# Bush v. Dodd

> District Court, S.D. Illinois · September 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11153759

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 30, 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/11153759

## How later opinions describe it (automated extraction)

- holding that a motion for leave to amend “tolls the statute of limitations, even though technically the amended complaint will not be filed until the court rules on the motion”

## Opinion text

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

KEELAN R. BUSH, )
)
Plaintiff, )
)
vs. ) Case No. 3:23-CV-975-MAB
)
PHIL MARTIN, KIMBERLY )
STEPHENS, and JUSTIN HILL, )
)
Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:
This matter is currently before the Court on the motions for summary judgment
on the issue of exhaustion of administrative remedies filed by Defendants Kimberly
Stephens and Phil Martin (Docs. 51, 52).1
BACKGROUND
Plaintiff initiated this civil rights lawsuit on August 31, 2023, alleging that multiple
prison officials and medical providers at Robinson Correctional Center were deliberately
indifferent to his diabetes and need for a special diet (Doc. 1). The complaint was screened
pursuant to 28 U.S.C. § 1915A, and Plaintiff was allowed to proceed on an Eighth
Amendment deliberate indifference claim against dietary supervisor, Justin Hill, based
on his allegations that Hill refused to provide the special diets ordered by the prison
physicians (Doc. 13). It was determined, however, that Plaintiff’s allegations were

1 Defendant Justin Hill waived exhaustion of administrative remedies as an affirmative defense (Doc. 39).
insufficient to state a claim against the other three named Defendants: Warden Rachel
Dodd, Health Care Unit Administrator (“HCUA”) Phil Martin, and Dr. Babish (Doc. 13).

Plaintiff filed a “supplement” to his complaint on December 27, 2023 (Doc. 16). The
Court entered an Order noting that it seemed like Plaintiff was trying to amend the
complaint with additional allegations and defendants (Doc. 17). Plaintiff was instructed
that the Court does not accept piecemeal amendments to a complaint, so if he wanted to
add new allegations or a new defendant, then he needed to file a motion to amend and
submit a proposed amended complaint (Doc. 17).

Plaintiff then submitted an amended complaint on February 2, 2024, which was
docketed as a Motion for Leave to File Amended Complaint (Doc. 21). Plaintiff was
attempting, for a second time, to state a claim against Warden Dodd, HCUA Martin, Dr.
Babish and to also bring in a new defendant: Nurse Kimberly Stephens (Doc. 21; see also
Doc. 27). The Court later determined that Plaintiff should be allowed to proceed on an

Eighth Amendment deliberate indifference claim against HCUA Martin and Nurse
Stephens, but not Warden Dodd or Dr. Babish (Doc. 27).
Defendant Martin filed his motion for summary judgment on the issue of
exhaustion in September 2024, arguing that Plaintiff never filed a grievance that named
him or complained about any of his actions (Doc. 51). Defendant Stephens filed her

motion for summary judgment in November 2024, arguing that Plaintiff did not fully
exhaust his grievance about her prior to filing his amended complaint (Doc. 52). Plaintiff
was given a deadline of December 9, 2024, to respond to both motions (Doc. 55). He filed
a timely response in opposition to Defendant Stephens’ motion, (Docs. 57, 58; see also Doc.
59), but did not file a response to Defendant Martin’s motion.
The allegations pertinent to the motions for summary judgment are as follows:

Plaintiff has Type 1 Diabetes but struggles to keep his blood sugar in check because of
the meals served at Robinson (Doc. 21, p. 20). Healthcare Unit Administrator Phil Martin
told Plaintiff that Dr. Babish ordered him a low concentrated sweet diet with his bedtime
snack bag, but Plaintiff said he did not receive the special diet (Id. at p. 21). Plaintiff
alleged that he thought Phil Martin and the dietary supervisor, Justin Hill, were in “co-
hoots” to prevent him from getting a special diet (Id.).

Plaintiff had an appointment with a new doctor, Dr. Becker, on August 7, 2023
(Doc. 21, pp. 21–22). Plaintiff’s A1C was extremely high, so Dr. Becker increased his
insulin and put in an order to dietary to give Plaintiff a “pm salad,” meaning a salad in
the afternoon or evening (Id. at p. 22). By August 17th, Plaintiff had yet to receive an
evening salad like the doctor ordered, and Dietary Supervisor Hill told Plaintiff that he

was not going to get a salad because the therapeutic diet manual did not provide for it
(Id.). Hill also said that he contacted health care and told them to cancel the order (Id.).
The next day on August 18, 2023, Plaintiff received a pink carbon copy of an order
canceling Dr. Becker’s salad order in the institutional mail (Doc. 21, pp. 22, 44–45). The
cancelation order was signed by Nurse Kimberly Stephens (Id. at pp. 44, 45). Plaintiff was

later told that Nurse Stephens wrote the cancelation order because Dietary Supervisor
Hill called her and told her to do so (Id.).
About three days after receiving the cancelation order, Plaintiff gave his pink copy
of the cancelation order to a nurse to ask Dr. Becker about it (Doc. 21, p. 45). The pink
copy was never returned to Plaintiff, and he was told that Nurse Stephens had gotten a
hold of it and shredded it because she should not have written it in the first place (Id. at

p. 46).
In other words, Plaintiff contends that Nurse Stephens wrote and issued an
unauthorized order in Dr. Becker’s name canceling the previously issued dietary order
for salads. Nurse Stephens then tried to cover up her misdeed by removing the
cancellation order from his medical file and destroying all copies of the order, including
the pink copy that was sent to him. The Court determined these allegations were

sufficient to state an Eighth Amendment claim that Nurse Stephens was deliberately
indifferent to Plaintiff’s serious medical needs by participating in the effort to deny him
special diabetic dietary accommodations (Doc. 27, p. 7).
Plaintiff submitted a grievance on September 6, 2023, indicating that Dr. Becker
entered an order on August 7, 2023, for evening salads, but the order was ignored by

dietary and then improperly canceled by a nurse at the direction of the dietary supervisor
(Doc. 21, pp. 66, 68). Martin was contacted for a response to Plaintiff’s grievance and said
that Dr. Becker’s Therapeutic Diet Order “[o]n 8-4-23” was for “low concentrated
sweets/snack” and there was “[n]othing documented for PM salads” (Id. at pp. 66, 68).
Martin also pulled Plaintiff’s commissary purchase list and sent a copy to Dr. Becker and

the director of nursing “to review” (Id. at p. 68). Plaintiff gave various reasons as to why
Martin’s response to the grievance was inaccurate (Doc. 21, p. 50). The Court found that
his allegations were sufficient to suggest that Martin failed to adequately investigate
Plaintiff’s complaints and provided a false statement about Plaintiff’s medical record,
which was then used to deny Plaintiff’s grievance and led to the continued deprivation
of the physician-ordered dietary accommodations (Doc. 27, p. 7).
LEGAL STANDARD

Summary judgment is proper only if the movant shows that there is no genuine
issue as to any material fact and they are entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In making that determination, the court must view the evidence in the light
most favorable to, and draw 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. E.g., 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, the Seventh Circuit has held that disputed factual questions
can and should be resolved by the judge (rather than a jury) as a preliminary matter in
an evidentiary hearing known as a “Pavey hearing.” Smallwood v. Williams, 59 F.4th 306,
315 (7th Cir. 2023) (citing Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)). Accord Wagoner
v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015); Roberts v. Neal, 745 F.3d 232, 234 (7th Cir.

2014). But when a prisoner does not raise sufficient factual allegations to demonstrate a
genuine dispute of material fact, then no evidentiary hearing is necessary. Jackson v. Esser,
105 F.4th 948, 957 (7th Cir. 2024) (citing Smallwood, 59 F.4th at 318). After reviewing both
sides’ briefs, the Court has determined that there are no genuine issues of material fact,
and a hearing is not necessary.
DISCUSSION
The Prison Litigation Reform Act 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 v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).
Exhaustion is an affirmative defense, which the defendants bear the burden of proving.
Pavey, 663 F.3d at 903 (citations omitted). In order for a prisoner to properly exhaust his
or her 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); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Failure to
do so means failure to exhaust. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
As an individual in IDOC custody, Plaintiff was required to follow the
grievance process outlined in the Illinois Administrative Code to exhaust his claims. 20

ILL. ADMIN. CODE § 504.800, et seq. (2017). The regulations require an inmate to first submit
the grievance to their counselor. Id. at § 504.810(a).2 Then the grievance goes to the
grievance officer, who tenders a recommendation to the warden. Id. at § 504.830(e). The
warden reviews the recommendation and provides the inmate with a written decision on
the grievance. Id. If the inmate is unsatisfied with the warden’s decision, the inmate can

appeal to the Administrative Review Board (“ARB”) for a final determination by the
Director of the IDOC. Id. at § 504.850(a), (d), (e).

2 There are exceptions to this rule, none of which apply here. 20 ILL. ADMIN. CODE §§ 504.810, 504.830 (2017).
An inmate may also request that a grievance be handled as an emergency by
submitting the grievance directly to the warden. 20 ILL. ADMIN. CODE § 504.840. If the

warden finds that an emergency exists, then the grievance will be handled on an
expedited basis. Id. On the other hand, if the warden determines that the grievance should
not be handled on an emergency basis, the inmate is notified and must resubmit the
grievance through the standard grievance process.” Id.
A. DEFENDANT KIMBERLY STEPHENS
Nurse Stephens asserts that there is only one relevant grievance that names her:

Grievance #23-1438, dated September 6, 2023 (Doc. 53; Doc. 58; see also Doc. 53-1, pp. 7–
16).3 She does not contest that the content of the grievance sufficiently covers Plaintiff’s
allegations against her; rather, she argues that the grievance was not fully exhausted
before Plaintiff filed his amended complaint naming her as a Defendant (Doc. 53, p. 9).
The Court agrees.

The law is clear: a prisoner must exhaust their claims before filing suit. 42 U.S.C. §
1997e(a) (“No action shall be brought with respect to prison conditions . . . by a prisoner
. . . until such administrative remedies as are available are exhausted.”). See also Chambers
v. Sood, 956 F.3d 979, 981 (7th Cir. 2020) (“The [PLRA] requires pre-suit exhaustion;
pursuing administrative remedies while litigation is underway does not suffice.”); Ford

v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (“[E]xhaustion must precede litigation.”). New
claims can be added to the suit by amending the complaint so long as they are fully

3 Plaintiff does not argue there are any other grievances that should be considered with respect to Nurse
Stephens (see Doc. 58).
exhausted by the time the plaintiff seeks to amend. See Chambers, 956 F.3d 984; Cannon v.
Washington, 418 F.3d 714, 717–19 (7th Cir. 2005) (per curiam); Barnes v. Briley, 420 F.3d

673, 678 (7th Cir. 2005).
Here, the Court questions whether Plaintiff’s claim against Nurse Stephens in the
amended complaint was actually “new” given that he had brought up allegations about
her twice before he properly sought to add her as a Defendant. He first included an
allegation in his original complaint that a nurse had canceled the salad order, although
at that time he did not know the nurse’s name and did not name the nurse as a defendant

(Doc. 1 p. 22). Then when Plaintiff filed his “supplement” to his complaint in December
2023, he identified Nurse Stephens as the person who canceled the salad order and
included additional allegations about her destroying copies of the cancelation order (Doc.
16, p. 1, 4–6). Plaintiff subsequently filed his motion for leave to amend the complaint to
add Nurse Stephens as a Defendant on February 2, 2024 (Doc. 21).

The Court need not resolve the question of whether Plaintiff’s claim against Nurse
Stephens was “new” because even if the Court assumes that the latest date—the date
Plaintiff filed his motion for leave to amend—is the applicable date for determining
exhaustion, it is clear that Plaintiff failed to exhaust prior to asserting his claim against
Nurse Stephens. He submitted grievance #23-1438 on September 6, 2023. The grievance

went to Plaintiff’s counselor and then the grievance officer before being denied by the
warden on October 13, 2023 (Doc. 53-1, pp. 8, 9). Plaintiff appealed to the ARB, where his
grievance was received on October 26, 2023 (see id. at p. 7). The ARB issued its decision
denying Plaintiff’s grievance approximately three and a half months later, on February 7,
2024 (see id.). That was five days after Plaintiff filed his motion for leave to amend the
complaint to name Nurse Stephens (see Doc. 21). Because Plaintiff filed his motion for

leave to amend his complaint before this grievance completed every step of the grievance
process, it cannot serve to exhaust Plaintiff’s claim against Defendant Stephens.
Plaintiff makes two arguments in an attempt to save his claim. First, he says that
he was under the impression that the Court’s Order regarding his “supplement,” which
was entered on January 2, 2024, gave him a 30-day deadline to submit an amended
complaint (Doc. 57, p. 3). That Order, however, did not say anything at all about a

deadline (see Doc. 17). Plaintiff’s erroneous belief to the contrary, while unfortunate, does
not excuse his premature motion to amend before he had exhausted his administrative
remedies.
Second, Plaintiff says that while his motion to amend was pending and the Court
had yet to review his proposed amended complaint, he “revised his amended complaint”

with a “Motion for Emergency Awareness” filed on February 28, 2024, that included the
ARB’s response to the September 26th grievance (Id.; see also Doc. 25). The Court is
unpersuaded. The Court treated Plaintiff’s “Motion for Emergency Awareness” as a
supplemental exhibit to his amended complaint (see Doc. 27, p. 8). That supplement
cannot and did not do anything to change the fact that Plaintiff first submitted his

amended complaint asserting a claim against Nurse Stephens on February 2, 2024. The
Seventh Circuit has held that for purposes of determining whether a prisoner exhausted
his administrative remedies prior to bringing suit, “an action is ‘brought’ . . . when the
complaint is tendered to the district clerk,” as opposed to when the judge determines that
the complaint passes screening under 28 U.S.C. § 1915A and files the complaint. Ford v.
Johnson, 362 F.3d 395, 400 (7th Cir. 2004). Therefore, it stands to reason that the operative

date for exhaustion with respect to an amended complaint is the date that the proposed
amended complaint is tendered to the court, not the date on which the judge grants the
motion for leave to amend and directs the clerk to file the amended complaint. Chencinski
v. Myers, No. 19-CV-485-RJD, 2022 WL 612403, at *2 (S.D. Ill. Mar. 2, 2022) (holding inmate
must exhaust administrative remedies regarding new claim before filing motion to
amend complaint; it does not suffice to exhaust in the time between filing the motion to

amend and the court’s ruling on the motion).4 Holding differently would frustrate the
purpose of the PLRA. See Ford, 362 F.3d at 399.
B. Defendant Phil Martin
Defendant Martin argues that Plaintiff filed various grievances in 2022 and 2023
regarding his healthcare and diet, some of which were fully exhausted, some of which

were not (Doc. 51-1, pp. 2–5). According to Martin, none of the grievances ever named
him or alleged any misconduct by him (Id. at pp. 8–9). Plaintiff did not file a response to
Martin’s motion for summary judgment and his failure is deemed an admission that
Defendant’s version of the facts is true. SDIL-LR 56.1(g) (“All material facts set forth in a
Statement of Material Facts . . . shall be deemed admitted for purposes of summary

4 Cf. Gakuba v. Pannier, No. 19-CV-1274-NJR, 2021 WL 1165114, at *4 (S.D. Ill. Mar. 26, 2021) (concluding
prisoner was required to exhaust by the time he filed his original complaint, not by the time his claim was
severed into a new case); Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993) (holding that a motion for
leave to amend “tolls the statute of limitations, even though technically the amended complaint will not be
filed until the court rules on the motion”).
judgment unless specifically disputed.”). That being said, Defendant Martin “still ha[s]
to show that summary judgment [is] proper given the undisputed facts . . . .” Robinson v.

Waterman, 1 F.4th 480, 483 (7th Cir. 2021) (citation omitted).
Administrative regulations require that 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) (2017). The Court has carefully reviewed
each of the grievances that Defendant Martin mentioned in his motion for summary

judgment (Doc. 51-1, pp. 2–5). Plaintiff did not name Phil Martin in any of the above-
described grievances or describe any conduct that could reasonably be imputed to him.
Furthermore, there is nothing in the grievances that suggests health care administrators
were a target of Plaintiff’s complaints because they turned a blind eye to purportedly
inadequate medical care or dietary concerns. Instead, Plaintiff only complains in these

grievances about the actions of doctors and the dietary supervisor, which are claims
uniquely distinct from complaining that administrators are ignoring his complaints or
failing to ensure that he received adequate treatment. As such, the grievances cannot
serve to exhaust Plaintiff’s claims against Phil Martin. See Roberts v. Neal Roberts v. Neal,
745 F.3d 232, 236 (7th Cir. 2014); Waldrop v. Wexford Health Sources, Inc., 646 Fed.Appx.

486, 490 (7th Cir. 2016) (unpublished opinion). Defendant Martin is entitled to summary
judgment and shall be dismissed without prejudice as a Defendant in this case.
CONCLUSION
The motions for summary judgment on the issue of exhaustion filed by Defendants
Phil Martin and Kimberly Stephens (Docs. 51, 52) are GRANTED. Martin and Stephens

are DISMISSED without prejudice as Defendants in this matter.
This matter shall proceed on Plaintiff’s Eighth Amendment deliberate indifference
claim against Justin Hill for refusing to provide and/or thwarting Plaintiff’s access to a
medically indicated diet
The stay on discovery on the merits of Plaintiff’s claims (see Doc. 26) is LIFTED,

and the parties may proceed with discovery. A new schedule will be entered by separate
order.

IT IS SO ORDERED.
DATED: September 30, 2025
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11153759. Public record. Not legal advice.