The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
BOBBY TATUM, K69478, )
)
Plaintiff, )
) Case No. 24-cv-1183-RJD
v. )
)
DONALD CRAIG, BILLY AUSTIN, )
DARREN GALLOWAY, KELLEY BEAL, )
SETH PLOTT, CHRISTOPHER SHERROD, )
and WILLIAM CHRISTOPHER, )
)
Defendants.
ORDER
DALY, Magistrate Judge:
Plaintiff, currently incarcerated with the Illinois Department of Corrections and housed at
Pinckneyville Correctional Center, filed this lawsuit pro se and in forma pauperis on April 29,
2024. Doc. 1. He alleges that various correctional officers at Shawnee Correctional Center
(“Shawnee”) physically and sexually assaulted him on August 6, 2023 in retaliation for filing
grievances and lawsuits. Doc. 12. Following the Court’s preliminary review of Plaintiff’s First
Amended Complaint (Doc. 11) conducted pursuant to 28 U.S.C. §1915, Plaintiff proceeded on the
following claims:
Count 1: First Amendment claim against Defendants Craig, Austin,
Galloway, Beal, Plott, Sherrod, and Christopher for assaulting
Plaintiff in retaliation for his lawsuits and grievances.
Count 2: Eighth Amendment excessive force claim against Defendants Craig,
Austin, Galloway, Beal, Plott, Sherrod, and Christopher for the
August 6, 2023 assault on Plaintiff.
Count 3: Eighth Amendment condition of confinement claim against Beal for
placing Plaintiff in an unsanitary cell after the assault.
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Doc. 12. This matter comes before the Court on Plaintiff’s Motion to Compel and for Sanctions
(Doc. 80), Defendants’ Motion to Supplement the Record (Doc. 109), and the Motion for Summary
Judgment for failure to exhaust administrative remedies filed by all Defendants (Doc. 84).
Plaintiff’s Allegations Against Defendants
Defendant Galloway was the warden at Shawnee on August 6, 2023; the other Defendants
were all correctional officers. In his Amended Complaint, Plaintiff alleges that on August 6,
2023, he walked by Defendant Galloway on his way to lunch. Doc. 11, p. 8. Plaintiff heard
Defendant Galloway say that Plaintiff was going “to pay” for filing lawsuits against staff. Id.
After lunch, Defendants Plott and Craig came to Plaintiff’s cell and moved him to a different
cellhouse. Id. Upon arriving in Plaintiff’s new cell, Defendant Plott and Craig attacked Plaintiff,
telling him that Defendant Galloway had directed them to do so because of Plaintiff’s grievances
and lawsuits. Id. Defendants Plott and Craig walked Plaintiff down to the gallery where they
physically and sexually assaulted Plaintiff as other inmates watched. Id., p. 9. Defendant
Sherrod then helped the other Defendants transfer Plaintiff to segregation. Id., p. 10. Defendant
Beal chose a segregation cell that was covered in blood, feces, and mold; he also prevented a nurse
from treating Plaintiff’s injuries. Id. Defendant Sherrod slammed Plaintiff’s face into the cell
window. Id.
Plaintiff’s Motion to Compel in Opposition to Defendants’ affirmative defense and Motion
for Sanctions (Doc. 80) and Motion for Reconsideration and for counsel and/or expert
witness opinions
Plaintiff argues that Shawnee Correctional Center failed to preserve “grievance and
discovery documents” and that the IDOC altered certain records. Defendants did not respond to
the Motion and the Court set for hearing on the same date as the hearing on Defendants’ Motion
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for Summary Judgment for the failure to exhaust administrative remedies. During the hearing,
Plaintiff testified regarding the grievances that he submitted that are relevant to this case;
Defendants have provided copies of those grievances and associated records. Docs. 84-4 and 109-
1.
Plaintiff also claims that IDOC altered a grievance record by stating that the ARB received
a document on 10/10/2023 that was actually received on 9/28/2023 and points to a document bates
labeled 56 as evidence. Doc. 80, ¶4. The Court notes that the ARB’s records reflect that a
“return of grievance form” was completed on 10/10/2023 that pertains to a grievance received by
the ARB on 9/28/2023 that was bates labeled 56 by defense counsel. Doc. 84-4, p. 34, 35.
