The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENCEY PURDLE, )
)
Plaintiff, )
)
vs. ) Case No. 3:22-cv-01044-GCS
)
MICAH GRIMES and BRYAN )
PERDUE )
)
Defendants. )
MEMORANDUM & ORDER
SISON, Magistrate Judge:
Pending before the Court is Defendants’ Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies. (Doc. 28). Defendants filed their Motion
along with a Memorandum of Support on December 19, 2022. (Doc. 28, 29). Plaintiff
timely filed his Response to Defendants’ Motion for Summary Judgment on January 3,
2023. (Doc. 31). For the reasons delineated below, the Court DENIES Defendants’ Motion
for Summary Judgment for Failure to Exhaust Administrative Remedies. (Doc. 28).
PROCEDURAL HISTORY
Plaintiff, Kencey Purdle, is an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), who is currently incarcerated at Centralia Correctional Center
(“Centralia”). He brought this suit against Defendants for allegations stemming for their
alleged conduct while Plaintiff was housed at Lawrence Correctional Center
(“Lawrence”). (Doc. 13, p. 1). Plaintiff alleged that during his time at Lawrence,
Defendants ignored his requests for protective custody and placed him in the COVID-19
quarantine unit as retaliation for going on a hunger strike. (Doc. 13, p. 1-2). On July 21,
2022, the Court completed its preliminary review of Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915A. (Doc. 13). The Court construed Plaintiff’s allegations in the following
counts:
Count 1: First Amendment claim against Grimes, John Doe 1, Purdue, and
John Doe 2 for placing Plaintiff in the COVID-19 quarantine unit in
retaliation for him refusing housing in unit 2A, going on a hunger strike to
object to prison officials’ failure to take action on his request for protective
custody, and complaining this his request for protective custody was being
ignored.
Count 2: Eighth Amendment claim against Grimes, John Doe 1, Purdue,
and John Doe 2 for subjecting Plaintiff to unconstitutional conditions of
confinement by placing him in the COVID-19 quarantine unit.
Count 3: Eighth Amendment claim against Grimes, John Doe 1, Purdue,
and John Doe 2 for ignoring Plaintiff’s requests for protective custody.
(Doc. 13, p. 2-3). Counts 1 and 2 of Plaintiff’s Complaint survived preliminary review. Id.
at p. 4. Count 3 of Plaintiff’s Complaint was dismissed without prejudice. Id.
FACTUAL BACKGROUND
The only relevant grievance identified by both Plaintiff and Defendant that
pertains to Plaintiff’s substantive allegations is Grievance No. 04-21-137. (Doc. 29, p. 2);
(Doc. 31, p. 4). Plaintiff filed the grievance at the first level on April 7, 2021. (Doc. 31, p.
10). In the grievance, Plaintiff stated the following:
On March 3rd I went on a hunger strike d[ue] to some administrative issues
which is the fear of my life/hostile environment. Going through the process
I was place[d] on 53 which is the Hunger Strike Unit. While being on 5B
expecting to talk to someone in command concerning my safety in
Lawrence C.C. . . . I was never given the opportunity to. I came off hunger
strike. I was told to pack up [be]cause the facility was placing me back over
on 2A . [I told] C/O Grimes that I could not go back over on 2A [be]cause
of fear for my life so he told me let him talk to Lt. to figure something out.
C/O Grimes then came back and said that I’ll be going in 8C. For their
retaliation of me not wanting to go back over on 2A they sent me to 8C –
The Covid Quarantine Unit. While arriving on 8C Srg. Purdue and C/O
John Doe which was the officers working that morning told me that they
are following the current admin. Direction in order to mitigate the spread
of COVID-19. Per Dr. 504, every COVID testing I have taken before moving
to 8C was negative. . . . By being on 8C which is the quarantine unit I was
exposed to COVID- 19 and took a COVID test. The following week I tested
positive for COVID-19.
(Doc. 31, p. 10-11). Grievance 04-21-137 was received by the counseling office at Lawrence
on April 13, 2021. Id. at p. 10. The counselor reviewed the grievance on April 14, 2021,
and concluded that “cell assignment is an administrative decision. Id. Grievance 04-21-
137 was then received by the Lawrence Grievance Officer on April 19, 2021. Id. at p. 11.
The Grievance Officer affirmed the decision of the counselor and denied Plaintiff’s
Grievance on August 4, 2021. Id. On August 5, 2021, the CAO at Lawrence affirmed the
Counselor’s and Grievance Officer’s decision to deny Plaintiff’s grievance. Id. On October
15, 2021, Grievance 04-21-137 was received by the Administrative Review Board (“ARB”).
Id. On November 1, 2021, the ARB provided a response to Plaintiff’s grievance indicating
that the appeal was received thirty days past the date of the CAO’s decision, and therefore
the issue would not be addressed further. Id.
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 National Athletic Sportswear 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. 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 PLRA’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).
Additionally, it affords prison administrations an opportunity to fix the problem, to
reduce damages, and to 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 at 1023. As an inmate confined in 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 PLRA.
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. See 20 ILL. ADMIN. CODE § 504.810(a). In the 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.” 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,
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 failed to exhaust his administrative remedies for
Grievance No. 04-21-137 because the ARB did not receive the grievance within thirty days
of the date of decision made by the CAO at Lawrence. (Doc. 29, p. 8). See also 20 ILL.
ADMIN. CODE §504.850(a) (noting that an inmate may appeal a grievance denial to the
ARB within 30 days of the date of decision). However, Plaintiff indicates that an internal
mailing error at Lawrence prevented him from receiving the CAO’s response in a timely
manner which precluded him from submitting his grievance to the ARB within the thirty-
day period. As Defendants have not proven that the administrative remedy process was
truly available to Plaintiff, the Court must DENY Defendants’ Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies. (Doc. 29).
An inmate is only required to exhaust those administrative remedies that are
available to him and he “need not exhaust unavailable ones.” See Ross v. Blake, 578 U.S.
632, 642 (2016). Because Defendants have invoked the affirmative defense of failure to
exhaust, they must prove that “an administrative remedy was available and that [the
plaintiff] failed to pursue it.” Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015). See also
Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022) (defendants “cannot shift it to require [the
plaintiff to show] that administrative remedies were unavailable.”). An administrative
remedy is considered “available” when it is “capable of use for the accomplishment of a
purpose” and that which is accessible or may be obtained.” Ross, 578 U.S. at 642 (citing
Booth v. Churner, 532 U.S. 731, 736, 738 (2001)).
In Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Plaintiff
states that he did not receive the response from the CAO at Lawrence until “mid to late
September 2021.” (Doc. 10, p. 4). This is after the thirty-day period within which Plaintiff
had to forward his appeal to the ARB as the date of decision by the CAO is listed as
August 5, 2021. Id. at p. 12. Based on that date of decision, Plaintiff was required to submit
his appeal to the ARB by September 5, 2021. Plaintiff believes that he did not receive the
grievance response in a timely manner because he was transferred to Centralia on August
4, 2021. (Doc. 31, p. 5). Plaintiff highlights that at the top of Grievance No. 04-21-137, there
is a crossed-out cell number. Originally, it appears as though the Grievance Response
was sent to cell S4 B14. However, Plaintiff notes he was actually in cell S4 D5. Id.
Plaintiff’s situation is similar to that in Dole. In Dole, the plaintiff attempted to file
a grievance with the ARB before the deadline had passed. 438 F.3d at p. 805. He placed
the grievance in the hands of prison authorities, trusting that it would be delivered to the
ARB. Id. Dole did not hear back from the ARB, and he sent two letters of inquiry
regarding the status of his grievance. Id. The ARB responded that it did not have any
record of Plaintiff’s grievance. Id. The Seventh Circuit concluded that because Dole had
followed all procedures and “prison officials were responsible for the mishandling of the
grievance” that it could not be said that plaintiff failed to exhaust his administrative
remedies. Id. at p. 811.
Here, Plaintiff was not at fault for the alleged mishandling of his grievance at the
second level. Additionally, the ARB did not indicate to Plaintiff that he had any other
means of recourse. (Doc. 29, Exh. 1, p. 7). Thus, Plaintiff did everything he could to
exhaust his administrative remedies. As Defendants do not attack Plaintiff’s argument,
and based on the documentary evidence relied upon by Plaintiff, the Court finds his
factual assertions to be credible. Accordingly, the Court finds that Plaintiff did not have
access to the administrative remedy process, and Defendants have failed to meet their
burden to demonstrate that the grievance process was available to Plaintiff.
CONCLUSION
For the forgoing reasons, the Court DENIES the Motion for Summary Judgment
as to Exhaustion of Administrative Remedies. (Doc. 28).
IT IS SO ORDERED.
DATED: September 28, 2023. Digitally signed by
□□□ . Judge Sison
Sonn Date: 2023.09.28
13:51:40 -05'00'
GILBERT C. SISON
United States Magistrate Judge
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