Gosier v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

HARRY GOSIER,

Plaintiff,

v. Case No. 19-cv-1199-NJR

SCOTT THOMPSON, SHAYNE

MERCIER, KRISTI GEPPERT, and

LOIS GREEN,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Harry Gosier, an inmate of the Illinois Department of Corrections

(“IDOC”) who is currently incarcerated at Pinckneyville Correctional Center, brings this

action for deprivations of his constitution rights pursuant to 42 U.S.C. § 1983. Gosier was

allowed to proceed on a single claim alleging that Defendants denied him access to the

courts by confiscating his clemency petition on two occasions.

This matter is before the Court on a motion for summary judgment filed by

Defendants Scott Thompson, Shayne Mercier, Kristi Geppert, and Lois Green (Docs. 69,

70).1 Gosier, now represented by counsel, filed a response (Doc. 89) in opposition to the

motion.

1 Defendants Shayne Mercier, Kristi Geppert, and Lois Green have identified themselves by their

proper names. The Clerk of Court is DIRECTED to CORRECT the docket to reflect Defendants’

proper names.

BACKGROUND

On October 31, 2019, Gosier filed a pro se Complaint alleging that mailroom staff

confiscated two pieces of legal mail related to his clemency petition (Doc. 1). Gosier was

allowed to proceed on a single First and/or Fourteenth Amendment access to courts

claim against Scott Thompson, Shayne Mercier, Kristi Geppert, and Lois Green for

confiscating his legal mail (Doc. 10, p. 3).

In response to Gosier’s Complaint, Defendants filed a motion for more definite

statement (Doc. 15), seeking a more definite statement on the nature of the documents

and the deadlines Gosier allegedly missed as a result of the documents being confiscated.

Gosier sought leave to amend his Complaint and recruited counsel to help him draft his

claims (Docs. 17 and 19). The Court recruited counsel to help Gosier draft an Amended

Complaint (Doc. 22), but counsel later was allowed to withdraw at Gosier’s request

(Doc. 32). Gosier subsequently filed a pro se Amended Complaint (Doc. 34). The

Amended Complaint was dismissed for failure to state a claim. Gosier was granted leave

to submit a Second Amended Complaint (Docs. 44, 46), which Gosier submitted on March

1, 2022 (Doc. 49).

The Second Amended Complaint alleged that on November 16, 2018, a completed

clemency petition for Gosier arrived at Pinckneyville. Defendants Thompson, Mercier,

Green, and Geppert initially informed Gosier that he did not receive any mail that day

but later informed Gosier that he was not allowed to receive completed petitions from

outside of the prison (Doc. 59, p. 2). On March 7, 2019, another clemency petition and

legal mail was confiscated by Green and Geppert (Id.). Because Gosier did not receive the

clemency petitions, he alleged that he missed the deadline to submit the petition for

consideration.

Gosier was allowed to proceed on a single count:

Count 1: First and/or Fourteenth Amendment access to courts claim

against Scott Thompson, Shayne Mercier, Kristi Geppert, and

Lois Green for confiscating Gosier’s clemency petition on two

occasions.

(Doc. 59, p. 5).

January 11, 2019 Grievance

On January 11, 2019, Gosier submitted a grievance about his legal mail. The

grievance indicated that the prison mailroom received copies of his clemency paperwork

that needed his signature (Doc. 70-2, p. 20). Gosier planned to sign and then forward the

paperwork to the governor’s office for review (Id.). Gosier complained that someone in

the mailroom sent him a form stating that he was not allowed to receive legal mail and

that all legal work had to be completed in the prison library (Id.). In his request for relief,

Gosier indicated that he wanted a set dollar amount for every day he served in prison

after the date he was set to be released (Id.). He also asked to receive his legal work and

for his release from prison (Id.).

Gosier marked the grievance as an emergency (Id.). On February 11, 2019, the Chief

Administrative Officer (“CAO”) expedited the grievance as an emergency (Id.). On

February 13, 2019, the grievance officer reviewed the grievance. Grievance officer Shayne

Mercier indicated that the mailroom did not have a record of the note being sent to Gosier.

