# Duett v. Johnson

> District Court, S.D. Illinois · December 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10155818

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** December 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10155818

## How later opinions describe it (automated extraction)

- noting that an inmate is not required to appeal his grievance if he submits the grievance to the proper authorities but never receives a response

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARNELL DUETT, )
)
Plaintiff, )
)
vs. ) Case No. 3:20-cv-01354-GCS
)
ROBBIE JOHNSON, BRAD (“B.”) )
JOHNSON, CODEY (“C.”) PIPIR, )
JORDAN (“J.”) VAUGHAN, MARY )
WEAVER, ADAM PUCKETT, )
DOUGLAS LEHMAN, DEBBIE )
(“DEEDEE”) BROOKHART, JUSTIN )
HAMMERS, LEONTA (“L.”) )
JACKSON, KRISTI NARETTO, )
)
Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:
INTRODUCTION AND BACKGROUND
Pending before the Court is Defendants’ Motion for Summary Judgment on the
Issue of Exhaustion of Administrative Remedies. (Doc. 48). The Court held a hearing on
the Motion on October 26, 2022 and took the matter under advisement. (Doc. 62). For the
reasons delineated below, the Court GRANTS in part and DENIES in part the Motion
for Summary Judgment.
On December 21, 2020, Plaintiff Darnell Duett, an inmate of the Illinois
Department of Corrections (“IDOC”) currently incarcerated at Menard Correctional
Center (“Menard”), brought this action against the 11 named Defendants pursuant to 42
U.S.C. §1983 for alleged deprivations of his constitutional rights that occurred while he
was housed at Illinois River Correctional Center (“Illinois River”) and Lawrence
Correctional Center (“Lawrence”).1 (Doc. 1). On September 27, 2021, the Court completed

its preliminary review of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A. Plaintiff
was permitted to proceed against Defendants in their individual capacities on the
following counts:
“Count 1: Eighth Amendment claim against R. Johnson and B. Johnson for
exposing Duett to a substantial risk of serious harm by falsely naming him in a
disciplinary report as providing information on another inmate.

Count 2: Eighth Amendment claim against Pipir, Vaughan, Weaver, Puckett,
Lehman, Brookhart, Hammers, Jackson and Naretto for ignoring the threat to
Duett’s safety caused by the disciplinary report and failing to protect him from the
assault [that occurred on February 6, 2020].”

(Doc. 8, p. 3). 2

Defendants filed the present Motion for Summary Judgment on the Issue of
Exhaustion of Administrative Remedies along with their Memorandum of Support on
May 16, 2022. (Doc. 48, 49). Plaintiff timely responded in Opposition to the Motion for
Summary Judgment on June 16, 2022. (Doc. 52, 53). The record reflects that both Plaintiff

1 Plaintiff Duett was incarcerated at Illinois River Correctional Center from July 20, 2016, to July 3,
2018 (with short Writ transfers to Stateville Correctional Center). On July 3, 2018, Plaintiff was transferred
to Lawrence Correctional Center where he remained until February 7, 2020. On February 7, 2020, Plaintiff
was transferred to Pontiac Correctional Center where he remained until July 29, 2021, when he was
transferred to Menard Correctional Center. (Doc. 49, Exh. A. p. 1-2).

2 In Plaintiff’s complaint, Plaintiff requested that these claims proceed against all Defendants in their
official capacity and “in any form the Court deems just.” (Doc. 1, p. 10). Plaintiff also requested that he be
provided with monetary relief in the form of punitive and nominal damages. Id. at p. 9-10. Because state
officials may not be sued in their official capacities for monetary damages in federal court, all claims
pertaining to the Defendants in their official capacities were dismissed with prejudice. See (Doc. 8, p. 3);
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Wynn v. Southward, 251 F.3d. 588, 592 (7th Cir. 2001).
and Defendants have supplied the Court with copies of grievances from Plaintiff’s
Grievance Record for consideration in relation to this matter. (Doc. 49, Exh. B); (Doc. 53,

