Venson v. Gregson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KAABAR VENSON, )

)

Plaintiff, )

)

vs. ) Case No. 3:18-CV-2185-MAB

)

LEE GREGSON, BRADLEY LASER, )

JACQUELINE LASHBROOK, )

NATHAN MCCARTHY, )

COREY LAUER, J. GOETZ, )

DANIEL ROSKOWSKI, )

ROB JEFFREYS, KEVIN GRAVES, and )

KYLE BRUMLEVE, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the motion for summary judgment on

the issue of exhaustion filed by Defendants Kyle Brumleve, Kevin Graves, Lee Gregson,

Joseph Goetz, Bradley Laser, Jacqueline Lashbrook, Corey Lauer, Nathan McCarthy, and

Daniel Roskowski (Doc. 119). For the reasons stated below, the motion is granted in part

and denied in part.

BACKGROUND

Plaintiff Kaabar Venson is a transgender inmate of the Illinois Department of

Corrections (“IDOC”), who filed this civil rights action regarding her incarceration at

Menard Correctional Center (Doc. 8). Plaintiff filed her original complaint on December

19, 2018 (Doc. 1). The complaint was screened pursuant to 28 U.S.C. § 1915A and

dismissed for failure to state a claim, and Plaintiff was given leave to file an amended

complaint (Doc. 7).

Plaintiff filed her first amended complaint on March 6, 2019 (Doc. 8). She was

permitted to proceed on various Eighth Amendment claims for failure to protect and

deliberate indifference regarding her requests for protective custody, an assault by other

inmates that she sustained in May 2018, and her cell assignments (Doc. 11). Shortly after

Defendants waived service of process, an attorney was recruited to represent Plaintiff

(Docs. 22, 26; see also Dos. 18, 19). In October 2019, Plaintiffs’ counsel sought leave to file

a second amended complaint to reflect additional allegations regarding the existing

claims, to add new claims related to her incarceration at Menard, and to add IDOC

Director John Baldwin and four John Does as Defendants (Docs. 42, 43).1 Plaintiffs’

motion was granted and she filed her twelve-count second amended complaint on

February 13, 2020 (Doc. 43). Following a round of motions to dismiss, Plaintiff is now

proceeding on the following counts:

Count 1: Eighth Amendment failure to protect claim against Defendants

Laser, Lashbrook, Lauer, McCarthy, Roskowski, and the IDOC Director (in

his official capacity only), for disregarding Plaintiff’s requests for protection

despite the substantial risk of harm Plaintiff faces from both prison staff and

other prisoners as a transgender woman in a men’s prison.

1 The John Does were later identified as Daniel Roskowski (John Doe 1), Kevin Graves (John Doe 2), Kyle

Brumleve (John Doe 3), and Joseph Goetz (John Doe 4) (Docs. 56, 72, 79). Furthermore, because John

Baldwin was only named as a Defendant in his official capacity and was no longer the IDOC Director, the

new acting IDOC Director, Rob Jeffreys, was substituted in as a Defendant in place of Baldwin pursuant to

Federal Rule of Civil Procedure 25(d) (Doc. 71).

Count 2: Eighth Amendment failure to protect claim against Defendants

Laser and Roskowski for failing to protect Plaintiff from an attack by other

inmates that occurred on May 3, 2018.

Count 3: Eighth Amendment deliberate indifference claim against Nurse

Gregson for failing to have Plaintiff examined by a doctor following the

attack on May 3, 2018.

Count 4: Eighth Amendment claim deliberate indifference claim against

Nurse Gregson for ignoring Plaintiff’s request for mental health treatment

following the attack on May 3, 2018.

Count 5: Eighth Amendment deliberate indifference claim against

Defendants Graves and Brumleve for ignoring Plaintiff’s request for

medical treatment following her second suicide attempt.

Count 6: Eighth Amendment failure to protect claim against Defendant

Goetz for failing to intervene as Plaintiff was beaten by other inmates on

the yard on August 30, 2018.

Count 7: Eighth Amendment excessive force claim against Defendant Goetz

for macing Plaintiff during the attack.

Count 8: Claim under the Americans with Disabilities Act against the IDOC

Director in his official capacity for failing to accommodate Plaintiff’s gender

dysphoria and other mental illnesses.

Count 9: Eighth Amendment failure to protect claim against Defendants

Laser, Lashbrook, Lauer, McCarthy, and Roskowski and for repeatedly

placing Plaintiff in cells with straight or non-transgender inmates.

Count 10: Monell claim against the IDOC Director in his official capacity for

unconstitutional policies, practices, and customs related to transgender

prisoners.

Count 11: Claim under the Illinois Hate Crimes Act against Defendant

Goetz for physically assaulting Plaintiff due to her gender and sexual

orientation.

Count 12: Claim for intentional infliction of emotional distress against

Defendants Brumleve, Goetz, Graves, Gregson, Laser, Lashbrook, Lauer,

McCarthy, and Roskowski.

(Doc. 43, Doc. 126).