Because the grievance records relevant to Plaintiff’s claims have been presented to the
Court and show no signs that they were altered, Plaintiff’s Motion (Doc. 80) is DENIED.
However, Plaintiff has already filed a Motion to Reconsider this ruling (Doc. 108); it appears that
Plaintiff believes the Court denied his motion in a previous Order because the Court noted that
neither Shawnee nor IDOC are Defendants in this case. See Doc. 103, p. 2. To clarify, the Court
did not rule on Plaintiff’s Motion until the instant Order. Plaintiff asks the Court to find
Defendants in default and deny their Motion for Summary Judgment because they did not respond
to Plaintiff’s original Motion to Compel and for Sanctions against Shawnee and IDOC. Plaintiff
also asks for counsel and/or expert witnesses so that he can establish that his grievance records
were altered. These requests (Doc. 108) are DENIED because Defendants have produced all
grievance records to which Plaintiff testified and no evidence suggests those records were altered.
Defendants’ Motion for Leave to Supplement the Record (Doc. 109)
After the Court set Defendants’ Motion for Summary Judgment and Plaintiff’s Motion to
Compel and/or for Sanctions for hearing, Defendants moved to supplement the record with
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additional grievances and records. Doc. 109. Defendants explain that the additional documents
were produced to Plaintiff prior to the filing of their Motion for Summary Judgment and are
relevant to the arguments made in Plaintiff’s response to their Motion for Summary Judgment.
Therefore, good cause exists to GRANT Defendants’ Motion for Leave.
Defendants’ Motion for Summary Judgment on the issue of Administrative Remedy
Exhaustion (Doc. 84)
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative
remedies prior to filing lawsuits in federal court. Inmates who intend to file suit are required to
follow all steps and instructions in the grievance process before filing with the Court in order to
“[allow prisons] to address complaints about the program [they administer] before being subjected
to suit, [reduce] litigation to the extent complaints are satisfactorily resolved, and [improve]
litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock, 549 U.S.
199, 219 (2007).
An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance within 60 days after the discovery of the incident or problem to his or her
institutional counselor. 20 ILL. ADMIN. CODE § 504.810(a). The grievance must contain “factual
details regarding each aspect of the offender's complaint, including what happened, when, where
and the name of each person who is the subject of or who is otherwise involved in the complaint.”
20 ILL. ADMIN. CODE § 504.810(c). If more than sixty days has passed since the discovery of the
incident or problem, the grievance will still be considered if the inmate can demonstrate good
cause for the lapse of time. Id. §504.810(a).
If the complaint is not resolved through a counselor, the grievance is considered by a
Grievance Officer who must render a written recommendation to the Chief Administrative Officer
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— usually the Warden — within 2 months of receipt, “when reasonably feasible under the
circumstances.” Id. §504.830(e). The CAO then advises the inmate of a decision on the
grievance. Id. An inmate may appeal the decision of the Chief Administrative Officer in writing
within 30 days to the Administrative Review Board for a final decision. Id. § 504.850(a); see also
Dole v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written report
of its findings and recommendations to the Director who shall make a final determination within
6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
An inmate may submit a grievance directly to the ARB regarding the following issues:
(1) Decisions regarding protective custody placement, including continued
placement in or release from protective custody;
(2) Decisions regarding the involuntary administration of psychotropic medication;
(3) Decisions regarding disciplinary proceedings that were made at a facility other
than the facility where the offender is currently assigned;
(4) Other issues that pertain to a facility other than the facility where the offender
is currently assigned, excluding personal property and medical issues.
Id. at § 504.870(a). The ARB reviews and processes such grievances in the same manner in which
it reviews and processes appeals. Id. at § 504.870(b).
An inmate may also request that the prison treat his grievance as an emergency “by
forwarding the grievance directly to the Chief Administrative Officer.” Id. at § 504.840(a). The
Chief Administrative Officer decides whether there is “a substantial risk of imminent personal
injury or other serious or irreparable harm to the offender” and, if so, expedites processing. Id.
at § 504.840(a)-(b). If the Chief Administrative Officer finds that the grievance does not
constitute an emergency, the inmate “shall be notified in writing that he…may resubmit the
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grievance as non-emergent, in accordance with the standard grievance process.” Id. at §
504.840(c).
Pavey Hearing
On June 3, 2025, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008). Plaintiff testified. Defendants called three witnesses: Lieutenant Brian Banks, Henry
Allard, and Margaret Madole. Plaintiff objected that the defense witnesses were a “surprise
attack” and he thought the Pavey hearing was “supposed to be on the records.” The Court denied
Plaintiff’s objection, but informed Plaintiff that it would consider whether the witnesses’ testimony
was a “surprise” to the extent that Plaintiff was unduly prejudiced. Plaintiff questioned all three
witnesses. Testimony by Lt. Banks involved recounting his interactions with Plaintiff.
Testimony by Henry Allard (clinical services supervisor at Shawnee) and Margaret Madole
(Administrative Review Board) involved the grievance process generally, as well as the records of
Plaintiff’s efforts to exhaust. None of the witnesses testified to a “surprise” event or process that
was not addressed in the arguments made by Plaintiff in his opposition (Docs. 86 and 87) and
Defendants in their Motion (Doc. 84). Therefore, the Court stands on its decision to overrule
Plaintiff’s objections to their testimony.
Plaintiff’s testimony
The undersigned asked Plaintiff when he first submitted a grievance regarding the August
6, 2023 incident. Plaintiff testified that the “first grievance I wrote was August 24, 2023.” He
submitted it as an emergency and Defendant Galloway (“the defendant who did this stuff to me”)
found that is constituted an emergency. At the time, Plaintiff was in a “bogus” and “terrible” cell
that was covered in feces and blood. Plaintiff never received a response to the merits of this
grievance because “[Defendant] Banks came in and threatened me if I didn’t drop the grievance I
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would have to stay in that terrible cell.” The undersigned asked Plaintiff if he submitted another
grievance, and he testified “Yes it was 8-28. It was not deemed an emergency. I read the
grievance rules again and sent it to ARB for protective custody. I put the relief in there and [the
ARB] didn’t process it according to the protective custody there.” The undersigned asked
Plaintiff if, after August 28, he filed any other grievances related to the events of August 6, and
Plaintiff said “yes 9-10. I filed it as an emergency and sent it to Springfield.”
Upon questioning by defense counsel, Plaintiff recounted the encounter with Lt. Banks.
Plaintiff recalled that Banks pounded on the table and told Plaintiff to withdraw grievance #2023-
9-11 (dated August 24, 2023) “if you know what’s good for you.” Plaintiff testified that Lt. Banks
said that if Plaintiff withdrew the grievance, Lt. Banks would “remove me from that cell and place
me in a regular cell and remove my grade reduction. This wasn’t a deal it was an ultimatum.”
Plaintiff then cancelled the grievance, but he testified that he then “doubled back and wrote for
protective custody to the ARB” on August 28, 2025. Plaintiff testified that he also submitted the
August 28 grievance at the institutional level and “I didn’t care if they killed me…. I kept on filing.
I want them to be prosecuted I’m not a homosexual I’m a Christian and they violated my religion.”
However, after the prison determined the August 28 grievance was not an emergency, Plaintiff
“sent it to [the ARB] because that’s what the law says.” Lt. Banks never followed through on his
promise to move Plaintiff to a regular cell, and Plaintiff testified “that’s why I followed through
with Springfield.”
Lt. Brian Banks
For the last six years, Lt. Banks has conducted investigations for Internal Affairs at
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Shawnee. He testified that he interviewed Plaintiff about the alleged staff assault and PREA1
investigation after Plaintiff submitted a grievance and “[Plaintiff’s] interview reflected that he was
mad and the grievance was not true… . [Plaintiff] signed the cancellation form. I did not ask him
to cancel it.” The interview took place in Internal Affairs. Lt. Banks did not see the cell in which
Plaintiff was living. He testified that “IA is not typically involved in cell placement…..I did not
threaten him or bang on the table. I did not offer him a grade reduction. I have never offered
that type of deal I don’t have the power to do that.” Plaintiff signed the grievance cancellation
form while he was still in the Internal Affairs room with Lt. Banks.
Plaintiff then questioned Lt. Banks. Plaintiff asked Lt. Banks if he followed PREA
protocol, and Lt. Banks answered affirmatively. Plaintiff asked “then why wasn’t I put in
protective custody with a PREA monitor?” Lt. Banks explained that Shawnee does not have
protective custody and that Plaintiff had declined protective custody after learning it would involve
a transfer to a maximum-security prison. Lt. Banks also explained that a person is transferred to
protective custody only if the allegations are substantiated.
Harry Allard
Mr. Allard has worked as the clinical services supervisor at Shawnee for the last 14 years.
He oversees the counseling staff, re-entry programs, and the grievance process. He is not aware
of any staff members withholding, destroying, or losing grievances. He testified that Plaintiff’s
grievance #2023-9-11 was received on September 5, 2023 and deemed an emergency. Lt. Banks
was assigned to investigate the allegations in the grievance, but the investigation was cancelled
when the grievance was cancelled.
1 The “PREA” is the Prison Rape Elimination Act.
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Mr. Allard testified that Plaintiff submitted an emergency grievance dated August 28, 2023.
The grievance was returned to Plaintiff as a non-emergency. Plaintiff did not re-submit the
grievance at Shawnee.
Plaintiff asked Mr. Allard whether he was familiar with paragraph 870, the portion of the
Illinois Administrative Code that mentions grievances regarding protective custody issues. Mr.
Allard testified that he was familiar with that part of the code, and that on the “[grievance] form it
states what to do with a grievance that has to do with protective custody.”
Margaret Madole
Ms. Madole is employed by the Administrative Review Board. She handles statewide
grievances that are submitted by inmates. She testified that if an inmate submits a grievance that
is missing documentation or outside of the applicable time frame, she uses the “return of grievance
form.” Department Rule 504 requires her to return the grievance to an inmate if it is not
accompanied by a counselor’s response and the grievance officer’s form. The ARB received two
grievances from Plaintiff on September 28, 2023: a grievance dated August 28, 2023 and a
grievance dated September 10, 2023. Ms. Madole returned those grievances to Plaintiff because
neither grievance was accompanied by a recommendation from the grievance officer or a
determination by the Warden. The grievance dated August 28, 2023 also had no response from
the counselor.
Plaintiff asked Ms. Madole repeatedly if she was aware of “paragraph 870” and whether
he could obtain a direction decision from the ARB on protective custody. Ms. Madole testified
that she was not aware, but she agreed with Plaintiff that his grievance dated August 28, 2023
includes a request for protective custody. Ms. Madole testified that she returned the grievances
to Plaintiff despite the request for protective custody because they were primarily about alleged
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staff misconduct.
Plaintiff’s grievance records
The following instructions were included on the top of the grievance form used by Plaintiff
to submit three pertinent grievances:
Complete: Attach a copy of any pertinent documents (such as a Disciplinary report, Search
record, etc.) and place in the designated locked receptacle marked “grievance”:
Counselor, unless the involves discipline, is deemed an emergency, or is subject to
review by the Administrative Review Board
Grievance Officer, only if the issue involves discipline at the present facility or
issue not resolved by counselor
Chief Administrative Officer [Warden] only if EMERGENCY grievance
Mail to Administrative Review Board only if the issue involves protective
custody, involuntary admission of psychotropic drugs, issues from another facility
except medical and personal property issues, or issues not resolved by the [Warden]
Plaintiff’s prison and ARB records reflect that he submitted the following grievances
relevant to Defendants’ exhaustion motion.
Grievance #2023-9-11, dated August 24, 2023 (Doc. 109-1, pp. 1-3)
Plaintiff completed the following summary of grievance:
Please keep the video of this incident here on 8-6-203. On 8-6-
2023 I was excessive force by a number of Joe Doe and John Doe
Lt. Officers, Sgt. Officers, and C/o Officers, in which because of my
many grievances and lawsuits they wrote a false ticket to cover up
their 8th amendment violations to excessive force in which I move
from 1-A-cell 33; once I move to two B-Cell 33 the Sgt. John Doe
officer told me to hit him on which I try to get out of the way, then
he and others John Doe C/O officers [illegible] my left wrist from
behind and then [illegible] my right wrist cuff me up. Then run my
face head into the glass splitting my right side of my face above my
head busting it…then my underwear and pants were pull [illegible]
down to my ankles…..The John Doe Lt. C/o Officers said that they
were going to teach me for raising grievances and lawsuits on staff
[illegible] and then another John Doe Lt. C/ Officer bend my arm
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backwards and told me to talk, and I walk…
Plaintiff then described a sexual assault and that he was placed in a cell.
Then another John Doe Sgt. C/ Officer came over kick my leg from
under me then slam my face into the metal….then another John Doe
Lt. Correctional Officer came in and said if I don’t drop the lawsuit
against Sgt. Williams and Hunter et al. all defendants that the next
time they was going to kill and write it up that I had a mental
breakdown….I asked a number of times for medical treatment, a
nurse wanted to help me but the correctional officers made her leave
then I was placed in cell 7 inhumane conditions of confinement…..
Relief requested: I [illegible] to press charges for sexual assault,
excessive force, and unreasonable delay in medical treatment in
retaliation for lawsuits and grievances against staff at Shawnee CC.
Lt. Bradford for violation of my constitutional rights and impartial
decision maker at the ticket hearing and put back in a grade and
protective custody in which I ask for before this. This is my
grievance.
Plaintiff dated the grievance 8-24-2023 and marked it as an emergency. According to
Shawnee records, the Warden’s office received this grievance on September 6, 2023. The
Warden determined the grievance was an emergency and should be expedited on September 6,
2023. Two days later, Plaintiff signed the grievance cancellation form for this grievance. Lt.
Banks also signed the cancellation form.
Grievance 2023-9-16, dated August 28, 2023 (Doc. 84-4, p. 34-36)
Plaintiff completed the following Summary of Grievance:
On video on 8-6-2023, after the Court told the Southern District of
Illinois Court Judge in this case to rule on the PLRA, IFP statute,
which was on the 8-1-2023 8-2-2023 I was brutally assaulted and
sexually harassed by excessive force, slam on my face and
underwear pants pull down to my ankles and I believe wrist [is]
damaged on 8-6-2023 I have reasonable belief the Sgt. C/o officer
Plott was ordered to start a situation with me and damage my right
writing wrist, in which I was move to 2B33 from 1-B-33 once I got
to 2B33 I [illegible] my t.v. and pillow, bed sheet, ask the Sgt. Plott
were to go my box was still outside at the door in which C/o Criag
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who I had [an] active grievance and just drop from a 1983 lawsuit
said something to Sgt. Plott who then said “we can have you over
here because I like to file lawsuit and grievances on staff then he
told me to put all my property in my bag, I turn around to do. Then
the Sgt. Plott ran up behind me and grab my left wrist then C/o Criag
grab my right wrist but when he grab it he said which wrist was it
St. Plott said internal affairs said it was the right wrist which I use
to sign to drop a grievance day before internal affairs office on 8-2-
2023 I beg them to please stop a number of times leave me [illegible]
and Sgt Plott said that Governor Pritzker through Assistant Attorney
General Jennifier Powell 0310553 stated that the judges in the
Southern District of Illinois cases no. 21-cv-1597-DWD and this one
23-2353 was told by the District Judge no name was mention that
this judge told them to tell the Warden to make me go away in which
I was cuff push into the glass crack my face blood ran down my face.
Then came Lt. Austin Lt. Beal and another John Doe Lt. white shirt
officer who then try to break my arms and made sure my pants and
underwear was down to my knees and then to my ankles on the way
to segunit they kept saying I’m going to pay for filing 1983 suits and
grievances and appears in the 7th Circuit last week and that they been
waiting a while to f*** me up. Lt Austin stated that Warden
Galloway and Lu Walker left but order to make me quiet or
disappear in which I ask a number of times to don’t do it men both
the John Doe Lt. White shirt and Lt. Austin bend my arms up nte
wrong way along with Lt. Austin pick me up and same guided my
feet while my pants was down then drop me on my right side of my
face and [nose] which it hurt so bad I believe it feels broken
[illegible] for a second I black out. I begging the [illegible] other
John Doe C/o officer to help but they ran away.
Plaintiff then described the sexual assault and that the officers damaged his right wrist
because that is the wrist he uses to write. Plaintiff wrote that he was placed into a cell covered
with human excrement and denied medical treatment.
Relief Requested: “place back in [illegible] grade [illegible] and you
won’t hear another word promise or I want to press charges and be
paid for all these constitutional violations [illegible] and release to
house arrest ASAP please save on the video on 8-6-2023 from 11:00
a.m. and to 6:30 p.m. from 2 house the walk to seg and seg unit and
the feces and [] cell S1-cell 01 I like to be placed in protective
custody away from these crazy staff IDOC Shawnee cc.
Page 12 of 17
Plaintiff signed the grievance on August 28, 2023 and submitted it as an emergency. On
September 6, 2023, Warden Galloway found that it was not an emergency and that it should be
submitted “according to standard grievance procedure.” The ARB received the grievance on
September 28, 2023 and returned it to Plaintiff on October 10, 2023 with instructions to provide
the counselor’s response and decision by the grievance officer and Warden.
Grievance 2023-9-77, dated September 10, 2023 (Doc. 84-4, pp. 30-33)
Plaintiff completed the following Summary of Grievance:
On 9-6-2023, internal affairs Lt. Banks and I agree that if I sign to
drop grievance no. 20239-11 which was sent to him by Warden
Galloway that if I do to 9-10-2023 with out trouble and put in to the
adjustment committee on 9-10-2023 which I also did that I would
get a C-B grade cut which I’m still waiting on. I [am] ready to get
out [of these] inhumane conditions received cell 16 with no table
black mold on the vent and stop up sink feces smell toilet which the
smell makes me sick to my stomach I’m just making sure hold up to
his end of deal.
Relief Requested: I like for my C-B grade 30 day cut and to be
placed either on 1-3 or 2-B which you will not hear another word
from me again thank you very much. God bless. Protective
custody transfer ASAP.
Plaintiff signed the grievance on September 10, 2023. According to the prison’s stamp,
the Warden’s office received it on September 12, 2023 and determined it was not an emergency
on September 13, 2023. Plaintiff’s counselor received it on September 21, 2023 and noted that
Lieutenant Banks provided the following response:
I interviewed Tatum on 9/5/23 and he canceled the grievance. I did
not make a deal at any time. Tatum was advised he could submit a
request to the C grade committee about his electronics after 30 days
and I advised him I am not on C grade committee but I would speak
on his behalf during the next meeting if he stayed out of trouble.
Tatum was also advised he could submit a request to the warden and
adjustment committee about 9 grade reduction. Tatum stated he
would rather do his c grade time in receiving instead of 1B.
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The counselor instructed Plaintiff to send the grievance directly to the grievance officer.
Instead, Plaintiff sent the grievance (including the counselor’s response) to the Administrative
Review Board. The ARB received the grievance on September 28, 2023 and returned it to
Plaintiff on October 10, 2023 with instructions to provide a copy of the grievance officer’s
response and the Warden’s response.
Discussion
Plaintiff and Lieutenant Banks tell different versions of the events that led to Plaintiff
cancelling grievance #2023-9-11. Viewing the evidence in the light most favorable to Plaintiff,
the Court assumes that Lt. Banks threatened Plaintiff to withdraw grievance 2023-9-11 and
Plaintiff cancelled the grievance because of the threat (and only because of the threat).
Nonetheless, the record is clear that except for that one instance, the grievance process was
available to Plaintiff. After Plaintiff withdrew grievance 2023-9-11, he continued to submit
grievances at the institutional level and to the ARB.
However, Plaintiff did not submit the additional grievances in the sequence required by the
prison’s administrative rules. He submitted grievance 2023-9-16 as an emergency and then,
when Warden Galloway found that it was not an emergency, submitted it directly to the ARB.
Plaintiff argued that it was proper for him to submit it directly to the ARB because it was a request
for protective custody. The Court disagrees. Grievance #2023-9-16 contains a lengthy narrative
with no reference whatsoever to protective custody until the very last sentence in the “Relief
Requested” portion. It is as clear to the Court as it was to Ms. Madole with the Administrative
Review Board that the grievance involved staff conduct and a desire to proceed with civil and
criminal legal proceedings, not a request or denial for protective custody.
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Both grievances #2023-9-16 and #2023-9-772 contain requests to adjust Plaintiff’s grade
and a “promise” that if the adjustment was made, “you’ll never hear from me again.” The requests
for protective custody on both grievances were mere afterthoughts. That Plaintiff first submitted
these grievances directly to the Warden as emergencies-instead of initially sending them to the
ARB to grieve a protective custody decision-further strengthens the ARB’s position that the
grievances contained issues that were not appropriate for direct review by the ARB. Moreover,
paragraph 870 of the regulation allows direct review by the ARB for “decisions regarding
protective custody placement.” Id. § 504.870 (emphasis added). The record reflects that no
formal decision was reached at Shawnee regarding protective custody placement for Plaintiff.
At the Pavey hearing, Plaintiff repeatedly referred to the requirement that he “grieve to the
same people” who took part in the August 6, 2023 assaults. Even if Plaintiff believed exhaustion
was futile, the exhaustion requirement nonetheless applied to Plaintiff’s claims in this case. Dole
v. Chandler, 438 F.3d 804, 808-9 (7th Cir. 2006) (internal citations omitted). Moreover, the
record reflects that Defendant Galloway was the only person involved in the grievance process
who was also allegedly involved in the August 6, 2023 assault. By choosing to submit grievance
nos. 2023-9-11 and 2023-9-16 as emergency grievances-and notably, Plaintiff submitted those
purportedly emergent grievances more than two weeks after the alleged assault and cell placement-
Plaintiff chose Warden Galloway to be the first prison official to review the grievances, as opposed
to having a counselor and/or grievance officer (neither of which were part of the August 6, 2023
assault) first investigate Plaintiff’s living conditions.
Regardless, Plaintiff did not submit the grievances related to the allegations in this lawsuit
2 Grievance #2023-9-77 does not encompass all the allegations in this lawsuit, focusing instead on the alleged deal
struck with Lt. Banks.
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in the sequence and manner required by the prison’s administrative rules, and summary judgment
is therefore appropriate in favor of Defendants. Id. at 811. Defendants’ Motion for Summary
Judgment is GRANTED and Plaintiff’s claims against Defendants are DISMISSED WITHOUT
PREJUDICE. The Clerk of Court is directed to enter judgment accordingly.
Plaintiff’s Motion to Compel Pavey discovery and for sanctions against Defendants for using
perjured testimony (Doc. 114)
Plaintiff asks the Court to “compel Pavey discovery to support his undisputed facts to
overcome Defendants’ perjured, false, and misleading testimony.” He contends that Lt. Banks
committed perjury when he testified at the Pavey hearing. Plaintiff explains that if the Court were
to subpoena footage of the August 6, 2023 assault, the Court would find Plaintiff to be a credible
witness and discredit Lt. Banks’ testimony. In reaching the decision to grant Defendants’ Motion
for Summary Judgment the Court considered the evidence in the light most favorable to Plaintiff
and assumed the version of events to which Plaintiff testified: that Lt. Banks threatened him with
continued poor living conditions if Plaintiff did not cancel grievance #2023-9-11 and that Plaintiff
cancelled the grievance because of the threat, not because the August 6, 2023 assaults did not
occur.
The record reflects that the grievance process remained available to Plaintiff and he
continued to utilize it even after Lt. Banks threatened him, but he did not submit a grievance in the
sequence required by the prison rules and the Illinois Administrative Code. As explained in more
detail above, summary judgment is appropriate in favor of Defendants and Plaintiff’s claims
against Defendants will now be dismissed without prejudice. Whether Lt. Banks committed
perjury does not affect the outcome of this case and therefore Plaintiff’s Motion (Doc. 114) is
DENIED. Defendants had filed a Motion for Extension of Time to respond (Doc. 119) to
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Plaintiff’s Motion and that motion is DENIED AS MOOT.
IT IS SO ORDERED.
DATED: July 1, 2025
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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