p. 4-15). However, most of these grievances are unrelated to the aforementioned
allegations and will not be addressed.
Grievance No. 084533 is the only grievance that articulates the allegations
contained in Plaintiff’s complaint. (Doc. 49, Exh. B, p. 102-103). Plaintiff submitted this
grievance at Pontiac Correctional Center (“Pontiac”) on March 27, 2020. Id. at 102. Plaintiff
had been transferred from Lawrence on February 7, 2020 – the day following the alleged

inmate assault on February 6, 2020. (Doc. 49, Exh. A, p. 1). In Grievance No. 084533,
Plaintiff alleges that “R. Johnson, B. Johnson and two John Does I.A. Officers went around
Illinois River CC accus[ing] [him] as a snitch” and that he was “constantly under assault
due to the false report that was written by R. Johnson and B. Johnson.” (Doc. 49, Exh B.
p. 102-103). Plaintiff further grieved that employees at Lawrence and Illinois River,

including Defendants Piper, Vaughan, Weaver, Brookhart, Hammers, and Puckett knew
about the substantial risk of serious harm Plaintiff was under due to these false
allegations before the February 6th assault occurred and that they did nothing to protect
him. Id. at 103.
On March 31, 2020, a counselor at Pontiac received Grievance No. 084533 and

conducted the first level review of the grievance. Id. at 102. On April 1, 2020, the counselor
released the results of their first level review and concluded that the allegations pertained
to staff members outside of Pontiac. Id. Thus, in the response to Plaintiff, the counselor
indicated that the grievance should be submitted directly to the Administrative Review
Board (“ARB”) because the issue was outside the jurisdiction of the facility. Id.
During the evidentiary hearing on October 26, 2020, Plaintiff estimated that he
received the Pontiac counselor’s response to Grievance No. 084533 on April 3rd or April

4th, 2020, stating that the facility’s internal mail was often delayed by a day or two.
Plaintiff also testified that his commissary funds were initially unavailable at Pontiac
because there was a delay in their transfer from Lawrence, which prevented him from
immediately sending out the grievance to the ARB. However, Plaintiff was able to send
the grievance to the ARB as instructed and it was received by the ARB on April 8, 2020.

Id. On July 20, 2020, the ARB indicated that no further redress would be afforded to
Plaintiff because the grievance was “not submitted in the timeframe outlined in
Department Rule 504.” (Doc. 49, Exh. B, p. 101).
LEGAL STANDARDS

Summary judgment is proper when a moving party cannot establish the presence
of a genuine dispute of material fact. See FED. R. CIV. PROC. 56(a). To survive a motion for
summary judgment, the non-moving party must provide admissible evidence which
would allow a reasonable jury to find in his or her favor. See Maclin v. SBC Ameritech, 520
F.3d 781, 786 (7th Cir. 2008). Generally, in determining the outcome on a motion for

summary judgment, the Court’s role is not to evaluate the weight of the evidence, judge
witness credibility, or determine the truth of the matter, but instead is to determine
whether a genuine issue of material fact exists. See Nat’l Athletic Sportwear Inc. v. Westfield
Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in Pavey v. Conley, the Seventh Circuit
held that “debatable factual issues relating to the defense of failure to exhaust
administrative remedies “are not required to be decided by a jury but are to be
determined by the judge. 544 F.3d 739, 740-741 (7th Cir. 2008). Therefore, it is up to the

Court to evaluate whether a prisoner has exhausted his or her administrative remedies
when the affirmative defense of non-exhaustion is raised. If the Court determines that a
prisoner did not exhaust administrative remedies, the Plaintiff is given the opportunity
to exhaust should time still permit or if the failure to exhaust was innocent.3 Id. at 742.
Alternatively, if the Court determines that the failure to exhaust was the prisoner’s fault,

the case is over. Id.
Under the Prison Litigation Reform Act (“PLRA”), which governs lawsuits filed
by inmates, “no action shall be brought with respect to prison conditions under § 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) (emphasis added). This comports with the PRLA’s statutory purpose
of “afford[ing] correction officials [the] time and opportunity to address complaints
internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548 U.S. 81, 93
(2006); see also Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1161 (7th Cir. 2012).

3 Pavey provides that an “innocent” failure to exhaust includes situations where prison officials
prevent prisoners from pursuing exhaustion of their administrative remedies. 544 F.3d at 742. Further, if
an inmate submits a grievance and does not receive a response, the inmate’s attempts at exhaustion will be
deemed thwarted, and the inmate will be allowed to proceed with the lawsuit. See, e.g., Walker v. Sheahan,
526 F.3d 973, 979 (7th Cir. 2008)(noting that an inmate is not required to appeal his grievance if he submits
the grievance to the proper authorities but never receives a response); Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006)(indicating that a remedy can be unavailable to a prisoner if the prison does not respond to
the grievance or uses misconduct to prevent a prisoner from exhausting his remedies).
Additionally, it affords prison administrations an opportunity to fix the problem, reduce
damages and shed light on the factual disputes that may arise in litigation. See Pozo v.
McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002).

When attempting to exhaust administrative remedies, prisoners must follow their
prison’s administrative rules. See Pozo, 286 F.3d 1022, 1023. As an inmate confined within
the IDOC, Plaintiff is required to follow the regulations contained in the IDOC’s
Grievance Procedures for Offenders (“IDOC Grievance Procedures”) to properly exhaust
his claim. See 20 ILL. ADMIN. CODE § 504.800, et seq. The Seventh Circuit requires strict

adherence to a prison’s grievance procedures to satisfy the exhaustion requirement under
the PRLA. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Accordingly, a prisoner
cannot satisfy the exhaustion requirement by filing untimely or otherwise procedurally
defective grievances. See Woodford, 548 U.S. at 83. Nor may a prisoner file a lawsuit while
the prisoner is simultaneously proceeding through the prison’s grievance procedures. See

Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Consequently, if a prisoner fails to use a
prison’s grievance process properly, “the prison administrative authority can refuse to
hear the case, and the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at
809.
To initiate the grievance process, the IDOC Grievance Procedures first require that

inmates file a grievance with a counselor at their correctional institution within 60 days
of the discovery of an incident. 20 ILL. ADMIN. CODE § 504.810(a). In their grievance, the
prisoner must provide: “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.”4 20 ILL ADMIN CODE § 504.810(a).
Should the prisoner not be satisfied with the counselor’s response, the prisoner can then

submit a formal grievance to the prison’s grievance officer. Id. at (a)-(b). The grievance
officer must review the grievance and provide a written response to the inmate. See 20
ILL ADMIN. CODE § 504.830(a). Within 60 days of receipt of the grievance, when reasonably
feasible under the circumstances, the grievance officer must report their findings and
recommendations in writing to the Chief Administrative Officer (“CAO”). See 20 ILL
ADMIN. CODE § 504.830(e). The CAO shall review the findings and recommendations

from the grievance officer and advise the inmate of his or her decision in writing. Id. If
the prisoner is not satisfied with the CAO’s decision, the prisoner can then formally
appeal to the Director through the ARB within 30 days of the CAO’s decision. See ILL.
ADMIN. CODE § 504.850(a). The inmate must attach copies of the grievance officer’s report
and the CAO’s decision to the appeal. Id. The ARB then submits its written

recommendation to the Director, who is responsible for issuing the IDOC’s final decision
within six months. See 20 ILL. ADMIN. CODE § 504.850(d)–(e).
A separate procedure exists for emergency grievances. Inmates may file
emergency grievances directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The
CAO will determine if there is “a substantial risk of imminent personal injury or other

serious or irreparable harm” to the inmate that warrants the grievance being handled on
an emergency basis. Id. If the CAO classifies the grievance as an emergency grievance,

4 This does not preclude an offender from filing a grievance when the names of individuals are not
known, but the offender must include as much descriptive information about the individual as possible.
See 20 ILL ADMIN CODE § 504.810(a).
the CAO shall “expedite the process of the grievance and respond to the offender
indicating what action shall be or has been taken.” See 20 ILL. ADMIN. CODE § 504.840(b).

The inmate will also be informed by the CAO if it is determined that the grievance is non-
emergent. See 20 ILL. ADMIN. CODE § 504.840(c). In such cases, the inmate will be notified
in writing that they should “resubmit the grievance as non-emergent, in accordance with
the standard grievance process.” Id. When an inmate appeals a grievance that has been
deemed emergent by the CAO, the ARB “shall expedite the processing of the grievance.”
20 ILL. ADMIN. CODE § 504.850(f).

Lastly, there are certain circumstances where a prisoner may exhaust his or her
administrative remedies by filing a grievance directly with the ARB. See 20 ILL. ADMIN.
CODE § 504.870. Those circumstances include grievances addressing: (1) placement in
protective custody; (2) involuntary administration of psychotropic medication; (3)
decisions regarding disciplinary proceedings that took place at an institution other than

where the inmate currently resides; and (4) all other issues, with the exception of personal
property issues, that occurred at a previous institution. Id. The ARB “shall review and
process . . . [such] grievance[s] in accordance with Section 504.850. Id.
DISCUSSION
Defendants argue that Plaintiff has failed to exhaust his administrative remedies
because he did not timely submit Grievance No. 084533 to the ARB. (Doc. 49, p. 6-7); 20

ILL. ADMIN. CODE § 504.810(a). According to § 504.810(a), “a grievance must be filed . . .
within 60 days after the discovery of the incident.” 20 ILL. ADMIN. CODE § 504.810(a).
(emphasis added). Critically, Defendants conflate the term “filed” in the IDOC Grievance
Procedures with the term “received” in their Motion for Summary Judgment and
Memorandum of Support. (Doc 48); (Doc 49, p. 6-7). Plaintiff actually filed Grievance No.

084533 to the ARB on the date that he placed it in the mail, not on the date the ARB
received it. While Count 1 of Plaintiff’s Complaint must still fail (which will be explained
in further detail below), this distinction allows Count 2 of Plaintiff’s Complaint to
survive.
Jurisprudence within the Seventh Circuit indicates “that the prison mailbox rule,
which holds that a prisoner’s court filing is deemed “filed” the day it is placed in the

prison mail system, applies to exhaustion.” See Smith v. Brookhart, No. 3:20-CV-00830-
MAB, 2022 WL 306837, at *7 (S.D. Ill. Feb. 2, 2022). See also Burt v. Harrington, No. 13-CV-
794-NJR-DGW, 2017 WL 468211, at *7 (S.D. Ill. Feb. 3, 2017)(stating that “though the
defendants would like us to presume that § 504.850 and the ARB's own procedures do
not recognize the “mailbox rule,” they offered no support (and still don't) for the

proposition.”) (citing Conley v. Anglin, No. 11-3262, 513 Fed. Appx. 598, 601 (7th Cir. Mar.
25, 2013)); Dole, 438 F. 3d at 811 (7th Cir. 2006)(holding that prisoner had timely filed an
appeal to the ARB by placing it in the prison mail system even though it was never
received by the ARB).
In Dole, the Seventh Circuit extrapolated reasoning from the Supreme Court in

Houston v. Lack to justify applying the mailbox rule to the exhaustion context:
“[T]he pro se prisoner has no choice but to entrust the forwarding of his notice of
appeal to prison authorities whom he cannot control or supervise and who may
have every incentive to delay . . . . And if there is a delay the prisoner suspects is
attributable to the prison authorities, he is unlikely to have any means of proving
it, for his confinement prevents him from monitoring the process sufficiently to
distinguish delay on the part of prison authorities from slow mail service or the
court clerk's failure to stamp the notice on the date received . . . . [T]he only
information he will likely have is the date he delivered the notice to those prison
authorities and the date ultimately stamped on his notice.”

Dole, 438 F.3d. at 812 (7th Cir. 2006) (quoting Houston v. Lack, 487 U.S. 266, 271-272 (1988)).
Ultimately, this allowed the Court in Dole to conclude that any potential for fraud does
not justify obligating truthful prisoners to prove that they mailed their complaints when
the prison authorities do not provide them with means for such verification. See Dole, 438
F.3d at 813. Accordingly, a prisoner has filed a grievance in accordance with IDOC
Grievance Procedures when the prisoner placed the grievance in the mail.
Here, Plaintiff stated that he received a response to Grievance No. 084533 from a
Pontiac Counselor on April 3rd or April 4th, 2020. The ARB received Plaintiff’s grievance
on April 8, 2020. Plaintiff necessarily mailed Grievance No. 084533 to the ARB at some
point between these two dates. Defendants did not put forth any evidence addressing the
possibility that Plaintiff placed Grievance No.084533 in the mail after April 6, 2022, which
is the date of the 60-day deadline for Count 2 of Plaintiff’s Complaint. Therefore, by
viewing the evidence in the light most favorable to the Plaintiff, the Court finds that

Plaintiff fully exhausted his administrative remedies for Count 2 as Plaintiff most likely
filed his grievance directly with the ARB on or before April 6, 2020.
However, the Court must dismiss Count 1 of Plaintiff’s complaint because he did
not file such a timely grievance with the ARB. After reviewing Plaintiff’s grievance
records, it is clear that Plaintiff never filed a grievance sufficient to place the IDOC on

notice concerning the false allegations made against him in his disciplinary ticket until he
submitted Grievance No. 084533 to a Pontiac counselor on March 27, 2020. (Doc. 49, Exh.
B); (Doc. 53, p. 4-15). Plaintiff was previously housed at Illinois River Correctional Center

from July 20, 2016, to July 3, 2018, and the disciplinary ticket accusing Plaintiff to be a
“snitch” was issued at some point during that period by Defendants R. Johnson and B.
Johnson. Therefore, the latest date that Plaintiff could have filed a timely grievance
concerning the allegations in the disciplinary ticket would have been September 3, 2018.
Plaintiff testified at the hearing that he filed a grievance against the Johnsons at
Illinois River and appealed that grievance all the way to the ARB. However, the

Defendants submitted Plaintiff’s Illinois River grievance records and his ARB appeal
records as evidence. Such records do not show that Plaintiff ever filed a grievance against
the Johnsons nor does it show that any such grievance was appealed to the ARB. Thus,
Count 1 of Plaintiff’s complaint must be dismissed for failure to exhaust.
CONCLUSION

Accordingly, the Court GRANTS in part and DENIES in part the Motion for
Summary Judgment as to Exhaustion of Administrative Remedies. (Doc. 48). The Court
DENIES the motion as to Defendants Pipir, Vaughan, Weaver, Puckett, Lehman,
Brookhart, Hammers, Jackson and Naretto in Count 2, and GRANTS the motion as to

Defendants R. Johnson and B. Johnson in Count 1. Thus, the Court DISMISES without
prejudice Duett’s claims against Defendants R. Johnson and B. Johnson in Count 1 for
failure to exhaust administrative remedies. Further, the Court DIRECTS the Clerk of the
Court to enter judgment reflecting the same at the conclusion of the case.
IT IS SO ORDERED. hoe signee by
Pathe C. . Judge Sison
DATED: December 6, 2022. 2x Date: 2022.12.06
11:58:02 -06'00'
GILBERT C. SISON
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155818. Public record. Not legal advice.