On October 19, 2020, the nine individual Defendants—Brumleve, Goetz, Graves,

Gregson, Laser, Lashbrook, Lauer, McCarthy, and Roskowski—filed a motion for

summary judgment, asserting that Counts 1, 2, 3, 4, 5, 6, 7, 9, 11, and 12 must be dismissed

for failure to exhaust administrative remedies (Doc. 120, pp. 2, 10, 17).2 After being given

two extensions of time, Plaintiff filed her response in opposition to the motion for

summary judgment on January 4, 2021 (Doc. 125). Defendants did not file a reply brief or

otherwise address the additional facts asserted by Plaintiff or the evidence she submitted

in support thereof. Having closely reviewed the briefs and evidence submitted by both

parties, the Court determined there were no disputed issues of material fact and therefore

no hearing 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.

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.

2 Defendants assert in the “Introduction” and “Conclusion” sections of their memorandum that they are

seeking summary judgment on the issue of exhaustion as to Counts 1, 2, 5, 6, 7, 9, 11, and 12 (Doc. 120, pp.

2, 17). However, elsewhere in the body of their memorandum, Defendants indicate that Counts 3 and 4

should also be dismissed (Id. at p. 10). The Court will consider all of the Counts mentioned by Defendants.

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). No hearing is necessary when there is no disputed issue of fact.

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). The

purpose of the exhaustion requirement is to “alert prison officials to perceived problems

and to enable them to take corrective action without first incurring the hassle and expense

of litigation.” Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) (per curiam)

(citations omitted). See also Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (quoting Jones

v. Bock, 549 U.S. 199, 219 (2007)). 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.” Pozo v. McCaughtry, 286 F.3d 1022,

1025 (7th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion is an

affirmative defense, which the defendants bear the burden of proving. Pavey, 663 F.3d at

903 (citations omitted).

As an inmate in the IDOC, Plaintiff was required to follow the grievance process

outlined in the Illinois Administrative Code to exhaust her claims. 20 ILL. ADMIN. CODE §

504.800, et seq. (2017). Inmates must first submit a grievance to their counselor within 60

days after the discovery of the incident that gave rise to the grievance. Id. at § 504.810(a).3

If the issue is not resolved to the inmate’s satisfaction, the grievance must then be sent to

the grievance officer, who submits a written recommendation to the warden. Id. at §

504.820(a), 504.830(e). The warden then issues a written decision on the grievance. Id. at

§ 504.830(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 processed on an

expedited basis. Id. On the other hand, if the warden determines that the grievance does

not involve an emergency, the inmate is notified in writing that he or she “may resubmit

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

Regardless of whether the grievance was processed in the normal manner or as an

emergency, if the inmate is unsatisfied 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

3 There are exceptions to this requirement, none of which apply here. See 20 ILL. ADMIN. CODE §§ 504.810(a),

504.870 (2017).

findings and recommendations to the Director, who then makes a final determination on

the grievance. Id. at § 504.850(d), (e).

The regulations also require, in pertinent part, that the grievance “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.” 20 ILL. ADMIN. CODE § 504.810(c) (2017). If the offender does

not know the names of the individuals involved, he must instead include as much

descriptive information about the individual as possible. Id.

FACTS

Prior to her incarceration at Menard, Plaintiff was housed at Stateville Correctional

Center. She was transferred from Stateville and arrived at Menard on April 18, 2018 (Doc.

120, p. 3). Defendants assert there are three grievances pertaining to Plaintiff’s

incarceration at Menard:a grievance dated May 4, 2018 (#112-5-18), a grievance dated

May 10, 2018 (#188-5-18), and a grievance dated June 4, 2018 (#168-6-18) (Doc. 120, pp. 3–

4). Plaintiff, however, submitted proof of a fourth grievance, which was dated April 19,

2018 and submitted as an emergency (#333-4-18) (Doc. 125-1, pp. 9–11).4 The grievances

are discussed below in chronological order.

4 Plaintiff also argued and submitted proof that she submitted additional grievances dated April 3, 6, and

20, 2018 (Doc. 125, pp. 2–3; Doc. 125-1, pp. 2–8, 12–15). A review of these grievances demonstrates that they

pertain to events that occurred at Stateville (see Doc. 125-1, pp. 2–8, 12–15). But this case is based on

Plaintiff’s incarceration at Menard. Consequently, under normal circumstances, these grievances would be

completely irrelevant to the question of whether Plaintiff exhausted her claims in this case. In this instance,

however, the grievances are of some relevance because Plaintiff argues that, based on the continuing

violation doctrine, they can be used to exhaust her claims in this case (see Doc. 125, pp. 14–16). The

discussion of Plaintiff’s argument in this Order does not require detailed information about these

grievances and the Court thus declines to include it.

