The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDWARD ROBERSON,
Plaintiff,
v. Case No. 3:19-CV-01188-NJR
CRAIG ASSELMEIER and
SHERRY JONES,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is a Motion for Summary Judgment filed by Defendants
Craig Asselmeier and Sherry Jones (Doc. 49). For the reasons set forth below, the Court grants
the Motions and dismisses this action without prejudice.
This action stems from events which occurred during Plaintiff Edward Roberson’s
term of incarceration at Menard Correctional Facility, a facility operated by the Illinois
Department of Corrections (“IDOC”).
FACTUAL AND PROCEDURAL BACKGROUND
Roberson’s grievance records indicate that he filed Grievance #14-9-19, dated June 28,
2019, asking to see a dentist. The grievance was processed September 3, 2019, and was
returned with a counselor’s response on September 6, 2019 (Doc. 50-5 at 96). Defendants claim
that this grievance was never submitted to the Administrative Review Board (“ARB”) and
point to the Grievance Log (Doc. 50-5) as evidence of this, but Roberson states that he did
submit the grievance to the ARB and that it was lost or destroyed and never processed.
Roberson filed Emergency Grievance #66-10-19, dated October 3, 2019, in relation to
his desire to have teeth pulled (Id. at 108). The grievance was deemed non-emergent and
returned to Roberson on October 10, 2019. The grievance log indicates that Roberson did not
resubmit the grievance for review through the non-emergency process, and the grievance
was not submitted to the ARB (Id).
Grievance #149-6-20, dated June 10, 2020, also relates to dental issues (Doc. 50-6 at 75-
77). That grievance was returned to Roberson on June 22, 2020, with a response from a
counselor, but the grievance was not submitted to a grievance officer for review at the second
level or submitted to the ARB (Id. at 14).
Roberson filed his original pro se complaint in October 2019 under 42 U.S.C. § 1983,
alleging deliberate indifference to his serious dental needs during the period of his
incarceration at Menard Correctional Center (Doc. 1). His initial complaint was dismissed
pursuant to the Court’s preliminary review for failure to state a claim (Doc. 12), and Roberson
filed an amended complaint on May 28, 2020 (Doc. 14). Certain counts were severed into two
new cases on October 29, 2020 (Doc. 20), leaving only Asselmeier and Jones as defendants in
this action. Asselmeier and Jones now seek to dismiss the action because Roberson failed to
exhaust administrative his remedies before bringing suit.
LEGAL STANDARD
Summary judgment is only appropriate if the movant “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED. R. CIV. P.
56(a)). Once the moving party has set forth the basis for summary judgment, the burden then
shifts to the nonmoving party who must go beyond mere allegations and offer specific facts
showing that there is a genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v.
Catrett, 477 U.S. 317,232-24 (1986). The nonmoving party must offer more than “[c]onclusory
allegations, unsupported by specific facts,” to establish a genuine issue of material fact. Payne
v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A “court may not assess the credibility of witnesses, choose
between competing inferences or balance the relative weight of conflicting evidence[.]” Reid
v. Neighborhood Assistance Corp. of America, 749 F.3d 581, 586 (7th Cir. 2014) (quoting Abdullahi
v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)).
DISCUSSION
Defendants claim that Roberson has failed to exhaust his administrative remedies as
required under the Prison Litigation Reform Act (“PLRA”). Under the PLRA, inmates
bringing an action under 42 U.S.C. § 1983 must exhaust all administrative remedies before
filing suit. 42 U.S.C. § 1997e(a). Administrative exhaustion “means using all steps that the
agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quotations
omitted). This is a mandatory rule which a district court does not have discretion to waive.
Id. at 93.
For suits brought by IDOC inmates, administrative remedies are those listed in the
Illinois Administrative Code, which prescribes the grievance procedure for inmates. 20 Ill.
Adm. Code 504.810. Under the Illinois Administrative Code, to properly exhaust
administrative remedies plaintiffs must comply with the following procedures:
“First, a grievance must be filed with the counselor or Grievance Officer in
accordance with the procedures in this Subpart, within 60 days after the
discovery of the incident, occurrence or problem that gives rise to the
grievance.
The grievance shall 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.
Second, the Grievance Officer shall consider the grievance and report his or
her findings and recommendations in writing to the Chief Administrative
Officer…. The Chief Administrative Officer shall review the findings and
recommendation and advise the offender of his or her decision in writing.
Third, if, 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 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. Copies of the Grievance Officer’s
report and the Chief Administrative Officer’s decision should be attached…
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.”
20 Ill. Admin. Code §§ 504.810-850.
Defendants seem to allege that this process requires that an inmate first file a
grievance with a counselor, then file a grievance with a grievance officer for a “second level”
review, and then submit the grievance to the ARB. The regulations, however, state that a
grievance may be filed with either a counselor or a grievance officer, and do not appear to
require that a grievance be filed with both. The regulations do provide, however, that inmates
may appeal to the ARB, and thus administrative remedies cannot be said to have been
exhausted without completing this appeal.
Here, IDOC records appear to suggest that Roberson filed many grievances, but only
a small number directly related to his dental issues, and of these he did not appeal any of
them to the ARB. Roberson asserts that he filed many grievances and that IDOC always
denies his grievances and often simply does not enter them into the system, that he has
attempted to appeal his grievances and that the IDOC grievance system is fundamentally
broken. The Court notes, however, that he has exhausted other grievances related to other
issues. Roberson also asserts that he was “part illiterate,” yet the sheer volume of grievances
that he filed seems to undercut this argument. Overall, based on its evidentiary hearing of
August 12, 2021, the Court finds that Roberson on his own has not presented credible
evidence that he attempted to appeal these grievances to the ARB and those appeals were
intentionally or unintentionally misplaced or destroyed. The Court rather concludes that
Roberson has simply failed to appeal the grievances specifically related to his dental concerns
to the ARB, and in doing so he has failed to exhaust his administrative remedies.
CONCLUSION
For these reasons, the Court GRANTS the Motion for Summary Judgment (Doc. 49)
and DISMISSES this action without prejudice.
IT IS SO ORDERED.
DATED: August 13, 2021
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
Page 5 of 5