Serio v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RAYMOND SERIO, )

B70625, )

)

Plaintiff, )

)

vs. )

)

CHRISTINE BROWN, ) Case No. 23-cv-2874-DWD

DAVID MITCHELL, )

BRANDON RIDGEWAY, )

DIANE SKORCH, )

BROCK MORGENSTERN, )

JOSH McDONALD, )

SYDELLE FULK, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Raymond Serio, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Pinckneyville Correctional Center, brings this civil rights

action pursuant to 42 U.S.C. § 1983 concerning events that occurred upon his arrival at

Pinckneyville in January of 2023. (Doc. 17). Upon review of the original and amended

complaints, the Court designated four claims to proceed. Defendants Brown, Mitchell,

and Morgenstern filed a Motion for Summary Judgment on the issue of exhaustion of

administrative remedies (Doc. 43), Defendants Ridgeway, Skorch, and McDonald have

not filed a motion, and Defendant Fulk withdrew the affirmative defense of failure to

exhaust administrative remedies. Plaintiff sought and was afforded additional time to

respond to the Motion, but he has not responded. The Court now finds it appropriate to

grant the motion as to Defendant Brown, and to deny as to Defendants Mitchell and

Morgenstern.

BACKGROUND

Plaintiff was transferred from Menard to Pinckneyville on January 6, 2023. Upon

arrival he spoke with Defendant Sydelle Fulk and informed her of his medication needs,

the potential for withdrawal without his medications, and his mental health needs that

he believed necessitated a single-cell placement. He also voiced concerns about his

medical and mental health needs as they pertained to cell assignments to other prison

staff in the presence of Warden Mitchell. He alleged in the complaint that Mitchell

dismissed his concerns and stated, “we don’t do single cell here.” (Doc. 1 at 11). Plaintiff

was directed by a female staff member to try voicing his concerns when he arrived at his

assigned housing unit.

Upon arrival at the first housing unit (4 house), Plaintiff told Defendant

Morgenstern that he had mental health issues which led to him being assigned a single

cell at Menard, and that he believed this status followed him to Pinckneyville.

Morgenstern told him to wait while he inquired further, and Morgenstern then returned

and directed Plaintiff to building 5 for his issues to be addressed. At building 5,

Defendant McDonald directed Plaintiff to cell B-78, which was on an upper gallery.

Plaintiff informed McDonald that he had a low gallery permit due to a knee injury, which

made traversing stairs excruciating, but McDonald told him the permit did not transfer

and that he had to be housed on the upper deck because that area was designated for

those who refused housing or who had a dayroom restriction.

On January 17, 2023, Plaintiff went before the Adjustment Committee (comprised

of Defendants Ridgeway and Skorch) for a ticket related to his alleged housing refusal.

He attempted to explain that he had not received notice of the ticket and that he had

merely asked for a housing assignment consistent with his medical and mental health

needs, but he was found guilty of the infraction. Plaintiff characterized Ridgeway and

Skorch’s imposition of discipline as retaliation for him voicing his mental health needs.

In an Amended Complaint (Doc. 27), Plaintiff faulted Defendant Christine Brown

(the healthcare unit administrator) for being made aware via email and other forms of

communication that he was not receiving his prescribed medications upon arrival at

Pinckneyville. (Doc. 27 at 11). He alleges he missed his medications from January 6, 2023,

through January 11, 2023, and began to experience withdrawal on January 8, 2023.

Also in the amended complaint, Plaintiff alleged that Defendant Morgenstern’s

actions were retaliatory because Morgenstern wrote him a disciplinary ticket for refusing

housing in response to him voicing his mental health and medical needs related to

housing placement.

Based on the foregoing allegations, Plaintiff was allowed to proceed on the

following claims:

Count 1: Eighth Amendment deliberate indifference claim against

Sydelle Fulk and Christine Brown for failing to ensure that

Plaintiff’s medications were continued;

Count 2: Eighth Amendment cruel and unusual punishment claim

against Defendants Mitchell and McDonald for refusing to

house Plaintiff in a cell that met his needs;

Count 3: First Amendment retaliation claim against Defendants

Skorch, Ridgeway, and Brock Morgenstern for allowing

Plaintiff to be disciplined over his requests for single-cell

housing;

Count 4: Intentional Infliction of Emotional Distress against all Defendants

(Doc. 34 at 5).

The Defendants have identified four grievances that are potentially relevant to the

claims presented in this lawsuit. (Doc. 43).

