# Pierce v. Illinois Department of Correction

> District Court, S.D. Illinois · November 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10154231

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10154231. Public record. Not legal advice.