The first grievance was an emergency grievance dated April 19, 2018. Plaintiff

wrote that she was informed by another inmate that “a guy named Low-Bo and the whole

folks nation5 wanted to kill [her]” (Doc. 125-1, pp. 9–11). She indicated that she had

notified her counselor and Internal Affairs about the threat. She said she was scared for

her life at Menard and asked to be transferred to a different facility. The warden deemed

the grievance an emergency and it was processed on an expedited basis. On April 27th,

the grievance officer issued her recommendation that the grievance be denied because

Plaintiff was in a single cell in segregation at Menard until November 10, 2018. Plaintiff

was told she could request protective custody or a transfer after she was released from

segregation. The warden concurred and denied the grievance on May 4, 2018. Plaintiff

appealed to the ARB, where the grievance was received on June 8, 2018. The ARB

returned the grievance without addressing it, stating that “Requests do not go on a

grievance form. Simply see appropriate staff for issues. No review. In seg. until

Nov/2018.” Defendants did not address this grievance in their opening memorandum

(see Doc. 120). Rather, Plaintiff brought up this grievance in her response brief (see Doc.

125), but Defendants did not file a reply to address it or to modify their arguments to take

this grievance into account.

5 Plaintiff indicates in her brief that the “Folk Nation” is an alliance of street gangs originating in Chicago

(Doc. 125, p. 3 n.1). The Court presumes that Plaintiff was a former member of the Folk Nation based on

her allegations in the second amended complaint that her former gang issued a “kill on sight” order for her

(Doc. 43, pp. 9–10).

The May 4th grievance (#112-5-18) pertains to an attack Plaintiff suffered on May

3rd, her injuries, and the lack of medical care provided by the nurse (Doc. 120-1, pp. 1–

5). Plaintiff stated that she was being escorted to the showers when another inmate

reached through the bars of their cell and grabbed Plaintiff. The inmate banged Plaintiff’s

head on the cell bars repeatedly and punched her, while screaming “Ima kill this faggot.

You thought it was a game!? We told you already what’s going to happen, fag.” Plaintiff

indicated that she was scared for her life and had previously submitted a grievance about

her fears. Plaintiff said her headaches had worsened since the attack and she had never

seen a doctor. The nurse she saw after the attack only gave her Tylenol and said she was

“good to go.” Plaintiff asked to receive proper medical treatment, to press charges against

the inmates who attacked her, and to get some grievance forms. A counselor received the

grievance on May 11th but did not respond until May 31st, writing “medical report

response attached.” An attached memorandum from the health care unit indicated that

Plaintiff’s medical records were reviewed and a nurse went to the cell house on Mary 3rd

to evaluate Plaintiff but Plaintiff refused treatment.

In the meantime, before the counselor responded to the May 4th grievance,

Plaintiff submitted another grievance dated May 10, 2018 (#188-5-18) detailing the May

3rd incident, her injuries, and the lack of medical care provided by the nurse (Doc. 120-1,

pp. 5–8). Plaintiff repeatedly said she was scared and indicated that she had notified

“[Internal Affairs], counselor, [mental health providers], warden[—]everybody” that she

was unsafe but they did not do anything to help her. She also stated that she was assigned

to a new cell without a cellmate or a window and was feeling very depressed. Plaintiff

asked to receive proper medical treatment, to press charges against the inmates who

attacked her, and to be transferred out of Menard because she was concerned the inmates

who were housed there intended to kill her. A counselor received the grievance on May

15th and responded that day, indicating the grievance was a duplicate to #122-5-18 and

Plaintiff’s concerns “will be addressed on that grievance” (Id.).

Plaintiff evidently mailed both the May 4th and May 10th grievances directly to

the Administrative Review Board, instead of the grievance officer, because there is a

stamp on both grievances indicating they were received by the ARB on June 8, 2018 (Doc.

120-1, pp. 1–8; see also Doc. 120-2, p. 1). There is no indication what the ARB did with the

grievances, but they were presumably returned to Plaintiff.

On June 4, 2018, Plaintiff authored another grievance (#168-6-18) in which she

noted that the memo she received in response to her May 4th grievance said she had

refused medical treatment after she was attacked, but Plaintiff complained that she never

signed a refusal slip and her signature must have been forged (Doc. 120-1, pp. 9–12). She

asked for the medical staff to be disciplined. She also asked for help in getting her other

grievances from Stateville processed and for “the right medical attention.” A counselor

received the grievance on June 14th and responded the next day, noting this grievance

was also a duplicate of the May 4th grievance and instructing “if you disagree [with] the

grievance response[,] send the original to second level review to grievance office.”

Plaintiff then sent all three grievances—the May 4th, May 10th, and June 4th—to

the grievance officer at Menard, who received them on July 26 and July 27, 2018 (Doc.

120-1, pp. 3, 8, 11). Approximately two and a half months later, on October 11, 2018, the

grievance officer responded to all three grievances (Id.). The grievance officer

recommended denying the May 4th grievance, stating the counselor addressed it

appropriately and advising Plaintiff that she should follow the sick call procedure to get

medical care, she should ask her gallery officer for grievance forms, and he can press

charges against the inmates who attacked her through an attorney (Doc. 120-1, p. 3). The

grievance officer also recommended denying the May 10th and June 4th grievances

because they were duplicates of the May 4th grievance (Doc. 120-1, pp. 8, 11). The

warden, Jacqueline Lashbrook, concurred with the recommendations and denied all

three grievances on October 12th (Id.).

Plaintiff appealed all three grievances to the ARB (Doc. 120-1, pp. 5, 12). On

October 30, 2018, the ARB returned the June 4th grievance without addressing it, stating

it was “inappropriate to file a new grievance on a finalized grievance response”; instead

Plaintiff should “just follow [Department Rule] 504F [and] submit [grievance] 112-5-18 if

timely to do so.” (Id. at p. 12). On November 19, 2018, the ARB likewise returned the two

May grievances without addressing them because they were untimely as they were not

sent to the grievance officer within 60 days of the incident (Id. at p. 5).

DISCUSSION

The Court will first determine whether the grievances outlined above were fully

exhausted before Plaintiff filed this lawsuit. Defendants make no argument that the April

19th emergency grievance and the June 4th grievance were not fully exhausted (see Doc.

120). The Court will therefore assume for purposes of this Order that these two grievances

were fully exhausted.

That leaves the May 4th and May 10th grievances. Defendants argue these two

grievances were not fully exhausted because the ARB declined to address them since they

were submitted to the grievance officer more than 60 days after the attack (Doc. 120, p.

10). In response, Plaintiff cites to a case from this district that held when the grievance

officer and warden accept an untimely grievance and address it on the merits, the ARB

cannot then reject the grievance as being untimely filed with the grievance officer. Kane

v. Santos, No. 17-CV-01054-NJR-RJD, 2020 WL 967878, at *4 (S.D. Ill. Feb. 28, 2020); see also

Spraggins v. Baker, No. 13-3213, 2015 WL 558293, at *3 (C.D. Ill. Feb. 10, 2015); Ford v.

Wexford, 2014 WL 685841 at *5 (S.D. Ill. Feb. 20, 2014). Defendants did not file a reply brief

and thus provided no authority that runs contrary to the case cited by Plaintiff. Nor have

Defendants advanced any argument as to why the Court should not follow that case. The

Court declines to make the argument for Defendants. See Mulvania v. Sheriff of Rock Island

Cty., 850 F.3d 849, 860 (7th Cir. 2017) (citing Vaughn v. King, 167 F.3d 347, 354 (7th Cir.

1999) (“It is not the responsibility of this court to make arguments for the parties.”))).

Additionally, the decision in the case cited by Plaintiff makes sense. The

regulations give facility officials discretion to consider untimely grievances. 20 ILL.

ADMIN. CODE § 504.810(a) (2017). If facility officials elect to address an untimely grievance

on the merits and not reject it on timeliness grounds, then they have treated the grievance

as properly filed.6 Defendants cannot now assert that Plaintiff failed to exhaust the May

6 Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (analogizing exhausting administrative remedies

to a collateral attack and explaining “if a state court accepts a belated filing, and considers it on the merits,

that step makes the filing ‘proper’ for purposes of state law and avoids exhaustion, default, and timeliness

hurdles in federal court.”). See also McDaniel v. Meisner, 617 Fed. Appx. 553, 557 (7th Cir. 2015) (“We have

4th and May 10th grievances because the ARB rejected the grievances for being submitted

to the grievance officer outside the 60-day timeframe set forth in the regulations.7

In sum, Defendants have failed to show that any of the relevant grievances were

not fully exhausted. The Court will next evaluate whether the grievances are sufficient to

cover Plaintiff’s claims in Counts 1, 2, 3, 4, 5, 6, 7, 9, 11, and 12.

A. Count 1

In Count 1, Plaintiff alleges that Defendants Laser, Lashbrook, Lauer, McCarthy,

Roskowski, and the IDOC Director (in his official capacity) failed to protect her (Doc. 43,

pp. 9–10). Specifically, she alleges that they knew other inmates wished to harm her due

to her gender identity and the “kill on sight” order issued by her former gang, but they

nevertheless failed to take sufficient measures to abate the risks she faced (Id.).

Plaintiff’s fears about her safety were brought up in three of the four grievances

discussed above. First, in the April 19th grievance—which Defendants did not

explained . . . that a defendant's failure to exhaust his administrative remedies is forgiven, i.e., the

exhaustion requirement is satisfied, if prison officials ignore a grievance's administrative failings and address

its merits.”) (emphasis added); Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005) (“Failure to comply with

administrative deadlines dooms the claim except where the institution treats the filing as timely and resolves

it on the merits.”) (emphasis added); Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) (“[W]hen a state

treats a filing as timely and resolves it on the merits, the federal judiciary will not second-guess that action,

for the grievance has served its function of alerting the state and inviting corrective action.”).

