Haynes v. Pritzker

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

GREGORY HAYNES, )

)

Plaintiff, )

)

vs. ) Case No. 3:23-CV-4069-MAB

)

JB PRITZKER, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on Defendants Anthony Jones, Joshua Schoenbeck,

and Sandy Walker’s Motion for Summary Judgment on the Issue of Exhaustion of

Administrative Remedies (Doc. 26). For the reasons set forth below, Defendants’ motion

is DENIED at this time (Doc. 26). However, Defendants may request a Pavey hearing if

they wish to further contest the specific factual issue of whether the administrative

remedy process was available to Plaintiff for Grievance No. 352-1-22.

BACKGROUND

Plaintiff Gregory Haynes filed this civil rights action pursuant to 42 U.S.C. § 1983

for alleged deprivations of his constitutional rights that occurred at Menard Correctional

Center (see Docs. 1, 9). Specifically, as it relates to Plaintiff’s remaining claim, Plaintiff

alleges that his mail was confiscated on November 22, 2021, after the officer distributing

his mail took it back and stated that it appeared suspicious (Doc. 9 at p. 2). One hour later,

Plaintiff was escorted to segregation and informed that he was being placed in

segregation for attempting to bring drugs into the prison (Id.). At that time, Plaintiff was

placed in a segregation cell without being provided sheets, towels and toiletries (Id.).

Moreover, the ceiling of his cell was covered in black mold (Id.). For the first two days

after his placement in segregation, Plaintiff alerted every officer that passed his cell of the

deplorable conditions and his lack of bedding and toiletries (Id.).

Plaintiff received his bedding and hygiene items two days after his placement in

segregation, and his prescription pain medication four days after his placement (Id.). In

addition, Plaintiff received his other personal possessions such as clothes and legal work

after spending approximately two weeks in segregation (Id.). Meanwhile, on November

30, 2021, Plaintiff appeared before the Adjustment Committee, which included

Defendants Schoenbeck, Jones, and Walker, for a hearing on his alleged drug violation

(Id.). The Adjustment Committee refused to thoroughly investigate Plaintiff’s situation

and instead convicted him of the charged disciplinary offense (Id.). Pertinently, at that

hearing, Plaintiff also informed the Adjustment Committee of the mold in his cell and

requested a cell change (Id. at p. 3). However, the Adjustment Committee denied his

request (Id.).

After two weeks in segregation, Plaintiff began to experience numerous physical

symptoms because of his prolonged exposure to mold and other deplorable conditions

(Id.). Throughout his time in segregation, Plaintiff asked staff to provide him with

grievance forms but was repeatedly denied (Id.). However, Plaintiff eventually obtained

two grievance forms through other inmates, which he submitted on November 30, 2021,

and December 6, 2021 (Id.). Finally, Plaintiff was released from segregation on or around

December 21, 2021, after a lab test found that his mail did not contain a scheduled

substance (Id.). Plaintiff sought grievance forms after his release from segregation but was

not provided with any until January 3, 2022 (Id.). On that date, he submitted a grievance

about the deplorable conditions of confinement he experienced in segregation (Id.).

However, Plaintiff did not receive a response to that grievance (Id.).

Plaintiff initiated this action by filing a Complaint on December 29, 2023 (Doc. 1).

The Court conducted a preliminary review of Plaintiff’s Complaint pursuant to 28 U.S.C.

§ 1915A in March 2024 (Doc. 9). Ultimately, Plaintiff was permitted to proceed on the

following claim:

Claim 3: Eighth Amendment conditions of confinement claim

concerning segregation placement against Defendants

[Schoenbeck, Jones, Walker].

(Id. at pp. 7, 12-13).1

On September 9, 2024, Defendants filed the instant Motion for Summary Judgment

on the Issue of Administrative Exhaustion (Doc. 26). Plaintiff did not file a response to

Defendants’ motion.2

1 To the extent Claim 3 named additional Defendants such as Curtis Cox, John Doe 1, and John Doe 2, those

Defendants were dismissed because Plaintiff failed to sufficiently plead what he wrote to those individuals,

when he did so, and whether they received his letters (Id. at p. 13).

