Flournoy v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHNNIE FLOURNOY, )

)

Plaintiff, )

)

vs. ) Case No. 3:22-CV-49-MAB

)

DEEDEE BROOKHART, )

LAURA CUNNINGHAM, )

AMBER ELLIOT, and )

WEXFORD HEALTH SOURCES, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the motion for counsel filed by Plaintiff

Johnnie Flournoy (Doc. 37), and the motions for summary judgment on the issue of

exhaustion filed by all Defendants (Docs. 35, 41; see also Docs. 36, 42). For the reasons

explained below, Plaintiff’s motion for counsel (Doc. 37) is denied; the motions for

summary judgment (Docs. 35, 41) are granted.

BACKGROUND

In December 2020, Plaintiff Johnnie Flournoy, an inmate in the custody of the

Illinois Department of Corrections, filed a lawsuit pursuant to 42 U.S.C. § 1983 alleging

deprivations of his constitutional rights at Lawrence Correctional Center. Flournoy v.

Brookhart, et al., SDIL Case No. 20-cv-01357-SPM, Doc. 1. Plaintiff’s allegations and claims

regarding COVID-19 were severed into the instant lawsuit on January 11, 2022 (Doc. 1).

See also SDIL Case No. 20-cv-01357-SPM, Doc. 11. Specifically, he alleged proper COVID-

19 protocols were not implemented at Lawrence and he was not provided with any

medical treatment when he contracted the virus in November 2020 (Doc. 1). Following a

threshold review of Plaintiff’s allegations pursuant to 28 U.S.C. § 1915A, Plaintiff was

permitted to proceed on the following claims:

Count 6: Eighth Amendment claim against Brookhart, Elliott, and

Cunningham for failing to implement proper COVID-19 safety

protocols.

Count 7: Eighth Amendment claim against Brookhart, Cunningham, and

Wexford for failing to provide medical treatment to Plaintiff once

he contracted COVID-19.

Count 9: First Amendment claim against Elliott for moving Plaintiff to

different cells in retaliation for filing grievances and complaints.

Wexford filed its motion for summary judgment on the issue of exhaustion on June

5, 2023 (Docs. 35, 36). The following day, Plaintiff filed a motion asking the Court to

recruit counsel for him due to his vision impairment (Doc. 37). Plaintiff indicated that he

is completely blind in his left eye and has only partial vision in his right eye, which was

worsening by the day (Doc. 37). Plaintiff, however, was able to file a response in

opposition to Wexford’s motion for summary judgment (Doc. 38).

Defendants Brookhart, Cunningham, and Elliot filed their motion for summary

judgment on the issue of exhaustion on August 7, 2023 (Docs. 41, 42). Two weeks later,

Plaintiff filed his response in opposition (Doc. 44). Based on the contents of Plaintiff’s

response, Wexford filed a reply brief in support of its own motion for summary judgment

(Doc. 45), to which Plaintiff filed a sur-reply (Doc. 47).1

1 Under this Court’s Local Rules, sur-reply briefs are prohibited. See SDIL-LR 7.1(a)(4) (“Under no

circumstances will sur-reply briefs be accepted.”)

MOTION FOR COUNSEL

“There is no right to court-appointed counsel in federal civil litigation.” Giles v.

Godinez, 914 F.3d 1040, 1052 (7th Cir. 2019) (quoting Olson v. Morgan, 750 F.3d 708, 711

(7th Cir. 2014)). But the district court has discretion to recruit an attorney for any litigant

who cannot otherwise afford one. Giles, 914 F.3d at 1052. A district court considering an

indigent plaintiff's request for counsel must first consider whether the plaintiff has made

reasonable attempts to secure counsel on his own or been effectively precluded from

doing so; and, if so, whether the difficulty of the case factually and legally exceeds his

capacity as a layperson to present it. Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007).

Here, Plaintiff did not provide sufficient information to allow the Court to

determine whether he is indigent. He paid the filing fee in full and did not request to

proceed in forma pauperis (“IFP”). While his motion for counsel includes a trust fund

statement, it is only for the two-and-a-half-month period preceding the motion (see Doc.

37, pp. 7–9). The Court does not believe that this limited snapshot of Plaintiff’s trust fund

activity is sufficient to establish indigency. See 28 U.S.C. § 1915(a)(1), (2) (requiring a

prisoner who wants to proceed IFP to submit an affidavit attesting to all of their assets

and a certified copy of the trust fund account statement for the six-month period

immediately preceding the filing of the complaint).

Additionally, Plaintiff simply did not provide enough information to allow the

Court to determine whether he made a reasonable attempt to obtain counsel on his own.

Plaintiff was previously told that in order to make this showing, he had to contact at least

three attorneys regarding representation in this case and provide the Court with the

attorneys’ names and addresses, an explanation as to how and when he attempted to

contact them, and the attorneys’ responses (if any) (Doc. 33). Plaintiff stated in his motion

that he contacted the NAACP and three other attorneys: Ben Crump, “Attorney Gerstein

out of the Central District of Illinois,” and “Mr. Muslin” from Muslin & Sandberg (see

Doc. 37, p. 1). He never heard back from the NAACP or Mr. Crump (Id.). Mr. Gerstein is

now retired (Id.). And Mr. Muslin stopped communicating with Plaintiff due to

extenuating circumstances in his personal life (Id.). Plaintiff also submitted “rejection”

letters from the ACLU and the firm Loevy & Loevy (Id. at pp. 3–5).

At first blush, it looks like Plaintiff did enough to satisfy his burden. However,

after a more careful evaluation, the Court is not convinced. To begin with, the Court

questions whether Plaintiff was actually seeking representation for this case when he

wrote to the ACLU and Loevy & Loevy. The first letter from the ACLU and the rejection

letter from Loevy & Loevy are respectively dated eight and nine months prior to

Plaintiff’s motion for counsel,2 and they were both previously submitted with Plaintiff’s

request for counsel in his other case (see SDIL Case No. 20-cv-01357-SPM, Doc. 39, pp. 28,

29). Additionally, the first letter from the ACLU merely thanks Plaintiff for sending

documents “about the Lippert class action lawsuit,” which pertains to inadequate medical

care in the IDOC; it says nothing about a request for representation in a case regarding

the facility’s handling of COVID-19 (Doc. 37, p. 4). While the second letter from the ACLU

2 The rejection letter from Loevy & Loevy is dated September 7, 2022 (Doc. 37, p. 3). The first rejection letter

from the ACLU is dated October 10, 2022, while the second is dated May 3, 2023 (Id. at pp. 4, 5). Plaintiff

filed his motion for counsel on June 6, 2023 (Doc. 37)

makes clear that Plaintiff requested representation, it once again mentions efforts “to

improve healthcare in IDOC via the Lippert class action,” which suggests to the Court that

Plaintiff was seeking representation in his first case regarding inadequate medical care,

not the manner in which Lawrence handled COVID. At any rate, the ACLU told Plaintiff

that it focuses on “broad impact, constitutional litigation” and rarely involves itself in

“cases of individual unfairness or injustice” (Id. at p. 5).

The Court believes the NAACP operates in much the same way as the ACLU and

has never seen the NAACP accept a solicitation to represent an individual prisoner in a

civil rights case. The Court also questions whether Attorney Ben Crump was a truly

realistic option given that he is a nationally renowned attorney, best known for taking on

high-profile cases. And, of course, Mr. Gerstein was not a viable option given that he had

retired. Contacting organizations and/or attorneys who are almost certainly not going to

accept his case due to the nature and scope of their work—or the fact that they are no

longer working at all—does not constitute a reasonable attempt to obtain counsel.

Furthermore, Plaintiff did not indicate when he wrote to the NAACP and Attorneys

Crump and Muslin, nor did he verify that he requested representation in this particular

case. Absent this information, the Court is unable to say that Plaintiff made a reasonable

attempt to recruit an attorney for himself.

Finally, at the time of Plaintiff’s request for counsel, this case was in the exhaustion

stage. Plaintiff’s responses to Defendants’ motions for summary judgment demonstrate

that he had all the necessary facts at his disposal and was capable of explaining his efforts

to exhaust his administrative remedies without the assistance of counsel and in spite of

his visual impairment.

For all of these reasons, Plaintiff’s motion for counsel is denied.

MOTIONS FOR SUMMARY JUDGMENT ON THE ISSUE OF EXHAUSTION

In their motions for summary judgment, Defendants argue there are only two

grievances relevant to Plaintiff’s claims—one written in August 2020 and the other in

December 2020—but Plaintiff prematurely filed this lawsuit before he fully exhausted

either grievance (Doc. 36, pp. 2–3, 8; Doc. 42, pp. 2–3, 6-7). Defendants also argue that the

December 2020 grievance is insufficient to exhaust Plaintiff’s claims because it was

rejected due to a procedural defect (Doc. 36, p. 7; Doc. 42, pp. 7–8).

Plaintiff responded with a laundry list of arguments (Doc. 38; Doc. 44). He argued,

in short, that he should be deemed to have fully exhausted his administrative remedies

because he complied with “the Spirit and Intent of the PLRA” and “730 ILCS [5/3-8-8]”

and the grievance process was rendered unavailable for various reasons (Doc. 38; Doc.

44).

Background

1. The Allegations in the Complaint

The claims proceeding in this case encompass the following allegations.3 During

the pandemic, Placement Officer Supervisor Amber Elliott recklessly moved inmates all

3 The Court notes Plaintiff alleged that after the COVID-19 pandemic hit in March 2020, Lawrence

continued to run lines with hundreds of inmates to chow, yard, the gym, and school programs, and Warden

DeeDee Brookhart denied emergency grievances complaining about it (Doc. 12, p. 2; see also SDIL Case No.

20-cv-1357, Doc. 1, p. 5 (original complaint); Doc. 10, p. 7 (first amended complaint). This allegation,

however, appears to be background information rather than an integral part of Plaintiff’s claims. The

original and first amended complaint both highlight that cell transfers are the issue at the heart of Plaintiff’s

over the prison (Doc. 12, pp. 2–3; Doc. 2, pp. 7–8, 15–16). Warden Brookhart and Health

Care Administrator Laura Cunningham were aware of Elliott’s actions and numerous

inmate complaints over it, but they did nothing to stop it and signed off on her conduct

once a grievance was filed (Doc. 12, pp. 2–3; Doc. 2, pp. 7–8, 15–16). Plaintiff alleges that

he had a single-man cell, but then Elliot began moving him from cell to cell, for no

apparent reason (Doc. 12, pp. 2–3; Doc. 2, pp. 7–8, 15–16). Eventually, she moved him into

cells with other inmates who did not wear masks (Doc. 12, pp. 2–3; Doc. 2, pp. 7–8, 15–

16). Plaintiff believes all of the moves were in retaliation for filing grievances and

complaints (Doc. 12, pp. 2–3; Doc. 2, pp. 7–8, 15–16).

Plaintiff contracted COVID-19 in November 2020 and was moved to a cell house

with other infected inmates (Doc. 12, pp. 2–3; Doc. 2, pp. 7–8, 15–16). He alleges that he

was extremely ill but did not receive any medical treatment because Brookhart,

Cunningham, and Wexford were enforcing Wexford’s “cost cutting policy.” (Doc. 12, pp.

2–3; Doc. 2, pp. 7–8, 15–16).

B. Plaintiff’s Grievances

Defendants submitted grievance records pertaining to the following two

grievances, which are discussed in chronological order.

First, the IDOC Defendants pointed to Grievance #08-20-156, dated August 7, 2020

(Doc. 42-1, pp. 11–14). In this grievance, Plaintiff complained about a number of cell

moves, that began “a few months ago” and continued up to the date of his grievance.

claims. See SDIL Case No. 20-cv-1357, Doc. 1, pp. 8–9 (original complaint); Doc. 10, pp. 7–8, 15 (first

amended complaint). S.

Plaintiff indicated that he felt like he was being targeted and the moves were in total

disregard of the fact that he is blind and vulnerable to the coronavirus. This grievance

was stamped “received” by the facility on August 14, 2020, and Plaintiff’s counselor

responded on August 18th. The grievance officer then received the grievance a week later

and responded on October 8th, recommending that the grievance be denied. The Warden

concurred and denied the grievance on October 13th. Plaintiff appealed to the ARB,

where the grievance was received on October 30, 2020.4 The ARB responded to the

grievance on March 11, 2021, and denied it. However, Plaintiff had already filed his

complaint and initiated case no. 20-cv-1357-SPM on December 22, 2020, almost three

months before the ARB responded.

Second, the IDOC Defendants and Wexford both pointed to Grievance #12-20-359,

dated December 7, 2020 (Doc. 36-1, pp. 21–24; Doc. 42-1, pp. 7–10). In this grievance,

Plaintiff complained that there were no precautions taken to protect the inmates at

Lawrence from COVID-19 and he contracted the virus. He indicated that he was

extremely sick, and no medical care was provided. Plaintiff’s counselor received the

grievance on December 16, 2020. Six days later, and before the counselor had responded,

Plaintiff filed his complaint and initiated case no. 20-cv-1357-SPM. The counselor then

responded on January 5, 2021. The grievance officer received Grievance #12-20-359 on

4 Plaintiff submitted evidence that, around the same time he appealed to the ARB, he also sent a copy of

the grievance to the Governor along with a letter dated October 29, 2020 (see Doc. 44, pp. 15–21). The

Governor’s office forwarded everything to the ARB, and the ARB received it on February 2, 2021 (see id.).

