Wallace

IN THE

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

LAWRENCE DEWAYNE

WALLACE,

Plaintiff,

Case No. 3:23-cv-03311-JEH

v.

ILLINOIS DEPARTMENT OF

CORRECTIONS, et al.

Defendants.

Order

Plaintiff, proceeding pro se and presently incarcerated at Western Illinois

Correctional Center, filed the present lawsuit pursuant to 42 U.S.C. § 1983, alleging

a First Amendment claim related to the confiscation of a manuscript. The matter

comes before this Court for ruling on the Defendant’s Motion for Summary

Judgment on the issue of exhaustion of administrative remedies (Doc. 52) and

Plaintiff’s Motion for Leave to File Auxiliary Exhibits (Doc. 66). For the reasons

discussed, infra, Defendant’s motion is granted and Plaintiff’s motion is denied.

I

Summary judgment should be granted “if the movant shows 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). All facts must be construed in the light

most favorable to the non-moving party, and all reasonable inferences must be

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drawn in his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). The party

moving for summary judgment must show the lack of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to be a “genuine”

issue, there must be more than “some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Only

disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

II

A

Plaintiff filed this lawsuit on October 24, 2023. (Doc. 1). As summarized by

the Court, Plaintiff’s amended complaint alleged the following:

Plaintiff alleges that a non-defendant prison official conducted a

shakedown of his cell and later issued a shakedown slip for “two

small strips of paper” and a “stinger” the official deemed contraband.

Plaintiff alleges that he and his cellmate returned from the yard a

short time later to find their cell “totally wrecked.” Plaintiff alleges

that he discovered that officials had confiscated a book manuscript

that he had been writing without acknowledging that they had taken

it or issuing a shakedown slip. Plaintiff alleges that Defendant Little

later referenced the fact that his book manuscript’s pages were

unnumbered. Plaintiff alleges that he was found guilty of a rule

violation related to the strips of paper and stinger, but that he was

never issued a ticket for the manuscript.

Plaintiff alleges that he has not recovered his book manuscript, and

that Defendants Haston, Wohlfield, and Greene violated prison rules

that permitted him to send the book manuscript home if it was

deemed contraband. Plaintiff alleges that Defendant Little did not

investigate the whereabouts of the missing manuscript.

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(Doc. 23 at 2). The Court found that Plaintiff stated First Amendment claim against

Defendant Little in his individual capacity for the alleged confiscation of his

manuscript. Id.

Illinois prison grievance rules require an inmate to first attempt to resolve

their issues informally with prison staff, and, if unsuccessful, a prisoner may file a

written grievance on a form provided by the prison. 20 Ill. Admin. Code §

504.810(a). The grievance must be filed “within 60 days after the discovery of the

incident, occurrence, or problem that gives rise to the grievance,” unless the

prisoner “can demonstrate that a grievance was not timely filed for good cause….”

Id. § 504.810(a). The grievance must “contain factual details regarding each aspect

of the offender’s complaint, including what happened, when, where and the name

of each person who is the subject of or who is otherwise involved in the

complaint.” Id. § 504.810(c). If an inmate does not know the names of the officials

involved, he “must include as much descriptive information about the individual

as possible.” Id.

A grievance officer considers each grievance and submits a

recommendation to the Chief Administrative Officer (“CAO”), who notifies the

inmate of his decision. Id. § 504.830(d). An inmate may appeal the CAO’s decision

to the Director/Administrative Review Board, but he or she must do so within 30

days of the decision. Id. § 504.850(a). Once an appeal is received, the

Administrative Review Board (“ARB”) reviews the appeal and provides the

Director with a written report of its findings and recommendations. Id. §

504.850(e).

An inmate may also submit a request for a grievance to be handled on an

emergency basis by forwarding it directly to the CAO. Id. § 504.840. If determined

to be a non-emergency, the CAO must notify the inmate that he or she may

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resubmit the grievance via the normal procedures. Id. 504.840(c). An inmate

grieving “issues that pertain to a facility other than the facility where the offender

is currently assigned, excluding personal property and medical issues,” must send

his or her grievance directly to the ARB. Id. 504.870(a). Once received, the ARB

reviews the grievance the same way it handles appeals. Id. 504.870(b).