7 See Kane, 2020 WL 967878, at *4 (“[W]hen a grievance officer addresses the grievance based on the merits,

rather than procedural grounds, the ARB cannot later examine the grievance based on procedural grounds

and cure the error.”); Spraggins v. Baker, Case No. 13-3213, 2015 WL 558293, at *3 (C.D. Ill. Feb. 10, 2015)

(noting the regulations explicitly give the grievance officer discretion whether to decide an untimely filed

grievance on the merits and defendants did not identify any rule or regulation that allows the ARB to

overrule the grievance officer’s discretionary decisions); Ford v. Wexford, Case No. 13-cv-43-JPG-DGW, 2014

WL 685841 at *5 (S.D. Ill. Feb. 20, 2014) (concluding the defendant could not assert the plaintiff failed to

exhaust because the ARB rejected the grievance as untimely when the grievance officer had previously

accepted the grievance and addressed it on the merits).

acknowledge—Plaintiff specifically indicated that the Folk Nation had issued a kill on

sight order for her and she had notified her counselor and “IA,” meaning Internal Affairs

about the threat (Doc. 125-1, pp. 9–11; see Doc. 120). She said she was scared for her life

at Menard and asked to be sent to a different facility (Doc. 125-1, pp. 9–11). Then, in the

May 4th grievance, Plaintiff reiterated that inmates wanted to harm her, and she was

scared for her life at Menard (Doc. 120-1, pp. 1–5). She also indicated that she had already

written a previous grievance about the threats to her safety (Id.). Finally, in the May 10th

grievance, Plaintiff repeatedly said that she feared for her life and had notified “IA,

counselor, [mental health providers], warden[—]everybody” that she was unsafe, but

they did nothing to help her (Doc. 120-1, pp. 5–8). She once again asked to be moved to a

different facility or placed in protective custody (Id.).

In these grievances, Plaintiff specifically indicated that she notified the warden

about her safety concerns. It is undisputed that the warden was Jacqueline Lashbrook (see

Doc. 120-1, pp. 3, 8, 11; Doc. 125-1, pp. 9, 10). These grievances are thus sufficient to cover

Defendant Lashbrook as to Count 1 and she is not entitled to summary judgment.

Plaintiff also specifically indicated that she notified Internal Affairs officers about

her safety concerns. Plaintiff alleged in the second amended complaint that Defendants

Lauer and McCarthy were Internal Affairs officers (Doc. 43, pp. 3, 4, 9, 15), and they do

not dispute Plaintiff’s assertions nor offer any evidence to the contrary (see Doc. 120).

They also do not provide any argument or explanation as to why Plaintiff’s reference to

“IA” is insufficient to identify them (see id.). Consequently, the Court concludes they have

failed their burden to establish these grievances do not cover them and they are not

entitled to summary judgment as to Count 1.

As for Defendants Laser and Roskowski, Plaintiff did not identify them by name

in her grievances. And it does not appear that she identified them by title or position;

Plaintiff made no indication or allegation that Laser and Roskowski are Internal Affairs

officers, like she did with Lauer and McCarthy (see Doc. 43, Doc. 125). As best the Court

can tell, Laser and Roskowski are correctional officers who are simply members of the

security staff that do not have any specialized rank or role; they are the kind of officers

that Plaintiff would have encountered on a routine, daily basis standing guard and doing

rounds in the cellhouse, moving prisoners throughout the facility, etc. (see Doc. 120, p.

11). After much consideration, the Court does not believe that Plaintiff’s grievances

suffice to cover Officers Laser and Roskowski. There is nothing in the grievances that

suggests Plaintiff told any officers in the cellhouses, let alone Laser and Roskowski

specifically, about the threats to her safety or asked them to help her get transferred to a

different facility or placed in protective custody. Defendants Laser and Roskowski are

entitled to summary judgment on Count 1 and it will be dismissed as to them.

B. Count 2

In Count 2, Plaintiff claims that Officers Laser and Roskowski failed to protect her

from the inmate attack on May 3, 2018 (Doc. 43). Specifically, she alleges that Laser and

Roskowski cuffed her behind her back to escort her to the shower and made her walk on

the cell-side of the corridor within reach of other inmates (Id. at p. 6). An inmate

nicknamed “Ra Ra” reached through the bars of his cell and grabbed Plaintiff by her hair

(Id.). Ra Ra and his cellmate, Mook, then repeatedly banged Plaintiff’s head against the

cell bars and punched and kicked her in the head, face, and neck, while Officers Laser

and Roskowski made little or no attempt to stop the attack for almost 90 seconds (Id.).

Plaintiff talks about the attack in both the May 4th and May 10th grievances, but

Defendants argue that the content of these grievances is not sufficient to cover Plaintiff’s

claim in Count 2 (Doc. 120, p. 12). The Court agrees. In both grievances, Plaintiff indicates

that she was being escorted to the shower with her hands cuffed behind her back when

an inmate reached through the bars of his cell and grabbed her (Doc. 120-1, pp. 1–2, 6–7).

The inmate banged her head on the bars, punched her, and screamed at her while the

correctional officers tried to get the inmate to let go of Plaintiff (Id). Plaintiff did not name

either Officer Laser or Roskowski in the grievances (see id.). And, perhaps more

importantly, she did not attribute any objectionable conduct to correctional officers (see

id.). For example, there is no mention of correctional officers hesitating or failing to

intervene to stop the attack (see id.) To the contrary, the only thing Plaintiff said in both

grievances about the officers present during the attack was that they did try stop it (Id.).

Plaintiff also did not ask for any kind of relief with respect to the officers present during

the attack, such as some type of disciplinary action (see id.). There is simply nothing in the

grievances that suggests Officers Laser and Roskowski acted inappropriately or were the

targets of Plaintiff’s complaints. The grievance responses by the facility officials also

make clear that they did not perceive either grievance to contain any complaints about

Officers Laser and Roskowski (see id. at pp. 1, 3, 4, 6, 8).

The Court concludes that the May 2018 grievances do not contain information

sufficient to put prison officials on notice of any issue with Officers Laser and Roskowski

relating to the May 3rd attack. Consequently, these grievances cannot serve to exhaust as

to Count 2 against these officers and they are entitled to summary judgment. Count 2 is

dismissed without prejudice.

C. Counts 3 and 4

In Counts 3 and 4, Plaintiff claims that Nurse Lee Gregson exhibited deliberate

indifference when treating her following the May 3rd attack by Ra Ra and Mook.

Defendants acknowledge that Plaintiff’s grievances cover the subject of these claims but

argue that the grievances are unexhausted (Doc. 120, pp. 8–10). The Court already

determined otherwise. Accordingly, Nurse Gregson is not entitled to summary judgment

as to Counts 3 and 4.

D. Count 5

In Count 5, Plaintiff claims that Defendants Graves and Brumleve ignored her

requests for medical treatment following her second suicide attempt (Doc. 43, pp. 12–13).

Specifically, she claims that sometime after May 19, 2019, she attempted suicide for the

second time by stabbing herself in the neck and cutting her arms with an earpiece that

she broke off a pair of eyeglasses (Id. at p. 7). Plaintiff alleges that she begged Officers

Graves and Brumleve for medical treatment for her injuries, but they ignored her and

forced her to remain in her cell with the metal earpiece stuck inside her neck for a day

and a half (Id. at p. 13).

The first three grievances (the April 19th, May 4th, and May 10th grievances) pre-

date this incident and therefore cannot possibly exhaust as to this claim. The June 4th

grievance does not name Graves or Brumleve or complain that they failed to provide her

with medical treatment following a suicide attempt. In fact, none of these grievances

mention any suicide attempt at all. These grievances thus cannot serve to exhaust

Plaintiff’s claim in Count 5.

Plaintiff attempts to save this claim by invoking the continuing violation doctrine

(Doc. 125, pp. 14–16). She suggests that correctional officers’ deliberate indifference to her

physical and mental wellbeing was an ongoing issue, and she argues that because she

had already exhausted multiple grievances pertaining to particular instances of

deliberate indifference, she was not required to file any more (Id.).

The Court, however, is unpersuaded by Plaintiff’s argument and finds the

continuing violation doctrine is not applicable in this instance. “In order to exhaust their

remedies, prisoners need not file multiple, successive grievances raising the same issue

(such as prison conditions or policies) if the objectionable condition is continuing” so long

as the first grievance gave the prison “notice of, and an opportunity to correct, [the]

problem.” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (parenthetical in original)

(citations omitted). “Separate complaints about particular incidents are only required if

the underlying facts or the complaints are different.” Id.

Here, three of the five previous grievances that Plaintiff cites to involve incidents

that occurred when she was incarcerated at Stateville, not Menard (see Doc. 125, p. 14;

Doc. 125-1, pp. 2–7, 12–15, 31–34). The incidents at Stateville occurred in early 2018—over

a year prior to the 2019 incident at Menard, which is at issue in Count 5 (see id.).

Furthermore, those grievances complain about discrete incidents of mistreatment by

guards at Stateville; they do not in any way suggest (either individually or collectively)

that Plaintiff was subjected to a single course of mistreatment by guards that continued

at every institution where she was housed (see id.). Consequently, the Court does not see

how these grievances could possibly have put officials at Menard on notice that Plaintiff

was allegedly being mistreated at their facility or given them any opportunity to

investigate or correct the problem.8 Furthermore, it is not unreasonable or unrealistic to

require Plaintiff to submit separate grievances for incidents that occurred at separate

facilities over a year apart and involved completely different individuals.9 The Court

thus concludes that Plaintiff’s three grievances regarding events at Stateville cannot be

used to exhaust her claim in Count 5.

The other two grievances Plaintiff cites to are the May 4th and May 10th grievances

(Doc. 125, p. 14). The only alleged misconduct by correctional officers that Plaintiff

complains of in those grievances is the failure of Internal Affairs officers to take any action

8 In fact, Plaintiff did not cite to any case where a previously filed grievance was sufficient to exhaust future

incidents that occurred at a different institution (see Doc. 125).