Two days later, the ARB sent a communication to Plaintiff informing him, in pertinent part, that grievance

#08-20-156 had been forwarded to them by the Governor’s office, it was the second time they had received

that grievance, and they would mail him a response after the grievance was reviewed (Id. at p. 15).

January 28, 2021, and responded on May 7, 2021, recommending that the grievance not

be reviewed because it did not contain an incident date as required by the administrative

rules. The Warden concurred and rejected the grievance on what appears to be May 7,

2021 (the date is difficult to read). Plaintiff appealed to the ARB on May 14th and the ARB

received his appeal on May. Three days later, the ARB returned the grievance to Plaintiff

without review because it did not contain a date for the incident and thus failed to comply

with the administrative rules.

In his response, Plaintiff argues that he complied with “the Spirit and Intent of the

PLRA” and “730 ILCS [5/3-8-8]” and therefore exhausted all his available remedies (Doc.

38, pp. 1, 6; Doc. 44, pp. 1, 2). More specifically, he argues that the December grievance

provided officials with enough information to understand his issue and respond to it,

and therefore he had done all that was required to satisfy the spirit and intent of the PLRA

(Doc. 38, p. 6; Doc. 44, pp. 3, 4). He also argues that officials’ refusal to address the

December grievance violates 730 ILCS 5/3-8-8, which provides that a committed person’s

right to file grievances shall not be restricted (Doc. 38, p. 6; see also Doc. 44, p. 4). As further

evidence of his compliance with the spirit and intent of the PLRA and 730 ILCS 5/3-8-8,

Plaintiff pointed to a number of “formal complaints” that he submitted to the Governor

of Illinois between January 2018 and January 2022, many of which were also sent to the

Department of Justice and/or the Director of the IDOC, and to other grievances that he

wrote in 2020, 2021, and 2022 on his own behalf and on behalf of other inmates (Doc. 38,

pp. 17, 18–19, 25–61; Doc. 44, pp. 1–2, 7–35, 36–37). He claimed that he submitted

grievances and appeals that went unanswered and that a counselor told him, “things

were shut down because of Covid” (Doc. 44, pp. 3, 4, 37; see also Doc. 38, p. 6). Finally, he

stated that “[m]edical conditions interfered with him doing more” (Doc. 44, p. 3).5

Legal Standard

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

CIV. P. 56(a). In making that determination, the court must view the evidence in the light

most favorable to, and draw 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).

Courts generally cannot resolve factual disputes on a motion for summary judgment.

E.g., Tolan v. Cotton, 572 U.S. 650, 656, 134 S. Ct. 1861, 1866, 188 L. Ed. 2d 895 (2014) (“[A]

judge’s function at summary judgment is not to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”) (internal

quotation marks and citation omitted). However, when the motion for summary

judgment pertains to a prisoner’s failure to exhaust, the Seventh Circuit has instructed

courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a

prisoner’s efforts to exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing

Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)). Accord Roberts v. Neal, 745 F.3d 232, 234 (7th

Cir. 2014). But when there are no material factual disputes, an evidentiary hearing is not

necessary. See Doss v. Gilkey, 649 F. Supp. 2d 905, 912 (S.D. Ill. 2009) (no hearing required

5 Plaintiff wrote that, “When [he] caught the coronavirus, he almost died and received no medical

treatment so he hurried and filed this lawsuit with a copy going to his family should he die to take to a

lawyer to pursue. Medical conditions interfered with him doing more.” (Doc. 44, p. 3).

where there are “no disputed facts regarding exhaustion, only a legal question”). Here,

there are no material issues of fact that require a hearing to resolve.

The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit

about prison conditions unless and until he has exhausted all available administrative

remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).

Exhaustion is an affirmative defense, which the defendants bear the burden of proving.

Pavey, 663 F.3d at 903 (citations omitted). In order for a prisoner to properly exhaust his

or her administrative remedies, the prisoner must “file complaints and appeals in the

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

F.3d 1022, 1025 (7th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Failure to

do so means failure to exhaust. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).

However, an inmate is required to exhaust only those administrative remedies that are

available to him. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016); Dole v. Chandler, 438

F.3d 804, 809 (7th Cir. 2006). Administrative remedies become “unavailable” when, for

example, prison officials fail to respond to a properly filed inmate grievance or thwart a

prisoner from exhausting. Pyles, 829 F.3d at 864; Lewis v. Washington, 300 F.3d 829, 833

(7th Cir. 2002); Dole, 438 F.3d at 809.

As an inmate in the IDOC, Plaintiff was required to follow the three-step

grievance process outlined in the Illinois Administrative Code to exhaust his claims. 20

ILL. ADMIN. CODE § 504.800, et seq. (2017). The regulations require an inmate to first submit

the grievance within 60 days of the incident, occurrence, or problem. Id. at § 504.810(a).

After the counselor responds, the grievance goes to the grievance officer, who tenders a

recommendation to the warden within two months after receipt of the written grievance,

“when reasonably feasible under the circumstances.” Id. at § 504.830(e). The warden then

reviews the recommendation and provides the inmate with a written decision on the

grievance. Id. If the inmate is unsatisfied with the warden’s decision, he has thirty days

from the date of the warden’s decision to appeal to the Administrative Review Board

(“ARB”). Id. at § 504.850(a). The ARB submits a written report of its findings and

recommendations to the Director of the IDOC, who then makes a final decision, which

should be issued “within six months after receipt of the appealed grievance, when

reasonably feasible under the circumstances.” Id. at § 504.850(d), (e).

Discussion

Defendants have shown, and Plaintiff does not dispute, that there are only two

grievances that went through every step of the grievance process and pertain to the issues

in this lawsuit: the August 7, 2020 grievance and the December 7, 2020 grievance. The

Court agrees with Defendants that Plaintiff filed suit prematurely before either of these

grievances was fully exhausted.

The PLRA is clear: a prisoner must exhaust their claims before filing suit. 42 U.S.C.

§ 1997e(a) (“No action shall be brought with respect to prison conditions . . . by a prisoner

. . . until such administrative remedies as are available are exhausted.”). See also Woodford

v. Ngo, 548 U.S. 81, 88, 93 (2006) (holding that “complet[ing] the administrative review

process” is “a precondition to [a prisoner] bringing suit in federal court”); Ford v. Johnson,

362 F.3d 395, 398 (7th Cir. 2004) (“[E]xhaustion must precede litigation.”). Federal courts

strictly enforce this requirement. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016). If the

prisoner files his lawsuit before his administrative remedies are fully exhausted, the

lawsuit must be dismissed, even if the prisoner anticipates they will soon be exhausted,

or they are exhausted during the pendency of the lawsuit. Hernandez, 814 F.3d at 841–42;

Ford, 362 F.3d at 398.

Plaintiff appealed the August 2020 grievance to the ARB on October 19, 2020, and

the ARB received it on October 30, 2020 (see Doc. 42-1, pp. 11, 12). According to the Illinois

Administrative Code, the Director of the IDOC is supposed to issue his final decision

“within six months after receipt of the appealed grievance, when reasonably feasible

under the circumstances.” 20 ILL. ADMIN. CODE 504.850(e). But Plaintiff gave the Director

less than two months before he filed suit on December 22, 2020. Plaintiff’s argument that

the ARB failed to respond to the grievance, (Doc. 44, p. 2), is simply not true. The ARB

responded, and their response was within the six-month window recommended by the

Administrative Code. Plaintiff simply jumped the gun in filing suit before the ARB

announced its decision on his appeal.

Plaintiff likewise acted too hastily with respect to his December 2020 grievance.

That grievance was dated December 7, 2020, and the counselor received it on December

16th (see Doc. 36-1, p. 23). Plaintiff filed his lawsuit on December 22nd, only 15 days after

he submitted his grievance and just six days after his counselor received it. While the

Illinois Administrative Code does not include a suggested timeframe for the counselor to

respond to the grievance, see ILL. ADMIN. CODE, tit. 20, § 504.810 (2017), it is quite evident

that Plaintiff did not give the counselor a reasonable amount of time.6 Six days, or even

15 days, is not enough time for an inmate to conclude the counselor is not going to

respond and the grievance process has been rendered unavailable.

In an attempt to save his case, Plaintiff puts forth a variety of arguments as to why

his failure to exhaust the August and December 2020 grievances prior to filing suit

should, in essence, be excused (see Doc. 38, Doc. 44). However, none of Plaintiff’s

arguments are sufficient to survive summary judgment.

To begin, Plaintiff’s argument about complying with “the spirit and intent” of the

PLRA is a non-starter. For decades, the Seventh Circuit “has taken a strict compliance

approach to exhaustion.” Crouch v. Brown, 27 F.4th 1315, 1320 (7th Cir. 2022) (citing Dole

v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)). In order to exhaust, prisoners must follow

the procedures and rules that the state has established for the grievance process,

completing each step in the sequential process and complying with all requirements

regarding form, content, timing, etc. Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011). See

also Woodford v. Ngo, 548 U.S. 81, 93 (2006) (“[T]he PLRA exhaustion requirement requires

proper exhaustion” and “[p]roper exhaustion demands compliance with . . . deadlines

6 See Jackson v. Shepherd, 552 Fed.Appx. 591, 592 (7th Cir. 2014) (inmate failed to exhaust where he filed suit

only two weeks after submitting his grievance to counselor); Viverette v. Brooks, No. 3:15-717-NJR-DGW,

2016 WL 4626191, at *1 (S.D. Ill. Aug. 9, 2016), report and recommendation adopted, 2016 WL 4616980 (S.D. Ill.

Sept. 6, 2016) (inmate failed to exhaust where he filed suit only nine days after his counselor received the

grievance); Sowemimo v. Bader, No. CIV. 08-664-JPG, 2010 WL 2803982, at *7 (S.D. Ill. May 11, 2010), report

and recommendation adopted, 2010 WL 2803980 (S.D. Ill. July 15, 2010) (inmate failed to exhaust where he

filed suit 57 days after submitting his grievance to counselor). But see Meyer v. Wexford Health Sources, No.

3:16-CV-173-JPG-DGW, 2017 WL 1058831, at *4 (S.D. Ill. Feb. 16, 2017), report and recommendation adopted,

2017 WL 1048258 (S.D. Ill. Mar. 20, 2017) (grievance process rendered unavailable when inmate did not

receive a response from counselor within 60 days).

and other critical procedural rules”); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.

2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the place,

and at the time, the prison's administrative rules require.”). Letters to the Governor, the

Director of the IDOC, or anyone else for that matter are no substitute for compliance with

the formal grievance process. Cf. Bella v. Meli, 754 Fed. Appx. 480, 482 (7th Cir. 2019)

(bypassing the grievance procedure by writing to or speaking with the security director

does not satisfy the exhaustion requirement); Pavey v. Conley, 663 F.3d 899, 905 (7th Cir.

2011) (participating in an internal-affairs investigation is no substitute for utilizing the

formal grievance process and does not satisfy the exhaustion requirement); Twitty v.

McCoskey, 226 Fed. Appx. 594, 595 (7th Cir. 2007) (making verbal and written complaints

to jail staff cannot be used as an informal substitute for complying with the formal

grievance process and does not satisfy the exhaustion requirement). Thus Plaintiff’s

“formal complaints” to the Governor cannot serve to exhaust his claims.

To the extent that Plaintiff relies on 730 ILL. COMP. STAT. 5/3-8-8 to support his

assertion that he fully exhausted his administrative remedies and/or was thwarted from

doing so, his reliance is misplaced. That statute states, in pertinent part:

(a) The Director shall establish procedures to review the grievances of

committed persons. . . . A committed person’s right to file grievances

shall not be restricted. . . .

(c) Such procedures shall allow committed persons to communicate

grievances directly to the Director or some person designated by the

Director outside of the institution or facility where the person is

confined.

730 ILL. COMP. STAT. 5/3-8-8. As other judges have explained, 5/3-8-8 is an enabling

statute that requires the IDOC to establish a grievance process that meets certain

requirements. Taylor v. Caliper, No. 08-CV-815-JPG, 2010 WL 1416133, at *2 (S.D. Ill. Apr.

2, 2010); Cebertowicz v. Baldwin, 2016 IL App (4th) 150289-U, 2016 WL 482452, at *3 (Ill.

App. Ct. 2016) (unpublished), appeal denied 50 N.E.3d 1138 (Ill. 2016). This statute does not

allow inmates to bypass the formal grievance process by sending letters or complaints to

the Governor. Taylor, 2010 WL 1416133, at *2 (order adopting report and

recommendation); Taylor v. Caliper, No. 3:08CV00815JPG-PMF, 2010 WL 1416052, at *2

(S.D. Ill. Feb. 5, 2010) (report and recommendation); Cebertowicz, 2016 WL 482452, at *3.

Nor does it curtail officials’ ability to reject a grievance for non-compliance with the rules

regarding timing and content of the grievance. See, e.g., Conyers v. Abitz, 416 F.3d 580, 585

(7th Cir. 2005) (“a procedural shortcoming like failing to follow the prison’s time

deadlines amounts to a failure to exhaust . . . if prison administrators explicitly relied on

that shortcoming”) (citing Ford v. Johnson, 362 F.3d 395, 397–98 (7th Cir. 2004)); Pozo, 286

F.3d at 1025 (affirming the rejection of an untimely grievance). Plaintiff did not cite to any

authority that might convince the Court otherwise (see Docs. 38, 44).

The Court turns next to Plaintiff’s assertion that his medical conditions precluded

him from doing more with respect to his grievances (Doc. 44, p. 3). Plaintiff did not

support his assertion with any specific facts about his medical condition in the body of

his brief or in the affidavit attached thereto (see Doc. 44, pp. 1–5, 36–39). And there is

nothing in the record that even remotely suggests Plaintiff was physically incapacitated

by illness to the point that he was unable to participate in the grievance process. See Hurst

v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011) (a grievance process can be rendered

unavailable to an inmate on account of physical incapacitation). In fact, the evidence

suggests the exact opposite. By the first week of December, Plaintiff had recovered

enough to be transferred out of the “Coronavirus unit” and back to a regular cellhouse

(see Doc. 42-1, pp. 10–11). Plaintiff was also physically well enough to author and submit

the December 7th grievance, to file his complaint in 20-cv-01357-SPM on December 22nd,

to submit formal complaints to the Governor, and to submit other grievances for himself

and other inmates (Doc. 38, pp. 36, 38 (grievance regarding commissary dated Dec. 14,

2020); Doc. 44, p. 14 (“Formal Complaint/Request for Investigation” to governor dated

Jan. 14, 2021); Doc. 44, p. 27–29 (grievance that Plaintiff wrote for inmate Tony Rogers

dated Feb. 15, 2021)). If Plaintiff was capable of those things, then the Court has no reason

to believe he was not also capable of simply waiting for a counselor to respond to his

December 7th grievance and for the ARB to respond to his August 7th grievance.

Plaintiff’s reliance on a bare conclusion regarding his medical condition is simply not

sufficient to create a genuinely debatable issue of fact as to whether administrate

remedies were available to him and trigger the need for an evidentiary hearing.7

7 Smallwood v. Williams, 59 F.4th 306, 318 (7th Cir. 2023) (explaining district court is only obligated to

conduct a Pavey hearing if the plaintiff points to “sufficient factual allegations demonstrating a genuine

dispute as to whether the administrative remedies were available to him.”) (citing Roberts v. Neal, 745 F.3d

232, 234 (7th Cir. 2014)). See also Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (“The nonmoving

party must do more than simply show that there is some metaphysical doubt as to the material facts. The

mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to

survive a summary judgment motion; there must be evidence on which the jury could reasonably find in

favor of the nonmoving party.”); Szymanski v. Rite-Way Lawn Maint. Co., 231 F.3d 360, 364 (7th Cir. 2000)

(“[A] party will be successful in opposing summary judgment only when they present definite, competent

evidence to rebut the motion.”). But see Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006) (“Sworn affidavits,

particularly those that are detailed, specific, and based on personal knowledge are “competent evidence to

rebut [a] motion for summary judgment.”) (quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004) (per

curiam )); Lynch v. Corizon, Inc., 764 Fed. Appx. 552, 554 (7th Cir. 2019) (holding prisoner’s affidavit, which

cited to events based on personal knowledge, was sufficient evidence to create a question as to whether

That leaves Plaintiff’s assertions that he submitted grievances that went

unanswered. In his first response brief (to Wexford’s motion for summary judgment),

Plaintiff made the bald assertion that “[t]here has been many instances where I didn’t get

a response from a formal grievances [sic] and appeal” (Doc. 38, p. 6). He did not provide

any further information about the purported grievances or appeal in the body of his brief

or in the affidavit attached thereto (see Doc. 38, pp. 1–8, 18–21). In his second response

brief (to the IDOC Defendants’ motion for summary judgment), Plaintiff provided a bit

more information, albeit still vague and equivocal. He claimed that he submitted two

grievances and one or two appeals to the ARB, and he “believe[s]” it was sometime in

April and/or May of 2020, but he did not receive responses (Doc. 44, pp. 3, 4, 37). He

further claimed that a counselor told him that “everything was shut down because of

covid.” (Doc. 44, pp. 4, 37). While he did not specify what these grievances or appeals

were about (see Docs. 38, 44), one of his affidavits seems to suggest that they were about

prison officials continuing to run lines with hundreds of inmates thereby ignoring

warnings and information about how to protect inmates from COVID (Doc. 44, p. 37).

Even if the Court accepts as true Plaintiff’s assertions that some grievances went

unanswered, and the grievance process was shut down during the early months of the

pandemic, these assertions do not establish an issue of fact as to whether the process was

unavailable when it came to grieving the issues that form the basis of his claims in this

lawsuit. To begin with, any grievances purportedly filed in the spring of 2020 pre-dated

administrative remedies were available to him, and the court was obligated to conduct an evidentiary

hearing to resolve this fact dispute).

some, if not all, of the conduct at issue here. The failure to provide Plaintiff with medical

care when he had COVID did not occur until Plaintiff contracted COVID in mid-

November 2020. Therefore, a grievance filed in April or May of that year obviously did

not include any complaints about a failure to provide medical care that had yet to occur.

As for the cell transfers, Plaintiff did not specify in his complaint, summary judgment

briefs, or affidavits when the cell transfers began; however, one of his grievances suggests

that he was not moved until sometime after April and May (see Doc. 42-1, p. 13 (grievance

dated Aug. 7, 2020, stating “A few months ago I was moved . . .”)). The Court thus

questions, but cannot say for sure, whether a grievance filed in April or May could have

possibly included a complaint about cell transfers.

That being said, Plaintiff failed to adequately develop his argument that the

purported suspension of the grievance process rendered his administrative remedies

unavailable. He omitted any details about the duration of the suspension and whether it

overlapped with his window to file grievances about the pertinent issues (see Doc. 38,

Doc. 44). And the evidence demonstrates that any suspension did not preclude Plaintiff

from grieving the pertinent issues. He utilized the grievance process on August 7, 2020

and December 7, 2020 to complain about cell transfers and the lack of medical care when

he was sick with COVID. Officials responded to those two grievances at every level of

the process. Plaintiff simply did not follow the administrative rules regarding the content

of grievances and/or failed to wait for responses before he filed suit.

In sum, after taking the facts in the light most favorable to Plaintiff, the Court has

determined that there are no genuine issues of material fact and no reasonable factfinder

could find that Plaintiff was prevented from exhausting his administrative remedies.

Defendants met their burden of establishing that the grievance process was available to

Plaintiff as a matter of law, but he failed to complete the process prior to filing suit.

CONCLUSION

Plaintiff’s motion for counsel (Doc. 37) is DENIED. The motions for summary

judgment on the issue of exhaustion filed by Defendants DeeDee Brookhart, Laura

Cunningham, Amber Elliot, and Wexford Health Sources, Inc. (Docs. 35, 41) are

GRANTED. This case is dismissed without prejudice for failure to exhaust. The Clerk of

Court is DIRECTED to enter judgment and close this case on the Court’s docket.

IT IS SO ORDERED.

DATED: March 1, 2024

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge

NOTICE

Plaintiff is advised that this is a final decision ending his case in this Court. If

Plaintiff wishes to contest this decision, he has two options: he can ask the undersigned

to reconsider the Order or he can appeal to the Seventh Circuit.

If Plaintiff chooses to go straight to the Seventh Circuit, he must file a notice of

appeal in the district court within 30 days from the entry of judgment. FED. R. APP. P.

4(a)(1)(A). The deadline can be extended for a short time only if Plaintiff files a motion

showing excusable neglect or good cause for missing the deadline and asking for an

extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421,

425 (7th Cir. 2012) (explaining the good cause and excusable neglect standards);

Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807 (7th Cir. 2011) (explaining the

excusable neglect standard). The current cost of filing an appeal with the Seventh Circuit

is $605.00. The filing fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e).

If Plaintiff cannot afford to pay the entire filing fee up front, he must file a motion for

leave to appeal in forma pauperis (“IFP motion”) along with a recent statement for his

prison trust fund account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth

the issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C).

On the other hand, if Plaintiff wants to start with the undersigned, he can file a

motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), but

such a motion is not required to preserve his appellate rights. Any Rule 59(e) motion must

be filed within twenty-eight (28) days of the entry of judgment. FED. R. CIV. P. 59(e), and

the deadline cannot be extended. See FED. R. CIV. P. 6(b)(2). Any motion must also comply

with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the Court should

reconsider the judgment. Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th

Cir. 2001). See also Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010) (“This court has held

that otherwise timely skeletal motions that fail to satisfy the requirements of FED. R. CIV.

P. 7(b)(1) do not postpone the 30–day period for filing a notice of appeal . . . .”).

So long as the Rule 59(e) motion is in proper form and filed no later than 28 days

after the judgment is entered, the 30-day clock for filing a notice of appeal will be stopped.

FED. R.APP. P. 4(a)(4). The clock will start anew once the motion is ruled on. FED. R.APP.

P. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the

28-day deadline or “completely devoid of substance,” the motion will not stop the clock

for filing a notice of appeal, and the clock will expire 30 days from the entry of judgment.

Carlson v. CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Talano v. Northwestern Medical

Faculty Foundation, Inc., 273 F.3d 757, 760–61 (7th Cir. 2001); Martinez v. Trainor, 556 F.2d

818, 819–20 (7th Cir. 1977). Again, the deadline for filing a notice of appeal can be

extended only on a written motion by Plaintiff showing excusable neglect or good cause.