Brown v. Watson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CORTEZ BROWN, #05103-025, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-00138-JPG

)

RICHARD WATSON, )

TRINITY SERVICE GROUP, )

and DR. DAVID MARCOWITZ, )

)

Defendants. )

MEMORANDUM & ORDER

GILBERT, District Judge:

Now before the Court for consideration are Defendants’ Motions for Summary Judgment

on the Issue of Exhaustion of Administrative Remedies filed by Dr. David Marcowitz

(“Dr. Marcowitz”) (Doc. 70), Trinity Service Group (“TSG”) (Doc. 74), and Richard Watson

(“Sheriff Watson”) (Doc. 77). Defendants seek dismissal of all claims against them based on

Plaintiff Cortez Brown’s failure to exhaust his available administrative remedies at the Jail before

filing suit in federal court. (Id.). Brown opposes summary judgment. (Docs. 80 and 82).

On August 18, 2022, this Court held an evidentiary hearing consistent with Pavey v.

Conley, 544 F.3d 739, 741 (7th Cir. 2008). The Court consolidated this case with three other civil

rights actions for the limited purpose of the Pavey hearing (Doc. 87): Combs, Jr. v. Watson, et al.,

Case No. 21-cv-00071-JPG (S.D. Ill. 2021) (Doc. 32); Hollins v. Watson, et al., Case No. 21-cv-

00161-JPG (S.D. Ill. 2021) (Docs. 46, 48, and 52); and Good v. St. Clair County Jail, et al., Case

No. 21-cv-01249-JPG (S.D. Ill. 2021) (Doc. 31). All four cases involve St. Clair County Jail

inmates, the same grievance procedure, and the same or similar defendants and claims.

At the consolidated Pavey hearing, Defendants presented the testimony of Captain Shan

Collins,1 and Plaintiffs had an opportunity to cross-examine him. The Court then took the matter

under advisement. For the reasons explained in more detail below, the Court finds that St. Clair

County Jail’s grievance procedure, as written during the relevant time period, was so confusing

that it was incapable of use. The Prison Litigation Reform Act, 42 U.S.C. § 1997e, requires

prisoners to exhaust available remedies before bringing suit. Administrative remedies based on

St. Clair County Jail’s grievance procedure, in effect during the relevant time period, were

unknowable and consequently unavailable to Brown. Accordingly, all pending summary judgment

motions shall be DENIED.

BACKGROUND

On February 9, 2021, Plaintiff Cortez Brown filed this action for alleged violations of his

constitutional rights at St. Clair County Jail (“Jail”). (Doc. 1). He originally filed suit with a dozen

co-plaintiffs. (Id.). On February 11, 2021, the Court severed the claims brought by each co-

plaintiff into separate suits. (Doc. 29). This case focuses only on Brown’s claims. (Id.).

In the Complaint, Brown complains of exposure to unconstitutional conditions of

confinement, including e-cigarette smoke, overcrowding, insects, mold, and COVID-19. (Doc. 1).

Following initial screening pursuant to 28 U.S.C. § 1915A, Brown was allowed to proceed with

the following claims under the Eighth or Fourteenth Amendment:2 Count 1 against Sheriff Watson

and TSG for instituting a policy, custom, or practice of allowing e-cigarettes at the Jail; Count 2

against Sheriff Watson for subjecting Brown to e-cigarette smoke, overcrowding, insects, and

1 Shan Collins identified himself as the St. Clair County Jail Captain and Assistant Jail Superintendent. For

ease of reference, the Court will refer to him as “Captain Collins.”

2 The Fourteenth Amendment governs claims brought by a pretrial detainee, and the Eighth Amendment

governs the claims of a convicted person. Although Brown’s exact legal status during the relevant time

period was unclear from the allegations in the Complaint, his claims survived screening under both possible

legal standards pursuant to 28 U.S.C. § 1915A.

mold; Count 3 against Sheriff Watson and Dr. Marcowitz for exposing Brown to a serious risk of

harm caused by the novel coronavirus by housing him with COVID-positive inmates, denying him

access to personal protective equipment, and denying him adequate testing for COVID-19; and

Count 4 against Dr. Marcowitz for denying Brown adequate medical care for symptoms of

COVID-19. (Doc. 37).

Defendants Marcowitz, TSG, and Watson filed separate motions for summary judgment

on the issue of exhaustion. (Docs. 70, 74, and 77). Defendants point to two documents in Brown’s

grievance file: (a) a captain’s request dated January 18, 2021; and (b) a captain’s request that is

labeled “grievance form” and dated January 31, 2021. According to Defendants, these complaints

were not exhausted before Brown filed suit on February 9, 2021, and the file contains no other

complaints. Defendants seek summary judgment and dismissal of all claims against them. (Id.).

For his part, Brown does not dispute any facts presented by Defendants. (Docs. 80 and

82). Brown admits that he filed the two documents and nothing more. He nevertheless implores

the Court to find that he exhausted all available administrative remedies, despite the defendants’

best efforts to obfuscate the Jail’s grievance process each step of the way. (Id.). He asks this Court

to find that the procedure itself and the responses he received were so misleading and confusing

that they rendered the process unavailable to him. (Id.). On this basis, Brown seeks denial of the

pending motions.

FINDINGS OF FACT

Brown submitted only two documents to complain about the conditions of his confinement

at the Jail before commencing this action.

A. Captain’s Request – January 18, 2021

In the first document, a Captain’s request dated January 18, 2021, Brown states:

Mr. Brown posits that housing him in the cell with my pre-existing health condition

and the danger of contagion in custodial facility is tantamount to cruel and unusual

punishment prohibited by the 8th Amendment to the United States constitution

(Helling v. McKinney, 509 U.S. 25, 34 (1993 notes that the 8th amendment

prohibits a detainee from exposure to serious contagion diseases. Deliberate

indifferences to serious medical need as well as violates 14th amendment equal

protection rights.

(Global Ex. 5; Doc. 71, ¶ 11; Doc. 71-3, p. 1). Sergeant Chambers responded as follows on

January 19, 2021:

CDC has developed guidance on quaranting (sic) close contact of people with

symptoms per CDC guidelines. Anyone who has close contact with a person with

COVID-19 will need to stay away from other people at least 14 days to see whether

symptoms develop. We have adequately attempted to protect detainees by

following the CDC’s recommended preventative measures and working closely

with the health department directives.

(Id.).

B. Grievance Form – January 31, 2021

In the second document, Brown relabeled a Captain’s request as a “Grievance form” dated

January 31, 2021, and states:

Here at St. Clair Co. Jail, there’s two steps in the grievance procedure to be

completed in order to exhaust all administrative remedies 1) request complaint form

2) detainee grievance form in accordance with the Detainee Rules and Regulations

Handbook pg. 20-21. Responses to them has a time limit to each step. I submitted

a complaint form in to jail staff concerning the matters below and never received a

response or copy of the complaint. I also asked for a grievance form and was told

by staff that there’s no more grievance forms to exhaust administrative remedies.

This violates detainee’s grievance procedures due process by staff and show the

intent act of bad faith strategies to prevent lawsuit.

I submitted a complaint form on file that the 8th amendment prohibits a detainee

from exposure to serious contagious diseases. Richard Watson, T.S.G.

Commissary and Dr. Marcowitz know that COVID-19 virus is airbourne, its also a

medical negligance not to receive proper treatment after being exposed and failure

to protect. Selling E cigs to patients who tested positive only further cases and

trapping us all with it.

(Global Ex. 6; Doc. 71, ¶ 15; Doc. 71-3, p. 2). The form contains the following response:

“Answered on Detainee George Gannon Complaint Date 1/31-21.” (Doc. 71-3, p. 2).

Brown received no response to his grievance on this form. Captain Collins testified that

the grievance was similar to one filed by Inmate George Gannon. (See Global Ex. 4).

Consequently, it was answered on Gannon’s form and not the other similar forms. (Id.).

APPLICABLE LEGAL STANDARDS

A. The Prison Litigation Reform Act

Lawsuits filed by pretrial detainees and convicted persons, alike, are governed by the

Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA states, in no uncertain

terms, 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.” 42 U.S.C. § 1997e(a).

Exhaustion of available administrative remedies is a precondition to suit, and the Supreme Court

has interpreted the PLRA to require “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 84

(2006); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). This means “using all steps that the

agency holds out, and doing so properly (so that the agency addresses the issues on the merits).”

Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).

To properly exhaust, an inmate must “file complaints and appeals in the place, and at the

time, the prison’s administrative rules require.” Pozo, 286 F.3d at 1025. Strict compliance with

the Jail’s grievance process is required. Locket v. Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019);

McNeil v. United States, 508 U.S. 106, 111, 113 (1993) (Courts are “not free to rewrite the statutory

text” when Congress has strictly “bar[red] claimants from bringing suit in federal court until they

have exhausted their administrative remedies.”). Failure to properly exhaust all available remedies

before filing suit is grounds for dismissal of the lawsuit. Pavey, 544 F.3d at 741 (“Until the issue

of exhaustion is resolved, the Court cannot know whether it is to decide the case or the prison

authorities are to.”).

The purpose of the PLRA’s exhaustion requirement is to “afford corrections officials time

and opportunity to address complaints internally before allowing the initiation of a federal case.”

Woodford, 548 U.S. at 93; Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 537 (7th Cir. 1999)

(exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing] the need for litigation.”).

The requirement allows the Jail’s administration an opportunity to fix the problem and mitigate

the damage to a plaintiff. Pozo, 286 F.3d at 1023-24. Allowing otherwise would frustrate the

purpose of the grievance process. Porter v. Nussle, 534 U.S. 516, 526 (2002). On the issue of

exhaustion, the defendants have the burden of proof. Westefer v. Snyder, 422 F.3d 570, 577 (7th

Cir. 2005).

B. Summary Judgment

Summary judgment is appropriate only if the moving party can show “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); Celetex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the burden

of establishing that no material facts are genuinely disputed. Lawrence v. Kenosha Cty., 391 F.3d

837, 841 (7th Cir. 2004). Any doubt about the existence of a genuine issue must be resolved in

favor of the nonmoving party. Id.

The district court’s role on summary judgment is generally not to weigh evidence or judge

witness credibility. When deciding a motion for summary judgment on exhaustion, however, the

Seventh Circuit explains that a different standard applies. Pavey, 544 F.3d at 739-41. The court

decides contested issues regarding exhaustion and makes limited findings of fact. Id. at 740-41.

“[D]ebatable factual issues relating to the defense of failure to exhaust administrative remedies”

are decided by the judge and not a jury. Id.

C. Grievance Procedure

The St. Clair County Jail Grievance Procedure that was in effect during the relevant time

period (i.e., early 2021) states:

GRIEVANCE PROCEDURE

Superintendents Call

Superintendent’s call is a time set aside for handling complaints that cannot

be handled through normal channels. (Ask for Complaint / Request Form) In

order to see the Superintendent regarding such a matter, you must submit a request

in writing. Request forms are available and may be obtained from any officer on

duty. Complete the requested information on the form and return it to the block

officer. Your request will be forwarded through the proper channels. Your request

will be screened and if it is something that can be handled by the officer or Sergeant

on duty they will do it. For matters in which they cannot be handled, you will be

called out at a time to speak with the Jail Superintendent or his designate.

Step 1. A grieving detainee shall within 24 hrs. after he/she learns of circumstances

or conditions which prompted the grievance, submit the grievance to the shift

supervisor, in writing, informing him/her of the grievance and the particulars

concerning it. The immediate supervisor shall provide a written response to the

grieving detainee within 3 days after receiving the grievance. The original will be

forwarded to the Jail Superintendent.

Step 2. If the grievance is not resolved to the detainee’s satisfaction, the detainee

may submit the grievance to the Assistant Jail Superintendent by summarizing the

grievance in writing within forty eight (48) hours through the on duty shift

supervisor. The grievance must be submitted to the Jail Superintendent within 3

days (not including weekends and holidays) of the decision of the Assistant

Superintendent. The Jail Superintendent will review the response(s) and

approve/disapprove them; if he disapproves them, he will take the necessary action

to revise the previous response(s) according to the St. Clair County Jail Policies

and Procedures Manual or to his professional opinion in a fair and impartial manner

and return to the detainee within three (3) duty days. This shall constitute the final

resolution of the grievance.

Note: Detainee Grievance Forms can be obtained from any supervisor or

correctional officer. The Dress-Out Officer is responsible for briefing the grievance

procedure to detainees prior to them being assigned to their respective housing

units. A Captains request must be submitted prior to the grievance procedure. If no

response is received within 15 calendar days, then the Jail Superintendent needs to

be notified.

(See Global Ex. 1, pp. 20-21) (emphasis in original).

ANALYSIS

St. Clair County Jail’s Grievance Procedure suffers from numerous problems. These issues

include its overall structure, poor organization, omission of deadlines, lack of clarity, inconsistent

use of terminology, inconsistent interpretation, and inconsistent real world application. A plain

reading of the grievance procedure reveals these flaws, which are underscored by the defendants’

written submissions and witness testimony.

A. Overall Structure

The structure of the grievance procedure is confusing. Below the heading, “GRIEVANCE

PROCEDURE,” are four paragraphs containing instructions for filing complaints at the Jail. These

paragraphs are arranged in the following order: (1) Superintendent’s Call; (2) Step 1; (3) Step 2;

and (4) Note. (See Global Ex. 1).

The first paragraph addresses Superintendent’s Call. However, Superintendent’s Call isn’t

part of the grievance process at all, according to Defendants and Captain Collins. Defendants’

motions omit this paragraph entirely from their description of the grievance process. (See Docs.

71, 75, and 78). Captain Collins testified that Superintendent’s Call is the step of last resort. When

the grievance procedure does not resolve the inmate’s issue, this step offers one final avenue to

relief. Because the step isn’t part of the grievance process, it doesn’t belong under the heading

“GRIEVANCE PROCEDURE.” Even so, it occupies the entire first paragraph.

Defendants point to the second and third paragraphs, entitled “Step 1” and “Step 2,” as

describing the official grievance procedure. (See id.). Step 1 instructs an inmate to file a grievance

with his or her shift supervisor. Step 2 instructs the inmate to forward any unresolved grievance

to the assistant jail superintendent and, if still unresolved, on to the jail superintendent for final

resolution. If Step 1 and Step 2 represent the Jail’s entire grievance procedure, then these two

paragraphs should not be buried in the middle of a four-paragraph document. The two paragraphs

describing Step 1 and Step 2 should stand alone under the heading, “GRIEVANCE

PROCEDURE.”

The fourth paragraph contains the actual first step of the process, according to Defendants.

(Id.). It includes the following instruction: “A Captains (sic) request must be submitted prior to

the grievance procedure.” (See Global Ex. 1). If this is the very first step an inmate must take to

address a complaint, then this instruction does not belong in the final paragraph of the procedure;

it belongs at the beginning of the procedure.

If arranged in order of the steps an inmate must take to address a complaint, the procedure

would consist of Paragraph 4, Paragraph 2, Paragraph 3, and Paragraph 1, in that order. If arranged

in order of the Jail’s official grievance procedure, it would consist of Paragraph 2 and Paragraph

3 and nothing more. And, if arranged in order of the Jail’s actual grievance procedure, it would

consist of Paragraph 4, Paragraph 2, and Paragraph 3, in that order. But, the procedure, as written,

follows no logical order and makes little sense.

B. Poor Organization

The organization of each paragraph only adds to the confusion. By way of example, the

Court focuses on the final paragraph, entitled “Note,” which again states:

Note: Detainee Grievance Forms can be obtained from any supervisor or correctional

officer. The Dress-Out Officer is responsible for briefing the grievance procedure to

detainees prior to them being assigned to their respective housing units. A Captains request

must be submitted prior to the grievance procedure. If no response is received within 15

calendar days, then the Jail Superintendent needs to be notified.

(See Global Ex. 1). This paragraph consists of four sentences. All four sentences focus on different

topics. The first describes the form used to file a grievance, which presumably refers to Step 1

and/or Step 2 above. The second sentence identifies who is responsible for instructing detainees

how to use the grievance procedure and when, which presumably refers to the overall process.

The third sentence describes the actual first step, i.e., submitting a captain’s request. This initial

step is contained in the second-to-last sentence of the entire procedure and is not underlined,

highlighted, or emphasized in any way. The final sentence provides instructions for notifying the

Jail Superintendent if no response is received to the captain’s request, without indicating whether

this refers to an appeal of the captain’s request, Step 1, Step 2, or the Superintendent’s Call.

C. Omission of Deadlines

The procedure consistently omits deadlines for action on the part of inmates and jail

personnel. For example, the final paragraph states: “A Captains request must be submitted prior

to the grievance procedure.” (See Global Ex. 1). However, it does not indicate when the inmate

should submit the captain’s request. The next sentence instructs the inmate to contact the jail

superintendent “[i]f no response is received within 15 calendar days.” (See id.). Jail personnel

and inmates, alike, are left wondering: within 15 calendar days of what? The procedure does not

say. It could be within fifteen days of: the incident prompting the captain’s request, the date the

inmate submits the captain’s request, the date that jail personnel pick up the captain’s request, or

something else altogether. The procedure does not set forth a clear timeline.

D. Lack of Clarity

The instructions do not clarify whether inmate action is required sequentially or in parallel.

A comparison of the final paragraph and Step 1 illustrates this point. Recall that a captain’s request

is the first actual step in the process, and an inmate is required to notify the Jail Superintendent if

no response is received within 15 days. At the same time, Step 1 states: “A grieving detainee shall

within 24 hrs. after he/she learns of circumstances or conditions which prompted the grievance,

submit the grievance to the shift supervisor, in writing, informing him/her of the grievance and the

particulars concerning it.” (See Global Ex. 1). It is unclear whether the inmate must file a captain’s

request and a grievance at the same or nearly-the-same time or wait for a response to the captain’s

request and then file a grievance. The instructions confuse, rather than clarify, the matter.

E. Inconsistent / Confusing Use of Terminology and Forms

The inconsistent use of terms, such as “captain’s request,” “complaint / request form,”

“grievance,” and “detainee grievance form,” only muddy the waters. In the final paragraph of

instructions, describing the first actual step in the process, the procedure refers to a “Captain’s

request” and a detainee grievance form. The superintendent’s call refers to a complaint / request,

and Steps 1 and 2 refer to a grievance. Whether these terms overlap or have entirely different

meanings is not at all clear from the written procedures. Captain Collins testified that in practice,

the “complaint / request form” has been used for both the “Captain’s request” and to initiate the

“Superintendent’s Call” procedure of last resort. Testimony also confirms that the Jail’s forms

have changed over time, making use of titles that did not correspond to steps in the process.

F. Inconsistent Interpretation

As a result of the problems discussed above, the Jail’s grievance procedure is susceptible

to numerous interpretations. Defendants describe the process as straightforward. (Docs. 71, 75,

and 78). However, they describe it differently, and their own inconsistencies call into question the

simplicity of the procedure.

According to Dr. Marcowitz, the “Captains Request is the first step to initiating the

Grievance Procedure, with the need to inform the Jail Superintendent should no response be

received within 15 calendar days.” (Doc. 71, ¶ 3). A “grievance” may be filed following

submission of the “Captain’s Complaint” within 24 hours of learning of the circumstances or

conditions prompting the grievance. (Id. at ¶ 4). If the “grievance” is not resolved to the detainee’s

satisfaction, the detainee may submit the grievance to the Assistant Jail Superintendent by

summarizing the grievance in writing within forty-eight hours through the on-duty shift supervisor.

(Id. at ¶ 5). Once the Assistant Jail Superintendent issues a decision, it will be submitted to the

Jail Superintendent, who will review the response for approval. (Id. at ¶ 6). The Jail

Superintendent’s response shall constitute final resolution of the grievance. (Id. at ¶ 7). Put

differently, a detainee must complete Paragraph 4, Paragraph 2, and Paragraph 3 of the Jail’s

grievance procedure, in that order, to exhaust their administrative remedies before bringing suit.

Paragraph 1 should be disregarded.

According to Trinity Service Group and Sheriff Watson, the Jail’s grievance process is

“multi-step.” (Doc. 75, ¶ 4; Doc. 78, ¶ 4). Rather than attempting to summarize each step of the

multi-step procedure, these two defendants quote “Step 1” and “Step 2” directly from the Detainee

Rules and Regulations Handbook. (Doc. 75, ¶¶ 5-7; Doc. 78, ¶¶ 5-7; Global Ex. 1). Put differently,

a detainee must comply with Paragraphs 2 and 3 of the Jail’s grievance procedure before bringing

suit. Paragraphs 1 and 4 should be disregarded.

At the Pavey hearing, Captain Collins testified that the grievance procedure is a two-step

process. The first step is to submit a written captain’s request / complaint. If the problem is not

resolved, the second step is to file a written grievance. Put differently, a detainee should either

comply with Paragraph 4, Paragraph 2, and Paragraph 3 (described by Marcowitz) or Paragraphs

2 and 3 (described by TSG and Watson), but it is not clear which controls. Regardless, Paragraph

1 should be ignored.

G. Inconsistent Real World Application

Captain Collins, the defendants’ only witness, repeatedly acknowledged that the Jail’s

grievance procedure, as written during the relevant time period, is confusing--so confusing, in fact,

that inmates were not actually required to follow it. Moreover, the procedure at issue is no longer

in effect. Captain Collins testified that it has been re-written to clarify the grievance procedure,

but he could not recall when the revised procedure took effect and was distributed to detainees.

Despite this testimony, all three defendants filed motions for summary judgment against

Brown. Each argues that Brown failed to exhaust his administrative remedies at the Jail before

filing suit. Defendants in the three other cases also filed for summary judgment on the same

grounds. The consolidated Pavey hearing addressed eight summary judgment motions stemming

from the same procedure. If defendants did not expect the inmates to comply with the procedure,

it is unclear why every single defendant filed for summary judgment on the issue of exhaustion.

Defendants argue that Brown did not include enough detail about his complaints to put

them on notice of any problem. The Court rejects this argument. The grievance procedure does

not define what must be included in a captain’s request, complaint / request, or grievance. The

procedure states that a grievance must include “particulars,” but this term is undefined. Captain

Collins also testified that when jail officials respond to detainee complaints / grievances, they do

not inform the detainee when their form lacks sufficient particulars or is otherwise flawed. The

Court will not require Brown to guess who, what, when, or how to grieve his complaints at the

Jail, given the procedure at issue. Defendants have not met their burden of establishing his failure

to exhaust available remedies.

Although the Seventh Circuit demands strict compliance with the PLRA’s exhaustion

requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), an inmate is only required to

exhaust administrative remedies that are actually available to him. Ross v. Blake, 578 U.S. 632,

642 (2016). An inmate “must exhaust available remedies, but need not exhaust unavailable ones.”

Id.; Reid v Balota, 962 F.3d 325, 329 (7th Cir. 2020); Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir.

2013). The United States Supreme Court has adopted a definition of “available” that means

“capable of use for the accomplishment of a purpose” and that which is “accessible or may be

obtained.” See Booth v. Churner, 532 U.S. 731, 737-38 (2001) (internal quotations and citations

omitted). In this context, an inmate is required to exhaust “those, but only those, grievance

procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’” Ross,

578 U.S. at 642 (citing Booth, 532 U.S. at 738).

Three circumstances generally render a prison’s grievance process unavailable because it

is not capable of use to obtain relief. Ross, 578 U.S. at 643. First, an administrative procedure is

unavailable when it operates as a simple dead end, despite what the regulations or guidance

materials may state. Id. (citing Booth, 532 U.S. at 736, 738) (“[W]here the relevant administrative

procedure lacks authority to provide relief,” the inmate has “nothing to exhaust.”). This commonly

occurs when an administrative official has apparent authority and refuses to exercise it or when a

grievance handbook directs an inmate to submit his grievance to an administrative office that

disclaims any capacity to consider the grievance. Ross, 578 U.S. at 642. Second, an administrative

scheme might be so confusing that it is incapable of use. In other words, a grievance process

exists, but if “no ordinary prisoner can make sense of what it demands,” that process is

“unknowable” and thus unavailable. Reid v. Balota, 962 F.3d at 329 (quoting Ross, 578 U.S. at

642). Finally, a grievance process is unavailable when prison officials thwart an inmate’s efforts

to exhaust his administrative remedies through “machination, misrepresentation, or intimidation.”

Id. The unavailability of a grievance process “lifts the PLRA exhaustion requirement entirely and

provides immediate entry into federal court.” Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir.

2016).

No ordinary person could make sense of the Jail’s grievance procedure in effect during the

relevant time period. As written, it was unknowable and incapable of use by Brown. As such, the

grievance procedure at issue was unavailable to him. In reality, he had no avenue to relief at the

Jail before bringing suit to address his claims against the defendants in federal court. Accordingly,

summary judgment shall be denied.

CONCLUSION

IT IS ORDERED that the Motions for Summary Judgment for Failure to Exhaust

Administrative Remedies filed by Dr. David Marcowitz (Doc. 70), Trinity Service Group

(Doc. 74), and Richard Watson (Doc. 77) are DENIED. COUNTS 1, 2, 3, and 4 against these

defendants shall proceed past summary judgment.

The matter of exhaustion of administrative remedies now being resolved, the four cases are

NO LONGER CONSOLIDATED and shall move forward SEPARATELY. Moreover, the stay

on merits discovery is LIFTED, and the parties can commence discovery on the merits of

Plaintiff’s claims. The Court will enter a separate scheduling order to set forth discovery and

dispositive motion deadlines.

IT IS SO ORDERED.

DATED: 8/29/2022 s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge