The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA HOSKINS, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-560-RJD
)
WESLEY SHIRLEY, CHAD WALL, )
DANIEL J. HARRISS, OFFICER BROCK, J. )
RUETER, R. TOMSHACK, JOSEPH )
DUDEK, KALE LIVELY, C. HECK, C. )
SWISHER, G. HALE, SERGEANT GROVE, )
C. ADAMS, BRIAN MILLER, and SETH )
MERACLE, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Joshua Hoskins, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit on June 12, 2020 pursuant to 42 U.S.C. § 1983 alleging
his constitutional rights were violated while he was incarcerated at Pinckneyville Correctional
Center (“Pinckneyville”).
In his complaint, Plaintiff alleges Defendants Shirley and Tomshack came to his cell on
May 11, 2020, and handcuffed him for transfer, explaining they had an officer file a false
disciplinary ticket against him in retaliation for reporting correctional officer misconduct to his
psychiatrist. Shirley injured Plaintiff while handcuffing him and walking him out of the
cellhouse. Tomshack had instructed Shirley to pass along instructions to Plaintiff’s new
cellhouse that he was not to be sent for medical care, given access to showers, hygiene items, yard
or laundry, and Shirley relayed that message. Brock, Harriss, and Wall all informed Plaintiff he
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would not have access to these items and that he would not be fed, in retaliation for filing this
lawsuit. Wall instructed Harriss to further injure Plaintiff, which he did.
Plaintiff was seen in the Health Care Unit on May 12, 2020 by Defendant Rueter, a nurse.
Plaintiff showed her his injuries, including bruising, swelling, and cuts on his wrists, but she
refused to help, stating that she was retaliating for Plaintiff reporting misconduct to his
psychiatrist. Rueter also stated she would file a false disciplinary complaint against Plaintiff if he
continued, and informed Plaintiff she had told several defendants that if they continued to deprive
him of hygiene items, food and showers, she would ensure he received no medical care.
On May 18, 2020, Plaintiff informed Defendant Lively of Shirley’s actions and his
injuries. Lively refused to obtain medical treatment for Plaintiff, and indicated he felt Plaintiff
deserved it for filing complaints and grievances. On May 19, 2020, Defendant Heck informed
Plaintiff that he, Lively, Adams and several non-defendants had informed cellhouse staff not to
take Plaintiff to the HCU to prevent documentation of his injuries, and that Heck was retaliating
for Plaintiff filing grievances and lawsuits.
On May 27, 2020, Plaintiff was refused food, showers, hygiene items and access to
medical care by Defendants Hale, Wall, Harriss, and Brock, who also refused to address a leak in
his ceiling and mildewed mattress. They told Plaintiff they were doing this in retaliation for
Plaintiff filing grievances and a lawsuit.
On May 28, 2020, Plaintiff spoke with Defendants Adams, Dudek, and Miller, who
informed Plaintiff they would continue not to feed him and deny him access to healthcare and
sanitary necessities as retaliation for reporting misconduct to his psychiatrist. This was later
reiterated by Defendants Meracle, Swisher, and Grove.
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Plaintiff’s complaint was screened pursuant to 28 U.S.C. § 1915A and he is proceeding on
the following claims:
Count One: Eighth Amendment claim for conditions of confinement related to personal
hygiene items, showers, bedding and food against all Defendants between
May 11 and May 28, 2020.
Count Two: Eighth Amendment claim for excessive force against Shirly and Harriss.
Count Three: Eighth Amendment deliberate indifference to a serious medical condition
against all Defendants between May 11 and May 28, 2020.
Count Four: First Amendment retaliation claim against all Defendants1.
(See Doc. 24).
Defendants filed motions for summary judgment that are now before the Court asserting
Plaintiff failed to exhaust his administrative remedies prior to filing suit (Docs. 63 and 80). For
the reasons set forth below, the Motions are GRANTED.
Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed
by Jana Rueter (Doc. 63)
In her motion, Defendant Rueter explains that in his complaint, Plaintiff alleges he was
seen in the health care unit on May 12, 2020, and he filed his complaint June 12, 2020. Defendant
Rueter asserts the Pinckneyville Grievance Log reflects that the Grievance Office received only
two grievances from Plaintiff during this time, neither of which relate to Rueter or the claims
against her. In the first of these grievances, dated May 15, 2020, Plaintiff complains that C/O
Brockett confiscated one of his pairs of shoes, even though he is allowed two pairs (see Doc. 64-2
at 16-17). Plaintiff also filed a grievance dated May 26, 2020 complaining that he received a false
disciplinary report issued by Lt. Heck on May 11, 2020 (see Doc. 64-1 at 18-19). Defendant
1 Defendants are Wesley Shirley, Chad Wall, Daniel Harriss, Officer Brock, Jana Rueter, R. Tomshack, Joseph
Dudek, Kale Lively, C. Heck, C. Swisher, G. Hale, Sergeant Grove, C. Adams, Brian Miller, and Seth Meracle.
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Rueter asserts these grievances are insufficient to exhaust against her as she is not named, and the
grievances make no reference to any of her alleged actions at issue in this lawsuit.
Defendant Rueter acknowledges Plaintiff’s claim set forth in his complaint that counselors
Reid, King, and Brown told him they were not processing his grievances against staff members.
Defendant Rueter points to Plaintiff’s CHAMPS record, which shows that counselor Reid
documented communications with Plaintiff 12 times from January 8, 2020 to January 26, 2021;
counselor Rebecca King documented communications with Plaintiff 7 times from May 7, 2020 to
March 12, 2021; counselor Tyler King documented communications with Plaintiff 13 times from
December 2, 2019 to September 1, 2020; and counselor Brown documented communications with
Plaintiff 12 times from February 11, 2020 to September 11, 2020 (see Doc. 64-4). Defendant
Rueter argues Plaintiff can provide no evidence that counselors Reid, King, or Brown failed to
process a single grievance he submitted; and, if anything, the CHAMPS records show the
Pinckneyville Grievance Office processed 37 discrete grievances written by Plaintiff in 2020.
In response to Rueter’s motion, Plaintiff asserts counselor Brown and other counselors told
Plaintiff prior to the filing of this case they had no issues processing Plaintiff’s grievances, but they
would not process grievances that were “serious” in nature or that would get a staff member sued,
suspended, or fired. Plaintiff asserts that because counselor Reid and other counselors refused to
address the grievances against defendants in this case, he had no other avenues to take. Plaintiff
cites his efforts to bring this issue to Judge Rosenstengel’s attention in another case, 20-cv-395, but
to no avail.
Plaintiff asserts the grievances mentioned by Defendant Rueter were processed because his
complaints therein would not get a staff member sued, fired, or suspended. Plaintiff also asserts
he could not attach the grievances he attempted to exhaust because they were not returned back to
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him.
Motion for Summary Judgment on the Issue of Exhaustion filed by Chad Adams, David
Brock, Joseph Dudek, James Groves, Garrick Hale, Daniel Harriss, Charles Heck, Kale
Lively, Seth Meracle, Brian Miller, Wesley Shirley, Charles Swisher, Robert Tomshack Jr.,
and Chad Wall (Doc. 80)
Defendants Adams, Brock, Dudek, Groves, Hale, Harriss, Heck, Lively, Meracle, Miller,
Shirley, Swisher, Tomshack Jr., and Wall also filed a motion for summary judgment arguing
Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit. In their motion,
Defendants assert Plaintiff failed to exhaust a grievance related to the allegations at issue prior to
filing his lawsuit on June 12, 2020. Defendants assert Plaintiff’s grievance records indicate he
was able to successfully file and appeal grievances immediately before and after the period
relevant to this case, noting grievances not concerning the issues in this lawsuit were submitted
and dated May 5, May 15, June 17, July 6, July 14, August 3, and August 21, 2020. Defendants
argue Plaintiff filed his complaint just 32 days after the first allegation in his complaint, and fifteen
days after the final allegation in his complaint. Thus, Defendants assert that Plaintiff would not
have known if his grievances would be processed or not because he filed suit before he allowed the
facility 60 days to respond to the same. Defendants make the point that Plaintiff does not contend
the counselors refused to take the grievances, but only they would not process them. Thus,
Defendants contend Plaintiff did not give the counselors sufficient time to process any grievances
he allegedly filed related to the allegations in this lawsuit.
In response to Defendants’ motion, Plaintiff reiterates that he was told by counselors Reid
and Brown they would only process grievances that were not serious and would not get a staff
member sued, suspended, or fired. Plaintiff asserts the grievances mentioned by Defendants were
not grievances that would have been deemed “serious.” Plaintiff agrees that the grievances in the
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record presented by Defendants do not mention Defendants’ conduct, nor would they, because
Reid and Brown were not processing the grievances relevant to his claims in this lawsuit and they
would not be in the record because they were destroyed or not processed.
Pavey Hearing
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on
Defendants’ motions on February 28, 2022. At the hearing, Plaintiff testified he hand-delivered a
grievance to counselor Reid on May 19, 2020. This grievance detailed the incidents that occurred
on May 11, May 12, and May 19, 2020 at issue in this lawsuit. Plaintiff testified counselor Reid
told Plaintiff he would not process it because he would not process any grievances related to suing
another officer. Plaintiff did not make a copy of this grievance. Plaintiff testified he should have
received a receipt for this grievance in one to two days. Because he did not receive a receipt
within the anticipated timeframe, Plaintiff testified he knew his grievance was not being
processed. Plaintiff later asked Reid about this grievance, and Reid indicated he did not know
what Plaintiff was talking about.
Plaintiff testified he submitted a second grievance concerning the claims in this lawsuit to
counselor Reid again in June 2020, to which Reid again failed to respond.
Jesse Reid also testified at the hearing. Reid indicated that during the time relevant to the
complaint he was a correctional counselor assigned to the segregation unit at Pinckneyville. Reid
explained that in this role he made rounds in the housing units to see if individuals needed
materials, and he collected and responded to grievances filed by persons in custody. Reid
indicated that when he collected grievances in segregation, he would carry around a box and
inmates would place their grievances in the box.
Reid recalled Plaintiff filing grievances while he was on rotation and testified that he
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responded to these grievances. Reid testified he does not recall Plaintiff filing grievances
complaining about staff member assaults. Reid also testified he has never discarded or destroyed
a grievance, nor has he told Plaintiff he would not process grievances that are “serious” and would
get other officers in trouble. Reid asserted all communications between he and Plaintiff are
documented in Plaintiff’s CHAMPS notes (cumulative counseling summary), as is the custom and
practice as a counselor. Reid indicated he was not aware Plaintiff had lawsuits pending against
other staff members.
Rebecca King, another correctional counselor at Pinckneyville during the relevant time,
also testified at the hearing. Ms. King indicated she knew some of the named defendants in this
case, but was not very familiar with them. Ms. King indicated a counselor can answer a grievance
about staff assault, but will bring the grievance to internal affairs in order to respond. Ms. King
testified she never told Plaintiff she would not process any grievances, and never heard any other
counselor tell Plaintiff they would not process certain grievances.
Tyler King, another correctional counselor, testified at the hearing, indicating he also never
told Plaintiff he would not process grievances and was not aware of any other counselor telling
Plaintiff they would not process grievances. Mr. King testified that Plaintiff never complained to
that his grievances were not being processed, and indicated he never destroyed or refused to
process a grievance submitted by Plaintiff or any other individual in custody. Mr. King indicated
the facility does not provide free copies of grievances or free mailing to the ARB. Mr. King
testified he was familiar with “a lot” of the defendants in this action.
Margaret Madole, an ARB Chairperson, testified that the ARB receives grievances from
prisoners that are mailed through the United States Postal Service. Madole indicated that if a
grievance complains about a staff assault it needs to be handled by internal affairs.
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At the hearing, the Court inquired as to whether Plaintiff would seek to have additional
witnesses as set forth in his motion for the court to intervene (Doc. 89). Plaintiff indicated he
withdraws his request for additional witnesses.
Legal Standards
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The
moving party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is
made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In considering a summary judgment motion, the district 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).
Exhaustion Requirements
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available
administrative remedies prior to filing lawsuits in federal court. “[A] prisoner who does not
properly take each step within the administrative process has failed to exhaust state remedies.”
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before
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administrative remedies have been exhausted must be dismissed; the district court lacks discretion
to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before
judgment.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll
dismissals under § 1997e(a) should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401
(7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance within 60 days after the discovery of the incident, occurrence or problem, to his
or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN.
CODE § 504.810(a). If the complaint is not resolved through a counselor, the grievance is
considered by a Grievance Officer who must render a written recommendation to the Chief
Administrative Officer — usually the Warden — within 2 months of receipt, “when reasonably
feasible under the circumstances.” Id. §504.830(e). The CAO then advises the inmate of a
decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within
30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); see also Dole
v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written report of its
findings and recommendations to the Director who shall review the same and make a final
determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and
(e).
An inmate may request that a grievance be handled as an emergency by forwarding it
directly to the Chief Administrative Officer. Id. § 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 by
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responding directly to the offender. Id. Inmates may further submit certain types of grievances
directly to the Administrative Review Board, including grievances related to protective custody,
psychotropic medication, and certain issues relating to facilities other than the inmate’s currently
assigned facility. Id. at § 504.870.
Discussion
Based on the evidence in the record and arguments of the parties, the Court finds Plaintiff
failed to exhaust his administrative remedies as to all Defendants prior to filing this lawsuit.
Plaintiff does not rely on any grievances in the record to establish exhaustion; rather, he
asserts he was thwarted in his efforts to exhaust relevant grievances because counselors at
Pinckneyville refused to process the same. Because he never received these grievances back from
the counselor, Plaintiff asserts he is unable to submit them to the Court for review. Based on his
argument, in order to find Plaintiff exhausted his administrative remedies, the Court must credit
Plaintiff’s testimony concerning his efforts to submit grievances that were not processed. The
Court, however, finds Plaintiff’s testimony to be disingenuous.
First, three counselors, Reid, King and King, all testified they never told Plaintiff they
would not process certain grievances. This testimony is all in contravention of Plaintiff’s
allegations concerning the processing of his grievances. They also testified they never refused to
process or discarded any grievance. The Court notes these counselors are not defendants in this
lawsuit and although they may have been acquainted with or knew some of the defendants, the
Court finds that alone is insufficient to establish they would be motivated to act as Plaintiff alleges.
Thus, the Court credits the testimony of Reid, King, and King.
Further, while the Court recognizes Plaintiff’s testimony that counselor Reid and others
told him they would not process grievances that would get officers sued, terminated, or suspended,
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and acknowledge the difficulty Plaintiff would have in proving the same, there is simply nothing to
corroborate this in the record that was not wholly created by Plaintiff. Notably, a review of
Plaintiff’s cumulative counseling summary wherein he had conversations with various counselors
reflects no mention of the issues presented here from May 2020 to present (see Doc. 64-4).
However, the Court points to an entry dated December 30, 2020 wherein counselor Micah
Hallman indicated Plaintiff was seen at his cell. Hallman writes “Offender wanted to know why I
was throwing his grievances away. I assured the offender that all grievances are processed
according to policy and procedure. Offender then explained to me that he knew I was not throwing
his grievances away but he wanted to make it look like I was for his lawsuit” (Doc. 64-4 at 7).
Shortly thereafter, Plaintiff filed a grievance dated January 8, 2021 that he asked the Court to
consider after his responses to Defendants’ summary judgment were filed. In this grievance,
Plaintiff sets forth a litany of unrelated issues, but mentions that he never received a response to his
May 2020 grievance. Insofar as Plaintiff believes this corroborates his allegations concerning his
efforts and how they were thwarted, the Court finds the opposite. This grievance was filed well
after Defendants filed their motions and after he filed his initial responses to the same. In
assessing the submission of this grievance in conjunction with counselor Hallman’s December 30,
2020 counseling entry, the Court makes the logical conclusion that Plaintiff was making efforts to
substantiate his “story” and lend credibility where there is none to a finding that counselors refused
to process certain grievances.
In making this determination, the Court notes that Plaintiff has urged the Court through his
various filings to take notice of certain decisions of other judges in this district or evidence he
presented in other cases. Based on the record he has provided, the Court finds no evidence that is
relevant to the specific issues and grievances in this case that could corroborate Plaintiff’s
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allegations. Insofar as Plaintiff asks the Court to review certain cases and evidence he submitted
without providing the Court the specific documents, the Court declines to engage in a such a
fact-finding mission for Plaintiff2. Accordingly, based on the record before the Court, the
undersigned does not credit Plaintiff’s assertions that he was thwarted in his efforts to exhaust his
administrative remedies.
Conclusion
Based on the foregoing, the Motion for Summary Judgment on the Issue of Exhaustion of
Administrative Remedies filed by Jana Rueter (Doc. 63), and the Motion for Summary Judgment
on the Issue of Exhaustion filed by Chad Adams, David Brock, Joseph Dudek, James Groves,
Garrick Hale, Daniel Harriss, Charles Heck, Kale Lively, Seth Meracle, Brian Miller, Wesley
Shirley, Charles Swisher, Robert Tomshack Jr., and Chad Wall (Doc. 80) are GRANTED. This
matter is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to enter
judgment accordingly.
IT IS SO ORDERED.
DATED: March 7, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
2 The Seventh Circuit Court of Appeals has observed that “[j]udges are not like pigs, hunting for truffles buried in
briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
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