Pierce v. Illinois Department of Correction

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

AARON PIERCE,

Plaintiff,

v. Case No. 20-cv-721-NJR

KEITH HUBLER,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on Defendant Keith Hubler’s motion for summary

judgment on the issue of exhaustion of administrative remedies (Docs. 70 and 71).

Plaintiff Aaron Pierce, an inmate of the Illinois Department of Corrections (“IDOC”) who

is currently incarcerated at Stateville Correctional Center (“Stateville”), filed a response

(Doc. 149) and a memorandum (Doc. 153) in opposition to the motion. On November 4,

2021, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.

2008).

BACKGROUND

On July 23, 2020, Pierce filed a Complaint pursuant to 42 U.S.C. §1983 alleging that

on May 19, 2020, while at Pinckneyville Correctional Center (“Pinckneyville”), Hubler

used excessive force against him in violation of the Eighth Amendment (Doc. 1). On July

30, 2020, he filed an Amended Complaint, adding Hubler as a named Defendant

(Doc. 10). After conducting a review of the Amended Complaint pursuant to 28 U.S.C.

§ 1915A, Pierce was allowed to proceed on two counts:

Count 1: Eighth Amendment excessive force claim against [Hubler]

for the May 19, 2020 assault.

Count 2: State law assault and battery claim against [Hubler].

(Doc. 14, p. 3).

Relevant to the issue of exhaustion, on June 2, 2020, the counselor received

Grievance # 1423-06-20 from Pierce dated the same date. Pierce argues that he submitted

two identical grievances: an emergency grievance (Doc. 153-1) and a regular grievance

(Doc. 153-2). On June 9, 2020, the counselor responded to the grievances (Doc. 153-1 and

153-2). Pierce contends that the counselor checked both the “send directly to the grievance

officer” and “send to: Administrative Review Board” boxes (Id. at p. 1). The emergency

review portion was not completed (Doc. 153-1).

On June 29, 2020, the Administrative Review Board (“ARB”) received the

grievance. On July 23, 2020, the ARB returned the grievance to Pierce with instructions to

provide a copy of the grievance officer and chief administrative officer (“CAO”) response

(Doc. 71-3, p. 5). Pierce filed his Complaint the same day (Doc. 1).

Pierce then submitted the grievance to the grievance officer where it was received

on September 3, 2020 (Doc. 71-3, p. 2). The grievance officer noted that a date was not

provided in the grievance in order to establish a time frame under 20 Ill. Admin. Code

§ 504.810, which requires that a grievance be filed sixty (60) days “after the discovery of

the incident.” The grievance officer noted that Pierce sent the grievance immediately to

the ARB, which did not follow proper procedure, and that he did not submit his grievance

to the grievance office until September 3, 2020 (Doc. 71-3, p. 2). The grievance officer

denied the grievance, finding that it was submitted passed the time frame allowed in

Section 504.810 (Id.). The CAO concurred on September 21, 2020 (Id.). On October 16,

2020, Pierce marked that he was appealing the grievance to the ARB. On October 26, 2020,

the ARB received the grievance. The ARB noted that the appeal was both not submitted

in a timely fashion at the institution level and was also received by the ARB 30 days after

the CAO’s final decision (Id. at p. 1). On October 28, 2020, the grievance was returned to

Pierce.

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”). 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. (emphasis added). 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). A 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 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 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.

Id. at 742.

A. Illinois Exhaustion Requirements

As an IDOC inmate, Pierce was required to follow the regulations contained in

IDOC’s Grievance Procedures for Offenders (“grievance procedures”) to properly

exhaust his claims. 20 Ill. Administrative 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 CAO’s response, he or she can file an appeal

with the Director through the 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

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 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 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).

ANALYSIS

Pierce acknowledges that his June 2, 2020 grievance was returned by the ARB on

two occasions, and the ARB never issued a decision on the merits. He, instead, argues

that his grievance was mishandled both by the counselor and the ARB, making proper

exhaustion of his grievance impossible. If his account of the events is true, then his

attempts at exhaustion would be deemed thwarted, and he would be allowed to proceed

with his lawsuit. See Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2000) (an inmate is not

required to appeal his grievance if he submits the grievance to the proper authorities but

never receives a response); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (a remedy

can be unavailable to a prisoner if the prison does not respond to the grievance or uses

misconduct to prevent a prisoner from exhausting his resources).

A. Emergency Grievance

Pierce argues that he submitted two grievances, one marked as an emergency, to

his counselor and that he received the grievances back with checkmarks indicating to

both send it directly to the grievance officer and to send it to the ARB.1 He argues that

he was confused about the grievance process, given the differing checkmarks, and chose

to send the grievance directly to the ARB. According to Pierce, the counselor caused him

confusion, thus thwarting his ability to exhaust his grievance.

The Court finds Pierce’s testimony regarding his emergency grievance lacks

credibility. He testified that he submitted two identical grievances, one marked an

emergency. Pierce also submitted an affidavit stating that he submitted two identical

grievances, although at the hearing Pierce testified that he did not sign the affidavit (his

signature does indeed appear on the affidavit) and that portions of the affidavit were not

accurate (Doc. 149-1). Although Pierce insists that he submitted two grievance forms, the

cumulative counseling summary indicates otherwise. The summary, submitted by

Hubler at the hearing, indicates that two grievances were received on June 2, 2020:

1 Pierce’s testimony and briefs are contradictory on this point. His first brief indicates that the

counselor received both forms, answered the non-emergency form and then photocopied the

form, marked the emergency box, and returned the grievances (Doc. 149, p. 2). His memorandum

of law also indicates that he received “identical responses to both grievances.” (Doc. 153, p. 4)

(emphasis added). Pierce testified, however, that he received only one copy of the grievance back.

