The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PHONAKONE SANGATHIT, )
)
Plaintiff, )
)
vs. ) Case No. 19-cv-860-DWD
)
ALEX JONES, )
JORDAN REES, )
ERIK KRAMER, )
NATHAN MCCARTHY, )
FRANK EOVALDI, )
SHAUN GEE, )
COREY LAUER, )
STEVEN RATHKE, )
ANTHONY WILLS, )
NICHOLAS CHANDLER, and )
CASSANDRA CHITTY, )
)
Defendants. )
MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiff Phonakone Sangathit, an inmate in the custody of the Illinois Department
of Corrections, alleges that Defendants violated his constitutional rights as retaliation for
Sangathit filing a grievance related to the restriction of his visitation rights while
incarcerated at Menard Correctional Center. On October 22, 2020, Defendants Eovaldi,
Gee, Jones, Kramer, Lauer, McCarthy, Rathke, Rees, and Wills moved for summary
judgment on the issue of exhaustion of administrative remedies. Plaintiff, through
appointed counsel, responded on December 18, 2020. On June 29, 2021, the Court held an
evidentiary hearing, and, for the reasons delineated below, Defendants’ motion is
granted.
FACTUAL BACKGROUND
At all times relevant to the complaint, Plaintiff Phonakone Sangathit was
incarcerated at Menard Correctional Center (“Menard”). Defendants Rees, Kramer,
McCarthy, and Gee were internal affairs officers. Defendant Jones was the Assistant
Warden at Menard. Defendant Chandler and Defendant Chitty worked in the healthcare
unit at Menard, and Defendants Eovaldi, Rathke, and Lauer were correctional officers.
Pursuant to the Court’s second threshold order in this action, Plaintiff Phonakone
Sangathit is proceeding on fourteen claims:
Count 1: Eighth Amendment excessive force claim against Defendants
Rees, Kramer, McCarthy, and Gee for forcing Plaintiff to
submit to an anal cavity search and for keeping him
handcuffed for long periods of time;
Count 2: Eighth Amendment claim against Defendants Rees, Kramer,
McCarthy, Gee, and Chandlerfor subjecting Plaintiff to a strip
search and rectal cavity search;
Count 3: Fourth Amendment claim against Rees, Kramer, McCarthy,
Gee, and Chandler for conducting an unreasonable rectal
cavity search;
Count 4: Eighth Amendment claim against Gee for failing to intervene
and protect Plaintiff from excessive force and the rectal cavity
search;
Count 5: Eighth Amendment claim of deliberate indifference to a
serious medical need against Gee for denying Plaintiff
medical care following the rectal cavity search;
Count 6: Eighth Amendment claim of unconstitutional conditions of
confinement against Defendants Rees, Kramer, McCarthy,
Gee, Rathke, and Eovaldi for keeping Plaintiff in a filthy cell
in the healthcare unit with the lights on for four days;
Count 7: First Amendment retaliation claim against Defendants Rees,
Kramer, McCarthy, Gee, Rathke, Eovaldi, Lauer, and Jane1
for retaliating against Plaintiff after he filed a grievance
against Assistant Warden Jones;
Count 8: Eighth Amendment claim of deliberate indifference against
Defendants Chandler, Gee, and Chitty for failing to provide
medical treatment for Plaintiff’s rash while he has in the
healthcare unit;
Count 10: Intentional infliction of emotional distress claim against
Defendants Rees, Gee, Kramer, McCarthy, Rathke, and
Eovaldi;
Count 13: First Amendment and/or Fourteenth Amendment claim
against Defendant Jones for denying Plaintiff visitation rights;
and
Count 14: Eighth Amendment unconstitutional conditions of
confinement claim against Defendants Gee, Lauer, and
McCarthy for placing Plaintiff in a filthy cell in segregation
without cleaning supplies.
(See Doc. 24).
With his complaint, Plaintiff included copies of three grievances that he alleges he
submitted ahead of filing suit. The first was an emergency grievance dated April 7, 2019.