9 See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (explaining that a violation is continuing “when it

would be unreasonable to require or even permit [a prisoner] to sue separately over every incident of the

defendant's unlawful conduct.”). See also Johnson v. Johnson, 385 F.3d 503, 521 n.13 (5th Cir. 2004) (“[W]e do

not here hold that a grievance filed in response to one particular incident automatically exhausts claims

that arise from future incidents of the same general type. Thus, an inmate who claims to have been beaten

by guards (or, for that matter, not protected by guards) once one month and again the next month can

rightfully be expected to grieve both incidents . . . .”); Howard v. Wade, 534 F.3d 1227, 1244–45 (10th Cir.

2008) (holding plaintiff's earlier grievances regarding risks to his safety in one section of the prison were

not sufficient to “put prison officials on notice” of intimidation that occurred in another part of the prison

some months later); Burt v. Berner, No. 13-CV-794-NJR-DGW, 2015 WL 1740044, at *4 (S.D. Ill. Apr. 14, 2015)

(plaintiff could not rely on previously filed grievance “to exhaust his claims for the denial of medical care

that occurred at a wholly different location and involved completely different individuals operating under

different circumstances.”).

to transfer her out of Menard or put her in protective custody in light of threats and

attacks from other inmates (see Doc. 120-1, pp. 1–5, 5–8). But Plaintiff never alleges that

Officers Graves and Brumleve are Internal Affairs officers and there is no evidence or

argument that suggests they are (see Doc. 43, Doc. 125). Furthermore, the grievances say

nothing about cell house officers refusing to obtain medical treatment for Plaintiff

following a suicide attempt. The continuing violation doctrine is inapplicable here

because the type deliberate indifference allegedly exhibited by Defendants Graves and

Brumleve—the failure to take Plaintiff for medical treatment—is of a different flavor and

is factually distinct from the deliberate indifference Plaintiff complained about in her May

4th and 10th grievances—the failure to act on Plaintiff’s request for a transfer or

protective custody. The two situations cannot be lumped together as one continuing

violation.10 Consequently, the May 4th and 10th grievances cannot serve to exhaust

Plaintiff’s claim in Count 5 against Defendants Graves and Brumleve. Defendants are

entitled to summary judgment and Count 5 is dismissed without prejudice.

E. Counts 6, 7, and 11

Plaintiff alleges that on August 30, 2018, she was attacked by four inmates on the

yard (Doc. 43, pp. 7–8). She further alleges that during the attack, Defendant Goetz maced

her, even though she was the victim, and did nothing else to stop the beating (Id.). She

10 See Moore v. Bennette, 517 F.3d 717, 728–29 (4th Cir.2008) (finding no exhaustion where prisoner

complained of inadequate medical care for Hepatitis C but not for gout) (cited by Turley v. Rednour, 729

F.3d 645, 650 (7th Cir. 2013)); Nance v. Wexford Health Sources, Inc., No. 16-CV-875-NJR, 2020 WL 607113, at

*4 (S.D. Ill. Feb. 7, 2020) (facts regarding the diagnosis and treatment of Plaintiff’s hepatitis B demonstrated

“three distinct periods [that] do not constitute one continuing violation because they include different

forms of deliberate indifference against different defendants.”)

asserts a failure to protect claim against Goetz (Count 6), an excessive force claim (Count

7), and a claim under the Illinois Hate Crimes Act because she claims Goetz committed a

hate crime when he physically assaulted her with the mace due to her gender and sexual

orientation (Count 11) (Doc. 43, pp. 13–14, 17–18).

All of the relevant grievances (the April 19th, May 4th, May 10th, and June 4th,

2018 grievances) predate the incident at the heart of Counts 6, 7, and 11. Thus they could

not possibly mention an attack on the yard or associated misconduct by a correctional

officer. And, in fact, they do not. Plaintiff again attempted to save these claims by

invoking the continuing violation doctrine, (Doc. 125, pp. 14–17), but her argument is

unpersuasive for the same reasons explained with respect to Count 5. Namely, the

previous grievances filed about officer misconduct at Stateville do nothing to give

Menard officials notice of and an opportunity to correct problems at their own facility.

And the grievances that pertain to Plaintiff’s time at Menard do not contain any

complaints about officers physically assaulting her or refusing to intervene and stop other

inmates from attacking her. The Court thus concludes that Plaintiff failed to exhaust her

administrative remedies with respect her claims in Counts 6, 7, and 11. Defendant Goetz

is entitled to summary judgment and Counts 6, 7, and 11 are dismissed without prejudice.

F. Count 9

In Count 9, Plaintiff alleges a failure to protect claim against Defendants

Lashbrook, Laser, Lauer, McCarthy, and Roskowski based on her cell assignments.

Specifically, she alleges she was repeatedly placed in cells with straight or non-

transgender inmates because Defendants were either deliberately indifferent to the

substantial risk of harm that such placements posed to her or because Defendants were

intentionally trying to harm her.