2 Plaintiff’s failure to respond to Defendants’ Statement of Undisputed Material Facts is deemed an

admission of those material facts to the extent they are supported by evidence in the record (see Doc. 27 at

p. 3). See also SDIL-LR 56.1(g) (“All material facts set forth in a Statement of Material Facts . . . shall be

deemed admitted for purposes of summary judgment unless specifically disputed.”); Fed. R. Civ. P.

56(e)(2); Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). However, the admission of Defendants’

material facts does not automatically entitle Defendants to summary judgment; they must still demonstrate

that they are entitled to judgment as a matter of law. See Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012).

LEGAL STANDARDS

I. Summary Judgment Standards

Summary judgment is appropriate if the movants show 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 “generally will construe all facts and

reasonable inferences in the light most favorable to the non-moving party.” Apex Digital,

Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013). This means courts cannot

resolve factual disputes in favor of the party seeking 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).

Nevertheless, “[t]he nonmoving party must do more than simply show that there is some

metaphysical doubt as to the material facts.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th

Cir. 2010).

II. Exhaustion Requirements

As provided in the Prison Litigation Reform Act, “[a] prisoner may not bring a

federal suit about prison conditions unless he first has exhausted all available

administrative remedies.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011) (citing 42

U.S.C. § 1997e(a)). A remedy has not been exhausted if the prisoner failed to abide by the

procedures for pursuing relief. Id. Thus, to properly exhaust one’s administrative

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).

However, an inmate is not required to exhaust administrative remedies that are

not actually available to him. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016)

(“Remedies that are genuinely unavailable or nonexistent need not be exhausted.”). The

Seventh Circuit has “found remedies unavailable in a number of instances in which the

inmate, through no fault of his own, could not have accessed the grievance procedure.”

Lanaghan v. Koch, 902 F.3d 683, 688 (7th Cir. 2018). Furthermore, the failure to exhaust

administrative remedies is an affirmative defense that the defendants carry the burden

of proving. See Ramirez v. Young, 906 F.3d 530, 533 (7th Cir. 2018). “To meet their burden,

the defendants must show beyond dispute that remedies were available.” Id. at 533-34.

III. IDOC Grievance Procedures

Individuals incarcerated within the Illinois Department of Corrections (IDOC) are

required to follow the grievance procedure outlined in the Illinois Administrative Code

to exhaust their administrative remedies. See 20 Ill. Admin. Code § 504.800, et seq. (2017).

To initiate the normal grievance process, an inmate must file a grievance with their

institutional counselor within 60 days of the discovery of the incident. Id. at § 504.810(a).

After the counselor provides a response, an inmate may submit his grievance to a

grievance officer who is to report his or her findings and recommendations to the Chief

Administrative Officer (the “warden”) within two months. Id. at 504.830(e). The warden

reviews the grievance officer’s findings and recommendations, and then provides a

written decision. Id. If an inmate is unsatisfied with the warden’s decision, he has 30 days

from the date of the warden’s decision to appeal to the Administrative Review Board (the

“ARB”). Id. at § 504.850(a). The ARB then submits a written report to the Director of the

IDOC, who makes a final decision within six months, when reasonably feasible. Id. at §

504.850(e). Furthermore, “[r]ecords regarding the filing and disposition of grievances

shall be maintained in the offender’s master file.” Id. at § 504.860.

Alternatively, an inmate can request for his or her grievance to be handled on an

emergency basis by submitting the grievance directly to the warden. Id. at § 504.840. If

the warden determines the grievance should not be handled as an emergency, the inmate

is notified in writing that he or she may resubmit the grievance in accordance with the

standard grievance process. Id. at § 504.840(c). However, if the warden determines the

grievance is an emergency, the warden must expedite processing of the grievance and

respond by indicating what action shall be or has been taken. Id. at § 504.840(b).

Additionally, if an inmate appeals the warden’s decision on an emergency grievance, the

ARB is also required to expedite processing of the emergency grievance. Id. at § 504.850(f).

DISCUSSION

Defendants contend that they are entitled to summary judgment because Plaintiff

failed to exhaust his administrative remedies as to his current conditions of confinement

claim raised against them (see Doc. 26). More specifically, Defendants aver that Plaintiff’s

Administrative Review Board records demonstrate that he only filed one grievance

concerning conditions of confinement to the ARB, and that grievance was denied for

procedural reasons (Id. at p. 8). In addition, Defendants argue that none of Plaintiff’s

grievances identify them by name or description (Id. at p. 9).