Mercier further noted that the mailroom does not withhold legal mail, and there was no

evidence that Gosier filed for clemency (Id. at p. 19). Mercier also noted that Gosier failed

to provide any of the names of the officers to whom he showed the mailroom notice (Id.).

The CAO concurred with the determination (Id.). On March 9, 2019, Gosier

appealed the grievance to the Administrative Review Board (“ARB”). On March 19, 2019,

the ARB returned the grievance, noting that Gosier failed to identify any of the staff who

informed him he could not receive legal mail. The ARB noted that they were unable to

address Gosier’s claims because he failed to identify the staff by name (Id.).

March 22, 2019 Grievance

On March 22, 2019, Gosier submitted a second grievance regarding the

confiscation of his legal mail (Doc. 70-2, p. 12). Gosier indicated he had several copies of

a legal document, but the mailroom confiscated the document and sent him a form

indicating that multiple copies of the same document were not permitted (Id. at p. 13).

Gosier noted this was the second time that the mailroom had interfered with his legal

documents (Id. at p. 13). Gosier requested his immediate release from prison, as well as

monetary compensation for the mailroom’s confiscation of his legal documents.

The CAO marked the grievance as an emergency and forwarded it to the grievance

officer (Id. at p. 12). On June 7, 2019, the grievance officer reviewed the grievance.

Grievance officer Hale noted that Gosier had filed an earlier grievance regarding the

receipt of his clemency paperwork (Id. at p. 11). The mailroom refused to deliver the

paperwork and informed Gosier that he could not receive the legal work because it was

not completed in the prison library (Id.). Similarly, Gosier was informed by a

“Notification of Unauthorized Items” that the mailroom again confiscated his legal mail

because it contained duplicate copies (Id.). Hale spoke with the law library and was

informed that there was no rule requiring all legal work to be completed in the law library

and that forms and motions are often mailed to offenders (Id.). The grievance officer

further noted that mailroom staff informed him that they had been advised that offenders

could not receive duplicate copies of any document and that copies had to be made in the

law library (Id.). Hale instructed mailroom staff that legal documents received through

the mail had to be given to the offender, no matter the source, and that legal research was

not required to be completed by the offender at the prison (Id.). The grievance officer also

instructed mailroom staff that duplicate copies of legal documents should not be

confiscated but delivered to the inmate (Id.). Ultimately, Hale affirmed Gosier’s grievance

because the mailroom had improperly handled his legal mail. The officer instructed

Gosier to advise the sender to resend the documents previously rejected by the mailroom

(Id.). On June 12, 2019, the CAO concurred with the decision (Id.).

Gosier did not mark or sign the appeal of his grievance to the ARB (Id. at p. 11).

He did, however, attach a note dated July 11, 2019, indicating that the grievance was

affirmed by the grievance officer and CAO (Id. at p. 14). His note also requested his

freedom and a monetary award, arguing that because of the violation with his legal mail,

he missed the deadline to submit his legal filing to be released (Id.). The ARB received the

grievance on July 15, 2019 (Id. at p. 11). The ARB returned the grievance two days later,

noting that it had been received 30 days past the date of the CAO’s decision, and the

appeal was untimely (Id. at p. 10).

December 23, 2019 Grievance

On October 28, 2019, Gosier again experienced issues with his legal mail. On

December 23, 2019, he filed an emergency grievance (Doc. 70-2, p. 5). The grievance noted

that he was pursuing a lawsuit and his release from prison. Relevant legal materials were

held by the mailroom for three weeks before being delivered to Gosier. The documents

also arrived opened. Gosier believed that documents were removed from his mail and,

as a result, he was unable to pursue his legal claim and claim for release (Id.). Gosier

sought his immediate release from prison and a monetary award.

Although labeled an emergency grievance, the CAO deemed the grievance not an

emergency, and Gosier submitted the grievance to his counsel (Id. at p. 5). The counselor

spoke with mailroom staff who indicated that legal mail is placed into a bag, unopened,

and sent to the housing unit on the day that it is received (Id.). Shayne Mercier, the

grievance officer, stated that he was unable to substantiate Gosier’s claims (Id. at p. 3).

Mercier further stated that Gosier failed to provide any names of the officers that brought

the mail or enough information to substantiate that Gosier’s legal mail was confiscated

(Id. at p. 4). He recommended the grievance be denied. The CAO concurred with the

recommendation (Id. at p. 3).

On March 1, 2020, Gosier appealed his grievance to the ARB (Id.). On September

18, 2020, the ARB denied the grievance, finding that the institution handled the grievance

appropriately (Id. at p. 2).

LEGAL STANDARDS

Summary judgment is proper if the pleadings, discovery materials, disclosures,

and affidavits demonstrate no genuine issue of material fact such that [Defendants are]

entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467

(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison

Litigation Reform Act (“PLRA”). 42 U.S.C. §1997e(a). That statute states, in pertinent part,

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.”

Id. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA’s

exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that

‘[t]his circuit has taken a strict compliance approach to exhaustion”). Exhaustion must

occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A plaintiff

cannot file suit and then exhaust his administrative remedies while the suit is pending.

Id. Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the

place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry, 286

F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to properly utilize a

prison’s grievance process, “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.

Under Pavey, 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. Pavey v. Conley, 544 F.3d 739, 740-41(7th Cir.

2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative

defense, the Seventh Circuit set forth the following recommendations:

The sequence to be followed in a case in which exhaustion is contested is

therefore as follows: (1) The district judge conducts a hearing on exhaustion

and permits whatever discovery relating to exhaustion he deems

appropriate. (2) If the judge determines that the prisoner did not exhaust

his administrative remedies, the judge will then determine whether (a) the

plaintiff has failed to exhaust his administrative remedies, and so he must

go back and exhaust; (b) or, although he has no unexhausted administrative

remedies, the failure to exhaust was innocent (as where prison officials

prevent a prisoner from exhausting his remedies), and so he must be given

another chance to exhaust (provided that there exist remedies that he will

be permitted by the prison authorities to exhaust, so that he’s not just being

given a runaround); or (c) the failure to exhaust was the prisoner’s fault, in

which event the case is over. (3) If and when the judge determines that the

prisoner has properly exhausted his administrative remedies, the case will

proceed to pretrial discovery, and if necessary a trial, on the merits; and if

there is a jury trial, the jury will make all necessary findings of fact without

being bound by (or even informed of) any of the findings made by the

district judge in determining that the prisoner had exhausted his

administrative remedies.

Id. at 742.

A. Illinois Exhaustion Requirements

As an IDOC inmate, Gosier was required to follow the regulations contained in

IDOC’s Grievance Procedures for Offenders (“grievance procedures”) to properly

exhaust his claims. 20 Ill. Administrative Code §504.800 et seq. The grievance procedures

first require inmates to file their grievance with the counselor within 60 days of the

discovery of an incident. 20 Ill. Admin. Code §504.810(a). The grievance form must:

contain 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. This

provision 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.

20 Ill. Admin. Code §504.810(c). Grievances that are unable to be resolved through

routine channels are then sent to the grievance officer. 20 Ill. Admin. Code §504.820(a).

The Grievance Officer will review the grievance and provide a written response to the

inmate. 20 Ill. Admin. Code §504.830(a). “The Grievance Officer shall consider the

grievance and report his or her findings and recommendations in writing to the Chief

Administrative Officer within two months after receipt of the grievance, when reasonably

feasible under the circumstances.” 20 Ill. Admin. Code §504.830(e). “The Chief

Administrative Officer shall review the findings and recommendation and advise the

offender of his or her decision in writing. Id.

