Morris v. Jeffreys

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT MORRIS, )

)

Plaintiff, )

)

vs. ) Case No. 3:23-cv-01162-GCS

)

SHERI BUETTNER, CHELSEA )

REGELSPERGER, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Pending before the Court is Defendant’s Motion for Summary Judgment for

Failure to Exhaust Administrative Remedies. (Doc. 46). Defendants filed the Motion

along with a Memorandum of Law in Support on January 18, 2024. (Doc. 46, 47). The

Court provided Plaintiff with two extensions of time. (Doc. 50, 52). The second extension

provided Plaintiff until April 18, 2024, to respond to the Motion. (Doc. 52). Plaintiff then

filed a timely Response to the Motion for Summary Judgment on April 11, 2024. (Doc.

53). For the reasons delineated below, Defendant’s Motion for Summary Judgment is

DENIED. (Doc. 46).

PROCEDURAL BACKGROUND

Plaintiff Robert Morris (“Morris”), an inmate of the Illinois Department of

Corrections (“IDOC”), brings this civil rights action pursuant to 42 U.S.C. § 1983 for

alleged deprivations of his constitutional rights at Menard Correctional Center

(“Menard”). (Doc. 13). Plaintiff’s First Amended Complaint contains six general groups

of claims, including: a mental health incident that occurred on October 12, 2021 (Doc. 13,

p. 14-15); a disciplinary proceeding that occurred on October 19, 2021 (Doc. 13, p. 15-16);

an alleged excessive force incident by the use of chemical agents on January 12, 2022 (Doc.

13, p. 16-17); a mental health crisis/hunger/water strike beginning on March 28, 2022;

and a medical incident coupled with alleged excessive force on April 4, 2022 (Doc. 13, p.

18-19).

On September 5, 2023, the Court conducted is preliminary review of Plaintiff’s

First Amended Complaint pursuant to 28 U.S.C. § 1915A. (Doc. 17). The Court construed

Plaintiff’s Amended Complaint into the following counts:

Claim 1: Eighth Amendment deliberate indifference claim against

Defendants Rowland and BHT Ms. R for refusing/ignoring Plaintiff’s

expression of suicidal and homicidal ideation one hour prior to a mass

suicide attempt on October 12, 2021;

Claim 2: Eighth Amendment excessive force claim against Defendants

C/O Agne and Sgt. Royster for excessively deploying mace and a fire

extinguisher into Plaintiff’s cell on October 12, 2021, in response to the mass

suicide attempt;

Claim 3: Eighth Amendment deliberate indifference or cruel and

unusual punishment claim against Defendant MHP Ms. Buettner for

refusing to decontaminate Plaintiff on October 12, 2021, and for placing him

in a filthy cell;

Claim 4: Eighth Amendment excessive force or cruel and unusual

punishment claim against Defendants Rowland, Lt. Zang, Lt. Bradley

Sadler, Sgt. Royster, C/O Hoffman, C/O Evans and C/O Dulaney for

directing or participating in the January 12, 2022, incident of excessive use

of chemical agents during a “peaceful protest,” which included spraying

Plaintiff for over 3-5 minutes with mace and fire extinguishers, and then

failing to offer decontamination;

Claim 5: Eighth Amendment deliberate indifference claim against

Defendant Dr. Meyers for refusing medical treatment or ignoring Plaintiff’s

claims of chest pain and intermittent consciousness during a hunger/water

strike on March 31, 2022;

Claim 6: Eighth Amendment excessive force or cruel and unusual

punishment claim against Defendants Royster, C/O Evans, Lt. Zang, Lt.

Bradley Sadler, C/O Agne, Sgt. Story, Sgt. Gaetz, Sgt. Laminack and Sgt.

Morris for releasing pepper spray on April 4, 2022, on individuals who were

on a hunger strike, which caused Plaintiff a panic attack, chest pain, and

intermittent consciousness;

Claim 7: Eighth Amendment deliberate indifference or cruel and

unusual punishment claim against Defendant Crane who was

“unprofessional” towards Plaintiff when he was brought to the healthcare

unit on April 4, 2022, after the pepper spray incident and who sent him

away after he was washed and received an EKG; and

Claim 8: Eighth Amendment excessive force or cruel and unusual

punishment claim against Defendants Lt. Bradley Sadler, Sgt. Story, Sgt.

Gaetz, Sgt. Laminack, Sgt. Morris, and C/O Agne for allegedly beating

Plaintiff on April 4, 2022, after removing him from the healthcare unit, and

for then placing him in a cell contaminated with chemical agents without

any ability to decontaminate for “days.”

(Doc. 17, p. 6-7). Claim 1 survived against Defendants Rowland and Reglesler.1 Id. at p.

15. Claim 2 survived against Defendants Ange and Royster. Id. Claim 3 survived against

Defendant Buettner. Id. The Court allowed Plaintiff to bring the remaining claims in

separate lawsuits.2 Id.

1 Per her answer, the correct spelling of this Defendant’s name is “Regelsperger” and will

be used hereinafter. (Doc. 35).

2 Plaintiff was allowed 21 days to inform the Court if he would like to proceed on the

following claims in separate cases:

Case B: Claim 4 concerning the January 12, 2022, incidents (Rowland, Zang,

Sadler, Royster, Hoffman, Evans, Dulaney);

Case C: Claim 5 concerning Dr. Meyers’s March 31, 2022, refusal of care; and

Case D: Claims 6-9 concerning the April 4, 2022, incidents (Royster, Evans, Zang,

Sadler, Agne, Story, Gaetz, Laminack, Morris, Crane)

FACTUAL BACKGROUND

Plaintiff’s grievance records, obtained from the Administrative Review Board

(“ARB”) contain a total of 309 pages. (Doc. 47, p. 4). Plaintiff’s grievance records from

Menard, obtained from the Attorney General’s Office, contains a total of 236 pages.3 Id.

Plaintiff submitted a total of four grievances at Menard before the alleged October 12,

2021, incident.4 (Doc. 47, Exh. 2, p. 1). The Court will review those grievances related to

(Doc. 17, p. 15).

3 Defendants did not submit the Menard Grievances because none of them relate to the

October 12, 2021, incident. (Doc. 47, p. 4). Plaintiff submitted a total of four grievances at Menard

before the alleged incident on October 12, 2021. Id.

4 Plaintiff’s grievance record from Menard shows that Plaintiff submitted a total of six

grievances at Menard during 2021. (Doc. 47, Exh. 2, p. 1). These grievances include:

Grievance No. 162-8-21: Plaintiff submitted this grievance on August 19, 2021. Id.

Grievance No. 162-8-21 concerned “N2 restrictions and privileges denied due to

COVID & pink tag status.” Id. at p. 2. The Grievance Log indicates the grievance

was reviewed by the CAO on September 2, 2021, deemed moot, and returned to

Plaintiff on September 7, 2021. Id. at p. 3.

Grievance No. 257-8-21: Plaintiff submitted this grievance on August 30, 2021. Id.

at p. 1. Grievance No. 257-8-21 concerned “N2 ADA hearing accommodations,

property.” Id. at p. 2. The Grievance Log indicates the grievance was reviewed by

the CAO on September 8, 2021, deemed moot, and returned to Plaintiff on

September 9, 2021. Id. at p. 3.

Grievance No. 74-9-21: Plaintiff submitted this grievance on September 9, 2021. Id.

at p. 1. Grievance No. 74-9-21 concerned “N2 property confiscated by IA, special

commissary shop & documents from IA.” Id. at p. 2. The Grievance Log indicates

the grievance was reviewed by the CAO on September 14, 2021, denied, and

returned to Plaintiff on September 15, 2021. Id. at p. 3.

Grievance No. 75-9-21: Plaintiff submitted this grievance on September 9, 2021. Id.

at p. 1. Grievance No. 75-9-21 concerned “N2 confiscated property.” Id. at p. 2. The

Grievance Log indicates the grievance was reviewed by the CAO on September

14, 2021, denied, and returned to Plaintiff on September 15, 2021. Id. at p. 3.

the October 12, 2021, incident below.

Plaintiff submitted one grievance dated December 13, 2021, alleging that he was

sending it directly to the ARB because he had “been denied the grievance box” and when

he had been presented it Plaintiff wrote that “there wasn’t any responses and/or

counselor receipts to send in confirmation that someone ha[d] taken notice of it.”5 (Doc.

47, Exh. 1, p. 36). Plaintiff went on to detail the October 12, 2021, incident implicating both

Defendant Regelsperger and Defendant Buettner. Id. at p. 36-37. Plaintiff complained that

“Ms. R. never wrote [us] down for our crisis calls and hunger strike declaration” after he

and a group of inmates vowed to commit suicide because their complaints about

“commissary/ the business office/administration, dietary, law library and many more”

had not received any answer. Id. at p. 37. Plaintiff implicated Defendant Buettner by

stating that she “lied about his appearance upon his arrival into [health care]” after he

Grievance No. 359-10-21: Plaintiff submitted this grievance on October 29, 2021.

Id. at p. 1. Grievance No. 359-10-21 concerned “N2 property misplaced in transit.”

Id. at p. 2. The Grievance Log indicates the grievance was returned to Plaintiff by

a Counselor at the first level on November 16, 2021. Id. The Grievance log does not

show that the Grievance was forwarded on to the second level for review by the

CAO. Id. at p. 3.

Grievance No. 242-12-21: Plaintiff submitted this grievance on December 22, 2021.

Id. at p. 1. Grievance No. 242-12-21 concerned “N2 ADA watch.” The Grievance

Log indicates the grievance was reviewed by the CAO on September 14, 2021,

deemed moot, and returned to Plaintiff on January 20, 2022. Id. at p. 3.

5 Along with Plaintiff’s written grievance, Plaintiff submitted affidavits from nine inmates

indicating that Plaintiff was being denied access to the grievance process. (Doc. 47, Exh. 1, p. 15-

33). Inmate Sherman Gibson wrote that he observed that on the week of November 8 – November

14, 2021, that the grievance box officer refused to stop by and pick up Plaintiff’s complaints. Id. at

p. 33. Inmate Michael Wilson noted that he had “seen multiple staff destroy and throw away

many individuals in custody complaints/grievances from the Grievance Procedure: Grievance

Box.” Id. at p. 25.

was dragged out of his cell and placed on suicide watch. Id. Plaintiff claims Buettner told

him that she would say what she needed to say to protect staff at Menard. Id. The

grievance was not reviewed because the facility responses were not provided as required.

Id. at p. 12.

Plaintiff submitted another grievance directly to the ARB dated December 22,

2021, about the October 12, 2021, incident. (Doc. 47, Exh. 1, p. 8-11). Plaintiff wrote that

he had attempted suicide by arson on October 12, 2021, and that he was “wrongfully”

given three months in segregation. Id. at p. 11. He indicated that nurses had denied him

from seeing a doctor after the incident. Id. The grievance was not reviewed by the ARB

because Plaintiff did not provide his original written grievance along with the responses

from the counselor, Grievance Officer, and Chief Administrative Officer. Id. at p. 8.

Plaintiff submitted a grievance dated March 27, 2022, directly to the ARB, about

the October 12, 2021, incident as well. (Doc. 47, Exh. 1, p. 5-7). Plaintiff grieved that he

had attempted to “kill himself in a fire” on October 12, 2021. Id. at p. 7. In the “relief

requested” section of Plaintiff’s grievance he wrote that he would “like the ARB to

properly answer this because the Grievance Box and its procedure was not made

available to [him].” Id. at p. 6. This grievance was not reviewed by the ARB because the

facility responses were not included with Plaintiff’s submission. Id. at p. 5.

Lastly, Plaintiff submitted a grievance dated April 17, 2022, regarding several

issues including the October 12, 2021, incident to the ARB. (Doc. 47, Exh. 1, p. 1-4).

Plaintiff grieved that in October 2021 he had a “crisis situation along with others . . . where

[he] was actually punished for trying to commit self-harm.” Id. at p. 3. Plaintiff also

reported to the ARB that he had “tried his best to submit [his] issues to the grievance box

and to the counselor.” Id. at p. 2. However, Plaintiff indicated that the counselor would

“retrieve [his] grievances without any response.” Id. This grievance was not reviewed by

the ARB because no facility responses were included, and he was not within the 60-day

time frame to grieve. Id. at p. 1.

LEGAL STANDARDS

Summary judgment is proper when a moving party cannot establish the presence

of a genuine dispute of material fact. See FED. R. CIV. PROC. 56(a). To survive a motion for

summary judgment, the non-moving party must provide admissible evidence which

would allow a reasonable jury to find in his or her favor. See Maclin v. SBC Ameritech, 520

F.3d 781, 786 (7th Cir. 2008). Generally, in determining the outcome on a motion for

summary judgment, the Court’s role is not to evaluate the weight of the evidence, judge

witness credibility, or determine the truth of the matter, but instead is to determine

whether a genuine issue of material fact exists. See Nat’l Athletic Sportwear Inc. v. Westfield

Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in Pavey v. Conley, the Seventh Circuit

held that “debatable factual issues relating to the defense of failure to exhaust

administrative remedies “are not required to be decided by a jury but are to be

determined by the judge.” 544 F.3d 739, 740-741 (7th Cir. 2008). Therefore, it is up to the

Court to evaluate whether a prisoner has exhausted his or her administrative remedies

when the affirmative defense of non-exhaustion is raised. If the Court determines that a

prisoner did not exhaust administrative remedies, the Plaintiff is given the opportunity

to exhaust should time still permit or if the failure to exhaust was innocent.6 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, reduce

damages, and shed light on the factual disputes that may arise in litigation. See Pozo v.

McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002).

When attempting to exhaust administrative remedies, prisoners must follow their

prison’s administrative rules. See Pozo, 286 F.3d at 1023. As an inmate confined within the

IDOC, Plaintiff is required to follow the regulations contained in the IDOC’s Grievance

6 Pavey provides that an “innocent” failure to exhaust includes situations where prison

officials prevent prisoners from pursuing exhaustion of their administrative remedies. 544 F.3d

at 742. Further, if an inmate submits a grievance and does not receive a response, the inmate’s

attempts at exhaustion will be deemed thwarted, and the inmate will be allowed to proceed with

the lawsuit. See, e.g., Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008) (noting that an inmate is

not required to appeal his grievance if he submits the grievance to the proper authorities but

never receives a response); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (indicating that a

remedy can be unavailable to a prisoner if the prison does not respond to the grievance or uses

misconduct to prevent a prisoner from exhausting his remedies).

Procedures for Offenders (“IDOC Grievance Procedures”) to properly exhaust his claims.

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 required grievance process. 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.”7 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

7 This does not preclude an offender from filing a grievance when the names of individuals

are not known, but the offender must include as much descriptive information about the

individual as possible. See 20 ILL. ADMIN. CODE § 504.810(a).

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 his or her

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 a case, notification will be made

in writing that the inmate 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

Whether Plaintiff Morris exhausted his administrative remedies comes down to

one question: did Plaintiff have access to the administrative remedy process from October

2021 through mid-December 2021?8 Defendants assert that Plaintiff did have access to the

administrative grievance process. (Doc. 47, p. 12). In support of their assertion, they point

the Court to a single grievance – Grievance No. 359-10-21 – that Plaintiff filed on October

29, 2021, which was returned to Plaintiff by a counselor on November 16, 2021. Id.

Defendants also argue that Plaintiff conceded in his response to Defendants’ Motion for

8 The Court believes that Plaintiff’s grievance dated December 13, 2021, is the only

grievance concerning the October 12, 2021, event that sufficiently details the involvement of

Defendants Regelsperger and Buettner. Therein, Plaintiff specifically describes the same conduct

alleged in counts one and three of his complaint against these defendants. See (Doc. 47, Exh. 1., p.

37).

Summary Judgment that he did not first attempt to submit the December 13, 2021,

grievance at the first level prior submitting it to the ARB. (Doc. 56, p. 2). Plaintiff however

contends that he lacked access to the administrative remedy process and that was why

he mailed the December 13, 2021, grievance directly to the ARB. (Doc. 53, p. 2-3). In

viewing the evidence in the light most favorable to Plaintiff, the Court is not convinced

that Defendants have met their burden of proof in demonstrating that Plaintiff failed to

exhaust his administrative remedies in this case.

An administrative remedy is available if it is ‘capable of use’ to obtain ‘some relief

for the action complained of.’” Ramirez v. Young, 906 F.3d 530, 535 (7th Cir. 2018) (quoting

Ross v. Blake, 578 U.S. 632, 642 (2016)). Unavailability does not necessarily have to be

caused by the misconduct of the defendants; a process can be unavailable where-as here-

an “inmate through no fault of his own, could not [access] the grievance process.”

Lanaghan v. Koch, 902 F.3d 683, 688 (7th Cir. 2018). The availability of an administrative

remedy is a fact specific inquiry. Id. at 688. The unavailability of a grievance process “lifts

the PLRA exhaustion requirement entirely and provides immediate entry into federal

court.” Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016).

In this case, more than just mere speculation is present in the record to corroborate

Plaintiff’s assertion that he was thwarted from accessing the grievance process at Menard

after the October 12, 2021, mental health incident. C.f. Hoskins v. Swisher, Case No. 20-CV-

522-SMY, 2022 WL 226063, at *5 (S.D. Ill. Jan. 26, 2022) (finding that Plaintiff’s mere

speculations about the grievance processes’ unavailability was not enough of a record on

its own to demonstrate unavailability of the administrative remedy process). The Court

acknowledges that Plaintiff did submit one grievance successfully on October 29, 2021,

which dealt with property misplaced in transit. The Court, however, also notes that prior

to the incident date of October 12, 2021, Plaintiff filed four grievances which all contained

responses. These grievances dealt with issues ranging from restrictions and privileges to

accommodations and property. It is difficult to imagine that the Plaintiff would not have

grieved about the October 12, 2021, incident, especially given its alleged severity, when

he had grieved about relatively minor issues as previously mentioned. This fact gives

added credence to Plaintiff's claims that he had been denied access to the grievance box;

hence his need to file the grievances directly with the ARB. This, in turn, is corroborated

by the affidavits of several fellow inmates indicating that they witnessed Plaintiff being

denied access to the grievance box during the relevant period. This is sufficient to give

the Court pause. Accordingly, Defendants’ Motion for Summary Judgment is DENIED.

CONCLUSION

For the reasons outlined about the Court DENIES Defendants’ Motion for

Summary Judgment for Failure to Exhaust Administrative Remedies. (Doc. 46).

IT IS SO ORDERED.

DATED: September 24, 2024. / \etedon by

SAlet CD20 Date: 2024.09.24

13:34:06 -05'00'

GILBERTC.SISON

United States Magistrate Judge

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