Jackson v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MAURICE JACKSON, R31861, )

)

Plaintiff, )

)

vs. ) Case No. 20-cv-237-DWD

)

D. BROOKHART, )

IDOC DIRECTOR, and )

T. ATKINS, )

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Maurice Jackson, an inmate of the Illinois Department of Corrections

(IDOC) currently incarcerated at Lawrence Correctional Center (“Lawrence”), brings this

action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights

while at Lawrence. Plaintiff claims Defendants failed to place him in protective custody

or to house him with a preferred cellmate, Defendant Atkins retaliated against him

related to the same, and Atkins denied him equal protection. Defendants filed a Motion

for Summary Judgment (Doc. 55) on the issue of whether Plaintiff exhausted his

administrative remedies prior to filing this lawsuit, as required by the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a). In response, Plaintiff filed a Cross-Motion for Summary

Judgment (Doc. 60), which in substance is a response to Defendants’ Motion. After a

thorough review of the pleadings and motions, the Court concludes that Defendants’

Motion should be granted in full.

BACKGROUND

Plaintiff initiated this lawsuit by filing a motion for injunctive relief, rather than a

formal complaint. The Court found that, although the motion did not comply with the

standard requirements for filing a complaint, the motion provided enough detail to

initiate a civil matter. (Doc. 4 at 1). Upon initial review, the Court allowed the

following claims to proceed:

Count 1: Eighth Amendment conditions of confinement claim against Atkins,

Brookhart and IDOC Director for refusing him protective custody and placing

him in a dangerous situation.

Count 2: First Amendment retaliation claim against Atkins.

Count 4: Fourteenth Amendment equal protection claim against Atkins.

(Doc. 4). On March 24, 2020, Plaintiff moved to file an amended complaint. (Doc. 14).

On March 31, 2020, the Court granted Plaintiff’s request and the Amended Complaint

was docketed. (Doc. 23). The claims in the Amended Complaint are the same as those

originally presented.

In the original motion, Plaintiff indicated that he had a grievance “pending

exhaustion.” Specifically, he wrote,

Emergency grievance dated 1-7-20. Deemed non-emergency by Warden 1-

9-20. Appealed to Springfield, timely. They sent it back requested dates

and additional information. I provided such, including, those mentioned

in this complaint, as reoccurances of the same situation. (still pending).

Despite that, placement continues to place me in danger, so this suit is

essentially imminent.

(Doc. 1 at 7). With the Amended Complaint, Plaintiff attached a document from the

IDOC Administrative Review Board (ARB), which indicated that finally on March 10,

2020, his original grievance was fully exhausted.

FINDINGS OF FACT

The parties agree that there is only one grievance relevant to the allegations in

this case. That grievance is the “emergency grievance” that Plaintiff originally filed at

Lawrence on January 7, 2020. In that grievance Plaintiff wrote,

This is my second grievance concerning, the denial of P.C. My first

grievance was written on 12-3-19, and to date I received no response,

I have 4 gang hit[]s on me by the G.D’s, Blackstones, Latin Kings and Vice

Lords. I have been requesting P.C. and have been denied. It because

Lawrence’s policy or custom does not allow P.C. my life’s in danger, and is

being disregarded, in violation of my 8th & 14th Amendment. I am being

forced to starve myself in order to receive segregation from the general

population.

Next I have been labeled vulnerable status, and was placed all alone.

Lawrence have stripped me of this because its policy or custom does not

allow single man cells for anyone including vulnerable or transgender’s.

(Doc. 56 at 26-27). Plaintiff’s January 7th emergency grievance was deemed a non-

emergency on January 9, 2020. (Id.)

On February 7, 2020, the ARB received Plaintiff’s request for review of his January

7th grievance. On February 9, 2020, the ARB requested additional information from

Plaintiff in the form of dates that the incidents occurred. (Doc. 56 at 28). Plaintiff

complied with the request for further information. (Doc. 56 at 20-2). On March 9, 2020,

the ARB denied the January 7th grievance as unsubstantiated, and on March 10, 2020, the

Acting Director of IDOC (Rob Jeffreys) concurred with the denial. (Doc. 56 at 19).

CONCLUSIONS OF LAW

A. Legal Standards

Summary judgment is proper if there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In

determining a summary judgment motion, the Court views the facts in the light most

favorable to, and draws 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. See

Tolan v. Cotton, 572 U.S. 650, 656 (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 administrative remedies, the Seventh Circuit has instructed courts to conduct an

evidentiary hearing and resolve contested issues of fact regarding a prisoner’s efforts to

exhaust. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding

facts, and determining credibility, the court must decide whether to allow the claim to

proceed or to dismiss it for failure to exhaust. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th

Cir. 2018). The court is not required to conduct an evidentiary hearing if there is no

genuine dispute of material fact, and the determination is purely legal. See e.g., Walker v.

Harris, 2021 WL 3287832 * 1 (S.D. Ill 2021); Miller v. Wexford Health Source, Inc., 2017 WL

951399 *2 (S.D. Ill. 2017).

