The opinion
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA LEE HOSKINS,
#R54570,
Plaintiff,
v. Case No. 20-cv-00533-SPM
CHAD ADAMS, JEFFREY
DENNISON, JOSEPH DUDEK,
JAMES GROVES, GARRICK HALE,
DANIEL HARRISS, CHARLES
HECK, JUSTIN KULICH, LARUE
LOVE, SETH MERACLE, STEVEN
MUMBOWER, SCOTT PETITJEAN,
CHARLES SWISHER, TREG
VANDEKERKHOVE, AND CHAD
WALL,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court on Defendants’ motion for partial summary
judgment on the issue of exhaustion. Defendants argue that Plaintiff Joshua Lee
Hoskins failed to exhaust his administrative remedies prior to filing suit. (Docs. 54,
55). Hoskins opposes the motion. (Doc. 62). On July 8, 2021, the Court held an
evidentiary hearing and took the matter under advisement. Based on the reasons
delineated below, the Court grants in part and denies in part the partial motion for
summary judgment.
BACKGROUND
On June 5, 2020, plaintiff Joshua Lee Hoskins (“Hoskins”), an inmate of the
Illinois Department of Corrections (“IDOC”) who is currently incarcerated at Dixon
to 42 U.S.C. § 1983 (Doc. 1). Hoskins alleges that while incarcerated at Pinckneyville
Correctional Center (“Pinckneyville”), he was not provided with cleaning supplies
while in segregation, was retaliated against for filing grievances, was not given
redress or consideration by the counselors and was not moved after a fire in a
neighboring cell. (Doc. 1). On June 8, 2020, following preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A, the following claims remain:
Count 1: Eighth Amendment claims against Adams, Dennison,
Dudek, Groves, Hale, Harris, Heck, Kulich, Love, Meracle,
Mumbower, Petitjean, Swisher, Vandekerkhove, and Wall
for keeping Hoskins in unconstitutional conditions of
confinement, from June 5, 2019 until September 25, 2019,
and January 6, 2020 until February 6, 2020, in R5 house.
Count 2: First Amendment claim against Adams, Dennison, Dudek,
Groves, Hale, Harris, Heck, Kulich, Love, Meracle,
Mumbower, Petitjean, Swisher, Vandekerkhove, and Wall
for keeping Hoskins in unconstitutional conditions of
confinement in R5 house in retaliation for filing lawsuits
and grievances.
Count 4: Eighth Amendment claim against Dudek, Meracle, and
Kulich for failing to protect Hoskins from the fire set in the
neighboring cell on August 31, 2019. (Doc. 6).
On February 22, 2021, defendants filed a partial motion for summary
judgment on the issue of exhaustion, along with supporting memorandum of law
(Docs. 54, 55). In the motion, defendants argue that Hopkins failed to exhaust his
administrative remedies by not properly completing the grievance process before
filing his lawsuit (Id.). Specifically, defendants claim Hoskins failed to exhaust any
grievances related to the allegations in this Complaint after September 3, 2019 (Doc.
55, p. 2) (emphasis added). Moreover, defendants argue that no grievances were
following the fire in the neighboring cell on August 31, 2019 (Doc. 55, p. 2).
Defendants do concede that Hopkins exhausted three (3) grievances dated
September 3, 2019 and one (1) grievance dated August 2, 2019 (Doc. 57). However,
these grievances only related to defendants Adams, Dudek, Groves, Hale, Kulich,
Love, Meracle, Mumbower, Petitjean, Swisher, Vandekherove, and Wall, and they
pertain to the uncleanliness of the cell, i.e., lack of cleaning supplies and other human
necessities needed, which Hoskins claims was in retaliation for filing previous
lawsuits and grievances (Doc. 55, p. 3).
On March 1, 2021, Hoskins filed a response in opposition to the motion for
partial summary judgment (Doc. 62). Hopkins argued that he had a history of filing
his grievances properly and of exhausting his remedies properly (Id., ¶ 1), and further
asserted that he had an extensive history of filing grievances against defendants and
not receiving the responses nor the grievances back (Id., ¶ 2). Hoskins claimed that
the fact that only some of the grievances against some of the defendants were
exhausted does not make sense and proves that he had issues getting the grievances
processed (Id., ¶ 3). As such, Hoskins forwarded some grievances directly to the
Administrative Review Board (“ARB”), and requested they forward them to
Pinkneyville with getting his grievances addressed prior to filing his complaint by
forwarding them directly to the ARB without getting a counselor response, which he
claims refutes defendants argument and proves the ARB could have assisted him (Id.,
¶ 4). He claimed he requested assistance from the ARB by sending the grievances to
the ARB and requesting they be forwarded to the facility for a response to bypass
of his issues because he forwarded them his grievances, which they returned to
Pinckneyville (Id.). Hoskins provided numerous documents with his response, which
he labelled as Exhibits A-G and 1-4 and AA1-3 (See Doc. 62).
On June 9, 2021, Hoskins filed a second supplemental response in opposition
to motion for partial summary judgment and attached a copy of a court Order entered
by the Honorable Magistrate Judge Reona Daly in cause number 20-CV-00533-RJD
on 06/01/21 following a Pavey hearing in that case (Doc. 74). On July 6, 2021, Hopkins
filed another response (Doc. 78)
LEGAL STANDARD
Summary judgment is proper if the pleadings, discovery materials, disclosures,
and affidavits demonstrate no genuine issue of material fact such that [Defendants
are] entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d
464, 467 (7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of
the Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a). That statute states,
in pertinent part, that “no action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.” Id. The Seventh Circuit requires strict adherence to the
PLRA’s exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)
(noting that “[t]his circuit has taken a strict compliance approach to exhaustion”).
Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398
(7th Cir. 2004). Moreover, “[t]o exhaust remedies, a prisoner must file complaints and
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails
to properly utilize a prison’s grievance process, “the prison administrative authority
can refuse to hear the case, and the prisoner’s claim can be indefinitely unexhausted.”
Dole, 438 F.3d at 809.
Under Pavey, the Seventh Circuit held that “debatable factual issues relating
to the defense of failure to exhaust administrative remedies” are not required to be
decided by a jury but are to be determined by the judge. Pavey v. Conley, 544 F.3d
739, 740-41(7th Cir. 2008). Thus, where failure to exhaust administrative remedies
is raised as an affirmative defense, the Seventh Circuit set forth the following
recommendations:
The sequence to be followed in a case in which exhaustion is contested
is therefore as follows:
(1) The district judge conducts a hearing on exhaustion and permits
whatever discovery relating to exhaustion he deems appropriate.
(2) If the judge determines that the prisoner did not exhaust his
administrative remedies, the judge will then determine whether
(a) the plaintiff has failed to exhaust his administrative remedies,
and so he must go back and exhaust;
(b) or, although he has no unexhausted administrative remedies,
the failure to exhaust was innocent (as where prison officials
prevent a prisoner from exhausting his remedies), and so he must
be given another chance to exhaust (provided that there exist
remedies that he will be permitted by the prison authorities to
exhaust, so that he’s not just being given a runaround); or
(c) the failure to exhaust was the prisoner’s fault, in which event
the case is over.
(3) If and when the judge determines that the prisoner has properly
exhausted his administrative remedies, the case will proceed to pretrial
trial, the jury will make all necessary findings of fact without being
bound by (or even informed of) any of the findings made by the district
judge in determining that the prisoner had exhausted his
administrative remedies. Id. at 742.
ANALYSIS
The Court has reviewed the voluminous documents attached to the various
briefs, including plaintiff’s cumulative counseling summary. On July 8, 2021,
pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), this Court held an
evidentiary hearing on the issue of exhaustion. At the hearing, 3 employees from
Pinkneyville testified, as did Hoskins, who emphasized his position in the briefs, his
familiarity with the grievance process and his inability to exhaust his remedies for
various reasons.