FINDINGS OF FACT

In a January 17, 2023, grievance assigned number 180-01-23, Plaintiff alleged that

upon arrival at Pinckneyville he informed staff that his mental health precluded him from

living with a cellmate, and that he had previously attacked a cellmate and bit his finger

off due to his mental health. (Doc. 43-2 at 22-23). He explained that at Menard he had

been granted single-cell status to accommodate his mental health. He further explained

that upon arrival at 4 house, he explained to the officer and sergeant that he could not go

into a cell with another inmate, and was told he would have to refuse housing. (Doc. 43-

2 at 23). Rather than take action to address his issue, the 4-house staff directed him to

restricted housing. He also claimed that prior to going to 4 house, he had informed a

female employee and the Warden of his problems and needs, but neither person took

action to correct the issue. (Doc. 43-2 at 23). He alleged that he was being “punished” for

his mental illness and inability to be housed with another prisoner. The grievance was

expedited for emergency processing by the Warden on January 19, 2023. (Doc. 43-2 at

22). An “MHA” indicated to the grievance officer that “it was determined that this

individual needs to be single-celled, per mental health and I.A. Placement was notified.”

(Doc. 43-2 at 21). The CAO concurred with the denial of the grievance (Doc. 43-2 at 20),

and the ARB denied the grievance appeal as appropriately addressed by the facility.

(Doc. 43-2 at 19).

In a February 9, 2023, grievance assigned number 476-02-23, plaintiff alleged that

upon arrival to Pinckneyville he notified medical and mental health staff of his multiple

mental illnesses and his need for a single-cell placement. (Doc. 43-2 at 17). Plaintiff told

additional staff and was told to raise his issues directly with officers at his assigned

cellhouse. He proceeded to walk to the assigned cellhouse and informed the sergeant

and lieutenant about his placement issues. (Doc. 43-2 at 18). He was directed to wait

outside for someone to escort him to another cellhouse. Upon arrival at the next

cellhouse, he was informed that he had a dayroom restriction and would be housed on

an upper deck. Plaintiff informed Defendant McDonald of his injuries and permits from

Menard, but McDonald insisted he would have to reside on the upper deck. Plaintiff

further alleged that on January 17, 2023, he was taken before the disciplinary committee,

for a ticket he alleged that he had not received notice about. He repeatedly informed the

disciplinary committee members that he asked for a single-cell because he needed it for

mental health reasons, but the committee insisted there was no single-celling at

Pinckneyville. A committee member promised to raise the issue with the administration,

but Plaintiff never heard back on that and never got a copy of his ticket. He ultimately

received a week of dayroom restriction and a month of B-grade. (Id.). He sought

expungement of the disciplinary ticket and conceded he had been moved to a single-cell

status at the time of filing the grievance. (Id. at 17).

The grievance officer recommended that the grievance be denied because Plaintiff

did not present exonerating evidence for the disciplinary infraction of refusing housing.

(Doc. 43-2 at 15-16). The Chief Administrative Officer approved, and the ARB ultimately

denied the grievance for multiple reasons. (Doc. 43-2 at 15, 11). In email correspondence

between the ARB and a prison official, the ARB official asked why Plaintiff was placed

on an upper gallery. (Doc. 43-2 at 14). In response, prison staff indicated that Plaintiff’s

permits should have “followed” from Menard to Pinckneyville, and that as of May 18,

2023, Plaintiff was single-celled and had permits. (Id.).

In a February 22, 2023, grievance assigned number 592-02-23, plaintiff alleged that

upon arrival he informed staff of his hearing impairment but did not receive

accommodations. (Doc. 43-2 at 9-10). He claims he sent weekly requests to ADA

coordinator, Christine Brown, but had not yet received any assistance. He described the

lack of hearing accommodations a problematic because it caused him to miss things like

call passes, chow lines, yard lines, and dayroom, all things that are announced audibly.

(Doc. 43-2 at 9-10). He sought a variety of accommodations, such as hearing aid batteries,

a vibrating watch, and a placard on his door. (Doc. 43-2 at 10). In response, the ADA

coordinator indicated that she sent replacement hearing aid batteries and a sign, and that

plaintiff could seek replacement of headphones and a watch he had been issued a few

months ago at Menard if they were broken. (Doc. 43-2 at 8). The grievance officer denied

the grievance, and the Chief Administrative Officer concurred. (Id.). On June 12, 2023,

the ARB denied the grievance as appropriately addressed by the prison. (Doc. 43-2 at 7).

In a March 5, 2023, grievance assigned number 746-03-23, plaintiff alleged that he

had left knee and right shoulder injuries for which he had previously received regular

physical therapy, a double cuff permit, and a low gallery/low bunk permit. (Doc. 43-1

at 34-35). He alleged that he informed the medical intake nurse of his issues, but from

January 6 to January 31, 2023, Lt. McDonald housed him on an upper deck, which caused

him excruciating pain because he had to traverse stairs to access amenities. (Doc. 43-1 at

35). He alleges this caused his knee to worsen. He claims he wrote healthcare and placed

request slips in the proper boxes regularly from January 2023 through the filing of the

grievance to no avail. He was single cuffed during a shakedown which exacerbated his

shoulder injury. He requested a reinstatement of physical therapy, and that his permits

be honored. (Doc. 43-1 at 35). In response the healthcare unit administrator and ADA

coordinator indicated his physical therapy had been discontinued after non-attendance

at Menard. (Doc. 43-1 at 33). They further indicated that permits did not transfer from

one prison to another, but that he would be placed on the provider line to discuss his

need for permits or accommodations. (Id.). The grievance was denied by the grievance

officer and Chief Administrative officer, and Plaintiff timely appealed. (Doc. 43-1 at 32).

The ARB denied the grievance on July 5, 2023, for multiple reasons. (Doc. 43-1 at 31).

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).

The regulations first require an inmate to file his grievance with his counselor within 60

days of the discovery of an incident, occurrence, or problem that gave rise to the

grievance. 20 ILL. ADMIN. CODE § 504.810(a). Administrative regulations require the

grievance “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.” 20 ILL. ADMIN. CODE § 504.810(c). If

an inmate does not know an individual’s name, he may still file a grievance by describing

the individual. 20 Ill. Admin. Code § 504.810(c).

If the complaint is not resolved through the counselor, the grievance may be

submitted to a grievance officer, who reports his or her findings and recommendations

in writing to the Chief Administrative Officer (CAO). 20 ILL. ADMIN. CODE § 504.830(e).

The CAO then provides the inmate with a written decision on 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. The ARB submits a written report of its findings and

recommendations to the Director, who them makes a final determination. 20 ILL. ADMIN.

CODE § 504.850(d), (e).

For an emergency grievance, an inmate may direct his request to the Chief

Administrative officer, who will determine if the issue should be handled as an

emergency. 20 ILL. ADMIN. CODE § 504.840(a)-(c). If the grievance is not deemed an

emergency, the inmate must return to the normal grievance channels to resubmit the

grievance as non-emergent. Id.

B. Analysis

The Court finds that the Motion for Summary Judgment can be resolved on paper

without a Pavey hearing because there are no genuine disputes of fact. Plaintiff did not

file a response, so the Defendants factual assertions are treated as true, but the record has

still been interpreted broadly in Plaintiff’s favor. The Defendants have credibly

established that Plaintiff had access to the grievance procedure, and that he was able to

take all steps necessary to exhaust grievances, by their submission of grievance records

that contain many properly exhausted grievances. They argue that grievances described

above are insufficient to exhaust the claims against Defendants Brown, Mitchell, and

Morgenstern. The Court will address each defendant individually.

First, as to Defendant Brown, Plaintiff faulted Brown in his complaint for failing

to ensure he received continuous access to his needed prescription medications upon the

transfer from one prison to another. In his amended complaint, he alleged that Brown

was aware from emails and correspondence of his lack of medication from January 6,

2023, until January 11, 2023, which caused him severe withdrawal, but she failed to act to

address the problem. The Defendants contend that Plaintiff did not file and exhaust any

grievance about this problem, and that his only grievance mentioning Brown pertained

to hearing-impaired accommodations. Plaintiff’s grievance records mention Brown

explicitly in grievance 592-02-23, which was limited solely to his desire for hearing

accommodations such as hearing aid batteries and a tactile watch. None of the other

exhausted grievances highlight Brown, or the brief outage of medications from January

6 to January 11, 2023. As such, the record lacks evidence that Plaintiff pursued exhaustion

related to this claim and Claim 1 against Brown related to his lapse in medication must

be dismissed without prejudice for failure to exhaust.

Second, the Defendants contend that Plaintiff has not adequately exhausted Claim

2 against Defendant Mitchell because the precise allegations in the grievance did not align

with Plaintiff’s assertion in the complaint that Mitchell stated Pinckneyville did not offer

single cells. Defendants point to grievance 180-01-23, filed January 17, 2023. In that

grievance, Plaintiff clearly and unequivocally stated that he voiced his concerns about his

mental health and need for a single man cell directly in Mitchell’s presence and that

Mitchell failed to exercise his authority to investigate or remedy the problem of Plaintiff’s

placement with a cellmate. Defendants parsing of this claim is too particular. They argue

that because the grievance did not contain the direct quotation from Mitchell that Plaintiff

recited in his complaint, then the grievance is not sufficient to exhaust the claim against

Mitchell. Plaintiff did not need to include a direct quote in the grievance to adequately

exhaust a claim in this lawsuit that Mitchell refused to help with his problem. Grievance

180-01-23 is sufficient to exhaust the assertion that Mitchell was made aware of Plaintiff’s

housing needs on January 6, 2023, and refused immediate assistance. Thus, Claim 2

against Defendant Mitchell may proceed, and the Defendants’ Motion (Doc. 43) is denied

as to Mitchell.

