Bolden v. Chief Administrative Officer

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANJENAI BOLDEN, M31931, )

)

Plaintiff, )

)

vs. ) Case No. 18-cv-2197-DWD

)

MICHAEL N. MEZO, and )

JEFFREY L. STALLINS, )

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Anjenai Bolden, an inmate of the Illinois Department of Corrections

(IDOC) currently incarcerated at Big Muddy River Correctional Center (“Big Muddy”),

brings this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights while at Big Muddy in 20181. Plaintiff’s sole claim is that Defendants

Michael Mezo and Jeffrey Stallins failed to protect him after he complained that his

cellmate harassed him, and eventually threatened him. Defendants filed a Motion for

Summary Judgment (Doc. 35) on the issue of whether Plaintiff exhausted his

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

Reform Act (PLRA), 42 U.S.C. § 1997e(a). Plaintiff opposes the motion. (Doc. 50). On

February 15, 2022, the Court conducted a hearing on the Motion for Summary Judgment

via Zoom.

1 Plaintiff has been transferred to a few different IDOC facilities from 2018 to date, but he is currently back at Big

Muddy.

BACKGROUND

Plaintiff filed his complaint on December 20, 2018. (Doc. 1). Upon initial review,

the Court identified only one claim to proceed:

Count 1: Eighth Amendment claim against Defendants John Doe 1 and John Doe

2 for failing to protect Plaintiff from the serious risk of harm posed by Inmate

Lenoir at Big Muddy in February of 2018

(Doc. 7). Two other claims—one concerning excessive force, and one concerning the

deprivation of personal property—were dismissed for failure to state a claim. (Id.) On

August 21, 2019, Plaintiff moved to substitute Defendant Mezo for John Doe 1 and

Defendant Stallins for John Doe 2. (Doc. 20).

FINDINGS OF FACT

The Pleadings

Plaintiff alleges that on February 16, 2018, he was assigned to live with Inmate

Lenoir as an “attendant,” because Lenoir was legally blind and wheelchair bound. (Doc.

1 at 7). He alleges that from the very first day he was having problems with Lenoir.

Specifically, he claims that on the first day he found Lenoir watching his TV, so he told

Mezo and Stallins “and they all thought it was very funny and they laughed at me.” (Id.)

Plaintiff further alleges Lenoir became very rude and disrespectful, so he sent request

slips to Mrs. Camron to be reassigned. “I also wrote a grievance, but I never heard

anything back or got the grievance back in the mail.” As the situation progressed,

Plaintiff claims that Lenoir would curse him out and threaten to kill him.

Plaintiff alleges that the situation worsened on February 22, 2018, when he was

tasked with meeting Lenoir in his wheelchair to help him return to their shared cell. Back

at the cell, Lenoir allegedly told Plaintiff that “[t]his is your last warning, that if you try

to help me again I will kill you.” Plaintiff immediately reported the latest threat, which

ultimately set off a chain of events that led to Plaintiff moving to another cell on February

22, 2018. During the February 22 events Plaintiff alleges that Lenoir falsely accused him

of sexual assault, and then while he was away from the cell for investigation of the sexual

assault allegation Lenoir stole his personal property, but claims related to the stolen

property have been dismissed.

In the Complaint, Plaintiff alleged that he had fully exhausted his administrative

remedies as to the claims presented in the lawsuit. To demonstrate exhaustion, Plaintiff

attached a February 26, 2018 grievance wherein he complained that after Lenoir falsely

reported a sexual assault on February 22, 2018, Lenoir stole many items of his personal

property. (Doc. 1 at 17-18). The documents Plaintiff submitted show that the February

26, 2018 grievance was fully exhausted at the institutional level, and that on May 26, 2018,

the Administrative Review Board affirmed the outcome of the grievance.

Defendants agree that the February 26, 2018, grievance was fully exhausted, and

they attached copies of it to show the same. (Docs. 36-4 at 2-5). Defendants also attached

a grievance log from the Administrative Review Board (ARB), showing that Plaintiff

exhausted the February 26, 2018 grievance. (Doc. 36-4 at 1). The ARB log does not reflect

any other February 2018 grievances.

In support of his response to summary judgment, Plaintiff filed a November 21,

2021 affidavit wherein he alleges:

On the date of February 17, 2018, I wrote a grievance to the grievance officer

to forward to the chief administrative officers marked emergency because

inmate Lenoir told me that he did not want me to be his live in attendant

and he showed me papers that he possess authorization to choose who he

wants to be his live in helper. On the above date, I w[]ent to the bubble

(Interlock) to talk to Officer Mezo & Officer Stallins about the incident. I

inform them that inmate Lenoir had been threatening me both officer Mezo

and officer Stallings laughed at me and said to me “what, you some sort of

coward, sisy, yella! You can’t handle a guy in a wheelchair who’s blind”!

Look, it’s nothen we can do for you. Because this is your job assignment,

you have to stay in there and help him rather he likes it or not or refuse

housing.” So I wrote a grievance and marked it emergency on all the above,

but I never received a copy or response to my grievance while I was waiting

on that, on the date of February 22, 2018, I ran to the bubble to talk to officer

Mezo and Officer Stallings because this time Lenoir had jumped up out of

his chair and looked strait at me telling me that he is going to kill me.

Doc. 50 at 6. Later in the affidavit, Plaintiff again discusses the February 17 grievance,

alleging that he told another guard about it. Specifically, he alleged “I also informed Lt.

Clark that I wrote in my grievance that officer Mezo and Stallins laughed at me and called

me names and told me that I must refuse housing in order to get help.” (Id. at 8). Plaintiff

further claims that he appealed his February 17 grievance to the ARB in May of 20182,

but got no response.

In addition to the affidavit, Plaintiff tendered two letters that he alleges he wrote

to the Director a Springfield on March 8, 2018. One letter addressed the February 26, 2018

grievance. (Doc. 50 at 9-10). The other letter addressed the alleged February 17, 2018

2 Plaintiff wrote a date in 5/XX/2018 format, but he scribbled out the middle date numbers, so it is difficult to tell

exactly what he meant. He might have meant to write May 1, or May 4, 2018. At the hearing he testified he

corresponded with the ARB about the February 17 grievance on May 4, 2018.

grievance. He wrote that the grievance contained a request for a new job, as well as a

report of Mezo and Stallins ignoring him and making fun of him. (Id. at 11-12). He alleges

that he submitted the grievance as an emergency but got no response so he decided to

appeal to the ARB.

Aside from the affidavit and letters, Plaintiff submitted 30-pages of other

administrative and grievance documentation. Of relevance, Plaintiff alleges in the

documentation that during a transfer from Big Muddy to Graham Correctional Center

some of his legal documents were either lost or taken as a form of retaliation. (Doc. 50 at

31). He does not specifically allege that he had copies of grievances that were lost.

The February 15, 2022 Hearing

At the February 15, 2022, hearing, the Defendants’ called one witness—Adewale

Kuforiji—an ARB Chairman. Kuforiji testified that he was aware of only one grievance

pertaining to this lawsuit—the February 26, 2018 grievance. He testified that the ARB

keeps a log of grievances being appealed, and that the log does not reflect any other

grievances relevant to this lawsuit. Kuforiji further testified that the ARB does not

review standalone letters because letters are inadequate to exhaust a grievance.

Plaintiff testified on his own behalf. He stated that on February 17, 2018, he filed

an emergency grievance about Defendants Mezo and Stallins conduct towards him. He

alleged that he never received a response to that grievance, and he did not have a copy

because he submitted the original copy to the institution. He alleged that he sent the

ARB a letter about that unanswered grievance on March 8, 2018. He also alleged that in

May of 2018 he corresponded with the ARB about the February 17 grievance. He

alleged that he did not receive receipts from the ARB for his correspondence with the

board.

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

Defendants contend that the only fully exhausted grievance—the February 26,

2018 grievance—did not contain factual allegations relevant to the failure to protect claim,

so the February 26 grievance does not satisfy the exhaustion requirement. Defendants

are correct that in order to exhaust a claim, a grievance must provide facts that make it

clear an inmate is complaining about specific conduct of a particular individual, even if

that individual’s name is unknown. Roberts v. Neal, 745 F.3d 232, 235-36 (7th Cir. 2014).

In the February 26 grievance, Plaintiff does not discuss Mezo and Stallins alleged failure

to protect him. The sole focus of the February 26 grievance is lost property. Accordingly,

the February 26 grievance is not sufficient to exhaust the failure to protect claims as to

Mezo or Stallins.

Plaintiff counters that he should be allowed to proceed beyond summary

judgment on exhaustion because he filed another grievance—a February 17, 2018

grievance—about Mezo and Stallins’ failure to protect him. Plaintiff does not possess a

copy of this grievance. In his complaint he mentioned an emergency grievance in

February that was not returned concerning Lenoir using his TV without permission, and

Lenoir being rude and disrespectful. (Doc. 1 at 7). He alleges that in response to these

concerns Mezo and Stallins laughed at him, so he filed a request slip to have his job

reassigned and a grievance. It is not clear from the complaint what the exact contents of

the grievance was or who it was written about.

In response to summary judgment, Plaintiff filed an affidavit and a letter he alleges

that he sent to the ARB about the alleged February 17 grievance. (Doc. 5 at 6-8). Plaintiff

discussed the alleged February 17 grievance at the hearing and he also discussed the

March 8, 2018 letter that he alleges he sent to the ARB. In the affidavit, Plaintiff alleges

that he wrote an emergency grievance on February 17 either before or after talking to

Mezo and Stallins about Lenoir’s open disdain for Plaintiff as his aid. Plaintiff reiterated

at the hearing that his February 17 grievance concerned his interaction with Mezo and

Stallins. In the affidavit, Plaintiff alleges that in May of 2018 he appealed the February 17

grievance to the ARB. At the hearing Plaintiff alleged that he wrote to the ARB about the

February 17 grievance on March 8, 2018, and on May 4, 2018.

Along with the affidavit, Plaintiff included a letter that he alleges he sent to the

ARB on March 8, 2018 concerning his February 17 grievance. (Doc. 50 at 11-12). In the

letter he discusses the alleged contents of the emergency grievance but he does not ask

for any relief or assistance.

The record does not contain a copy of the alleged February 17 grievance, or of

Plaintiff’s appeal to the ARB concerning the grievance. By contrast, the record contains

a grievance log from the ARB that shows the February 26, 2018 grievance, but does not

show an appeal of the February 17 grievance. By Plaintiff’s allegations, the ARB should

have had record of the February 17 grievance either because of his March 8 letter, or

because he appealed it in May of 2018. The only evidence of the alleged February 17

grievance is Plaintiff’s own allegations that it existed. ARB Chairman Kuforiji credibly

testified that the ARB did not have record of an appeal of a February 17 grievance, and

the ARB would not have considered other standalone correspondence because it would

not have been sufficient to appeal a claim from the institutional level.

Assuming arguendo that the February 17 grievance existed, there are a few

problems with it in terms of exhaustion. Although Plaintiff may have written to the ARB

about the ‘lost’ grievance on March 8, 2018, he does not allege that he actually appealed

the grievance until May of 2018. An inmate only has 30 days to appeal to the ARB. A

May appeal of a mid-February grievance, that went completely unanswered, is too late.

Additionally, Plaintiff has never made it clear that the contents of the grievance

exhausted his claims against Mezo and Stallins. Plaintiff admitted at the hearing that he

has no concrete proof of the contents of the alleged February 17 grievance. He suggests

in some pleadings that he filed a grievance asking for a new work assignment after

talking to Mezo and Stallins, but such a grievance would not exhaust a failure to protect

claim. Even if Plaintiff grieved his interaction with Mezo and Stallins on February 17, at

that point he had only been living with Lenoir for a single day, and it is not clear any real

threats had occurred at that point. The mere allegation that Mezo and Stallins laughed

at him, even if it was in the February 17 grievance does not exhaust a failure to protect

claim. Weighing the evidence in Plaintiff’s favor, he simply has not demonstrated that

he had a February 17 grievance, or that if he did it adequately raised the claims against

Mezo and Stallins. The Court finds that there is not sufficient evidence in this case to

show that Plaintiff ever filed a February 17 grievance, or that if he did, he adequately

exhausted it. Even if such grievance existed and was sufficient, Plaintiff’s claim still fails.

As of February 17, Plaintiff had only lived with Lenoir for a single day. He does

not clearly allege that threats of physical harm began from Lenoir until a few days later

on February 22, 2018, when he ran to the bubble and told Mezo and Stallins that Lenoir

threated to kill him. On February 22, 2018, prison officials investigated the situation, and

Plaintiff was eventually moved to another cell. Even if Plaintiff completed exhaustion as

to Mezo and Stallins with his February 17 grievance, his allegations do not show that

Mezo and Stallins violated his constitutional rights.

To state a claim for failure to protect, a plaintiff must establish: (1) that he was

incarcerated under conditions posing a substantial risk of serious harm and (2) that the

defendants acted with deliberate indifference to his health or safety. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994). A “failure to provide protection constitutes an Eighth

Amendment violation only if deliberate indifference by prison officials to a prisoner’s

welfare “effectively condones the attack by allowing it to happen.” Santiago v. Walls, 599

F.3d 749, 756 (7th Cir. 2010)3 citing Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997). To

satisfy the first prong, that an inmate is incarcerated under a serious risk of harm, an

inmate must show “that he or she experienced, or was exposed to, a serious harm, [and]

that there was a substantial risk beforehand that serious harm might occur.” Brown v.

Budz, 398 F.3d 904, 910 (7th Cir. 2005). A generalized fear of harm absent a tangible threat

or a high likelihood of serious harm is not sufficient to state a failure to protect claim.

Wilson v. Ryker, 451 Fed. Appx. 588, 589-90 (7th Cir. 2011) (district court was correct to

dismiss a failure to protect claim where inmate claimed of general fear from past violence

and being celled with inmates of different races or gang affiliations). As to the second

prong, “a prison official must respond reasonably to a known risk of harm, but negligence

3 Finding that the district court properly dismissed a claim of failure to protect against a guard and warden because

the plaintiff did not adequately allege that they had actual knowledge of a serious risk of harm and where harm arose

an entire year later. Id. at 756.

or even gross negligence is not enough to show a constitutional violation.” Giles v. Tobeck,

895 F.3d 510, 513 (7th Cir. 2018). The official must act with such disregard that his or her

conduct “effectively condones the act.” Id.

A failure to protect claim typically arises if an inmate has suffered some actual

injury. In fact, the Prison Litigation Reform Act (“PLRA”) provides that “[n]o Federal

civil action may be brought by a prisoner…for mental or emotional injury suffered while

in custody without a prior showing of physical injury or the commission of a sexual act.”

42 U.S.C. § 1997e. There are exceptions for prisoners seeking injunctive relief, Farmer, 511

U.S. at 845, or if the prisoner did not sustain harm but the risk of harm arose due to the

malicious or sadistic intent of an official, Babcock v. White, 102 F.3d 267, 270 (7th Cir. 1996).

“[U]nless a prisoner is challenging a failure to protect him from a serious risk of future

harm, a claim of deliberate indifference cannot be based on a risk that never came to

pass.” Henry v. Deshler, 2021 WL 2838400 *1, *2 (7th Cir. 2021) (internal citations omitted).

The Seventh Circuit recently reiterated the necessity of an actual injury to sustain a suit

under § 1983. “[Plaintiff’s] claim fails on the basic proposition that he has sued for

damages under § 1983 and alleged a constitutional tort (an Eighth Amendment violation)

without developing evidence of a recoverable injury.” Lord v. Beahm, 952 F.3d 902, 905

(7th Cir. 2020). A plaintiff cannot recover money damages absent a showing of any type

of harm. Id.

Even if Plaintiff had fully exhausted his February 17 grievance, and the grievance

had put the institution on notice that he believed Mezo and Stallins failed to protect him,

the claim itself is insufficient. Plaintiff does not allege that he suffered any sort of harm,

let alone serious harm. A plaintiff cannot recover damages of any type under § 1983, if

he does not establish that he has suffered harm. ‘Thus, even if Plaintiff’s claim was

exhausted, which this Court believes it was not, Plaintiff has not plead a sufficient claim

for failure to protect.4

DISPOSITION

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

Defendants (Doc. 35) is GRANTED. Plaintiff's claims against all defendants are

DISMISSED without prejudice for failure to exhaust. The Clerk of Court is DIRECTED

to enter judgment in defendants favor at the close of this case.

IT IS SO ORDERED. U. Ly “J au

Dated: February 16, 2022

DAVID W. DUGAN

United States District Judge

* Although the Court regrettably did not catch this flaw with Plaintiff's claim during the

first review of the complaint, 28 U.S.C. § 1915A(b) and § 1915e(2)(B)(ii) require

dismissal of a complaint or any portion of it that fails to state a claim. Plaintiff's

complaint fails to state a claim as explained above, so even without the exhaustion

analysis, this case would be subject to dismissal.