Wilson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BLAKE WILSON, #Y56864, )

)

Plaintiff, )

)

v. ) Case No. 3:23-cv-04066-RJD

)

ANTHONY WILLS, et al., )

)

Defendants. )

ORDER

DALY, Magistrate Judge:1

This matter comes before the Court on Defendants’ Motion for Summary Judgment on the

Issue of Exhaustion of Administrative Remedies (Doc. 79) and Plaintiff’s Motion to Appoint

Counsel (Doc. 96). For the reasons set forth below, Defendants’ Motion for Summary Judgment

on the Issue of Exhaustion of Administrative Remedies (Doc. 79) is DENIED with respect to the

claims against Defendants Lewey (Count 1), J. Smith (Count 4), and Bent (Count 5) and DENIED

without prejudice as to the claims against Defendants’ Bent, Modglin, Robert, Effenger, and

Leposky (Count 3) and against Defendant Mercer (Count 4). Plaintiff’s Motion to Appoint

Counsel (Doc. 96) is also DENIED without prejudice.

Background

Plaintiff Blake Wilson, an inmate of the Illinois Department of Corrections (IDOC) who

is currently incarcerated at Lawrence Correctional Center, brought this civil action pursuant to 42

1 This matter has been assigned to the undersigned to conduct any and all proceedings, including trial and

final entry of judgment, through the parties’ full consent pursuant to 28 U.S.C. § 636(c) and Federal Rule

of Civil Procedure 73. (Doc. 69).

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U.S.C. § 1983 for violations of his constitutional rights while at Menard Correctional Center

(Menard). (Doc. 1; Doc. 8, pp. 1-2). Plaintiff was transferred to Menard on January 24, 2023, and

remained there until February 4, 2025. (Doc. 71).

In his Complaint, filed on December 29, 2023, Plaintiff alleged that on June 13, 2023, some

inmates in the East Housing Unit at Menard began throwing feces and urine and burning clothing

in response to the water in their cells being shut off. (Doc. 8, p. 2; Doc. 1, p. 2). The tactical team

came to Plaintiff’s cell, wrongfully believing that he had participated in starting fires, and they

sprayed mace at Plaintiff and his cellmate. Plaintiff was placed in handcuffs and forced to the

ground. The officers, including Correctional Officer Lewey, then beat him. Plaintiff alleged that,

thereafter, Lewey falsely claimed that Plaintiff struck him with a property box and caused his hand

to fracture. As a result, Plaintiff was allegedly issued a disciplinary report and was sentenced to

one year and 28 days in segregation.

On September 16, 2023, while in segregation, Plaintiff splashed a rival gang member with

spoiled milk, and the milk splashed on Correctional Officer A. Smith, who was the shower escort.

(Doc. 8, p. 2; Doc. 1, p. 3). Correctional Officers Robert and Effenger took Plaintiff to see a nurse

and told Plaintiff to tell her he was fine. After doing so, Plaintiff was beaten by Correctional

Officers Robert, Effenger, Bent, Modglin, and Sergeant Leposky. The officers choked, punched,

hit, and kneed Plaintiff. He was hit on the back with a clipboard and dragged off the ground by

his hair. After the incident, Lieutenant Mercer falsified a mental health form in order to have

Plaintiff placed in watch cell 5-04, where he knew Plaintiff would endure unconstitutional

conditions until September 30, 2023. Plaintiff alleges that for a number of days, he was without

running water, a mattress, and food. He was harassed by Lewey, and when A. Smith was working,

Plaintiff was not allowed to shower. Bent also delayed Plaintiff’s mail. On November 13, 2023,

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Correctional Officer J. Smith gave Plaintiff a food tray that was contaminated with a mucus-like

substance. (Id.). After the threshold review of the Complaint, Plaintiff was allowed to proceed on

the following claims:

Count 1: Eighth Amendment claim against Correctional Officer Lewey for the use of

excessive force against Plaintiff on June 13, 2023.

Count 3: Eighth Amendment claim against Bent, Modglin, Robert, Effenger, and

Leposky for the use of excessive force against Plaintiff on September 16,

2023.

Count 4: Eighth Amendment claim of cruel and unusual punishment against the

following Defendants: (a) Mercer for intentionally falsifying a mental

health form, resulting in Plaintiff being placed in watch cell 5-04 for

fourteen days (September 16, 2023, through September 30, 2023), where he

was denied running water, not provided a mattress, and denied food; and (b)

J. Smith for intentionally contaminating Plaintiff’s kosher breakfast tray on

November 13, 2023.

Count 5: First Amendment claim against Bent for repeatedly delaying Plaintiff’s mail

while he was housed in cell 2-44.

(Doc. 8, pp. 4-10).2

On March 24, 2025, Defendants filed their motion for summary judgment on the issue of

exhaustion of administrative remedies. (Doc. 79). They argued that Plaintiff submitted 11

grievances to the Administrative Review Board (ARB) regarding his incarceration at Menard, all

of which were denied due to procedural deficiencies. Plaintiff filed a response and a supplemental

response along with exhibits. (Docs. 87, 88 & 89).3 Plaintiff countered that the administrative

2 All claims against Defendants Murphy, Royster, Schoebeck, A. Smith, John Doe 3, John Doe 4, John Doe

5, and Tact Team John Does were dismissed without prejudice for failure to state a claim. (Doc. 8, p. 10).

On July 17, 2014, Correctional Officer Effenger was substituted for John Doe 1, and Correctional Officer

Bent was substituted for Correctional Officer Bennett. (Doc. 24). On August 13, 2024, Defendant “Rob”

was identified as Dalton Robert, and Defendant “Lightfoot” as Kenneth Modglin. (Doc. 37). On January

22, 2025, Nicholas Mercer was substituted for John Doe 2.

3 Plaintiff filed a motion asking the Court to accept his previously stricken filing titled “Exhaustion of

Administrative Remedies” as his response to Defendants’ motion, which the Court granted. (Docs. 84, 85,

87).

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remedies were unavailable to him due to harassment and intimidation by Menard correctional

officers, as well as because the grievance process at Menard never provided any relief to inmates.

He pointed to an emergency grievance he filed regarding Count 4 of the Complaint, and which the

Menard Chief Administrative Officer (“CAO”) deemed an emergency on or about November

2023, but the Menard Grievance Officer failed to address it for nearly two years. (Doc. 87, p. 2).4

In his supplemental response, Plaintiff restated his fear of filing grievances due to retaliation.

(Doc. 88. p. 1). He claimed that instead of filing grievances, he initiated an internal affairs

investigation, he contacted the Illinois State Police, who refused to conduct an investigation, and

further contacted the Governor’s office. (Id.). Plaintiff attached to his response all relevant

grievances he filed regarding this case, including grievances that were not submitted to the ARB

and which were not produced by the Defendants, as well as correspondence of his attempts to

receive relief from outside Menard. (Doc. 87, pp. 4-126).

Pavey Hearing

An evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) was held

on April 29, 2025. (Doc. 94). Plaintiff’s testimony focused on his attempts to exhaust his

administrative remedies and seek relief inside and outside Menard. Plaintiff did not dispute that

none of his grievances were fully exhausted prior to the filing of his Complaint. He argued,

however, that the administrative remedies were rendered unavailable on several grounds.

First, Plaintiff pointed to a grievance he filed on November 30, 2023, regarding Defendant

Jeremy Smith placing a mucous substance in his breakfast tray, for which he did not receive a

response for two years.5 Plaintiff further explained that following the June 13, 2023, altercation

4 It appears that Plaintiff referred to Grievance K5-1223-1861, dated November 30, 2023. (Doc. 89, pp. 2-

5).

5 Based on his filings, this is Grievance K5-1223-1861, dated November 30, 2023. (Doc. 89, pp. 2-5).

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with Defendant Lewey, Plaintiff was transferred to the third floor of the Menard Health Care Unit

for approximately 63 days. Upon his transfer there, Plaintiff drafted a grievance regarding the

June 13, 2023, incident and Officer Lewey’s alleged misconduct and sent it directly to the ARB.

Following the filing of that grievance, Plaintiff testified that he began to receive threats from two

correctional officers who are not parties in this suit. The officers passed several times by the health

care unit where Plaintiff was hospitalized, called him a “snitch bitch” and asked whether he was

“ready for round two.” Plaintiff testified that he perceived those comments as a direct threat to

him for his grievance activity. He testified that he did not file any other grievance during his stay

at the Health Care Unit, between July and early August of 2023, because he was afraid. Following

his discharge from the Health Care Unit, Plaintiff continued to be threatened sporadically by a

non-party correctional officer named “Choate.” Correctional Officer Choate made homosexual

remarks against Plaintiff.

Plaintiff testified that on September 16, 2023, he was attacked by Defendants Bent,

Modglin, Robert, Effenger, and Leposky, but he did not file any grievance out of fear of retaliation.

Instead, Plaintiff testified that he reached out to outside institutions to obtain relief. Specifically,

Plaintiff sent a letter to the Illinois State Police seeking an investigation of Menard Staff’s alleged

assault against him on September 16, 2023. Plaintiff further attempted to initiate a petition for a

protective order with the Randolph County Circuit Court against certain Menard correctional

officers, including some Defendants, but his petition was never actually filed due to procedural

deficiencies. (see also Do c. 87, p. 58). Plaintiff also testified that he filed a PREA complaint

through the John Howard Association for Choate’s use of derogatory language.6 He also attempted

6 Plaintiff did not testify on the dates he filed the PREA Complaint or the results of any investigation. He

provided, however, a response by the John Howard Association, dated February 28, 2024, acknowledging

receipt of his PREA report and advising that it had been forwarded to the IDOC. (Doc. 87, pp. 7-8).

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to seek a protective order in Cook County against all Defendants, but that filing also failed.7

Plaintiff further explained that he did not talk to his Counselor about his fear of filing a grievance

because the Counselor was always accompanied by a correctional officer.

Plaintiff testified that he resumed filing grievances to the ARB after the November 13,

2023, incident with Defendant J. Smith because he realized that refraining from doing so would

not protect him from harassment. Plaintiff also filed grievances at the facility level after he filed

the Complaint, because Defendants had become aware of his claims against them by then.

Asked about his understanding of the grievance process, Plaintiff testified that he was

transferred directly from segregation at Shawnee Correction Center (Shawnee) to segregation at

Menard and was thereafter released to the Menard general population. He testified that he never

received an orientation or instructions on how to file a grievance since his transfer there. He

testified that, based on his prior experience at Shawnee and Jacksonville Correctional Center

(Jacksonville), he believed that the crucial step in exhausting his administrative remedies was to

obtain a stamped copy of his grievance from the ARB. However, he explained that he did not

know the proper steps, timeline, or deadlines for fully exhausting a grievance while at Menard.

He originally believed that as long as he received some response from the ARB, he could proceed

with filing a complaint. Plaintiff explained that he was sending his grievances directly to the ARB

to ensure that they were stamped and would not get lost or mishandled within the facility. Once

he had received ARB’s response, Plaintiff then submitted the stamped copy to the facility’s

7 During his testimony, Plaintiff referred to a letter from the Domestic Relations Division of the Circuit

Court of Cook County as evidence of his attempt to obtain a protective order against Defendants. The

letter, which is dated September 27, 2024, states that Plaintiff had improperly submitted his filing with the

Domestic Relations Division of the Circuit Court of Cook County and directed him to file his document

with the Clerk of the Circuit Court of Cook County. It is unclear from the record if Plaintiff submitted that

request for protective order prior to filing this Complaint, but it appears that he did not make any further

attempts to file his request with the proper department. (Doc. 87; p. 39).

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grievance office. Sometimes, however, he made copies of his original grievance and sent one copy

to the ARB simultaneously with filing another copy with the facility’s grievance office. He did

not realize that this was not the right process until after he began receiving the ARB’s responses

directing him to “go through procedure.”

On cross-examination, Plaintiff was specifically questioned as to his understanding of

ARB’s denial letters on two of Plaintiff’s grievances.8 The ARB denied Plaintiff’s grievances

because additional information was required, and instructed Plaintiff as follows:

Provide your original written individual in Custody’s Grievance, DOC 0046,

including the counselor’s response, if applicable.

Provide a copy of the Response to the Individual in Custody’s Grievance, Doc

0047, including the Grievance Officer’s and Chief Administrative Officer’s

responses, to facilitate an appeal, if timely.

(Doc. 87, p. 9). Plaintiff testified that he understood the qualifiers on those sentences (“if

applicable” and “if timely”) to mean that he did not need to provide those documents if no response

had been received yet or if a response was untimely.

On cross-examination, Plaintiff admitted that he did not file any grievances prior to

initiating this action regarding his claims against Defendants Bent, Modglin, Robert, Effenger, and

Leposky. He claimed, however, that he was excused from doing so because the administrative

remedies were unavailable and because he feared retaliation.

Jeffrey Olson, Correctional Counselor at Menard at all times relevant to the Complaint,

testified on Defendants’ behalf. Olson explained that Menard maintains a program called

8 The relevant ARB denial letter related to Grievance dated November 30, 2023, and Grievance dated July

9, 2024. (Doc. 87, pp. 9 & 15). While the former grievance relates to Count 3, the latter was filed seven

months after the Complaint and does not appear to be relevant to this case. However, the pre-typed language

of those denials was also included on all ARB denial letters that Plaintiff received on his relevant

grievances.

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“CHAMP” or “Cumulative Counseling Summary,” which records an inmate’s entire grievance

history, including the appeals with the ARB, as well as certain interactions between inmates and

their Counselor or Grievance Officer. Olson also testified that based on Plaintiff’s Cumulative

Counseling Summary, Plaintiff filed three grievances at the facility level during the time that he

testified he had paused his grievance activity due to the ongoing harassment and intimidation at

the Menard Health Care Unit: Grievance #646-6-23, dated June 22, 2023, and received on June

29, 2023, regarding a disciplinary report that he was issued on June 13, 2022; Emergency

Grievance #111-8-23, dated August 2, 2023, and received on August 3, 2023, regarding the June

13, 2023, disciplinary report; and Grievance #278-8-23, dated August 3, 2023, and received on

August 10, 2023, regarding safety concerns. (Doc. 79-6, p. 8). Olson further testified that based

on the Cumulative Counseling Summary, he toured Plaintiff’s housing unit and had interactions

with Plaintiff at least three times in October of 2023, and at no time did Plaintiff complain about

being harassed or intimidated or about his mail being delayed. On cross-examination, Olson

confirmed that during his tour in the housing units, he was always accompanied by security staff.

Analysis

Summary Judgment Standard

Summary judgment is appropriate only if the moving party can demonstrate “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Ruffin-

Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving

party bears the initial burden of demonstrating the lack of any genuine issue of material fact.

Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the

adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Estate of

Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In

considering a summary judgment motion, the district 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). While courts

generally may not resolve factual disputes on a motion for summary judgment, when the motion

pertains to a prisoner’s exhaustion of administrative remedies, “the Seventh Circuit has instructed

courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a prisoner’s

efforts to exhaust.” Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Roberts v. Neal, 745 F.

3d 232, 236 (7th Cir. 2014).9

Exhaustion Requirement

Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative

remedies prior to filing lawsuits in federal court. “[A] prisoner who does not properly take each

step within the administrative process has failed to exhaust state remedies.” Pozo v. McCaughtry,

286 F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies

have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on

the merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v.

Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll dismissals under § 1997e(a)

should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).

9 While this motion was pending, the Supreme Court decided Perttu v. Richards, which partially overruled Pavey.

605 U.S. 460, 145 S.Ct. 1793, 222 L.Ed.2d 108 (2025). Perttu’s impact on this case is discussed in detail later on.

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An inmate in the custody of the IDOC must first submit a written grievance within 60 days

after the discovery of the incident, occurrence, or problem to his or her institutional counselor

unless certain discrete issues are being grieved. 20 Ill. Admin. Code § 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 — usually the Warden —

within two 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 ARB 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 review the same and make a final determination within

six months of receipt of the appeal. 20 Ill. Admin. Code § 504.850(d) and (e).