The grievance addresses his allegations that he was strip searched and subjected to a
cavity search by Defendants Gee, Rees, Kramer, and McCarthy on March 22, 2019. It
explains that Plaintiff then was taken to the healthcare unit and searched again before
being handcuffed for a prolonged period of time. The grievance also describes similar
events on March 25, 2019. (Doc. 22, p. 23-24).
The second grievance attached to Plaintiff’s complaint was an emergency
grievance dated April 10, 2019. The grievance describes unsanitary conditions in
Plaintiff’s cell in the healthcare unit. Plaintiff claims he was held in the cell without water
or the opportunity to shower for three days before being taken to a similarly unsanitary
cell in segregation. The grievance also suggested that the motive behind the poor
treatment was retaliation for a different grievance he had written against Defendant
Jones. (Doc. 22, p. 25-26).
The final grievance attached to Plaintiff’s complaint was an emergency grievance
dated April 30, 2019. In the grievance, Plaintiff alleges that he feared for his safety after
filing a grievance about Defendant Jones, and he repeated his allegations about the
searches and conditions of confinement. The grievance also mentions that he had not
received responses to several earlier filed grievances. (Doc. 22, p. 27-29). Plaintiff’s
complaint also includes a copy of a letter that he alleges he wrote to Warden Frank
Lawrence on April 30, 2019, to ask about the status of his April 7 and April 10 grievances.
He similarly includes a letter he wrote to John Baldwin, IDOC Director, about not
receiving responses to his emergency grievances from Menard officials. According to
Plaintiff, neither Warden Lawrence nor Director Baldwin responded to his letters. (Doc.
22, p. 34-35).
The Court held an evidentiary hearing on June 29, 2021. During the hearing,
Defendants provided a signed affidavit from Yvette Baker, a grievance officer at Menard.
According to the affidavit, Menard’s grievance records do not include any grievances or
emergency grievances related to Plaintiff’s claims in this action. That is, Menard has no
record of receiving the emergency grievances attached to Plaintiff’s complaint.
Defendants also presented two exhausted grievances that Plaintiff submitted in July and
September 2019. (Doc. 87). The grievances involve complaints related to Menard staff
actions and disciplinary tickets Plaintiff received. Menard officials responded to each.
(Doc. 87-2).
Defendants also submitted Plaintiff’s cumulative counseling summary, which is a
summary of notes by various Menard officials, including Plaintiff’s counselor. The notes
include dates of interactions with Plaintiff and the officials’ summaries of those
interactions. During the relevant time period, the summary shows that Plaintiff was sent
to segregation on March 27, 2019. On April 12, 2019, Sara Quick, a counselor, spoke with
Plaintiff while touring the cell gallery. They discussed Defendant Jones’ administrative
decision not to allow a particular woman to visit Plaintiff. Plaintiff also was sent a trust
fund statement. Plaintiff was next seen on a gallery tour on May 22, 2019, where he again
requested a trust fund statement. No entries mention receipt of Plaintiff’s emergency
grievances of any discussion with officials about the complaints in the grievances. By
comparison, the summary shows that the grievance office received Plaintiff’s July
grievance related to his disciplinary ticket on July 29, 2019. A similar entry for his
September grievance was made on September 19, 2019. (Doc. 87-3, p. 1-3).
During the hearing, Plaintiff testified about the grievances attached to his
complaint. He explained that the copies attached to his complaint were handwritten
copies that he made at the same time that he submitted his emergency grievances. As to
the April 7 and April 10 grievances, Plaintiff claimed that the day shift officer refused to
bring him the grievance box, so he gave the officer his grievances to put in the box for
him. When the day shift officer refused to bring Plaintiff the grievance box to submit the
April 30, 2019 grievance, Plaintiff held the grievance for the evening shift officer. The
evening shift officer brought Plaintiff the grievance box, and he submitted it by placing
the grievance in the box himself. Plaintiff explained that he wrote to the warden and the
IDOC director when he didn’t receive responses to his emergency grievances.
LEGAL STANDARDS
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”). See42 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).
Generally, the Court’s role on summary judgment is not to evaluate the weight of
the evidence, to judge witness credibility or to determine the truth of the matter. Instead,
the Court is to determine whether a genuine issue of triable fact exists. See Nat’l Athletic
Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, however, 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, 740-741 (7th Cir. 2008).
The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. See, e.g.,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. SeeFord v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). 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 use a prison’s grievance
process properly, “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.
In Pavey, the Seventh Circuit set forth procedures for a court to follow in a situation
where failure to exhaust administrative remedies is raised as an affirmative defense. The
Seventh Circuit stated the following:
(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.
Pavey, 544 F.3d at 742.
As an inmate confined within the IDOC, Bentz was required to follow the
regulations contained in the IDOC’s Grievance Procedures for Offenders (“grievance
procedures”) to exhaust his claims properly. See20 ILL.ADMIN.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. See 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. See 20 ILL. ADMIN. CODE
§504.820(a). The grievance officer will review the grievance and provide a written
response to the inmate. See 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. See 20 ILL.ADMIN.CODE §504.850(a). 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 notbeen 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 also allow an inmate to file an emergency grievance. See
20 ILL. ADMIN.CODE §504.840. 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 [such that] 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 what action shall be or has been 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
Defendants argue that Plaintiff neither submitted nor fully exhausted any timely
grievances relevant to his claims in this action. Plaintiff contends, however, that he did
submit three relevant emergency grievances and that prison officials failed to respond to
them, rendering the grievance process unavailable to him. A prisoner is not obligated to
exhaust administrative remedies that are unavailable to him. See Pyles v. Nwaobasi, 829
F.3d 860, 864 (7th Cir. 2016). The Seventh Circuit has held that administrative remedies
become “unavailable” when prison officials fail to respond to inmate grievances. See
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423 F.3d 674,
682 (7th Cir. 2005). As a result, the Court must weigh the evidence, including Plaintiff’s
testimony, to determine whether Plaintiff attempted to exhaust his administrative
remedies but was preventedfrom doing so.
Before the Court are three documents that Plaintiff maintains are copies of
emergency grievances that he submitted. Two of the three grievances purportedly were
handed to a correctional officer who refused to bring Plaintiff the grievance box. As to
these two grievances, Plaintiff suggests, in essence, that the officer did something
untoward with the grievances to prevent them from being reviewed by other Menard
officials or that, upon receipt by the appropriate officials, the grievances were discarded
or lost. The third grievance was submitted directly to the grievance box with the
assistance of a different correctional officer, but it similarly disappeared. To credit
Plaintiff’s testimony would require inferring, without any evidentiary support, that
Menard officials conspired to prevent him from filing grievances as to the allegations in
this case but not to prevent grievances as to unrelated claims. Without more, Plaintiff’s
testimony alone is insufficient to support such a theory, and the Court finds that it lacks
indicia of credibility.
It does not escape the Court’s attention, however, that Plaintiff’s claims of missing
or lost grievancesare not unique to this litigation. It is often the case that, when there are
no IDOC records of grievances related to a claim, a prisoner will claimthat he submitted
a grievance but never received a response. These allegations cannot be resolved without
a hearing and a credibility determination. It might behoove prison officials to devise a
better recordkeeping system or to implement some sort of receipt process to allow for the
resolution of these types of disputes without significant Court intervention. The system
in its current iteration is not working, and the risk of disparate outcomes is too high
absent an improvement in grievance tracking at IDOC institutions.
CONCLUSION
For the above-stated reasons, Defendants’ motion for summary judgment on the
issue of exhaustion is GRANTED. Plaintiff Phonakone Sangathit failed to exhaust his
administrative remedies prior to filing suit, and, as a result, his claims are DISMISSED
without prejudice. The Clerk of Court shall enter judgment reflecting the dismissal and
shall close this case.
SO ORDERED.
Dated: July 7, 2021 Duar L (i
DAVID W. DUGAN
United States District Judge