The Prison Litigation Reform Act (PLRA) 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, 544 F.3d at 740. “The exhaustion

requirement is an affirmative defense, which the defendants bear the burden of proving.”

Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). For a prisoner to properly exhaust his

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). “[A] prisoner who does not properly take each step within the

administrative process has failed to exhaust state remedies.” Id. at 1024.

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

outlined in the Illinois Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017).

The regulations first require an inmate to file his grievance with his counselor within 60

days of the discovery of an incident, occurrence, or problem that gave rise to the

grievance. 20 ILL. ADMIN. CODE § 504.810(a). Administrative regulations require 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). If

the names of the individuals are unknown to the offender, he can still file the grievance

but “must include as much descriptive information about the individual as possible.” Id.

Further, the Seventh Circuit has held that an inmate is required to provide enough

information to serve a grievance’s function of giving “prison officials a fair opportunity

to address [an inmate’s] complaints.” Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011).

If the complaint is not resolved through the counselor, the grievance may be

submitted to a grievance officer, who reports his or her findings and recommendations

in writing to the Chief Administrative Officer (CAO). 20 ILL. ADMIN. CODE § 504.830(e).

The CAO then provides the inmate with a written decision on the grievance. Id.

If the inmate is not satisfied with the CAO’s response, he can file an appeal with

the IDOC Director through the Administrative Review Board (ARB). 20 ILL. ADMIN. CODE

§ 504.850(a). The ARB must receive the appeal within 30 days of the date of the CAO’s

decision. Id. The inmate must attach copies of the responses from the grievance officer

and CAO to his appeal. Id. The ARB submits a written report of its findings and

recommendations to the Director, who them makes a final determination. 20 ILL. ADMIN.

CODE § 504.850(d), (e).

An inmate may request that a grievance be handled as an emergency by

forwarding it directly to the CAO. 20 ILL. ADMIN. CODE § 504.840. If it is determined that

there exists a substantial risk of imminent personal injury or other serious or irreparable

harm, the grievance is handled on an emergency basis, which allows for expedited

processing of the grievance. Id. If a grievance concerns protective custody, a plaintiff is

allowed to file that grievance directly with the ARB. 20 ILL. ADMIN. CODE § 504.870(a)(1).

B. Analysis

The Defendants filed their Motion for Summary Judgment (Doc. 55) and

accompanying Memorandum (Doc. 56) on July 23, 2021. Per Local Rule 7.1, Plaintiff had

30 days to file a response, failing which, the Court may treat Plaintiff’s non-response as

an admission on the merits of the motion. Plaintiff did not file a response within 30 days

of the Defendants’ Motion. Instead, nearly three months later on October 28, 2021,

Plaintiff filed what was docketed as a Cross-Motion for Summary Judgment. (Doc. 60).

Although styled as a motion for summary judgment, the contents of the document are

substantively a response to Defendants’ Motion. In fact, Plaintiff explicitly wrote,

“Plaintiff’s Motion for Summary Judgment to “Estop[]” Defendants’ Affirmative Defense

on Exhaustion of Administrative Remedies, And in Response to Defendants.” (Doc. 60 at 1)

(emphasis added). Plaintiff’s Cross-Motion is not supported by any independent facts.

Based on the contents of Plaintiff’s Cross-Motion, the Court could treat it as an untimely

response to summary judgment, and under Local Rule 7.1 it could consider the merits of

Defendants’ Motion admitted. Out of an abundance of deference to Plaintiff, who is a

pro se litigant, the Court will consider the merits of the arguments he presented in the

Cross-Motion as if he filed an appropriate response.

It is undisputed that Plaintiff fully exhausted the January 7th grievance in relation

to this lawsuit. The January 7th grievance is the only grievance that either party identified

as being related to this lawsuit. Although both parties agree that the January 7th grievance

is now fully exhausted, the Defendants argue that it was not properly exhausted at the

time that Plaintiff filed this lawsuit. The Defendants provided factual support for the

contention that the claims are unexhausted by submitting relevant grievances and

grievance logs. Plaintiff concedes that he did not exhaust prior to filing the lawsuit, but

he argues that because he was in imminent danger at the time he filed, the Court had

inherent authority to accept his lawsuit and to protect him while he exhausted his claim.

He adds that by the time he filed his Amended Complaint, he had fully exhausted the

claim. Plaintiff also argues that the Defendants should be estopped from raising the issue

of exhaustion. By submitting copies of the grievances and showing that Plaintiff did not

exhaust prior to filing suit, Defendants have met their burden to establish Plaintiff’s

failure to exhaust. Plaintiff’s refutations are purely legal.

Plaintiff’s arguments are not persuasive and do not refute Defendants’ motion on

exhaustion. There is no imminent danger exception to the exhaustion requirement. See

Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1173, 1175 (7th Cir. 2010) (“imminent

danger did not excuse his failure to exhaust his administrative remedies”); see also Ross v.