The prison grievances rules identify four circumstances that require an

inmate to send the grievance directly to the ARB:

1) Decisions regarding protective custody placement, including

continued placement in or release from protective custody;

2) Decisions regarding the involuntary administration of

psychotropic medication;

3) Decisions regarding disciplinary proceedings that were made

at a facility other than the facility where the offender is

currently assigned;

4) Other issues that pertain to a facility other than the facility

where the offender is currently assigned, excluding personal

property and medical issues.

Id. 504.870(a). Once received, the ARB reviews the grievance the same way it

handles appeals. Id. 504.870(b).

B

Plaintiff filed grievances related to his manuscript on June 21, 2023, July 18,

2023, and July 24, 2023. All three grievance arise from the incident that occurred

May 16, 2023, when prison officials sent Plaintiff to segregation and apparently

packed up his property at some point thereafter.

Plaintiff’s first grievance, dated June 21, 2023, provided the date that the

incident occurred, his cell number, the name of his cellmate, a description of the

property he was missing, including the manuscript, and that the property may

have been mixed up with his former cellmate’s property. (Doc. 52-1 at 2-3). The

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counselor responded to Plaintiff’s first grievance on July 19, 2023: “Please see

attached response. Attachment must remain [with] grievance for processing.”

(Doc. 52-1 at 2). The parties did not provide a copy of the referenced response. The

grievance officer recommended denial of this grievance on July 24, 2023, noting

that Plaintiff had spoken with Internal Affairs and that officials had given Plaintiff

an envelope of documents that they had received from his former cellmate. (Doc.

52-1 at 1). The CAO concurred on July 28, 2023. Id. Plaintiff appealed. Id.

Plaintiff filed his second grievance, dated July 18, 2023, before he had

received the counselor’s response to his first grievance. The grievance requests a

response to his first grievance and describes a meeting held on June 30, 2023, in

which Defendant Little had told Plaintiff the first grievance was “complete” and

that he could not retrieve video footage from May 2023 that Plaintiff had

requested. (Doc. 52-5 at 2-3). The counselor responded to this grievance the same

day: “This is a grievance grieving a grievance response. [June 21, 2023, grievance

number].” Id. at 2. The grievance officer recommended denial of this grievance on

July 25, 2023, referencing his response to Plaintiff’s first grievance issued the same

day. Id. at 1. The CAO concurred with this recommendation on July 28, 2023. Id.

The ARB denied Plaintiff’s appeal for the July 18, 2023, grievance on August 28,

2023, stating “Does not follow the DR 504F. It is inappropriate to file a new

grievance on an already filed grievance. [The June 21, 2023, grievance appeal] was

received on 8/9/23 and is pending here with the ARB.” (Doc. 52-6).

Plaintiff filed a third grievance, dated July 24, 2023, regarding what he

characterized as “Theft; violation of U.S.C.A. rights,” arising from the same May

16, 2023, incident as the previous grievances. (Doc. 52-2 at 2-3). Plaintiff added that

he had attempted to report a theft to the Brown County Sheriff’s Department, that

he had been permitted to possess the missing manuscript for approximately ten

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years, and that the manuscript had disappeared after the May 2023 incident

without issuance of a shakedown slip or other notice that it had been confiscated.

Id. Plaintiff stated his belief that “Western Illinois Correctional Center knowingly

and intentionally stole, threw away, or discarded my manuscript.” Id. at 3.

Plaintiff’s counselor responded on July 24, 2023, stating that the grievance

was a duplicate of the June 21, 2023, grievance “which has been answered by the

grievance officer [with] no additional information provided. Please allow the

grievance process to complete.” Id. The grievance officer responded to the

grievance without addressing Plaintiff’s allegations that officials had unlawfully

confiscated or destroyed his manuscript and recommended its denial as moot on

August 1, 2023. Id. at 1. The CAO concurred the next day. Id. Plaintiff appealed on

August 6, 2023. Id.

The ARB denied Plaintiff’s appeal for the first grievance on December 7,

2023, stating that the issue had been appropriately handled at the facility. (Doc. 52-

4). The ARB’s response does not reference Plaintiff’s third grievance, but,

according to an affidavit from an ARB official, the response was intended to

address that grievance as well. (Doc. 52-7 at 3, ¶ 11).

III

The Prison Litigation Reform Act (PLRA) provides:

No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a) (2013). The PLRA does not define the process a prisoner must

utilize; rather, “state law establishes the administrative remedies that a state

prisoner must exhaust for purposes of the PLRA.” Lanaghan v. Koch, 902 F.3d 683,

687 (7th Cir. 2018).

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The PLRA requires only that inmates exhaust available remedies. See Ross v.

Blake, 136 S. Ct. 1850, 1858 (2016) (“An inmate…must exhaust available remedies,

but need not exhaust unavailable ones.”). A formal grievance process is

unavailable when the process: (1) “operates as a simple dead end—with officers

unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) is

“so opaque that it becomes, practically speaking, incapable of use;” and (3) “when

prison administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation.” Id. at 1859-60.

The PLRA requires only that inmates exhaust available remedies. See Ross v.

Blake, 136 S. Ct. 1850, 1858 (2016) (“An inmate…must exhaust available remedies,

but need not exhaust unavailable ones.”). A formal grievance process is

unavailable when the process: (1) “operates as a simple dead end—with officers

unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) is

“so opaque that it becomes, practically speaking, incapable of use;” and (3) “when

prison administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation.” Id. at 1859-60.

Administrative remedies also become unavailable “[w]hen prison officials

fail to timely respond to a prisoner’s grievances.” Jones v. Lamb, 124 F.4th 463, 468

(7th Cir. 2024); see also Jackson v. Esser, 105 F.4th 948, 957 (7th Cir. 2024) (“If

administrative remedies are genuinely unavailable or nonexistent because, for

example, prison employees failed to respond to properly filed grievances, we

consider the prisoner to have satisfied the exhaustion requirement.”). Or, when a

prisoner “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.” Smallwood v. Williams, 59 F.4th 306, 315 (7th Cir.

2023).

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Failure to exhaust is an affirmative defense, and, therefore, defendants bear

the burden of showing that a prisoner failed to exhaust all available remedies, not

on a prisoner to show that the remedies were unavailable. Davis v. Mason, 881 F.3d

982, 985 (7th Cir. 2018); Smallwood, 59 F.4th at 315.

Plaintiff arguably fully exhausted his second grievance when officials

provided the response to his first grievance as requested. Thornton v. Snyder, 428

F.3d 690, 696-97 (7th Cir. 2005) (when prisoner receives requested relief via the

grievance process, administrative remedies are exhausted). The content of the

second grievance nonetheless does not provide facts sufficient to place officials on

notice that they had violated Plaintiff’s constitutional rights or done anything

other than fail to respond to his first grievance or investigate as thoroughly as he

would have liked. The Court finds that this grievance did not exhaust his

administrative remedies for the claims at issue in this lawsuit. See Schillinger v.

Kiley, 954 F.3d 990, 996 (7th Cir. 2020) (inmate who grieved incidents related to

attack, but unrelated to asserted failure to protect claim did not adequately put

officials on notice of constitutional claim for purposes of exhausting his

administrative remedies).

Plaintiff’s third grievance changed his characterization of the events that

had transpired in May 2023. Prison officials did not reject this grievance as

untimely or assert that it was otherwise procedurally deficient. Plaintiff’s asserted

absence from the cell when his property was presumably collected or confiscated

and officials’ failure to provide a shakedown slip or other documentation

indicating those involved made it impossible for him to identify by name the

officials responsible. If, as prison officials had concluded, the third grievance was

a duplicate of the first, Plaintiff had already provided all information known to

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him. The record thus does not support Defendant’s argument that Plaintiff failed

to comply with the rule requiring same.

Plaintiff clearly raised the issue in his third grievance that he believed that

officials had unconstitutionally confiscated his manuscript, apparently because he

had concluded that his manuscript had not been innocently misplaced as he

alleged in his first grievance. The counselor, grievance officer, and CAO failed to

address this aspect of his grievance, which would suggest that remedies became

unavailable, except that the record does not permit a reasonable inference that this

omission interfered with Plaintiff’s ability to appeal, or that the ARB lacked the

ability to take “some action” regarding his complaints. Booth v. Churner, 532 U.S.

731, 740 (2001) (process remains available so long as officials have authority to take

“some action” regarding inmate’s complaints).

The problem for Plaintiff is that he filed this lawsuit before the ARB

responded to his first grievance. Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020)

(“[T]he PLRA requires prisoners to exhaust administrative remedies before filing

suit; a “sue first, exhaust later” approach is not acceptable.”) (emphasis in

original); Ford v. Johnson, 362 F.3d 395, 398-400 (7th Cir. 2004). At the time Plaintiff

filed this lawsuit, the appeals of his first and third grievances were still pending

and had been pending for just short of three months. This was well within the

ARB’s aspirational six-month response deadline, negating any inference that the

process became unavailable because the ARB took too long to respond. 20 Ill.

Admin. Code § 504.830(e) (ARB shall resolve appeal “within six months after

receipt of the appealed grievance, when reasonably feasible under the

circumstances.”); Ford, 362 F.3d at 400 (deadlines in Illinois administrative code

are aspirational and respond within those deadlines does not necessarily mean

that the process became unavailable). The fact that the ARB responded to

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Plaintiff’s grievances within the six-month period supports a finding that the

process remained available.

Had Plaintiff waited to file suit until after the ARB responded in December

2023, then the record would support a finding that he fully exhausted his

administrative remedies or that the failure to address his assertion that his

constitutional rights had been violated rendered the process unavailable. Because

he did not, the Court finds that Plaintiff failed to fully exhaust his available

administrative remedies prior to filing suit.

IV

Plaintiff filed a Motion for Leave to File Plaintiff’s Auxiliary Exhibits from

Outside Source. (Doc. 66). The motion requests leave to permit his brother to file

exhibits that “would establish the fact Plaintiff has written numerous manuscripts

over the duration of Plaintiff’s incarceration.” Id. at 1.

The Court does not permit non-attorney third parties to file documents in a

case, and the exhibits do not appear relevant to the issue of failure to exhaust

administrative remedies. Plaintiff’s motion is denied.

Therefore:

1) Plaintiff’s Motion [66] is denied.

2) Defendant’s Motion for Summary Judgment [52] is granted. This case is

dismissed without prejudice. The clerk of the court is directed to enter

judgment in favor of Defendant and against Plaintiff. All pending

motions not addressed below are denied as moot, and this case is

terminated. Plaintiff remains responsible for the $350.00 filing fee.

3) If Plaintiff wishes to appeal this judgment, he must file a notice of appeal

with this Court within 30 days of the entry of judgment. Fed. R. App. P.

4(a)(4). A motion for leave to appeal in forma pauperis MUST identify the

issues the Plaintiff will present on appeal to assist the court in

determining whether the appeal is taken in good faith. See Fed. R. App. P.

24(a)(1)(c); see also Celske v Edwards, 164 F.3d 396, 398 (7th Cir. 1999)(an

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appellant should be given an opportunity to submit a statement of his

grounds for appealing so that the district judge “can make a reasonable

assessment of the issue of good faith.”); Walker v. O’Brien, 216 F.3d 626,

632 (7th Cir. 2000)(providing that a good faith appeal is an appeal that “a

reasonable person could suppose…has some merit” from a legal

perspective). If Plaintiff does choose to appeal, he will be liable for the

$605.00 appellate filing fee regardless of the outcome of the appeal.

It is so ordered.

Entered: December 19, 2025

s/Jonathan E. Hawley

U.S. District Judge

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