The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KELVIN MERRITT, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-1108-RJD
)
KEVIN KINK, DEE DEE BOOKHART, and )
RUSSELL GOINS, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Kelvin Merritt, a former 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 Lawrence Correctional Center (“Lawrence”).
Plaintiff alleges he was retaliated against and denied access to medical care, water, and showers.
Plaintiff’s complaint was screened pursuant to 28 U.S.C. § 1915A and he was allowed to proceed
on the following claims:
Count One: First Amendment retaliation claim against Warden Goins for
denying Plaintiff access to medical care in retaliation for filing
grievances.
Count Two: Eighth Amendment deliberate indifference claim against Warden
Goins, Warden Kink, and Warden Brookhart for denying Plaintiff
access to his medications and care of his eye while on crisis watch.
Count Three: Eighth Amendment conditions of confinement claim against
Warden Kink for denying Plaintiff showers and access to water
while on crisis watch.
Defendants filed a Motion for Summary Judgment on Exhaustion (Doc. 35) that is now
before the Court. Defendants assert summary judgment is warranted because Plaintiff failed to
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exhaust his administrative remedies prior to filing this lawsuit. In support of their motion,
Defendants explain the allegations at issue in this case purportedly arose on November 1, 2018 and
continued through Plaintiff’s time on crisis watch at Lawrence (see Docs. 1, 11). Plaintiff’s
records show that Plaintiff was transferred from Lawrence to Dixon Correctional Center on March
1, 2019 (see Doc. 36-1). Thus, any grievances concerning Lawrence or Plaintiff’s crisis watch
conditions must have been filed by April 30, 2019 to be timely. Defendants assert Plaintiff filed 9
grievances that were submitted to the Administrative Review Board (“ARB”) during the relevant
time — November 1, 2018 to April 30, 2019. The Court has reviewed the grievances identified
by Defendants and finds six grievances relate to the claims in this lawsuit. These grievances are
set forth as follows:
1. Grievance dated April 12, 2019 (Doc. 36-2 at 48-50): In this grievance, Plaintiff
complains of various actions taken by staff members, including Warden Goins and Warden Kink
regarding his conditions of confinement that took place on November 1, 2018. This grievance
was written while Plaintiff was at Dixon and was sent directly to the ARB. The ARB received
this grievance on May 13, 2019 and returned it without a decision on the merits on May 14, 2019.
The ARB advised Plaintiff the grievance was not submitted in the required timeframe and found
no justification for further consideration. The ARB also indicated that medical issues should be
reviewed at an inmate’s current facility.
2. Grievance dated April 12/13, 2019 (Doc. 36-2 at 37-39): In this grievance, Plaintiff
complains that he was placed on crisis watch from October 27, 2018 until March 1, 2019 and
grieves his conditions of confinement. Plaintiff primarily complains about the actions of a mental
health professional, but indicates that all the wardens were advised of his issues. This grievance
was written while Plaintiff was at Dixon and was sent directly to the ARB. The ARB received
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this grievance on May 21, 2019 and returned it without a decision on the merits on May 22, 2019.
The ARB advised Plaintiff the grievance was not submitted in the required timeframe and found
there was no justification for additional consideration.
3. Grievance dated April 12/13, 2019 (Doc. 36-2 at 42-44): In this grievance, Plaintiff
complains of actions taken by a correctional officer and nurse, and asserts he was denied medical
care and a shower. The only date mentioned in this grievance is October 28, 2018. This
grievance was written while Plaintiff was at Dixon and was sent directly to the ARB. The ARB
received this grievance on May 21, 2019 and returned it without a decision on the merits on May
22, 2019. The ARB advised Plaintiff there was no justification for additional consideration.
4. Grievance dated April 12/13, 2019 (Doc. 36-2 at 54-56): In this grievance, Plaintiff
complains that in December 2018 he told a mental health staff member of certain ADA issues that
affected his disciplinary tickets. He was ultimately advised to ask Warden Goins about his
requests. Plaintiff complains that Goins did not allow Plaintiff the accommodations he sought in
regards to his disciplinary tickets and hearings for the same. This grievance was written while
Plaintiff was at Dixon and was sent directly to the ARB. The ARB received this grievance on
April 17, 2019 and returned it without a decision on the merits on April 22, 2019. The ARB
advised Plaintiff the grievance was not submitted in the required timeframe.
5. Grievance dated April 12/13, 2019 (Doc. 36-2 at 57-59): In this grievance, Plaintiff
complains of issues concerning his confinement on October 26 and 27, 2018, and the excessive use
of force by staff members who are not named as defendants. Plaintiff mentions his request for
“crisis” in this grievance. This grievance was written while Plaintiff was at Dixon and was sent
directly to the ARB. The ARB received this grievance on April 17, 2019 and returned it without a
decision on the merits on April 22, 2019 because it was not submitted in the required timeframe.
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6. Grievance dated April 13, 2019 (Doc. 36-2 at 40-41): In this grievance, Plaintiff
complains that the disciplinary tickets against him should not have been heard while he was on
crisis watch from October 27, 2018 until March 5, 2019. No individuals are identified. This
grievance was written while Plaintiff was at Dixon and was sent directly to the ARB. The ARB
received this grievance on May 21, 2019 and returned it without a decision on the merits on May
22, 2019. The ARB advised Plaintiff the grievance was not submitted in the required timeframe
and found that the office had previously addressed a similar issue on April 22, 2019.
Along with their motion, Defendants filed a Rule 56 Notice informing Plaintiff of his
obligation to file a response to the motion for summary judgment and advising him of the perils of
failing to respond (see Doc. 37). Plaintiff’s response to the motion was due by June 27, 2022.
No response, or any other filing, has been received from Plaintiff as of the date of this Order. The
motion and notice were sent to Plaintiff’s last known address as set forth on the docket sheet and
there is no indication it was not received or that it was returned as undeliverable.
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
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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
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
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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
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
The Court deems all material facts as presented by Defendants undisputed because
Plaintiff failed to file a response to the pending motion for summary judgment despite being
provided ample time and opportunity to do so. In failing to file a response, Plaintiff disregarded a
Notice explaining the implications of this decision (Doc. 37). The Court will exercise its
discretion pursuant to Rule 56(e) and deem all material facts as undisputed. Further, Local Rule
7.1(c) provides that a party’s “[f]ailure to timely file a response to a motion may, in the Court’s
discretion, be considered an admission of the merits of the motion.”
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Although there are six grievances in the record that relate to certain claims in this lawsuit,
there is no evidence that Plaintiff exhausted his available administrative remedies concerning the
same. The ARB returned each of the six grievances to Plaintiff without a decision the merits
because they were not submitted to the ARB within the required timeframe. Pursuant to 20 ILCS
§ 504.870, issues pertaining to a facility other than an inmate’s current facility may be submitted
directly to the ARB. In this instance, the grievances in the record fit into this category — Plaintiff
was grieving incidents that occurred at Lawrence while he was at Dixon. Although § 504.870
does not set forth a time period in which these grievances must be filed, the Court finds the
deadline set forth in 20 ILCS § 504.810(a) controls. Section 504.810(a) dictates that grievances
must be filed with the counselor or Grievance Officer “within 60 days after the discovery of the
incident, occurrence or problem that gives rise to the grievance.” In the instance where an
offender is complying with § 504.870, the ARB is, in effect, taking the place of the counselor or
Grievance Officer. As such, the 60-day time period must be applied to ensure issues are timely
addressed. In this instance, the ARB did not receive any grievance within 60 days of the date
mentioned in his grievance. Plaintiff, therefore, failed to properly exhaust his administrative
remedies. The Court finds no excuse for Plaintiff’s failure to follow the grievance procedures and
exhaust his claims against Defendants.
Conclusion
Based on the foregoing, the Motion for Summary Judgment on Exhaustion (Doc. 35) filed
by Defendants Goins, Kink, and Brookhart is GRANTED. This matter is DISMISSED
WITHOUT PREJUDICE. The Clerk of Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
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DATED: November 22, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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