Grievance #1423-06-20 regarding the staff assault and Grievance #1419-06-20 regarding

medication (Exhibit E, p. 4). There is no indication that duplicate copies of #1423-06-20

were received by the counselor. At the hearing, Chalene Hale, the grievance officer at

Pinckneyville, testified that each grievance, including duplicates, would receive separate

grievance numbers. Thus, if Pierce had submitted two identical grievances, as he testified,

they would have received two separate grievance numbers. The copies of Pierce’s

grievances have the same number (Docs. 153-1 and 153-2). Both the entries noting the

receipt of Pierce’s grievance, as well as the return of his grievance also refers to the

grievance in the singular, suggesting only one grievance was received and returned

(Doc. E, p. 3). Hale also testified that if the grievance was marked as an emergency

grievance, it would have indicated as such in the counseling summary. For instance, the

counselor received an emergency grievance from Pierce on April 16, 2020, and the entry

in the summary clearly states that an emergency grievance was received (Exhibit E, p. 5).

But the entry for grievance #1423-06-20 does not indicate that it was an emergency. The

records indicate that only one grievance was received by the counselor, and that

grievance was not labeled an emergency.

Pierce also offered conflicting testimony about the return of his grievance. His

response indicates that two grievances were returned. He stated that he believed the

counselor “answered the non-emergency form, photocopied that form, and checked the

EMERGENCY Grievance box” on one (Doc. 149, p. 2). But he testified at the hearing that

he received only one grievance back from the counselor.

His testimony, to say the least, was contradictory on a number of issues. He

testified that he marked the grievance as an emergency, but later indicated that the

counselor marked it as an emergency, noting that they highlighted it but did not respond

to it as an emergency. He testified that when he received the grievance back, it was

marked as emergency review. Pierce also testified that he did not remember adding

anything to his grievance once the counselor responded. But the grievance clearly had

later information added after the review by the counselor (See Doc. 71-3, p. 4 compared

with 153-2, p. 2).

Pierce’s own filings also contradict his testimony. His Complaint states that he

wrote a grievance and sent it to Springfield, the grievance officer, and the counselor, and

that he was waiting on the results (Doc. 1, p. 4). A September 14, 2020 supplement

indicates that the grievance was up for second level review and he “was under [the

impression the] grievance can go straight to Springfield” due to his injuries (Doc. 26).

There is no indication in those filings that his counselor told him to send the grievance to

the ARB as he testified.2

Simply put, nothing in the record supports Pierce’s story that he submitted an

emergency grievance to the counselor that was then mishandled. Pierce’s counsel

candidly acknowledged in his brief that “it may appear to the finder of fact that Plaintiff

submitted and thereafter received a non-emergency grievance form, and that [P]laintiff

had then simply marked the boxes emergency before forwarding his grievance”

(Doc. 149, p. 2 n. 1). It appears from the evidence that is exactly what Pierce did. He

2 Although Pierce argued that he was confused by the grievance process, his filings and testimony

indicate an understanding of the process.

submitted one grievance, not marked an emergency. When he received the grievance

back from the counselor, he fabricated the contradictory markings, markings that do not

make sense given the response that his claims of excessive force were not substantiated.

Additionally, he added the checkmark as an emergency grievance and additional

allegations. He then sent it directly to the ARB, where it was properly returned. There is

no indication that he was thwarted in the process; Pierce simply chose to fabricate

directives and bypass proper procedures to submit his grievance directly to the ARB.

B. ARB Response

At the hearing, Pierce acknowledged that he might not have followed protocol,

but placed the blame for his inability to exhaust on the ARB. He argued that the ARB

prevented him from exhausting his grievance by failing to send it back in a timely fashion.

He argued that if he had received the grievance back in a timely fashion, he could have

sought to exhaust it through the normal channels. But the ARB did not hold onto the

grievance for an unreasonable amount of time as Pierce suggests. Under 20 Ill. Admin.

Code §504.850(e), the ARB has six months to review and return the grievance. The ARB

returned the grievance on July 23, 2020, well within the timeframe for responding.

Although Pierce makes much of the fact that the ARB returned his second submission to

the ARB in a mere two days, the Court does not find the time they received the grievance,

June 29, 2020, and the time they responded, July 23, 2020, to be an unreasonable amount

of time. Further, any delay was caused by Pierce sending the grievance directly to the

ARB instead of following proper procedures. As stated above, the evidence is clear that

Pierce fabricated the markings and submitted the grievance directly to the ARB. If he had

instead followed proper procedure and submitted his grievance through the grievance

process, it would not have been untimely. Any delay leading to the ultimate

determination of untimeliness was caused by Pierce’s own actions.

Accordingly, the Court finds that Pierce failed to exhaust his administrative

remedies prior to filing suit. His Section 1983 claim is, thus, DISMISSED without

prejudice. To the extent that Pierce raises a state law assault and battery claim, the Court

declines to exercise jurisdiction over the remaining claim. RW] Management Co., Inc. v. BP

Products North America, Inc., 672 F.3d 476, 478 (7th Cir. 2012). There are no circumstances

which would warrant the Court to continue to hear the state law claim. Id. at 480.

CONCLUSION

For the reasons stated above, Hubler’s summary judgment motion (Docs. 70 and

71) is GRANTED. The Clerk is DIRECTED to close the case and enter judgment

accordingly.

IT IS SO ORDERED.

DATED: November 15, 2021 T|

offense’

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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