# Lundy v. Wexford Health Sources, Inc.

> District Court, S.D. Illinois · September 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11132393

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11132393

## How later opinions describe it (automated extraction)

- discussing the prison mailbox rule
- noting that an IDOC prisoner’s grievance was untimely, but that IDOC officials nonetheless resolved the grievance on its merits

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEVIN LUNDY,

Plaintiff,
Case No. 23-cv-03809-SPM
v.

ILLINOIS DEPARTMENT OF
CORRECTIONS, et al.,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:
Plaintiff Kevin Lundy, an inmate of the Illinois Department of Corrections (IDOC),
initiated this action pursuant to 42 U.S.C. § 1983 for violations of the American with Disabilities
Act and his constitutional rights. In the Complaint (Doc. 1), Plaintiff alleges that while at Menard
Correctional Center, on March 3, 2022, he was issued a medical permit directing that he be housed
in a cell located on a lower gallery and assigned to a bottom bunk bed. Despite his medical permit,
Plaintiff was placed in a cell where the only available bed was the top bunk bed, and he was forced
to take three flights of stairs to use the showers. On two separate occasions he fell from the top
bunk bed injuring his back, shoulders, head, and feet. Plaintiff wrote letters and spoke to
Defendants about his housing situation, but they did not move him. Eventually, around March 18,
2022, Plaintiff was moved to a cell on a low gallery with a low bunk bed. Following a merit review
of the Complaint pursuant to 28 U.S.C. § 1915A, Plaintiff is currently proceeding on the following
claims:
Count 1: Eighth Amendment deliberate indifference claim to a serious
medical need against John Doe, Lawrence, Klump, Wills, Tourville,
Snell, and McCaleb for failing to honor Plaintiff’s medical permit
and assign Plaintiff to a cell on a low gallery with a low bunk bed in
March 2022.

Count 2: ADA and RA claim against IDOC for not accommodating
Plaintiff’s physical disabilities by failing to house him in a cell on a
low gallery with a low bunk bed in March 2022.

(Doc. 11). This matter is before the Court on a motion for summary judgment on the issue of
exhaustion filed by Defendants Wills, Klump, McCaleb, Lawrence, Snell, Tourville, and IDOC.1
(Doc. 33). Plaintiff has filed response in opposition. (Doc. 58).
As a preliminary matter, the Court denies Defendants’ Motion to Strike seeking to strike
Plaintiff’s response to their motion for summary judgment. (Doc. 59). Defendants argue that
Plaintiff’s response was not filed in compliance with Local Rule 56.1. They contend that Plaintiff
failed to specify whether he deems each fact in Defendants’ Statement of Material Facts as
admitted or disputed, see SDIL-LR 56.1(b), and that he did not cite to the record to support his
statement of facts, see SDIL-LR 56.1(f). Defendants also point out that Plaintiff’s response was
due Monday, February 3, 2025, and he did not file a motion seeking additional time to file his
response until February 5, 2025. (See Doc. 36).
First, the motion for extension of time was timely filed, as it is signed January 26, 2025,
and postmarked February 3, 2025. See Taylor v. Brown, 787 F. 3d 851, 858 (7th Cir. 2015)
(discussing the prison mailbox rule). Second, while Local Rule 56.1(h) grants the Court the

1In the motion, Defendants list Hughes as a defendant in her official capacity as Acting Director of the Illinois
Department of Corrections in lieu of the Illinois Department of Corrections. (Doc. 33). The Court notes that Plaintiff
is bringing his ADA/RA claim against the Illinois Department of Corrections itself (Doc. 11, p. 5), Hughes is not listed
as a defendant on the docket, and no motion has been made to modify the merit review order or the docket. Defendants
are reminded that the proper defendant for an ADA/RA claim is the agency or its director in his official capacity. See
Jaros v. Ill. Dept. of Corr., 684 F. 3d 667, 670 n. 2 (7th Cir. 2012) (altering the case caption to reinstate the Illinois
Department of Corrections as a defendant and remanding the plaintiff’s claims under the RA); 42 U.S.C. §12131(1);
Flournoy v. Wexford Health Sources, Inc., No. 24-1465, 2025 WL 1122046, at *2 (7th Cir. 2024) (“the ADA and
Rehabilitation Act mandate that the appropriate defendant in a suit under these laws is the pertinent state department
or agency”) (citations omitted). Defendants should refrain from referring to individuals in their filings who are not
parties listed on the docket.
discretion to strike a response for noncompliance, the Court will not exercise that discretion here.
Defendants’ Rule 56 Notice informs Plaintiff of the consequences of (1) not addressing facts
asserted by Defendants; and (2) failing to support his own assertions of fact by citing to the record.
(Doc. 34, p. 2) (quoting FED. R. CIV. P. 56(e)). The Rule 56 Notice warns Plaintiff that Defendants’

assertions will be taken as undisputed unless he contradicts the assertions with documentary
evidence and that he must likewise support his claims with documentary evidence. (Id.).
Furthermore, Plaintiff was advised that failure to properly support assertions of fact or address
Defendants’ assertions of fact could result in the Court granting the Defendants’ motion for
summary judgment if “the motion and supporting materials…show the [Defendants are] entitled
to it.” (Id.) (quoting FED. R. CIV. P. 56(e)(e)(3)). The Rule 56 Notice does not, however, inform
Plaintiff of the additional formatting requirements for responding to Defendants’ Statement of
Material Facts as laid out in the Local Rule 56.1(b) and that failure to address each paragraph in
Defendants’ Statement of Material Facts could result in Plaintiff’s response being stricken. The
only citation to the Local Rules in the Rule 56 Notice is to Local Rule 7.1(c)(1) instructing Plaintiff

that failure to file a response within the deadline “may, in the Court’s discretion, be considered an
admission of the merits of the motion.” This provision no longer exists.
Because Federal Rules of Civil Procedure provides sufficient consequences for a party’s
failure to properly support or address facts during the summary judgment phase, and there is no
indication that Plaintiff was aware of Local Rule 56.1, the Court sees no reason to strike the
response. The Motion to Strike is DENIED. (Doc. 59).
LEGAL STANDARDS

Summary judgment is proper only if the moving party can demonstrate “that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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).
II. Exhaustion of Administrative Remedies
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform
Act (“PLRA”). 42 U.S.C. § 1997e(a). The PLRA states, in pertinent part, that “no action shall be
brought with respect to prison conditions under section 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.” Id. The Seventh Circuit requires strict adherence to the
PLRA’s exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). “To exhaust
remedies, a 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).

Furthermore, exhaustion of available administrative remedies must occur before the suit is filed.
Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
III. Grievance Procedures
As an inmate in the custody of IDOC, Plaintiff was required to follow the grievance
procedure laid out in the Illinois Administrative Code (“grievance procedures”). 20 ILL. ADMIN.
CODE § 504.800, et seq. The grievance procedures direct an inmate is to file a grievance first with
the Counselor within 60 days of the discovery of an incident. See 20 ILL. ADMIN. CODE §
504.810(a). The grievance form must:
[C]ontain 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. This provision 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.

20 ILL. ADMIN. CODE § 504.810(c). Grievances that are unable to be resolved through routine
channels are then sent to a Grievance Officer. See 20 ILL. ADMIN. CODE § 504.820(a). The
Grievance Officer will review the grievance and provide a written response to the inmate. See 20
ILL. ADMIN. CODE § 504.830(a). The Grievance Officer must submit his findings to the Chief
Administrative Officer (CAO) within two months after receiving the grievance. 20 ILL. ADMIN.
CODe § 504.830(e). The CAO then reviews the findings and recommendation of the Grievance
Officer and issues a written decision to the inmate. Id. If the inmate is not satisfied with the
response, he can file an appeal with the Administrative Review Board (ARB). See 20 ILL. ADMIN.
CODE § 504.850(a). The ARB must receive the appeal within 30 days after the date of the decision
by the CAO, and copies of “the Grievance Officer’s report and the Chief Administrative Officer’s
decision should be attached.” Id. Only after a grievance is reviewed by the ARB is it deemed
exhausted. See Pozo, 286 F.3d at 1023–24.
ANALYSIS
The only grievance that the Court needs to address is Grievance #214-5-22, dated May 17,
2022. (Doc. 33-2, p. 4). Defendants argue that this grievance cannot serve to exhaust Plaintiff’s
claims against them because it was not received by Plaintiff’s counselor until May 20, 2022, sixty-
six days after Plaintiff fell from his bunk bed the second and final time on March 17, 2022. (Doc.
33, p. 11-12; Doc. 1, p. 20; Doc. 33-2, p. 5). Because Grievance #214-5-22 was submitted outside
the 60-day timeframe as established in the grievance procedures, Defendants contend that the
grievance was procedurally defective.
Plaintiff counters that Grievance #214-5-22 was placed in the grievance box on May 17,
2022, and therefore timely submitted by the 60-day deadline. (Doc. 58, p. 1). He states he had no
control over when the counselor receives the grievance once he has submitted it. (Id.).
The Court does not agree that Grievance #214-5-22 must be disregarded as procedurally
defective because it was untimely filed. Although ARB ultimately denied the grievance because it

was “[n]ot submitted in the [60-day] timeframe outlined in Department Rule 504,” at the
institutional level, the prison officials ruled on the merits of the grievance. (Doc. 33-2, p. 2-6).
While the prison administration can refuse to hear a grievance if the inmate fails to properly utilize
the grievance process, see Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), IDOC officials
can excuse a prisoner’s non-compliance and review the grievance on the merits – as they did here.
See Riccardo v. Rausch, 375 F.3d 521, 523–24 (7th Cir. 2004) (noting that an IDOC prisoner’s
grievance was untimely, but that IDOC officials nonetheless resolved the grievance on its merits).
Additionally, this Court and others continue to find that “when officials at the correctional facility
address a grievance on the merits, the ARB cannot ‘later examine the grievance on procedural
grounds to cure the error.’” Walls v. Nalewjka, No. 21-cv-01369-SPM, 2023 WL 6147525, at *4

(S.D. Ill. Sept. 20, 2023) (quoting Kane v. Santos, No. 17-cv-01054, 2020 WL 967878, at *4 (S.D.
Ill. Feb. 28, 2020)). See also Exum v. Myers, No. 23-cv- 01994-SPM, 2025 WL 486176, at *3
(S.D. Ill. Feb. 13, 2025). The grievance was rejected on the merits by the counselor, grievance
officer, and chief administrative officer, therefore, “it was improper for the ARB to later deny the
grievance for” untimeliness. Walker v. Wexford Heath Sources, Inc., No. 24-CV-1140-MAB, 2025
WL 2418444, at *6 (S.D. Ill. Aug. 21, 2025) (citation omitted). The Court finds Grievance #214-
5-22 was fully exhausted and will not deem it procedurally defective.
The Court also rejects Defendants’ argument that Grievance #214-5-22 contains
insufficient details to meet the requirements of 20 Ill. Admin. Code §504.810(b) and is defectively
vague. (Doc. 33, p. 12). The fact that Plaintiff did not name or describe each Defendant,
specifically Lawrence, Klump, Wills, McCaleb, and IDOC, is not “fatal to the issue of exhaustion.”
See Arce v. Wexford Health Services, No. 18-cv-1348-SMY-GCS, 2019 WL 6702692, at *5 (S.D.
Ill. Oct. 9, 2019). Inmates are only required to identify individuals to the extent necessary to serve

a grievance’s function of giving “prison officials a fair opportunity to address [the prisoner’s]
complaints.” Maddox v. Love, 655 F. 3d 709, 722 (7th Cir. 2011)). Grievance #214-5-22 meets
this purpose. The grievance sufficiently describes Plaintiff’s complaints in this case. In Greivance
#214-5-22, Plaintiff states that despite his medical permit, he was housed in a cell with an
individual who also had a low bunk permit and was forced to sleep on the top bunk bed. (Doc. 33-
2, p. 4). He grieves that he injured himself trying to climb down from the bed. Plaintiff asserts that
he “begged” for assistance from his gallery correctional officer, the sergeant, “Lt. Snell all the way
up to Major Tourville,” but he kept “getting the run around.” (Id. at p. 5). After threatening to
engage in a hunger strike, Plaintiff states that he was finally moved to a cell that would
accommodate his medical permit. (Id.). When submitting a grievance, Plaintiff is not expected to

know who exactly could be held legally liable for his housing placement and who could be named
later in a lawsuit. “[T]he grievance process is not intended to provide individual notice to each
defendant who might be sued later.” Anderson v. Siddiqui, No. 22-cv-00221-SPM, 2024 WL
3887594, at *4 (S.D. Ill. Aug. 21, 2024) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)). Based
on the details Plaintiff provided in Grievance #214-5-22, prison officials were able to investigate
Plaintiff’s complaints that his medical permit was not honored and resulted in physical harm. (See
Doc. 33-2, p. 6). The grievance also implicates the involvement of various staff members, even
though they are not all identified by name. Thus, the grievance successfully serves to exhaust
Plaintiff’s claims against Lawrence, Klump, Wills, Tourville, Snell, McCaleb, and IDOC. The
motions for summary judgment is denied.
DISPOSITION
For the reasons provided, the Motion for Summary Judgment for on the Issue of Exhaustion
of Administrative Remedies filed by Defendants Wills, Lump, McCaleb, Lawrence, Snell,

Tourville, and IDOC is DENIED. (Doc. 33). The Motion to Strike filed by Defendants Wills,
Lump, McCaleb, Lawrence, Snell, Tourville, and IDOC is DENIED. (Doc. 59).
Discovery on the merits shall remained stayed until the issue of identifying and serving the
John Doe Defendant is resolved.
IT IS SO ORDERED.
DATED: September 3, 2025

s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11132393. Public record. Not legal advice.