The filings attached to Plaintiff’s Complaint and the documents accompanying

Defendants’ motion demonstrate that there are five grievances worth discussing:

Grievance No. 114-12-21, Grievance No. 33-12-21, Grievance No. 352-1-22, and two

unnumbered grievances (see Doc. 1 at pp. 37-50, Doc. 26-1, Doc. 26-2). The Court first

addresses the grievances that do not establish that Plaintiff exhausted his administrative

remedies before turning to those which demonstrate a genuine dispute as to whether the

administrative process was made unavailable to Plaintiff.3

I. Grievances Nos. 33-12-21 and 114-12-21

Grievance No. 33-12-21 and Grievance No. 114-12-21 do not exhaust Plaintiff’s

administrative remedies as to his Eighth Amendment conditions of confinement claim

because they do not identify Defendants as their targets for Plaintiff’s complaints about

his conditions of confinement. In Grievance No. 33-12-21, dated November 30, 2021,

Plaintiff challenged the validity of the drug testing kit used to test his incoming mail and

the resulting disciplinary ticket (Doc. 26-2 at pp. 7-8). At the facility level, the Grievance

Officer recommended Plaintiff’s grievance be affirmed because his disciplinary ticket was

expunged (Id. at p. 5). The Warden concurred in the recommendation and the ARB did

not timely receive an appeal from Plaintiff (Id.; see also Doc. 26-1).4

Similarly, in Grievance No. 114-12-21, dated December 6, 2021, Plaintiff challenged

3 The Court first discusses the grievances that do not necessitate a Pavey hearing in an attempt to minimize

the number of issues and evidence to be discussed if Defendants request a Pavey hearing.

4 Notably, while Defendants’ motion does not include the ARB’s response to Grievances Nos. 33-12-21 and

114-12-21, Plaintiff’s Complaint includes the ARB’s response to those grievances dated May 24, 2022 (Doc.

1 at p. 44). In that response, the ARB denied Plaintiff’s grievances because they were not appealed to the

ARB within 30 days of the Warden’s decision (Id.).

the Adjustment Committee’s finding of guilt and the validity of the underlying drug test,

before alleging that he was being retaliated against (Doc. 26-2 at pp. 3-4). The Grievance

Officer affirmed the grievance in part and denied it in part, affirming in part because

Plaintiff’s violation had been expunged and denying in part to the extent that Plaintiff

sought information regarding other inmate’s test results (Id. at p. 1). The Warden

concurred in the recommendation and the ARB did not timely receive an appeal from

Plaintiff (Id.; see also Doc. 26-1). See supra FN 4.

Accordingly, the Court finds Grievances Nos. 33-12-21 and 114-12-21 fail to

exhaust Plaintiff’s administrative remedies as to his instant claim because they do not

identify Plaintiff’s conditions of confinement claim against Defendants (i.e., the

Adjustment Committee). See Roberts v. Neal, 745 F.3d 232, 235-36 (7th Cir. 2014) (“The

grievance has a fatal defect, but it lies elsewhere; it lies in the absence of anything in it to

indicate that Davis was the target.”); Cunningham v. Isaacs, No. 3:21-CV-247-MAB, 2022

WL 3026854, at *3 (S.D. Ill. Aug. 1, 2022) (“In short, the grievance must provide sufficient

information to identify the defendant as the target of the complaint or to implicate them

in the alleged wrongdoing.”); Bowers v. Dart, 1 F.4th 513, 518 (7th Cir. 2021) (“Finding a

grievance did not sufficiently identify the issue because “[c]ontending that Officer Rottar

failed to come to his aid during the attack is not the same as alleging that the jail

employees predicted but ignored the risk.”). Admittedly, those grievances identified

several of the Adjustment Committee’s actions that Plaintiff took issue with (see, e.g., Doc.

26-2 at pp. 7-8). And in that regard, the Court finds that Plaintiff’s identification of the

Adjustment Committee provided sufficient information to identify Defendants, since

they were the specific members of the Adjustment Committee involved in Plaintiff’s

disciplinary hearing. See, e.g., Bakaturski v. Brookhart, No. 21-cv-00014-GCS, 2022 WL

1093633, at *3–4 (S.D. Ill. Apr. 12, 2022) (holding an inmate properly exhausted claims

because his grievances against “healthcare” and “head of medical” were sufficient for

prison officials to identify the defendant); German v. Stewart, 3:22-CV-1352-SMY, 2024 WL

1093727, at *4 (S.D. Ill. Mar. 13, 2024) (Finding grievances were sufficient to identify the

defendants because a “review of these records and the grievances conclusively

establishes that these defendants were the nurses and doctor who saw Plaintiff in the

course of his attempts to secure treatment for his ear ailment.”). On top of that, those

grievances identify some of Plaintiff’s complaints about the conditions of confinement he

faced while in segregation (see, e.g., Id. at p. 8) (describing the agonizing pain Plaintiff

experienced in segregation due to lack of medication and “psychological trauma”).

The issue, however, is that neither grievance connects the dots between

Defendants (the Adjustment Committee) and Plaintiff’s instant conditions of

confinement claim. In other words, while those grievances may have grieved both the

Adjustment Committee’s decision and the conditions of confinement Plaintiff faced, they

do not provide any indication that Plaintiff was blaming the Adjustment Committee for

being deliberately indifferent to those allegedly deplorable conditions. See Bentley v.

Morris, 3:23-CV-48-MAB, 2025 WL 894947, at *13 (S.D. Ill. Mar. 24, 2025) (“Without this

connection, Grievance No. 103-8-22 fails to identify Plaintiff’s fire-related claims against

Defendant Mabrey.”). To the contrary, those grievances don’t even provide any

indication that the Adjustment Committee knew of the allegedly deplorable conditions

Plaintiff was facing. And without establishing that connection (or including some other

statement directly blaming Defendants or the Adjustment Committee for his cell

conditions), neither grievance would have alerted prison officials to Plaintiff’s instant

conditions of confinement claim against Defendants. See Jackson, 105 F.4th 948, 959 (7th

Cir. 2024) (“Moreover, the ‘specific issue’ raised in that grievance was not that there were

incapacitating agents in the cell but that Lt. Esser failed to turn Jackson’s water on after

being notified that it was off. This grievance suggested that the ‘nature of the wrong for

which redress is sought’ was the lack of water, not the presence of incapacitating agents

in the cell.”). Consequently, Grievances Nos. 33-12-21 and 114-12-21 do not exhaust

Plaintiff’s administrative remedies as to his current claim against Defendants.5

II. Plaintiff’s Unnumbered Grievances and Missing Grievance No. 352-1-22

Notably, Plaintiff’s and Defendants’ filings include three additional grievances

that are relevant to the question of whether Plaintiff exhausted his administrative

remedies as to his instant claim against Defendants. Complete copies of two of those

additional grievances are contained in the record but were not assigned grievance

numbers (see Doc. 1 at pp. 40-43). Meanwhile, a third grievance, Grievance No. 352-1-22,

was assigned a grievance number but no copy of that grievance is contained in the record

(see Doc. 26-3 at p. 2).

5 In addition, Grievances Nos. 33-12-21 and 114-12-21 both appear procedurally defective because they

neither contain Plaintiff’s signatures on the section for appealing to the ARB nor appear timely appealed

to the ARB (see Doc. 1. At pp. 44). While this could provide an independent reason for finding those

grievances were not exhausted, the affidavit attached to Plaintiff’s Complaint potentially creates a factual

dispute as to this point because in it, Plaintiff alleges that he mailed both of those grievances to the ARB in

January 2022 (Id. at p. 35). Nevertheless, the Court need not consider this potential issue further because of

the identification issue discussed above.

Grievance No. 352-1-22 was received by prison officials at Menard on January 28,

2022 (see Doc. 26-3 at p. 2; Doc. 26-4 at p. 3). However, Defendants concede that a copy of

Grievance No. 352-1-22 was “incidentally” not made at the first level of review and

Plaintiff has likewise failed to provide a copy of that grievance (see Doc. 26 at p. 12).

Therefore, because neither party has a copy of that grievance, the Court is only able to

consider supplemental filings that references Grievance No. 352-1-22, including filings

attached to Plaintiff’s Complaint and facility records attached to Defendants’ motion.

For example, Plaintiff’s cumulative counseling summary demonstrates that

“grievance #352-1-22 regarding safety and sanitation” was “sent to the counselor and

answered at 1st level before being logged and numbered in the grievance office.” (Doc.

26-4 at p. 3; see also Doc. 1 at p. 36). Plaintiff’s counseling summary then notes that

Grievance No. 352-1-22 was responded to on January 27, 2022, by Correctional Counselor

II Timothy Weaver (Doc. 26-4 at p. 3). Moreover, Plaintiff’s counseling summary includes

an entry from April 22, 2022, wherein “unassigned staff” documented that Plaintiff had

submitted a kite (i.e., a note or letter) requesting a copy of Grievance No. 352-1-22 (Id.).

Additionally, Plaintiff’s facility-level grievance log states that Grievance No. 352-1-22

grieved issues of “safety & sanitation” and was returned by the counselor at the first level

on February 2, 2022 (Doc. 26-3 at p. 2). That log also includes a comment stating that

“[t]his grievance was answered by the counselor before it was received in the grievance

office to be logged and numbered.” (Id.).

Plaintiff’s Complaint also included additional records regarding Grievance No.

352-1-22. For instance, Plaintiff sent an affidavit to the ARB, dated May 5, 2022, wherein

he discussed Grievance No. 352-1-22, stating:

On January 24, 2022, I placed a grievance in the grievance box, here in

Menard CC, with the intentions of it being filed and addressed. The

grievance was filed under # 352-1-22, and was forwarded to the Counselor

a response. I was not satisfied with his response so I forwarded the

grievance to the grievance officer. Within a week later I received the

grievance but there was no response from the grievance officer, so I re-sent

it to the grievance officer. As of today, I have not received any response

pertaining to that grievance nor has it been returned to me. Since then I

have sent in multiple grievances on how my grievances are being

mishandled. I have also written the head counselor, the grievance [office],

and the record’s office requesting a copy of grievance # 352-1-22 and for a

response to it. No one has responded. I even tried filing an emergency

grievance. I am at my wits end so now I am requesting assistance from the

Administrative Review Board in Springfield, IL. I am also sending

handwritten copies of grievances I sought to file.

(Doc. 1 at pp. 34-35).

Plaintiff’s two unnumbered grievances also relate to Grievance No. 352-1-22 and

provide additional context. For example, in Plaintiff’s unnumbered grievance dated

January 24, 2022, Plaintiff wrote “[t]his is my 2nd attempt at filing this grievance.” (Doc.

26-1 at p. 3). His grievance then identified “living conditions” as the reason for its filing

and complained of the deplorable conditions he faced such as mold, cold and smoke, and

a lack of sheets, blankets and toiletries (Id. at pp. 3-4). That unnumbered grievance was

sent to the ARB and marked as received on May 11, 2022 (Id.). However, it contained no

facility level responses (Id.). Consequently, the grievance was denied by the ARB due to

the lack of a facility level response and the grievance’s apparent untimeliness (Id. at p. 2).

Additionally, Plaintiff filed another unnumbered grievance on or around April 24,

2022 (Doc. 1 at pp. 40-41). In that grievance, Plaintiff again challenged the prison’s lack of

response to Grievance No. 352-1-22 (Id.). He then specified dates that he wrote the head

counselor and the record office to request copies of Grievance No. 352-1-22 and a

response (Id.). In fact, Plaintiff also claimed to have submitted another grievance in the

first week of March 2022 that inquired into the status of Grievance No. 352-1-22 (Id.).

However, he apparently did not receive a response to that grievance either (Id.). Finally,

Plaintiff concluded his unnumbered grievance by claiming that his rights were being

violated and he was being prevented from exhausting his administrative remedies (Id.).

The unnumbered grievance from April 2022 was also sent directly to the ARB and

received on May 11, 2022, before being denied by the ARB for failing to include any

facility level responses (Id. at pp. 38-41).

Although Plaintiff did not respond to Defendants’ motion, the record contains

sufficient evidence to demonstrate a genuine dispute as to whether administrative

remedies were available to Plaintiff for Grievance No. 352-1-22. To summarize, Plaintiff’s

and Defendants’ records provide no less than two other grievances, an affidavit, several

cumulative counseling summary entries, and a grievance log record which all reflect the

existence and absence of Grievance No. 352-1-22, which was about Plaintiff’s conditions

of confinement (see generally Doc. 1 at pp. 34-43; Doc. 26-1; Doc. 26-3, Doc. 26-4).

Meanwhile, Defendants have provided evidence to support their allegations that Plaintiff

did not properly exhaust or appeal Grievance No. 352-1-22 through all stages of the

administrative review process (see Doc. 26-1 at p. 1; Doc. 26-3 at p. 2).6

6 Defendants’ motion also argues that Plaintiff’s unnumbered January 2022 grievance does not identify his

instant claim against Defendants (Doc. 26 at p. 8). While a review of that unnumbered grievance may

support Defendants’ contention, this is not fatal to the question of whether Grievance No. 352-1-22

identified Defendants and Plaintiff’s claim against them because it is readily apparent that Plaintiff’s

unnumbered January 2022 grievance is not an identical copy of his earlier grievance. In fact, his

Moreover, at this stage, the Court does not find Defendants’ repeated citations to

records showing that Grievance No. 352-1-22 was not received at the second level of

review or by the ARB to be persuasive. Plaintiff’s affidavit clearly admits that he received

his counselor’s response to Grievance No. 352-1-22 (Doc. 1 at p. 34). Likewise,

Defendants’ undisputed facts and Plaintiff’s own filings establish that Plaintiff did not

appeal Grievance No. 352-1-22 to the ARB (Doc. 26 at p. 5). But the absence of a dispute

on those two points is not fatal to Plaintiff’s claim at this time because Plaintiff has alleged

that he sent Grievance No. 352-1-22 for second level review and then never heard

anything back (see Doc. 1 at p. 34), and nothing in Defendants’ evidentiary submissions

or undisputed facts rules out the possibility that the process was thwarted at that stage

by factors outside of Plaintiff’s control.

Therefore, at this juncture, sufficient evidence exists to demonstrate a factual

dispute on the specific issue of whether administrative remedies were made unavailable

to Plaintiff regarding Grievance No. 352-1-22.7 See Jackson, 105 F.4th at 957 (“If, however,

a prisoner raises ‘sufficient factual allegations demonstrating a genuine dispute as to

whether the administrative remedies were available to him,’ a court must conduct an

unnumbered grievance makes this point clear by immediately stating that it was his second attempt to file

a grievance on the subject (Doc. 26-1 at p. 3). As such, without more, the Court can only speculate as to the

exact contents of Grievance No. 352-1-22 and whether it specifically identified Plaintiff’s conditions of

confinement claim against Defendants.

7 The Court has some questions regarding the timing of Plaintiff’s January grievance filings and the

evidence underlying those assertions. However, because those questions predominantly involve credibility

determinations, the Court believes it prudent to refrain from addressing them until a Pavey hearing is held

(if Defendants timely request such a hearing). See Roberts, 745 F.3d at 234 (explaining that credibility

determinations should not be made prior to the district court conducting an evidentiary hearing); Ingram

v. Watson, 67 F.4th 866, 871 (7th Cir. 2023) (“But the court also cannot disbelieve statements in affidavits

without holding a hearing.”).

evidentiary hearing pursuant to Pavey[.]”); Woods v. Schmeltz, 13-CV-1477, 2014 WL

3490569, at *3 (C.D. Ill. July 14, 2014) (“Viewing the evidence in the light most favorable

to Plaintiff, a factfinder could conclude that the grievance was filed in accordance with

prison procedures, though subsequently lost, and that Plaintiff’s attempts to follow up

did not result in instructions on how to proceed, rendering administrative remedies

unavailable for Plaintiff to exhaust.”). To be precise, if Plaintiff properly submitted

Grievance No. 352-1-22 to the Grievance Office for second level review, but that grievance

was then lost or destroyed through no fault of Plaintiff, this would establish that Plaintiff

exhausted the administrative remedies available to him for that grievance. See Lisle v.

Keller, 803 Fed. Appx. 926, 928 (7th Cir. 2020) (“The second factual dispute is the one Lisle

highlighted in his briefing: whether he forwarded the counselor’s denial of his original

grievance to the grievance officer. Because ‘[a] swearing contest requires an evidentiary

hearing to resolve, and none was held,’ Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014),

the case must go back to the district court on the issue of exhaustion.”); Lanaghan, 902

F.3d at 688 (“[T]he proper focus is not whether the defendants engaged in affirmative

misconduct, but whether Lanaghan was not able to file the grievance within the time

period through no fault of his own.”); Dole v. Chandler, 438 F.3d 804, 811 (7th Cir. 2006)

(“Because Dole properly followed procedure and prison officials were responsible for the

mishandling of his grievance, it cannot be said that Dole failed to exhaust his remedies.”).

Instances where a properly filed grievance is lost or destroyed once it is no longer in an

inmate’s possession provide a textbook example of a remedy that is not available. See

Dole, 438 F.3d at 811.

As such, there is a contested issue of fact as to the dispositive issue of whether

administrative remedies were made unavailable to Plaintiff regarding Grievance No. 352-

1-22. Due to this factual dispute, Defendants’ exhaustion-based motion for summary

judgment is DENIED at this time (Doc. 26). An evidentiary hearing is needed if

Defendants wish to further pursue the affirmative defense of exhaustion. See Pavey v.

Conley, 544 F.3d 739 (7th Cir. 2008); see also Hernandez v. Lee, 128 F.4th 866, 870 (7th Cir.

2025) (“It is instead for the district court to make the required credibility determinations

after holding an evidentiary hearing.”); Roberts, 745 F.3d at 234 (“[A] judge can resolve

an issue of exhaustion, like other threshold issues (such as jurisdiction), himself, in order

to avoid multiple trials in the same case. But he can do that only after conducting an

evidentiary hearing.”); Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (“At Pavey

hearings, judges may hear evidence, find facts, and determine credibility.”).

Accordingly, if Defendants want to continue pursuing the affirmative defense of

failure to exhaust, they must file a notice within 14 days of this Order requesting a Pavey

hearing. If a hearing is requested, Defendants shall identify the witnesses they intend to

call to testify, as well as the subject matter of each witness.8 If no request is timely made,

8 If a Pavey hearing is requested, Defendants should be prepared to address the following issues. First,

Defendants state a “copy of grievance #352-1-22 was incidentally not made at the first level of review.” (Doc.

26 at p. 12) (emphasis added). In that regard, the Court questions what the typical copying procedure was

for inmate grievances after they were received in January 2022 at Menard, and will expect Defendants to

provide additional information regarding those procedures so as to explain why no copying occurred here.

Defendants should also be able to clarify whether Plaintiff was fairly informed of the “incidental” lack of

copying when he requested copies of Grievance No. 352-1-22. Defendants should also be prepared to

answer questions as to what records are required to be maintained pursuant to Ill. Admin. Code § 504.860.

Second, the Court will expect Defendants to explain why Grievance No. 352-1-22 received a

grievance number in this instance when it was never reviewed by a grievance officer. Notably, Office

Coordinator Sheila Ramsey’s entry in Plaintiff’s cumulative counseling summary indicates that the

“grievance was sent to the counselor and answered at 1st level before being logged and numbered in the

the Court will enter a scheduling order for discovery on the merits of this case.

CONCLUSION

For the reasons discussed above, Defendants’ Motion for Summary Judgment on

the Issue of Administrative Exhaustion is DENIED at this time (Doc. 26). However, to the

extent Defendants wish to further contest the dispositive factual issue of whether Plaintiff

filed or attempted to file Grievance No. 352-1-22 for second level review, they must file a

notice within 14 days of this Order requesting a Pavey hearing. If a hearing is requested,

Defendants shall identify the witnesses they intend to call to testify, as well as the subject

matter of each witness. If no request is timely made, the Court will enter a scheduling

order for discovery on the merits of this case.

IT IS SO ORDERED.

DATED: September 30, 2025

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge

grievance office.” (Doc. 26-4 at p. 3). Yet, at the same time that entry was made, it appears Plaintiff’s

grievance was assigned a number (Id.). Moreover, the Court is uncertain as to why Grievance No. 352-1-22

includes a counseling summary entry from Plaintiff’s counselor indicating that he responded to that

grievance, while there are no similar entries reflecting responses from Plaintiff’s counselor for Grievances

Nos. 114-12-21 and 33-12-21 (see Doc. 26-4).

Quite simply, the Court wishes to emphasize that irrespective of Plaintiff’s failure to respond to

Defendants’ motion, Defendants bear the burden of proof. If Defendants wish to set this matter for a Pavey

hearing and attempt to meet that burden, the Court will expect them to provide witnesses or evidence that

can address the inconsistencies identified above and speak to the grievance process applicable at Menard

on or around January 2022.