Evidentiary Hearing
1. Joshua Lee Hoskins
Hoskins testified that he arrived at Pinckneyville on June 5, 2019 and was
familiar with the grievance procedure established by IDOC. He understood the
grievance must first be filed with the counselor, and if he is not happy with response,
he can appeal it to the second level. If he is not satisfied with that response, he can
send it to the ARB. Further, if inmate has an issue that the counsel cannot address,
the grievance goes directly to the second level. Hoskins claims he had one counselor
at Pinckneyville who was processing his grievances, but once he moved to other cell
houses, his grievances were not being processed. He agrees that any grievances after
September 2019 were not exhausted because they could not be since the counselor
was not processing them, so he sent them to ARB to get Pinckneyville to process.
Hale is one of two grievance counselors at Pinckneyville who has been with
IDOC for 22 years. Hale went through the grievance process and indicated that she
answers the grievances at the second level. Although Hale had never responded to
any of Hoskins grievances, she testified that she was not aware of anyone destroying
his grievances and noted that he filed grievances in time periods where he said he
could not when he was sending others directly to the ARB.
3. Robert Samolinski
Hoskins was transferred to Pinckneyville in June 2019 and was assigned to
counselor Robert Samolinski until September 17th. Samolinski was the counselor in
the R5 house. Hoskins claimed to have had no issues with Samolinski responding to
his grievances. Samolinski testified that he has been a counselor since 2014 and was
familiar with Hoskins as he filed 59 grievances between June and September 19,
2019.
4. Jesse Reid
Jesse Reid testified that he has been a counselor at Pinckneyville for
approximately three years and was familiar with Hoskins and the grievance process.
Reid was Hoskins counselor in January and February 2020. He responded to Hoskins’
grievances while he was his counselor, but did not know how many times. He testified
that he responded to every grievance he received.
Grievances
IDOC has an established process for handling grievances. As an inmate
confined within the Illinois Department of Corrections, Hoskins was required to
Procedures for Offenders (“grievance procedures”) to properly exhaust his claims. 20
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.
20 ILL. ADMIN. CODE §504.810(a). The grievance form must:
“contain factual details regarding each aspect of the offender’s
complaint, including what happened, when, where, and the name of
each person who is the subject of or who is otherwise involved in the
complaint. This provision does not preclude an offender from filing a
grievance when the names of individuals are not known, but the offender
must include as much descriptive information about the individual as
possible.” 20 ILL. ADMIN. CODE §504.810(c).
Grievances that are unable to be resolved through routine channels are then
sent to the grievance officer. 20 ILL. ADMIN. CODE §504.820(a). The Grievance Officer
will review the grievance and provide a written response to the inmate. 20 ILL. ADMIN.
CODE §504.830(a). “The Grievance Officer shall consider the grievance and report his
or her findings and recommendations in writing to the Chief Administrative Officer
within two months after receipt of the grievance, when reasonably feasible under the
circumstances.” 20 ILL. ADMIN. CODE §504.830(e). “The Chief Administrative Officer
shall review the findings and recommendation and advise the offender of his or her
decision in writing.” Id.
If the inmate is not satisfied with the Chief Administrative Officer’s response,
he or she can file an appeal with the Director through the Administrative Review
Board (“ARB”). The grievance procedures specifically state, “[i]f, after receiving the
response of the Chief Administrative Officer, the offender still believes that the
problem, complaint or grievance has not been resolved to his or her satisfaction, he
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 Chief Administrative Officer’s decision to his appeal. Id. “The
Administrative Review Board shall submit to the Director a written report of its
findings and recommendations.” 20 ILL. ADMIN. CODE §504.850(d). “The Director shall
review the findings and recommendations of the Board and make a final
determination of the grievance within six months after receipt of the appealed
grievance, when reasonably feasible under the circumstances. The offender shall be
sent a copy of the Director’s decision.” 20 ILL. ADMIN. CODE §504.850(e).