If the inmate is not satisfied with the CAO’s response, he or she can file an appeal

with the Director of the IDOC through the ARB. The grievance procedures specifically

state, “[i]f, after receiving the response of the Chief Administrative Officer, the offender

still believes that the problem, complaint or grievance has not been resolved to his or her

satisfaction, he or she may appeal in writing to the Director. The appeal must be received

by the Administrative Review Board within 30 days after the date of the decision.” 20 Ill.

Admin. Code §504.850(a). The inmate shall attach copies of the Grievance Officer’s report

and the CAO’s decision to his appeal. Id. “The Administrative Review Board shall submit

to the Director a written report of its findings and recommendations.” 20 Ill. Admin. Code

§504.850(d). “The Director shall review the findings and recommendations of the Board

and make a final determination of the grievance within six months after receipt of the

appealed grievance, when reasonably feasible under the circumstances. The offender

shall be sent a copy of the Director’s decision.” 20 Ill. Admin. Code §504.850(e).

The grievance procedures allow for an inmate to file an emergency grievance. In

order to file an emergency grievance, the inmate must forward the grievance directly to

the CAO, who may “[determine] that there is a substantial risk of imminent personal

injury or other serious or irreparable harm to the offender” and thus the grievance should

be handled on an emergency basis. 20 Ill. Admin. Code §504.840(a). If the CAO

determines the grievance should be handled on an emergency basis, then the CAO “shall

expedite processing of the grievance and respond to the offender” indicating to him what

action shall be taken. 20 Ill. Admin. Code §504.840(b). If the CAO determines the

grievances “should not be handled on an emergency basis, the offender shall be notified

in writing that he or she may resubmit the grievance as non-emergent, in accordance with

the standard grievance process.” 20 Ill. Admin. Code §504.840(c). When an inmate

appeals a grievance deemed by the CAO to be an emergency, “the Administrative Review

Board shall expedite processing of the grievance.” 20 Ill. Admin. Code §504.850(f).

ANALYSIS

Because there are no disputes of material fact, the Court finds it unnecessary to

hold an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).

Gosier filed three grievances relevant to his claims. Gosier’s first grievance, dated

January 11, 2019, was denied at the institution because the claims could not be

substantiated, and it was rejected by the ARB because Gosier failed to identify the names

of the mailroom staff who withheld his mail. Maddox v. Love, 655 F.3d 709, 721 (7th Cir.

2011) (When an inmate fails to properly use the grievance system, “the prison

administrative authority can refuse to hear the case, and the prisoner’s claim can be

indefinitely unexhausted.”); 20 Ill. Admin. Code §504.810(c) (The grievance should

include “what happened, when, where and the name of each person who is the subject

of or who is otherwise involved in the complaint. This provision 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.”). Gosier’s third grievance, dated December 23, 2019, was not submitted until

after he filed his initial Complaint in this case (Doc. 1). Perez v. Wisconsin Dep’t of Corr.,

182 F.3d 532, 535 (7th Cir. 1999). See also Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020).2

Although his first and third grievance do not serve to exhaust his claims, his

second grievance received a favorable ruling. Gosier’s March 22, 2019 grievance

complained about both the previously confiscated documents and another, more recent

occurrence, where his legal documents were withheld because the mail included several

copies of the same document (Doc. 70-2, p. 12-13). In reviewing the grievance, the

2 In Chambers, the Seventh Circuit reiterated that an inmate must exhaust his administrative

remedies prior to filing suit, “a ‘sue first, exhaust later’ approach is not acceptable.” Chambers, 956

F.3d at 984 (citing Ford, 362 F.3d at 398-400). But when an amended complaint raises new claims,

exhaustion of those new claims may be completed after the filing of the original pleading but

prior to the filing of the amended complaint. Id. (citing Cannon v. Washington, 418 F.3d 714, 717-

19 (7th Cir. 2005); Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005)). An amended pleading which

raises the same claims as the original complaint is not a new claim. Id. Like in Chambers, both

Gosier’s original pleading and his amended pleading included the same claim regarding the

confiscation of his legal mail. See Chambers, 956 F.3d at 984-85 (“Chamber’s claim against Dr. Sood

is not new; it’s the same claim he raised in his original pro se complaint, albeit against “Unknown

Doctor #1.”). Thus, the Second Amended Complaint did not include any new claims that would

allow Gosier an exception to the rule requiring an inmate to exhaust prior to filing suit.

grievance officer determined that the mailroom had improperly withheld Gosier’s

clemency paperwork, citing his January 2019 grievance (Id. at p. 11). The grievance officer

indicated that he advised “mailroom staff” that they are to deliver legal documents to the

offender, whether the documents are sent by a family member or other outside source

(Id.). The grievance officer affirmed the grievance and directed Gosier to have his sender

resend the documents to the prison. Gosier argues that he did not need to exhaust his

grievance further because he received a favorable outcome to his grievance.

The PLRA requires that an inmate exhaust all available remedies, but the Seventh

Circuit has stated that “all available” does not mean that an inmate “must appeal

grievances that were resolved as he requested and where money damages were not

available.” Thornton v. Snyder, 428 F.3d 690, 695 (7th Cir. 2005). “Once a prisoner has won

all the relief that is available under the institution’s administrative procedures, his

administrative remedies are exhausted.” Id. at 695-96 (quoting Ross v. County of Bernalilio,

365 F.3d 1181, 1187 (10th Cir. 2004)). Here, Gosier received a favorable ruling from the

prison. The grievance officer acknowledged that the legal paperwork was improperly

confiscated by the mailroom staff, he indicated that he advised mailroom staff how to

properly handle legal documents and directed Gosier to have his documents resubmitted

(Doc. 70-2, p. 11). Although Gosier asked for immediate release from prison and two

million dollars as his requested relief, the grievance officer noted that monetary

compensation was unavailable. In Gosier’s earlier grievance, the grievance officer noted

that Gosier was not eligible for early release, and the grievance process does not offer

such relief (Doc. 70-2, p. 19). See 20 Ill. Admin. Code §504.810(b) (“The grievance

procedure shall not be utilized for complaints regarding decisions…that are outside the

authority of the Department, such as parole decisions, clemency or orders regarding

length of sentence.”). There was no other relief for Gosier to receive. Thus, he did not

have to further appeal his grievance. That he ultimately chose to submit an appeal does

not change the fact that he had already exhausted his available remedies with the

favorable ruling at the institution. Appealing a grievance after receiving a favorable result

“is not only counter-intuitive, but it is not required by the PLRA.” Thornton, 428 F.3d at

697. Further, Gosier acknowledged in his appeal to the ARB that he received a favorable

outcome but believed that the ARB could release him in light of the violation. Such relief

was not available through the grievance process; thus, Gosier had exhausted his available

remedies after the favorable ruling from the grievance office.

Defendants also argue that Gosier’s grievance failed to identify them. But “[w]here

prison officials address an inmate’s grievance on the merits without rejecting it on

procedural grounds, the grievance has served its function of alerting the state and

inviting corrective action.” Maddox, 655 F.3d at 722. See also See Riccardo v. Rausch, 375 F.3d

521, 523–24 (7th Cir. 2004). Here, the fact that Gosier did not identify any individuals by

name did not prevent the grievance officer from ruling on the merits of the grievance.

The grievance officer was able to identify the mailroom staff at issue as the grievance

response indicates he spoke with “mailroom staff’ who indicated that they believed

offenders could not receive duplicate copies and had to conduct legal research in the

library (Doc. 70-2, p. 11). Further, the grievance officer ruled on the merits of the grievance

and did not reject it on the grounds Gosier failed to identify any individual staff member.

Thus, the grievance served its purpose of exhausting Gosier’s claims against Defendants.

CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment on the

issue of administrative exhaustion (Docs. 69, 70) is DENIED. The stay on merits discovery

is LIFTED; a discovery schedule will be entered by separate order.

IT IS SO ORDERED.

DATED: August 7, 2023

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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