Blake, 578 U.S. 632, 648 (2016) (courts cannot engraft unwritten “special circumstances”

exceptions onto the exhaustion requirement of § 1997e(a)). Plaintiff argues by reference

to a prior case he litigated in the Central District of Illinois, that he has previously

benefited from an “imminent danger” exception to the exhaustion requirement, but a

review of that case shows that he is mistaken. In Plaintiff’s Central District of Illinois

case his request for a preliminary injunction was granted based on “imminent danger,”

but ultimately some of his claims were dismissed for failure to exhaust. Compare, Jackson

v. Pontiac Correctional Center, et al., Case No. 17-cv-3162 (C.D. Ill.) (August 24, 2017 Text

Order granting plaintiff’s preliminary injunction) with, Id. (Docket entry 84, granting

summary judgment on failure to exhaust certain claims). Because there is no imminent

danger exception to the exhaustion requirement, Plaintiff’s allegations of imminent

danger do not excuse his lack of exhaustion.

Plaintiff’s argument that he exhausted before filing his Amended Complaint does

not excuse his original failure to exhaust. “By its plain terms, the PLRA requires prisoners

to exhaust administrative remedies before filing suit; a ‘sue first, exhaust later’ approach

is not acceptable.” Chambers v. Sood, 956 F.3d 979, 984-85 (7th Cir. 2005). In Chambers, the

Seventh Circuit found that a prisoner did not properly exhaust administrative remedies

by eventually exhausting his claim, and later filing an amended complaint to include the

full exhaustion of the claim. Id. The Chambers rational directly forecloses Plaintiff’s claim

that his Amended Complaint saves him from the exhaustion rule in § 1997e(a). Plaintiff

filed this lawsuit on March 3, 2020. His claims were exhausted on March 10, 2020, when

the ARB denied his grievance. Plaintiff filed his Amended Complaint on March 24, 2020.

Plaintiff’s filing of the Amended Complaint did not correct the exhaustion problem

because per Chambers, an inmate cannot “sue first, exhaust later.”

Turning to Plaintiff’s argument that Defendants should be estopped from raising

the exhaustion issue, this claim is unavailing. To establish equitable estoppel, the party

claiming estoppel must show: (1) a misrepresentation by the opposing party; (2)

reasonable reliance on that misrepresentation; and (3) detriment. Lewis v. Washington, 300

F.3d 829, 834 (7th Cir. 2002). The Seventh Circuit has considered the possibility that

defendants could be estopped from raising the exhaustion defense in § 1997e(a) on many

occasions, but the court has yet to actually adopt estoppel as a defense to exhaustion. See

e.g. Schultz v. Pugh, 728 F.3d 619, 622 (7th Cir. 2013) (declining opportunity to adopt

estoppel because plaintiff did not establish the three elements of estoppel); Oliver v. Frank,

222 Fed. App’x 517, 519 (7th Cir. 2007) (the Seventh Circuit has not explicitly adopted

estoppel as a defense to exhaustion); Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006) (noting

that the Seventh Circuit has “explicitly avoided deciding whether equitable estoppel

applies [in the 1997e(a) exhaustion] context”); Lewis, 300 F.3d at 834-45 (declining theory

of estoppel because plaintiff did not establish elements of estoppel).

The Court will not reach beyond the Seventh Circuit’s precedent to establish

estoppel as a defense to exhaustion because Plaintiff has not adequately pled any of the

elements of estoppel. Plaintiff has not, for example, made any factual allegations that

suggest the Defendants made any misrepresentation in relation to this case. Without a

misrepresentation, he also cannot establish reasonable reliance or detriment. Thus, the

Plaintiff has not demonstrated that the Court should apply estoppel to his case because

he has not provided a factual basis to do so.

The Court notes that Plaintiff spends significant time discussing and rehashing

issues that were entertained at the March 24, 2021 hearing on his motion for preliminary

injunctive relief. Plaintiff makes much of the fact that the Court “granted” his Motion to

Provide Information (Doc. 43), arguing that this either constitutes a factual basis to grant

him injunctive relief or that he should be allowed to proceed beyond exhaustion based

on this earlier ruling. The Court granted the motion to signify that it considered the

merits of the additional factual allegations in that motion, because those allegations were

relevant to the preliminary injunction analysis. However, the grant of the motion was

nota factual merits-based determination that granted partial injunctive relief or somehow

excused the exhaustion requirement.

At the close of the Cross-Motion for Summary Judgment, Plaintiff asks that this

case be dismissed without prejudice if the Court finds his claims unexhausted so that he

can re-file now that the claims have been exhausted. The Court finds that this request is

appropriate and is consistent with the timeline of events in this case. Plaintiff simply

filed this lawsuit too early before he had adequately completed the exhaustion process.

Although his filing ended up only being a few days early, the Court does not have

authority to bend the exhaustion requirement.

DISPOSITION

The Motion for Summary Judgment on the issue of exhaustion filed by all

Defendants (Doc. 55) is GRANTED. Plaintiff's claims against all defendants are

DISMISSED without prejudice for failure to exhaust. Plaintiff's Cross-Motion for

Summary Judgment (Doc. 60) is DENIED. The Clerk of Court is DIRECTED to enter

judgment in defendants favor at the close of this case.

IT IS SO ORDERED. ZL LJ

Dated: February 4, 2022 dun « WV J on

DAVIDW.DUGAN

United States District Judge