The grievance procedures do allow for an inmate to file an emergency
grievance. In order to file an emergency grievance, the inmate must forward the
grievance directly to the Chief Administrative Officer (“CAO”) who may “[determine]
that there is a substantial risk of imminent personal injury or other serious or
irreparable harm to the offender” and thus, the grievance should be handled on an
emergency basis. 20 ILL. ADMIN. CODE §504.840(a). If the CAO determines the
grievance should be handled on an emergency basis, then the CAO “shall expedite
processing of the grievance and respond to the offender” indicating to him what action
shall be taken. 20 ILL. ADMIN. CODE §504.840(b). If the CAO determines the
grievances “should not be handled on an emergency basis, the offender shall be
notified in writing that he or she may resubmit the grievance as non-emergent, in
accordance with the standard grievance process.” 20 ILL. ADMIN. CODE §504.840(c).
When an inmate appeals a grievance deemed by the CAO to be an emergency, “the
ADMIN. CODE §504.850(f).
Though the Seventh Circuit requires strict adherence to the exhaustion
requirement, Dole, 438 F.3d at 809, 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 primarily 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.
DISCUSSION
This Court has evaluated the briefs as well as the arguments posed at the
evidentiary hearing. This Court finds that Hoskins has exhausted his administrative
remedies with respect to Counts 1 and 2; however, this Court also finds that Hoskins
has not exhausted his administrative remedies with respect to Count 3.
This Court agrees that Hoskins completed the administrative review process
with respect to the three grievances dated September 3, 2019 as well as the one
grievance dated August 2, 2019 regarding the conditions of confinement in the R5
house as an ongoing condition from June 5, 2019 through September 17, 2019. Even
though the grievances were filed before the conclusion of the time-period, this Court
finds it was ongoing and continuing conduct that clearly lasted through his
incarceration in R5 and there was no need to file multiple, successive grievances for
the same conduct. See Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013).
This Court next considers the time period of January 20, 2020 to February
the hearing, Hoskins testified that he had concerns about counselor Reid and whether
he was answering all of his grievances, so he claimed he sent the grievances directly
to the ARB and requested assistance and for them to forward his grievances to the
facility for review. These letters were provided to the Court and pre-date the filing of
this lawsuit. Many of the letters were file stamped “Received Administrative Review
Board” with dates in February 2020 and March of 2020 wherein Hoskins claims that
his grievances were not being handled by counselor Reid, which corroborates his
testimony at the evidentiary hearing. As such, this court finds sufficient evidence
find futility.
Finally, with respect to the fire in the neighboring cell, this Court questions
why Hoskins sent the grievance to the ARB on September 8, 2019 instead of giving
to Samolinski. At the hearing, Hoskins testified that he had no concerns or issues
with Samolinski’s handling of his grievances and that Samolinski was his counselor
until September 17, 2019, so this Court does not believe that reaching out to the ARB
for assistance was necessary. As such, Hoskins did not exhaust all available
administrative remedies with respect to that particular grievance.
DISPOSITION
For the reasons stated above, the Motion for Summary Judgment (Doc. 58) is
GRANTED in part and DENIED in part. Count 4 is DISMISSED without
prejudice for failure to exhaust administrative remedies. Count 1 is divided into two
separate time periods. As such, the remaining claims are as follows:
Count 1: Eighth Amendment claims against Adams, Dennison,
Dudek, Groves, Hale, Harris, Heck, Kulich, Love, Meracle,
for keeping Hoskins in unconstitutional conditions of
confinement: (a) from June 5, 2019 until September 17,
2019, and (b) from January 6, 2020 until February 6, 2020,
in R5 house.
Count 2: First Amendment claim against Adams, Dennison, Dudek,
Groves, Hale, Harris, Heck, Kulich, Love, Meracle,
Mumbower, Petitjean, Swisher, Vandekerkhove, and Wall
for keeping Hoskins in unconstitutional conditions of
confinement in R5 house in retaliation for filing lawsuits
and grievances.
The stay on merits discovery is LIFTED and the parties can proceed with
discovery on the merits. A new scheduling order will be entered by separate order.
IT IS SO ORDERED.
DATED: July 26, 2021
/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge