The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA HOSKINS, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-1068-RJD
)
ALEXANDER RODMAN, et al., )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Joshua Hoskins, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit 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 from August 7 through October 9, 2020,
defendants threatened to place him in segregation on false disciplinary charges to prevent him
from being transferred to Dixon Correctional Center if he did not refuse his psychotropic
medications and telepsychology appointments. Plaintiff further alleges he was assaulted by
Defendant Cacioppo on August 21, 2020.
Plaintiff’s complaint was screened pursuant to 28 U.S.C. § 1915A and he proceeds in this
action on the following claims:
Count 1: First Amendment retaliation claim against all Defendants.
Count 2: Eighth Amendment excessive force claim against Defendant
Cacioppo.
Count 3: Eighth Amended deliberate indifference to a serious medical
condition against all Defendants.
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As to Counts 1 and 3, the following individuals are named as defendants: Alexander
Rodman, Joseph Dudek, Lt. Shirley, Sgt. Peek, C/O Michael Bailey, C/O Lueker, C/O Tomshack,
C/O Bell, Lt. Wall, Lt. Wangler, C/O Vandekeekhove, C/O Hale, C/O Hagston, Lt. Baker, C/O
Swisher, Sgt. Grove, C/O Hankins, Sgt. Bryant, Major Lively, Sgt. Porter, Don Wanack, C/O
Schlott, C/O Jurkowski, Lt. Petitjean, Lt. Johnson, C/O Hermann, Sgt. Oleary, C/O Brock, Sgt.
Bartolotti, C/O Mays, C/O Cacioppo, Nurse Jana Rueter, and C/O Summers.
This matter is now before the Court on the following motions filed by the parties relating to
Defendants’ motions for summary judgment on the issue of exhaustion and Plaintiff’s response
thereto: Defendant Rueter’s Motion to Compel Discovery Responses and Production of
Documents (Doc. 44); Plaintiff’s Motion for the Court to Strike and Not Consider Defendants’
Exhibits Attached to Their Dispositive Motions on the Issue of Exhaustion (Doc. 58); and IDOC
Defendants’ Motion to Strike (Doc. 61).
1. Rueter’s Motion to Compel Discovery Responses and Production of Documents (Doc.
44)
In this motion, Defendant Jana Rueter explains she propounded interrogatories and
requests for production of documents on the issue of exhaustion of administrative remedies on
Plaintiff on January 19, 2022. In these requests, Rueter asked Plaintiff to recount and provide
documents that evidence specific grievances he had filed between April 1, 2020 through
December 31, 2020. Said requests were based on Plaintiff’s testimony provided in another case
wherein he testified that “a lot of times [he] ha[s] to take notes and review his notes when he writes
his grievances.” Thus, Rueter asserts the information sought regarding grievances would
presumably be easily reconstructed from Plaintiff’s notes.
Rueter filed the motion now before the Court asserting Plaintiff’s responses to the
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above-mentioned requests were inadequate as Plaintiff merely asserted generalities in referring to
the complaint and filed grievances and indicated he could not locate documents at that time, but
would supplement in the future if some are found. Rueter finds Plaintiff’s position regarding the
availability of information and documents sought, particularly notes, suspect, citing differing
statements Plaintiff has provided. Specifically, on February 19, 2021, Plaintiff indicated he
remembers dates because he makes notes of incidents; on February 1, 2022, Plaintiff stated he
destroys notes of incidents after filing grievances; and, on February 14, 2022, Plaintiff indicated he
cannot locate any notes of incidents.
Rueter asserts that based on Plaintiff’s suspicious statements about the notes, combined
with the numerous occasions Plaintiff has been found lacking in credibility, it is not unreasonable
to infer that Plaintiff may fabricate the requested notes. As such, Rueter asks that Plaintiff be
compelled to respond to her discovery requests.
Plaintiff filed a response to Rueter’s motion, indicating he would write notes on his cell
walls, cardboard boxes, or sometimes on paper when he wanted to file a grievance and did not
have a grievance form. Plaintiff states that because litigation was not always on his mind, once he
was able to draft a grievance from his notes, he would throw the notes away. Plaintiff asserts he
cannot provide something he does not have in his possession.
Defendant Rueter filed a reply to Plaintiff’s response, explaining that in Pavey hearings
held in other cases on December 28, 2021 and February 3, 2022, Plaintiff testified he would keep
or destroy notes depending on the circumstances. He would keep the notes if he thought his
grievances would be destroyed or not processed. Rueter argues that allegations in other cases
make it apparent Plaintiff believed he was having issues with his grievances being processed at the
time relevant to the case at hand. Thus, Rueter reasons, notes corroborating the allegations in this
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case must exist because Plaintiff maintained notes when he thought his grievances would be
destroyed or not processed. Rueter again asks that Plaintiff be compelled to produce notes in
support of his alleged grievances.
Plaintiff filed a reply to Defendant Rueter’s reply on February 24, 2022 (Doc. 47). The
Clerk of Court is directed to STRIKE this document. Plaintiff’s document is a sur-reply, and
pursuant to Local Rule 7.1(g), “[u]nder no circumstances will sur-reply briefs be accepted.”
In this instance, Rueter is not asking Plaintiff to merely respond to her written discovery
requests, as Plaintiff has already responded to the same. Rather, Rueter believes Plaintiff is being
disingenuous and not providing information and/or documents she believes exist. While the
Court acknowledges Rueter’s reasoning and finds Plaintiff’s various statements regarding his
note-taking and maintenance curious, as stated by Plaintiff, the Court cannot order production of
something a party asserts does not exist. Rueter’s Motion to Compel Discovery Responses and
Production of Documents (Doc. 44) is therefore DENIED. The implication of Plaintiff’s
response to both Rueter’s motion and discovery requests, however, is there are no notes that
currently exist to evidence any grievances filed between April 1, 2020 and December 31, 2020,
and any later attempt to introduce evidence to the contrary will be met with a high bar to receive
any consideration.
2. Plaintiff’s Motion for the Court to Strike and Not Consider Defendants’ Exhibits
Attached to Their Dispositive Motions on the Issue of Exhaustion (Doc. 58)
In this motion, Plaintiff complains that Defendants1 attached grievances in support of their
motions for summary judgment on exhaustion that were filed and addressed while Plaintiff was
incarcerated at Pontiac and Stateville Correctional Centers. Plaintiff asserts counselors at these
1 Based on the content of the motion, it appears it only relates to the motion for summary judgment on the issue of
exhaustion filed by Defendant Jana Rueter.
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institutions, unlike Pinckneyville Correctional Center, did not refuse to process grievances and, as
such, these grievances mislead the Court as to the availability of the grievance procedure.
Plaintiff asks that said documents be stricken.
Rueter filed an objection to the motion, asserting the grievances attached in support of her
motion are admissible and not misleading. The Court agrees.
In deciding a summary judgment motion, a court may consider any material that would be
admissible or usable at trial. Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001). Thus,
when a party seeks to offer evidence through exhibits on a summary judgment motion, they must
be identified by affidavit or otherwise be admissible. Martz v. Union Labor Life Ins. Co., 757
F.2d 135, 138 (7th Cir. 1985).
Here, Defendant Rueter provided the Court with the entirety of Plaintiff’s Administrative
Review Board (“ARB”) records, including grievances submitted while Plaintiff was at Pontiac CC
and Stateville CC (Doc. 54). First, the Court finds that ARB records are clearly probative of the
question whether Plaintiff exhausted his administrative remedies. Moreover, the records were
authenticated with the inclusion of an affidavit of the Administrative Review Board Custodian of
Grievance Records (Doc. 54 at 8). Rueter states that the entirety of the records were provided so
there would be no question Defendant produced a complete set of documents, and that Defendant’s
argument included all relevant grievances, whether favorable or not. This is common practice
and the Court appreciates the same.
Further, the Court finds Plaintiff’s assertion that the entirety of these records were provided
in an attempt to mislead the Court wholly meritless. Defendant Rueter makes no mention in her
brief of grievances filed at Stateville CC or Pontiac CC. Rueter certainly did not mislead the
Court in any way as to believe any grievance filed at Stateville CC or Pontiac CC was filed from
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Pinckneyville CC. The Court also rejects Plaintiff’s contention that Defendants misled other
courts by undertaking the same procedure as there is simply no evidence of the same.
For these reasons, Plaintiff’s Motion to Strike (Doc. 58) is DENIED.
3. IDOC Defendants’ Motion to Strike (Doc. 61)
In this motion, IDOC Defendants ask that Plaintiff’s response to their motion for summary
judgment be stricken as it exceeds Local Rule 7.1(d)’s maximum page limit of 20 double-spaced
type written pages. IDOC Defendants reject an attempt by Plaintiff to allow for such additional
pages because he was responding to two motions, arguing Plaintiff’s response does not attempt to
distinguish the two motions.
Plaintiff asserts he cannot afford writing paper or materials and has to borrow paper from
other inmates. Due to his lack of paper, Plaintiff explains he combined his responses to
Defendants’ motions.
The Court is certainly mindful of Defendants’ arguments; however, it will allow Plaintiff’s
filing beyond the 20-page limitation in this instance in the interest of justice. Plaintiff responded
to two motions for summary judgment in his handwritten response that consisted of 23 pages of
argument. Moving forward, Plaintiff is advised to consult the Court’s Local Rules and adhere to
the page limitations set forth therein. IDOC Defendants’ Motion to Strike (Doc. 61) is DENIED.
IT IS SO ORDERED.
DATED: August 26, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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