None of the relevant grievances (the April 19th, May 4th, May 10th, and June 4th,

2018 grievances) mention any complaints about Plaintiff’s cell assignment or cellmate

selection at Menard or contain any particular requests about who her cellmate should be.

It is true that Plaintiff mentions issues with her cellmate(s) in at least one grievance that

she filed regarding her time at Stateville (Doc. 125-1, pp. 36–37). However, as previously

discussed with respect to Count 5, grievances filed about conditions at Stateville do

nothing to give Menard officials notice of and an opportunity to correct problems at their

own facility. In fact, it is not clear whether Plaintiff ever had a cellmate at Menard at any

point before she filed the April 19th, May 4th, May 10th, and June 4th, 2018 grievances.

The complaint does not contain any specific allegations of the sort (see Doc. 43). The

grievance officer indicated in the response to Plaintiff’s April 19th grievance that she was

in a single cell and would continue to be until November 10, 2018, when she was

scheduled to be released from segregation (Doc. 125-1, p. 10). And Plaintiff stated in the

May 4th grievance that she did not have a cellmate (Doc. 120-1, p. 7).

The Court thus concludes that Plaintiff failed to exhaust his administrative

remedies with respect to Count 9. Defendants Lashbrook, Laser, Lauer, McCarthy, and

Roskowski are entitled to summary judgment and Count 9 is dismissed without

prejudice.

G. Count 12

Count 12 is Plaintiff’s tort claim under Illinois state law for intentional infliction of

emotional distress against Defendants Brumleve, Goetz, Graves, Gregson, Laser,

Lashbrook, Lauer, McCarthy, and Roskowski (Doc. 43, p. 18). Defendants indicate in the

“Introduction” and “Conclusion” sections of their memorandum that Count 12 should

be dismissed (Doc. 120, pp. 2, 17), however, they never actually made any argument

about Count 12 (see Doc. 120). At any rate, the PLRA’s exhaustion requirement does not

apply to state law tort claims. 42 U.S.C. § 1997e(a) (2013) (“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.”) (emphasis added); McDaniel v.

Meisner, 617 Fed. Appx. 553, 556 n.3 (7th Cir. 2015) (“We note that the exhaustion

requirements of the Prison Litigation Reform Act do not apply to state-law claims.”)

(citing 42 U.S.C. § 1997e(a)). Consequently, none of the Defendants are entitled to

summary judgment on Count 12.

CONCLUSION

The motion for summary judgment on the issue of exhaustion filed by

Defendants Kyle Brumleve, Kevin Graves, Lee Gregson, Joseph Goetz, Bradley Laser,

Jacqueline Lashbrook, Corey Lauer, Nathan McCarthy, and Daniel Roskowski (Doc. 119)

is GRANTED IN PART and DENIED IN PART.

It is granted as to Defendants Laser and Roskowski on Count 1 and Count 2;

Defendants Graves and Brumleve on Count 5; Defendant Goetz on Counts 6, 7, and 11;

and Defendants Lashbrook, Laser, Lauer, McCarthy, and Roskowski on Count 9.

Accordingly, Count 1 is DISMISSED without prejudice as to Defendants Laser and

Roskowski. Counts 2, 5, 6, 7, 9, and 11 are DISMISSED without prejudice in their

entirety.

It is denied as to Defendants Lashbrook, Lauer, and McCarthy on Count 1;

Defendant Gregson on Counts 3 and 4; and Defendants Brumleve, Goetz, Graves,

Gregson, Laser, Lashbrook, Lauer, McCarthy, and Roskowski on Count 12.

This matter shall proceed on the following claims:

Count 1: Eighth Amendment failure to protect claim against Defendants

Lashbrook, Lauer, McCarthy, and the IDOC Director in his official capacity,

for disregarding Plaintiff’s requests for protection despite the substantial

risk of harm Plaintiff faces from both prison staff and other prisoners as a

transgender woman in a men’s prison;

Count 3: Eighth Amendment deliberate indifference claim against Nurse

Gregson for failing to have Plaintiff examined by a doctor following the

attack on May 3, 2018;

Count 4: Eighth Amendment claim deliberate indifference claim against

Nurse Gregson for ignoring Plaintiff’s request for mental health treatment

following the attack on May 3, 2018;

Count 8: Claim under the Americans with Disabilities Act against the IDOC

Director in his official capacity for failing to accommodate Plaintiff’s gender

dysphoria and other mental illnesses;

Count 10: Monell claim against the IDOC Director in his official capacity for

unconstitutional policies, practices, and customs related to transgender

prisoners; and

Count 12: Claim for intentional infliction of emotional distress against

Defendants Brumleve, Goetz, Graves, Gregson, Laser, Lashbrook, Lauer,

McCarthy, and Roskowski.

The stay on discovery as to the merits of Plaintiff’s claims, (see Doc. 87), is LIFTED.

The parties may proceed with discovery. A new schedule with deadlines for discovery

and dispositive motions will be entered by separate order.

IT IS SO ORDERED.

DATED: July 14, 2021

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge