Attaway v. The Illinois Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHEAL ATTAWAY, Y55493, )

)

Plaintiff, )

)

vs. ) Case No. 23-cv-2091-DWD

)

ILLINOIS DEPT. OF CORR., )

)

Defendant. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Micheal Attaway, a former inmate of the Illinois Department of

Corrections (IDOC) brought this action pursuant to 42 U.S.C. § 1983 for alleged

deprivations of his constitutional rights at Shawnee Correctional Center (Shawnee).

Plaintiff alleged that the Defendant failed to provide him with a needed ADA assistant.

Defendant filed a Motion for Summary Judgment (Docs. 68, 69) on the issue of whether

Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by

the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Plaintiff was informed of his

obligation to respond, but he has not filed a response. For reasons explained in this

Order, the Defendant’s Motion is granted, and this case is dismissed without prejudice.

BACKGROUND

Plaintiff initiated this lawsuit by filing a complaint on June 11, 2023. (Doc. 1 at 12).

Before the Court conducted an initial review of his pleading under 28 U.S.C. §1915A,

Plaintiff filed an Amended Complaint (Doc. 11) on September 17, 2023. Both pleadings

contained substantially the same allegations against the sole remaining Defendant in this

case, the Illinois Department of Corrections. In each pleading, Plaintiff faulted the

Defendant for failing to provide him with an aide to accommodate his needs under the

Americans with Disabilities Act. Specifically, he complained that he walked with a cane,

which made accessing certain areas and amenities difficult or impossible without help.

Upon initial review, the Court allowed the following claim to proceed:

Claim 1: ADA Claim against the IDOC for failing to provide Plaintiff with

an ADA attendant from February 15, 2023, to present;

(Doc. 18 at 3). Although Claim 1 was allowed to proceed, the Court found that other

allegations in Plaintiff’s complaint were insufficient to proceed against individual

medical providers.

The parties undertook discovery on the exhaustion of administrative remedies,

and in doing so the defendants identified just two grievances filed between February of

2023 and the filing of this lawsuit (September of 2023) that are potentially relevant to the

sole claim. They argue that neither of these grievances were submitted beyond the first

level of review at the prison, nor were they submitted to the Administrative Review

Board (ARB). By contrast, Plaintiff filed and fully exhausted other grievances during the

relevant time period. Thus, they contend that Plaintiff failed to exhaust his

administrative remedies prior to filing this case.

Plaintiff was notified of the obligation to respond to Defendant’s Motion (Doc. 70),

but to date, he has not filed anything responsive.

FINDINGS OF FACT

In Plaintiff’s signed complaint (Doc. 11), he alleged that he “filed grievances and

followed up on them,” but “both the grievances and the follow ups went

unacknowledged.” (Doc. 11 at 4).

On February 24, 2023, Plaintiff submitted a grievance, number 2023-2-189, that he

labeled as pertaining to his need for an ADA accommodation. (Doc. 64-9 at 5-6). In the

grievance, he complained that he had only one pair of pants that fit properly, while his

second pair had become too large and constantly fell down as he tried to ambulate with

his cane. He complained that he needed properly fitting pants in order to attend

amenities like chow, or other things at the prison. The grievance was denied emergency

status on March 2, 2023, and on March 15, 2023, a counselor indicated that the grievance

did not meet “DR 504.810” because it did not contain an incident date. The facility

grievance log indicates that grievance 2023-2-189 was never forwarded to the second level

of grievance review. (Doc. 69-3 at 1).

On June 14, 2023, the facility recorded grievance 2023-6-97, a grievance wherein

Plaintiff explicitly stated, “I need an ADA assistant[.]” (Doc. 69-4 at 28). The grievance

received a counselor’s response on August 8, 2023, that stated Plaintiff had been referred

to an ortho specialist for his knee, he had exercises for his shoulder and prescription

medications, and if these things were not helping he could contact the healthcare unit.

(Doc. 69-4 at 27). The facility’s grievance log indicates that the grievance was never

forwarded to the second level for review. (Doc. 69-3 at 1).

The Court also notes that in reviewing Plaintiff’s full grievance records as

submitted by the Defendants, it observed that on October 8, 2023, Plaintiff filed another

grievance about his ability to get around the prison with his injuries. (Doc. 69-4 at 65-66).

In response to the grievance, on October 17, 2023, a grievance officer indicated that a

doctor had “placed an order for [plaintiff] to have a helper.” (Doc. 69-4 at 64).

The Court also notes that the Defendant’s characterization of Plaintiff’s overall

grievance record is accurate. From February of 2023 until September of 2023, when he

might have submitted a grievance relevant to the allegations in this case, he successfully

exhausted at least one grievance all the way thru review by the ARB. (Doc. 69-5 at 21-

24).

CONCLUSIONS OF LAW

A. Legal Standards

Summary judgment is proper if there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In

determining a summary judgment motion, the Court views the facts in the light most

favorable to, and draws 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. See

Tolan v. Cotton, 572 U.S. 650, 656 (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 administrative remedies, the Seventh Circuit has instructed courts to conduct an

evidentiary hearing and resolve contested issues of fact regarding a prisoner’s efforts to

exhaust. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding

facts, and determining credibility, the court must decide whether to allow the claim to

proceed or to dismiss it for failure to exhaust. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th

Cir. 2018). The court is not required to conduct an evidentiary hearing if there is no

genuine dispute of material fact, and the determination is purely legal. See e.g., Walker v.

