to his counselor and by mail to the ARB, many of which were submitted
and resolved in October 2017. While Plaintiff’s legal mail card indicates that something
was mailed to the ARB on October 11, 2017, Plaintiff's testimony regarding the legal mail
card is simply too speculative to support the conclusion that the 10-8-17 Grievance was
the specific document mailed out on October 11, 2017. At best, Plaintiff’s testimony
suggests that Plaintiff was unsure of what was mailed on October 11, 2017. This
speculation, in combination with Plaintiff's knowledge and experience with the grievance
system, and Plaintiff's successful efforts in mailing and receiving responses to a
multitude of other grievances filed in October 2017, show that he did not properly submit
the 10-8-17 grievance for review in accordance with IDOC’s administrative procedures.
No reasonable jury could find otherwise. Accordingly, the 10-8-17 Grievance cannot
serve to exhaust Plaintiff's claims for excessive force or failure to protect.
As no other record or alleged grievance timely or sufficiently raised the issues
related to Counts 1 and 2 of Plaintiff's Complaint for administrative review, the Court
concludes that these claims were not sufficiently exhausted. Accordingly, summary

11

judgment is proper on Counts 1 and 2 of Plaintiff’s Complaint for Plaintiff’s failure to
exhaust administrative remedies.
Disposition
For the above stated reasons, Defendant’s Motion for Summary Judgment (Doc.
54) as it relates to Counts 1 and 2 of Plaintiff's Complaint is GRANTED. Counts 1 and 2
of Plaintiff's Complaint are DISMISSED, without prejudice. Count 3 of Plaintiff's
Complaint survives in accordance with the Court’s Order at Doc. 71. However, as Count
3 is not directed towards Defendants Trokey, Young, and Rees, the Clerk of the Court is
DIRECTED to terminate Defendants Trokey, Young, and Rees from the docket.
Discovery in this matter remains stayed pursuant to the initial scheduling order at
Doc. 31, until such time as all exhaustion issues are resolved. After resolution of all
exhaustion issues, the Court will enter a further discovery and scheduling order.
SO ORDERED.
Dated: April 16, 2021 A. LD WV Lb
DAVIDW.DUGAN
United States District Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153574. Public record. Not legal advice.