An inmate may request that a grievance be handled as an emergency by forwarding it

directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a

substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is

handled on an emergency basis, which allows for expedited processing of the grievance by

responding directly to the offender. Id. Inmates may further submit certain types of grievances

directly to the ARB, including grievances related to protective custody, psychotropic medication,

decisions regarding disciplinary proceedings that were made at a facility other than the facility

where the individual in custody is currently assigned, and certain issues relating to facilities other

than the inmate’s currently assigned facility. Id. at § 504.870. Further, to satisfy the requirement

of exhaustion of administrative remedies, the grievance must contain factual details regarding each

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aspect of the inmate’s complaint, including the name of each person who is the subject of or who

is otherwise involved in the complaint. Id. § 504.810(c).

At the same time, inmates need only exhaust the administrative remedies available to them.

Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Prison officials may not utilize the

exhaustion process so as to unfairly prejudice inmates, and an administrative remedy will be

deemed “‘unavailable’ if prison employees do not respond to a properly filed grievance or

otherwise use affirmative misconduct to prevent a prisoner from exhausting.” Dole, 438 F.3d at

809 (quoting Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dale v. Lappin, 376 F.3d

652, 656 (7th Cir. 2004)). The Supreme Court has explained that a grievance system might become

unavailable, for instance, when the administrative scheme is “so opaque that it becomes,

practically speaking, incapable of use” or “when prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross

v. Blake, 578 U.S. 632, 639–40, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). It is the defendant’s

burden to show “beyond dispute” that the administrative remedies were available. Ramirez v.

Young, 906 F.3d 530, 533 (7th Cir. 2018).

Further, the Seventh Circuit has recognized that “unavailability extends beyond affirmative

misconduct to omissions by prison personnel, particularly failing to inform the prisoner of the

grievance process.” Hernandez, 814 F.3d at 842–43 (citation and internal quotation marks

omitted). Inmates are not required “‘to divine the availability’” of grievance procedures. Id.

(quoting King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015), overruled on other grounds by Henry

v. Hulett, 969 F.3d 769 (7th Cir. 2020)). Rather, it is the prison officials’ duty to advise inmates

of the grievance process, and if they fail to do so, inmates are excused from complying with the

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PLRA’s exhaustion requirement. Id. (citation omitted) (“The prison cannot shroud the prisoner in

a veil of ignorance and then hide behind a failure to exhaust defense to avoid liability”).

The Seventh Circuit has cautioned that the unavailability “exception is meant to be

narrow.” Wallace v. Baldwin, 55 F.4th 535, 543 (7th Cir. 2022). Thus, “[m]ere ambiguity might

not make the administrative process unavailable” and “the inmate should err on the side of

exhaustion” when “the administrative process is susceptible of multiple reasonable

interpretations.” Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020) (holding that a two-month

period of silence rendered administrative remedies unavailable only because the prisoner had no

other reason to believe that anyone was “looking into” his grievance). An inmate’s subjective

ignorance, misunderstanding, or even reasonable mistake as to the administrative proceedings will

not excuse his failure to exhaust the available remedies where a prison has adequately informed

the inmate regarding the procedure. Smallwood v. Williams, 59 F.4th 306, 314-15 (7th Cir. 2023)

(citing Ross, 578 U.S. at 644, 136 S.Ct. 1850). Further, the grievance procedures do not need to

“be sufficiently ‘plain’ as to preclude any reasonable mistake or debate with respect to their

meaning.” Ross, 578 U.S. at 644, 136 S.Ct. 1850. Yet, when an inmate’s lack of knowledge of

the procedure is outside his control because “he has not been informed of the process, whether due

to misconduct by prison employees, or because his personal circumstances preclude him from

being able to make use of the process,” the administrative remedies are deemed unavailable.

Smallwood, 59 F.4th 306, 315.

Discussion

Here, there is no dispute that Plaintiff did not fully exhaust any of his grievances prior to

initiating this action. What is at issue, however, is whether the administrative remedies were

available to Plaintiff. In his briefs and during the hearing, Plaintiff provided several reasons why

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the administrative remedies in Menard were unavailable: intimidation and harassment by

Defendants and non-parties; Menard’s operation of the grievance process as a dead end; and the

facility’s failure to inform Plaintiff of the grievance process. The Court will begin its analysis with

the latter because it is fatal to Defendants’ motion as to some of Plaintiff’s claims.

Failure to Inform Plaintiff of the Grievance Process

It is well established that Defendants carry the burden to show that Plaintiff was aware of

the facility’s grievance process. See Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018); Hernandez

v. Dart, 814 F.3d 836, 842 (7th Cir. 2016) (“prison officials must inform the prisoner about the

grievance process”). Here, Plaintiff testified that he was never informed of the grievance process

in Menard. He testified that he never received an orientation and was never provided with a copy

of the facility’s manual or handbook detailing the grievance process. Defendants did not counter

Plaintiff’s testimony to that effect at the hearing, and their statement of facts is silent on that issue.

(Doc. 79, pp. 2-4). Plaintiff further testified that he did not understand the steps, timeline, and

details of the grievance process. The ARB’s record supports Plaintiff’s lack of understanding of

the grievance process: all eleven grievances that Plaintiff filed with the ARB regarding his

presence in Menard were denied on procedural grounds and returned to him without a decision on

the merits. (Doc. 89-2, p. 5). The denials were due to Plaintiff’s failure to adhere to DR504F,

either by failing to attach facility responses and/or the original grievance to the appeal submitted

to the ARB (Doc. 79-5, pp. 24-26; 18-21; 15-17; 13-14; 3-4; 1-2) or for failing to submit the appeal

to the ARB within the required timeframe (Doc. 79-5, pp. 22-23; 11-12; 5-10).

In their motion, Defendants argue that Plaintiff was fully aware of the grievance process at

the facility level because he filed several grievances while at Menard. (Doc. 79, p. 9). However,

all but one of those grievances remained unexhausted due to procedural defects. (Doc. 79-2, pp.

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1-6; Doc. 89-2, p. 5). Defendants further argue that Plaintiff knew how to navigate all levels of

the grievance process because he managed to fully exhaust Grievance #339-1-23. (Id.; Doc. 79-

6, pp. 8-9; Doc. 79-5, pp. 35-43). However, Grievance #339-1-23 grieved a disciplinary report

issued to Plaintiff while at Shawnee Correctional Center. (Doc. 79-5, p. 42). Per the guidelines,

this report fell outside Menard’s jurisdiction and was therefore immediately reviewable by the

ARB, as indicated in the Counselor’s response. Id.; see also 20 Ill. Admin. Code § 504.870.

Accordingly, Plaintiff’s successful exhaustion of Grievance #339-1-23 falls short of showing that

Plaintiff was aware of how to navigate the Menard grievance process for grievances that were not

immediately reviewable by the ARB. Thus, Defendants have failed to establish that they advised

Plaintiff of the grievance process at Menard.

The Court finds that the facility’s failure to adequately advise Plaintiff of the grievance

process rendered the administrative remedies unavailable with respect to Count 1 of the Complaint.

From the record, it appears that Plaintiff made multiple attempts to exhaust his administrative

remedies on that claim but was hampered by procedural obstacles. Specifically, Plaintiff filed at

least four grievances regarding the June 13, 2023, incident: Grievance #646-6-23, dated June 22,

2023 (Doc. 79-5, pp. 5-12, 30-34; Doc. 87, pp. 19-20), Grievance #233-7-23, dated July 6, 2023

(Doc. 79-5, pp. 18-21), Grievance #111-8-23, dated August 2, 2023, (Doc. 79-2, p. 1); and

Emergency Grievance #278-8-23, dated August 3, 2023 (Doc. 87, pp. 47, 78-81). Some of those

grievances reached the ARB and were either denied because Plaintiff had not attached the

Counselor’s and Grievance Officer’s responses (e.g., Doc. 79-5, pp. 30-34) or because they were

submitted to the ARB more than 30 days after the CAO’s decision (e.g., Doc. 79-5, pp. 5-10).

Likewise, Plaintiff filed a grievance directly with the ARB on November 30, 2023, grieving

Defendant Bent’s interference with Plaintiff’s inbound mail at the “North 2 Gallery” in Restrictive

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Housing (Count 5 of the Complaint). (Doc. 79-5, pp. 13-14). On the same day, Plaintiff sent

directly to the ARB another grievance, wherein he grieved Defendant J. Smith’s placing a mucus-

like substance in his oatmeal (Count 4 of the Complaint). (Doc. 79-5, pp. 15-17). The ARB

received and stamped both grievances on December 21, 2023. (Doc. 79-5, pp. 13-17). The ARB

denied the grievances because Plaintiff had not attached the Counselor’s and Grievance Officer’s

responses. (Doc. 79-5, pp. 13-17).

It is true that throughout the process, the ARB instructed Plaintiff on how to cure those

deficiencies. For instance, in its response to Grievance #646-6-23, the ARB instructed Plaintiff to

resubmit his grievance with the missing documents “if applicable,” and “if timely.” (Doc. 79-5,

p. 18). But Plaintiff testified that he understood these qualifiers to mean that he did not need to

provide those documents if no response had been received yet or if a response was untimely. While

an inmate’s subjective misunderstanding of those instructions would not typically be excused, this

is not the case with Plaintiff, who was never advised of the grievance process at Menard. Because

Plaintiff did not adequately understand the procedural steps and timeline for exhausting a

grievance at Menard, and Defendants have not carried their burden of proving that the facility took

reasonable steps to inform Plaintiff of those issues, the Court excuses Plaintiff's failure to exhaust

his administrative remedies as to Count 1 against Defendant Lewey, Count 4 against Defendant J.

Smith, and Count 5 against Defendant Bent. Ramirez, 906 F.3d at 538 (prisoner’s subjective

ignorance about grievance procedures excused when the prison has failed to take “reasonable steps

to inform the inmates about the required procedures.”).

Turning to Count 3 against Defendants Bent, Modglin, Robert, Effenger, and Leposky, and

Count 4 against Defendant Mercer, however, the Court finds that the facility’s failure to provide

Plaintiff with an orientation and copies of the handbook or manual detailing the grievance process

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did not excuse his failure to exhaust his administrative remedies. Plaintiff testified that he was

aware he was required to file a grievance and get a stamped copy from the ARB before initiating

a civil action, but he did not fully understand the proper timeline and levels of review. Unlike his

other claims, however, with respect to his claims against Defendants Bent, Modglin, Robert,

Effenger, Leposky, and Mercer, Plaintiff admitted that he did not even attempt to file a grievance

and receive a stamped copy from the ARB prior to initiating this action. Yet, he argues he should

be excused for his failure to exhaust administrative remedies as to those claims because the

grievance process in Menard operated as a “dead end,” and because he was afraid to file a

grievance between September 16, 2023, and November 13, 2023, due to the alleged assault by

Defendants Bent, Modglin, Robert, Effenger, Leposky, and subsequent placement to segregation

under allegedly inhuman conditions by Defendant Mercer. The Court will address each of those

arguments in order.

“Dead end” exception

Plaintiff’s argument that the grievance process in Menard operated as a “dead end” is

unpersuasive. Plaintiff only relies on Emergency Grievance #K4-1223-1861, dated November 30,

2023, in which he grieved Defendant Smith’s cruel and unusual punishment by placing a mucus-

like substance in his tray. (Doc. 89, pp. 1-4). The CAO approved the grievance as an emergency

on December 4, 2023, and sent it back to the Grievance Officer on the same day. (Id.). On

February 25, 2025, more than a year later and after Plaintiff had already been transferred to

Lawrence, the Menard Grievance Officer responded that Plaintiff had been transferred to another

facility and therefore recommended that the grievance be denied as moot. (Id.). The CAO

concurred. (Id.).

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While it is true that a facility’s failure to respond to an emergency grievance for over a year

may render the administrative remedies unavailable, the Court finds that this is not the case with

respect to Emergency Grievance #K4-1223-1861. Plaintiff filed the Complaint on December 29,

2023, less than a month after he submitted Emergency Grievance #K4-1223-1861 at the facility

level. One month is not an unreasonable delay that would render the grievance process

unavailable. See Reid, 962 F.3d at 329 (holding that a two-month period of silence rendered

administrative remedies unavailable only because the prisoner had no other reason to believe that

anyone was “looking into” his grievance). Accordingly, the Court finds that any delay in the

processing of Emergency Grievance #K4-1223-1861 falls short of showing that the grievance

process was operating as a “dead end” prior to the filing of the Complaint.

Intimidation and Harassment

Plaintiff has also argued that his failure to utilize the grievance process at the facility level

was due to intimidation by threats of non-party correctional officers between June and August

2023 at the health care unit, and by Defendants Lewey, Bent, Modglin, Robert, Effenger, and

Leposk’s excessive force against him in September 2023. He testified that he resumed filing

grievances after the November incident with Defendant J. Smith because he continued to be

harassed despite refraining from filing a grievance after the September 2023 incident. Plaintiff’s

testimony was contradicted as to the period between June and August 2023, as Defendants pointed

to grievances Plaintiff filed at the facility level during the time he argued he was afraid to do so.

(See Doc. 79-2, pp. 1-2). However, the record corroborates Plaintiff’s testimony that he did not

file any grievances between September 2023 and November 14, 2023. (Doc. 79-2, pp. 1-6). At

about that time, Plaintiff also attempted to get a protective order against Defendants in Randolph

County. (Doc. 58, p. 58).

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Plaintiff’s argument that the grievance process was unavailable due to intimidation and

harassment is perplexing. Of course, the grievance process is rendered unavailable “when prison

administrators thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Ross, 578 U.S. at 644, 136 S.Ct. 1850. Under Pavey, the Court

could make factual determinations on this issue. While this motion was pending, however, the

Supreme Court decided Perttu v. Richards, 605 U.S. 460, 145 S.Ct. 1793, 222 L.Ed.2d 108 (2025),

which partially overruled Pavey. There, the inmate plaintiff filed a § 1983 action raising, inter

alia, a First Amendment claim against a correctional officer for violating his right to file

grievances. Id. at 464. The inmate claimed he had “tried to file grievance forms” about the alleged

abuse, but the defendant “destroyed them and threatened to kill him if he filed more.” Id. The

Supreme Court held that “parties are entitled to a jury trial on PLRA exhaustion when that issue is

intertwined with the merits of a claim protected by the Seventh Amendment.” Perttu, 605 U.S. at

479, 145 S.Ct. 1793.

The extent of Perttu’s impact on Pavey hearings remains unclear. See Hawn v. Williams,

No. 9:24-CV-1137 (AJB/TWD), 2025 WL 2424309, at *2 (N.D.N.Y. Aug. 22, 2025); see also

Murphy v. Bailey, No. 1:22-CV-01266-JEH-RLH, 2025 WL 2305757, at *10 (C.D. Ill. Aug. 11,

2025) (discussing recent precedent). The Seventh Circuit has cautioned that before proceeding

with a Pavey evidentiary hearing, district courts must determine whether the issue of exhaustion

is intertwined with the merits. Breyley v. Fuchs, 156 F.4th 845, 849 (7th Cir. 2025). Some Courts

have interpreted Perttu narrowly, suggesting that it does not apply unless the complaint raises a

First Amendment claim for violation of an inmate’s right to file a grievance, while others have

adopted a broader reading. See Murphy, No. 1:22-CV-01266-JEH-RLH, 2025 WL 2305757, at

*10 (discussing recent precedent but adopting a broader reading of Perttu).

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This dichotomy also appears in recent case law addressing Perttu in excessive force cases.

Some courts have found Perttu inapplicable when the Plaintiff raises excessive force claims, and

the complaint does not allege that the Plaintiff attempted to file grievances related to the claims on

the merits, because in those cases “the merits of plaintiff’s claims do not depend on common

factual issues” with the exhaustion issue. See, e.g., Hill v. Tisch, 2025 WL 1871142, at *8

(E.D.N.Y. July 7, 2025) (collecting cases). The District Court for the Central District of Illinois,

however, recently adopted a broader approach, holding “that it is sufficient for exhaustion and

merits issues to be intertwined when a fact-finder must make a credibility determination regarding

the testimony of the plaintiff, a defendant, and the same non-party witnesses.” Murphy, No. 1:22-

CV-01266-JEH-RLH, 2025 WL 2305757, at *14.

In Murphy, the plaintiff raised an excessive force claim for alleged harassment by a

correctional officer, along with claims for failure to prevent the use of excessive force and provide

adequate medical care. Murphy, No. 1:22-CV-01266-JEH-RLH, 2025 WL 2305757, at *8. As in

this case, Defendants moved for summary judgment on the issue of exhaustion of administrative

remedies, and Plaintiff countered that the administrative remedies were rendered unavailable due

to “staff obstruction, intimidation, and retaliation” at the facility. Id. at *3. The plaintiff there

argued that after the assaults that gave rise to the case, “staff refused to provide her grievance

forms, prevented her from submitting grievances, and threatened and intimidated her to discourage

the filing of complaints, thereby making the grievance process inaccessible.” Id. After a

comprehensive discussion of Perttu and recent district court cases, the Murphy court found Perttu

applicable because “the credibility of the testimony of the [p]aintiff, some [d]efendants, and some

of the same non-party witnesses [would] be central to both the exhaustion and merits claims, albeit

on different issues.” Id. at 12. For instance, the court explained that for exhaustion purposes the

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fact-finder needed to determine “whether to believe the [p]laintiff or some of the [d]efendants

regarding the claim that she was prevented from filing grievances related to the events alleged in

the [c]omplaint.” Id. On the merits, on the other hand, “a fact-finder [would] also need to make

the same credibility determination regarding some of the same parties and witnesses, even though

on these questions, the fact-finder [would] be deciding who to believe regarding questions related

to the use of excessive force and medical care. Id.

In this District Court, District Judge Dugan, addressing the same issue in Lipscomb v.

Connor, found Perttu inapplicable. No. 24-CV-1760-DWD, 2025 WL 2105864 (S.D. Ill. July 28,

2025). Judge Dugan explained:

the underlying claims here sound under the Fourth or Eighth Amendments

concerning conduct during a strip search by Defendant Connor, whereas Plaintiff's

ability to access the grievance process is a distinct issue that Plaintiff experienced

in the cellhouse that he presented to his counselors, and that he does not attribute

in any way to Defendant Connor. The availability of the grievance process will

likely turn on testimony of Plaintiff, and a counselor or grievance personnel. There

is no indication any testimony or evidence concerning Defendant Connor's alleged

actions would be necessary to resolve the issue of the availability of the grievance

process. The Court does not find that resolving issues of this nature will in any way

be intertwined with the merits of the Fourth or Eighth Amendment claims.

Id. at 4. Unlike the plaintiff in Lipscomb, however, Plaintiff here attributed his fear about utilizing

the grievance process at the facility level to Defendants’ alleged assault on September 16, 2023,

which is the subject matter of the excessive force claim in Count 3, and his subsequent placement

in watch cell 5-04 under unconstitutional conditions of confinement, which is the subject matter

of Count 4 against Defendant Mercer. A finding of harassment and intimidation that hindered

Plaintiff’s access to the grievance process could necessitate a factual determination regarding the

alleged use of excessive force on September 16, 2026, and the conditions of Plaintiff’s

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confinement in watch cell 5-04 for fourteen days. Accordingly, Wilson’s allegations appear likely

to implicate Perttu.

In light of these developments, the Court finds it appropriate to DENY without prejudice

Defendants’ motion for summary judgment as to the claims that appear to implicate Perttu, and

allow those Defendants 30 days to refile their motion, specifically addressing

the Perttu intertwinement and its impact on the claims against them. Alternatively, Defendants

may move to withdraw the affirmative defense of failure to exhaust as to the claims against them.

If Defendants decide to refile the motion, then Plaintiff will have 30 days to respond. If no motion

is filed within the 30-day deadline, the affirmative defense of exhaustion of administrative

remedies will be deemed withdrawn.

Accordingly, Defendants’ Motion for Summary Judgment (Doc. 79) is DENIED with

respect to Plaintiff’s Eighth Amendment claim against Defendant Lewey for the use of excessive

force against Plaintiff on June 13, 2023 (Count 1), Eighth Amendment claim of cruel and unusual

punishment against Defendant J. Smith for intentionally contaminating Plaintiff’s kosher breakfast

tray on November 13, 2023 (Count 4), and his First Amendment claim against Defendant Bent for

repeatedly delaying Plaintiff’s mail while he was housed in cell 2-44 (Count 5). Defendant’s

motion is DENIED without prejudice with respect to Plaintiff’s Eighth Amendment claim

against Defendant Bent, Modglin, Robert, Effenger, and Leposky for the use of excessive force

against Plaintiff on September 16, 2023 (Count 3) and with respect to Plaintiff’s Eighth

Amendment claim of cruel and unusual punishment against Defendant Mercer for intentionally

falsifying a mental health form, resulting in Plaintiff being placed in watch cell 5-04 for fourteen

days (September 16, 2023, through September 30, 2023) (Count 4). Defendants are granted leave

to refile their motion on those claims by December 24, 2025, to show that the resolution of the

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issue of exhaustion of administrative remedies does not implicate Perttu or to withdraw their

affirmative defense of exhaustion of administrative remedies.

Plaintiff’s Motion to Appoint Counsel (Doc. 96)

Plaintiff filed his fourth motion seeking recruitment of counsel. (Docs. 21, 29 & 54).

While there is no constitutional or statutory right to counsel for a civil litigant, under Section

1915(e), a district court “may request an attorney to represent any person unable to afford counsel.”

28 U.S.C. § 1915(e)(1); see also Stroe v. Immigration and Naturalization Services, 256 F.3d 498,

500 (7th Cir. 2001). When presented with a request to appoint counsel, a court must make the

following inquiries: (1) has the indigent plaintiff made a reasonable attempt to obtain counsel or

effectively been precluded from doing so, and (2) given the difficulty of the case, does the plaintiff

appear competent to litigate it himself. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).

Plaintiff attached to his first motion for recruitment of counsel four letters from law firms,

dated May and June of 2024, denying him representation on this matter. (Doc. 21, pp. 2-5). Thus,

Plaintiff has carried his burden of showing his effort to obtain counsel on his own. However, the

Court finds that the complexities of this case do not exceed Plaintiff’s ability to litigate it on his

own. The undersigned was able to assess Plaintiff’s ability to represent himself during the Pavey

hearing. Plaintiff provided a clear testimony as to the facts relevant to Defendants’ motion, cross-

examined Defendants’ witness, and adequately presented his legal arguments both in his briefs

and in his oral arguments. Plaintiff was able to survive summary judgment on the issue of

exhaustion of administrative remedies by exhibiting a good understanding of the exceptions

applicable to the PLRA exhaustion requirement.

Turning to the complexities of his case, while Plaintiff asserts multiple claims against

several Defendants, those claims are relatively straightforward and do not involve particularly

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complex legal issues. As to his excessive force claims, Plaintiff will need to show that Defendants

used force not in a good-faith effort to maintain or restore discipline, but maliciously and

sadistically to cause harm. See Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009). As to

his Eighth Amendment’s cruel and unusual punishments claim, Plaintiff will first need to show

that the conditions Plaintiff experienced (being placed in watch cell 5-04 for fourteen days, being

denied running water, not provided a mattress, and denied food) denied him “the minimal civilized

measure of life’s necessities,” creating an excessive risk to the inmate’s health or safety. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff will also have to show that Defendants acted with

a culpable state of mind, meaning that they were deliberately indifferent to a substantial risk of

serious harm to Plaintiff from those conditions. Farmer, 511 U.S. at 837, 842. As to Plaintiff’s

First Amendment claim of repeated occurrences of delaying his mail while he was housed in cell

2-44, Plaintiff will have to show that Defendant Bent “repeatedly and intentionally withheld

otherwise unobjectionable materials from ever reaching him.” See Rowe v. Shake, 196 F.3d 778,

782 (7th Cir. 1999) (citing Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987)). The Court

is confident, based on Plaintiff’s filings and his understanding of the law as demonstrated at the

Pavey hearing, that the complexities of this case do not exceed his ability to litigate this matter on

his own.

Accordingly, Plaintiff’s Motion to Appoint Counsel (Doc. 96) is DENIED without

prejudice. Plaintiff may renew his motion if there is a change of circumstances in the future.

Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment on the Issue of

Exhaustion of Administrative Remedies (Doc. 79) is DENIED with respect to Plaintiff’s Eighth

Amendment claim against Defendant Lewey for the use of excessive force against Plaintiff on

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June 13, 2023 (Count 1), Eighth Amendment claim of cruel and unusual punishment against

Defendant J. Smith for intentionally contaminating Plaintiff’s kosher breakfast tray on November

13, 2023 (Count 4), and First Amendment claim against Defendant Bent for repeatedly delaying

Plaintiff’s mail while he was housed in cell 2-44 (Count 5). Defendants’ motion is DENIED

without prejudice with respect to Plaintiff’s Eighth Amendment claim against Defendant Bent,

Modglin, Robert, Effenger, and Leposky for the use of excessive force against Plaintiff on

September 16, 2023 (Count 3) and with respect to Plaintiff’s Eighth Amendment claim of cruel

and unusual punishment against Defendant Mercer for intentionally falsifying a mental health

form, resulting in Plaintiff being placed in watch cell 5-04 for fourteen days (September 16, 2023,

through September 30, 2023) (Count 4). By December 24, 2025, Defendants Bent, Modglin,

Robert, Effenger, Leposky, and Mercer shall either renew their motion on those claims addressing

Perttu’s intertwinement issue and its impact on this case or withdraw their affirmative defense of

exhaustion of administrative remedies. Plaintiff’s Motion to Appoint Counsel (Doc. 96) is

DENIED without prejudice. Plaintiff may renew his motion if there is a change of circumstances

in the future.

IT IS SO ORDERED.

DATED: November 24, 2025

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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