Harris, 2021 WL 3287832 * 1 (S.D. Ill 2021); Miller v. Wexford Health Source, Inc., 2017 WL

951399 *2 (S.D. Ill. 2017).

The Prison Litigation Reform Act (PLRA) 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, 544 F.3d at 740. “The exhaustion

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

Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). For a prisoner to properly exhaust his

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). “[A] prisoner who does not properly take each step within the

administrative process has failed to exhaust state remedies.” Id. at 1024.

As an inmate in the IDOC, Plaintiff was required to follow the grievance process

outlined in the Illinois Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017).

An inmate may request that a grievance be handled as an emergency by forwarding it

directly to the CAO. 20 ILL. ADMIN. CODE § 504.840. If it is determined that there exists a

substantial risk of imminent personal injury or other serious or irreparable harm, the

grievance is handled on an emergency basis, which allows for expedited processing of

the grievance. Id.

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

the IDOC Director through the Administrative Review Board (ARB). 20 ILL. ADMIN. CODE

§ 504.850(a). The ARB must receive the appeal within 30 days of the date of the CAO’s

decision. Id. The inmate must attach copies of the responses from the grievance officer

and CAO to his appeal. Id. If an inmate is appealing a grievance that the CAO

determined to be of an emergency nature, then the ARB shall expedite processing of the

appeal. 20 ILL. ADMIN. CODE § 504.850(f).

B. Analysis

Plaintiff has not filed a response to the Defendant’s Motion for Summary

Judgment, but the Court still reviewed the full grievance record and construed the record

in Plaintiff’s favor. The record contains no evidence that Plaintiff submitted any

grievance sufficient to exhaust his claim in this lawsuit. The evidence most favorable to

Plaintiff is his statements in his complaint that he submitted “grievances and followed

up on them,” but “both the grievances and the follow ups went unacknowledged.” (Doc.

11 at 4). Statements based on personal knowledge made in a signed pleading can be

considered at the summary judgment stage. See e.g., Payne v. Pauley, 337 F.3d 767, 773

(7th Cir. 2003).

However, Plaintiff’s statements in the complaint are offset by the grievance files

submitted by Defendant which show both that Plaintiff filed grievances during this time

which received responses, and that he fully exhausted at least one grievance during that

time that was not relevant to his claims in this case. This documentary evidence from the

Defendant establishes that Plaintiff was able to file grievances, that he filed grievances

that could have been considered relevant to his ADA claim in this case, and that he failed

to ever complete the grievance process for the potentially relevant grievances. At this

juncture, Plaintiff’s own signed statements in his complaint are too vague to create a

genuine dispute of fact. See e.g., Dagans v. Cecil, 2024 WL 3830275 at * 4-5, n. 3-4 (S.D. Ill.

Aug. 15, 2024) (collecting cases for the proposition that a generic sworn statement about

the availability of the grievance process is not sufficient to overcome summary judgment

in the face of specific detailed evidence).

Plaintiff does not indicate when he tried to submit grievances, at what point in the

grievance process the grievances went missing, how he tried to follow-up on this issue,

or what specific responses he got to his queries. The generic assertion that he tried and

failed to get any response from the prison about his issue is simply not sufficient to create

a genuine dispute of material fact in the face of his entire grievance record which

documents many grievances pursued at many stages of the review process. See e.g.,

Moffett v. Dittman, 2024 WL 3251287 at * 2 (7th Cir. July 1, 2024) (unpublished opinion

affirming a district court’s finding that an inmate’s own statement in his brief about the

unavailability of grievance forms was not enough to overcome summary judgment in the

face of defendants’ evidence that grievance forms were available because a statement in

his brief that is not supported by the record is not sufficient to avoid summary judgment);

Dagans v. Cecil, 2024 WL 3830275 at * 4-5, n. 3-4 (S.D. Ill. Aug. 15, 2024) (collecting cases

for the proposition that a generic sworn statement about the availability of the grievance

process is not sufficient to overcome summary judgment in the face of specific detailed

evidence). The Court also notes that his complaint contained multiple claims and

allegations against parties that were dismissed as insufficient. It is not clear whether his

statement about grievances in his complaint pertained to the dismissed claims, to the

ADA claim, or to all claims in the complaint. Thus, the Court finds Defendant has met

its burden to demonstrate that Plaintiff had available remedies and that he did not

exhaust them prior to filing this lawsuit. Plaintiff has not put forth sufficient evidence to

overcome this showing, so this case must be dismissed without prejudice for failure to

exhaust administrative remedies.

DISPOSITION

Defendant’s Motion for Summary Judgment on the issue of exhaustion (Doc. 68)

is GRANTED. Plaintiff’s claim is DISMISSED without prejudice for failure to exhaust.

The Clerk of Court is DIRECTED to enter judgment in Defendant’s favor and to close

this case.

If Plaintiff wishes to appeal this Order, he must file a notice of appeal with this

Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). If Plaintiff

chooses to appeal, he will be liable for the $605.00 filing fee irrespective of the outcome

of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d

724, 725-56 (7th Cir. 2008). Moreover, if the appeal is found to be nonmeritorious, Plaintiff

may incur a “strike” under 28 U.S.C. § 1915(g). A proper and timely motion filed

pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.

Feb. R. App. P. 4(a)(4). A Rule 59(e) motion must be filed no later than 28 days after the

entry of judgment, and this 28-day deadline cannot be extended.

IT IS SO ORDERED.

Dated: October 18, 2024 L J

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DAVID W. DUGAN

United States District Judge