Third, the Defendants contend that Plaintiff does not have any grievances

sufficient to exhaust Claim 3 against Defendant Morgenstern for alleged retaliation by

the issuance of a disciplinary ticket for refusing housing. While it is correct that

Morgenstern is not identified by name in any of the four grievances described in the fact

section, Plaintiff does appear to describe his interaction with Morgenstern in the

grievance challenging his disciplinary ticket. In the amended complaint, he describes

Morgenstern as an individual he spoke with at the 4 house about his need for a single

man cell, and in grievance 476-02-23 he described telling the sergeant and lieutenant at 4

house that he needed single man status, but instead of receiving the accommodation he

was sent to 5 house and given a dayroom restriction. (Doc. 43-2 at 17-18). This series of

events ultimately led to his receipt of a disciplinary ticket for refusing housing. The

grievance records also include the disciplinary documents, which indicate that Brock

Morgenstern was the individual who reported Plaintiff for allegedly refusing housing at

the 4 house. Additionally in grievance 180-01-23, Plaintiff also indicated that he told two

officials at 4 house that he needed a single cell, but that they refused to help and sent him

to 5 house.

A grievance does not need to include legal theories to be sufficient to exhaust

administrative remedies. See e.g., Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). A

grievance is generally sufficient if it complies with what is required by the Illinois

Administrative Code, and if it contains enough factual detail for the prison to understand

the nature of the wrong for which the inmate sought redress. Though Plaintiff did not

identify Morgenstern by name in grievance 476-02-23 or 180-01-23, he stated he spoke

with officers at the 4 house, and the records show he must have spoken with Morgenstern

in order for Morgenstern to issue a refusal of housing disciplinary report. The grievances

further clearly indicate that Plaintiff attempted to challenge the fact that he was

disciplined for voicing his mental health needs to staff who were attempting to place him

in a cell with a fellow inmate. Plaintiff stated in grievance 476-02-23 that he felt he was

being punished for voicing his mental health needs. These assertions align sufficiently

with Claim 3 in this case, which asserts that Defendants Morgenstern, Ridgeway and

Skorch retaliated against him for voicing his mental health needs by issuing and

finalizing a disciplinary report for this conduct.

It is also interesting to note that while Morgenstern sought summary judgment on

exhaustion, Ridgeway and Skorch did not. These two were the adjustment committee

members discussed in grievance 476-02-23. They were not identified by name in the

grievance but were generally described as individuals Plaintiff interacted with when

contesting the disciplinary ticket. The fact that these two did not seek summary judgment

on exhaustion, when they were generally identified in the same grievance as

Morgenstern, further weakens Morgenstern’s claim of non-exhaustion. Thus, the Court

finds it appropriate to deny Defendants’ motion as to Morgenstern.

Finally, the Defendants argue that Plaintiff’s claim for the intentional infliction of

emotional distress should be dismissed for non-exhaustion because none of the

grievances that discuss their involvement make mention of outrageous conduct, nor do

they allege Plaintiff suffered severe emotional distress. This argument overlooks aspects

of the exhausted grievances. Plaintiff alleges that his housing situation and the

disciplinary outcome had detrimental effects on his mental health and depression. (Doc.

43-2 at 16). Plaintiff also alleged in another grievance that being housed with another

inmate can cause him to become delusion, to hallucinate, or to experience severe

psychosis. (Doc. 43-2 at 23). He explained both in his complaints and in the grievances

that the responses he got to his requests for an adequate cell placement were dismissive,

despite his repeated insistence that his needs were credible and serious for his mental

and physical well-being. These assertions are sufficient for Claim 4 to proceed, with the

sole exception that Claim 4 will be dismissed as to Defendant Brown because the only

other claim against Brown is dismissed for non-exhaustion and the Court relinquishes

supplemental jurisdiction over the remaining state law allegation against Brown.

DISPOSITION

The Motion for Summary Judgment on the issue of exhaustion (Doc. 43) is

GRANTED in PART as to Claim 1 against Defendant Brown, and it is DENIED in PART

as to Claims 2 and 3 against Defendants Mitchell and Morgenstern. The Court

relinquishes supplemental jurisdiction over Claim 4 against Defendant Brown, but Claim

4 may proceed against all other remaining Defendants. The Clerk of Court is DIRECTED

to TERMINATE Defendant Brown, and to enter judgment in her favor at the close of this

case. The remaining Claims shall proceed to merits discovery against Defendants Fulk,

Mitchell, McDonald, Morgenstern, Ridgeway, and Skorch. A merits discovery schedule

shall follow.

IT IS SO ORDERED.

Dated: February 24, 2025

/s David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge