# Stevenson v. Taylor

> District Court, S.D. Illinois · October 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10156939

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** October 25, 2023
- **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/10156939

## How later opinions describe it (automated extraction)

- noting that “[t]his circuit has taken a strict compliance approach to exhaustion”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHARLES STEVENSON, )
)
Plaintiff, )
)
vs. ) Case No. 3:22-cv-02605-GCS
)
GARY GERST, )
and )
DR. QUANG NGUONG TRAN, )
)
)
Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:
INTRODUCTION AND BACKGROUND
Before the Court is Defendant Tran’s motion for summary judgment on the issue
of exhaustion of administrative remedies. (Doc. 50, 51). Defendant Tran also filed the
required Federal Rule of Civil Procedure 56 notice to inform Plaintiff of the consequences
of failing to respond to the motion for summary judgment. (Doc. 52). Specifically,
Defendant Tran argues that Plaintiff failed to exhaust his administrative remedies
because he did not timely complete the grievance process before filing his lawsuit as he
did not properly appeal the denial of his grievance to the Administrative Review Board
(“ARB”). Plaintiff also failed to sufficiently describe any issues/conduct regarding
Defendant Tran. Plaintiff opposes the motion. (Doc. 53, 60). On October 24, 2023, the
Court held a hearing on the motion, heard evidence and oral argument, and took the
matter under advisement. Based on the following, the Court GRANTS the motion.
On November 9, 2022, Plaintiff, an inmate of the Illinois Department of Corrections
(“IDOC”) who is currently incarcerated at Robinson Correctional Center (“Robinson”),

filed this civil action pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights
that occurred at Big Muddy Correctional Center (“Big Muddy”). (Doc. 1). Specifically,
Plaintiff alleges that the Defendants have exhibited deliberate indifference towards his
serious dental needs. He seeks monetary compensation and dental care. The Court
conducted a preliminary review of Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A.
(Doc. 10). Plaintiff was allowed to proceed on the following claim:

Count 1: Eighth Amendment deliberate indifference claim against
Dr. Tran and Gary Gerst concerning the care they provided for
Plaintiff’s dental situation.
FACTS
Plaintiff was transferred to Big Muddy on July 13, 2022. Shortly thereafter, he filed
an emergency grievance regarding his dental issues on July 22, 2022. (Doc. 1, p. 20). On
July 25, 2022, the Chief Administrative Officer expedited the grievance. The next day,
the grievance officer received the grievance and denied the grievance finding no
evidence of wrongdoing and noting that Plaintiff was on the dentist line list to be seen
on July 30, 2022. (Doc. 1, p. 20-21).
The parties agree that this is the only relevant grievance pertaining to the issues in

this case that Plaintiff submitted before he filed his lawsuit on November 9, 2022. Plaintiff
admitted that the grievance dated July 22, 2022, did not mention Defendant Tran by
name, as he did not know Defendant Tran’s name at that time. Further, Plaintiff
admitted that he did not appeal this grievance to the ARB as he was supposed to see the
dentist on July 30, 2022. Lastly, Plaintiff also admitted that he did not file any other
grievances related to his dental issues until after he filed this lawsuit on November 9,

2022. The record reflects that Plaintiff filed two grievances relating to his dental issues
after he filed suit: one on November 17, 2022, and one on February 23, 2023. (Doc. 51-1;
p. 33-35, 51-54). Both grievances were returned by the ARB to Plaintiff for failure to
provide incident dates.
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). The statute provides, in relevant
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).
Generally, the Court’s role on summary judgment is not to evaluate the weight of
the evidence, to judge witness credibility, or to determine the truth of the matter. Instead,

the Court is to determine whether a genuine issue of triable fact exists. See National
Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, 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, 740-741 (7th Cir. 2008).

The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. See, e.g., 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. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). 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. 2002). Consequently, if a prisoner fails to use 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 set forth the following procedures where failure

to exhaust administrative remedies is raised as an affirmative defense:
(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.

Pavey, 544 F.3d at 742.

As an inmate confined within the IDOC, Plaintiff was required to follow the
regulations contained in the IDOC’s Grievance Procedures for Offenders (“grievance
procedures”) to exhaust his claims. See 20 ILL. ADMIN. 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. See 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. See 20 ILL. ADMIN. CODE
§ 504.820(a). The Grievance Officer will review the grievance and provide a written
response to the inmate. See 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 Chief Administrative Officer’s response, he
or she can file an appeal with the Director through the ARB. See 20 ILL. ADMIN. CODE §

504.850(a). 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.” Id. The inmate shall attach copies of the
Grievance Officer’s report and the Chief Administrative Officer’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 6 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).
DISCUSSION

Exhaustion of administrative remedies is an affirmative defense in an action
against prison officials, and the burden of proof is on the officials. As stated previously,
the parties agree that the grievance dated July 22, 2022, is the only one contained in the
record which Plaintiff submitted regarding the issues in the case before he filed this
lawsuit. Here, the undersigned finds that Defendants have met their burden of proof and
that Plaintiff did not exhaust his administrative remedies with this grievance. There is no
indication in the record that it was appealed to the ARB nor does Plaintiff point to any
evidence to suggest that it was fully exhausted. Specifically, the Court finds that Plaintiff
failed to submit this grievance to the ARB as Plaintiff admits as much. The Seventh Circuit
has stated that an inmate must exhaust his administrative remedies prior to filing suit, “a
‘sue first, exhaust later’ approach is not acceptable.” Chambers v. Sood, 956 F.3d 979, 984
(7th Cir. 2020) (citing Ford, 362 F.3d at 398-400). Thus, Plaintiff failed to exhaust his claims
against Defendant Tran with the grievance dated July 22, 2022. Lastly, Plaintiff submitted
the other two grievances after he filed his Complaint, and thus, those grievances cannot
serve to exhaust his administrative remedies. See Perez v. Wisconsin Dept. of Corrections,
182 F.3d 532, 535 (7th Cir. 1999); Chambers, 956 F.3d at 984.

CONCLUSION
Based on the foregoing, Defendants’ summary judgment motion as to exhaustion
of administrative remedies is GRANTED. (Doc. 50). The Court DISMISSES WITHOUT
PREJUDICE Plaintiff's claim against Defendant Tran. The Court DIRECTS the Clerk of
the Court to enter judgment at the close of the case. Remaining in this case is Plaintiff's
claim against Defendant Gerst.
IT IS SO ORDERED.
Digitally signed by
DATED: October 25, 2023. Judge Sison
Flet ©. D5 pate: 2023.10.25
14:47:40 -05'00'
GILBERT C. SISON
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156939. Public record. Not legal advice.