Harper

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

EAZS A. HARPER, B83567, )

)

Plaintiff, )

)

vs. )

)

ZACHARY HART, )

QUINTON BENT, )

MORGAN GIACOMO, )

ANTHONY WILLS, )

DAVID GARCIA, ) Case No. 24-cv-1157-DWD

C/O KORONADO 1, )

C/O KORONADO 2, )

C/O HUSTON, )

C/O KITCHEN, )

C/O KNIGHT, )

C/O HAGEIN, )

SGT. LEPOSKY, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Eazs Harper, an inmate of the Illinois Department of Corrections (IDOC)

brought this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights. Defendants have moved for summary judgment on Plaintiff’s

failure to exhaust his administrative remedies (Doc. 76), Plaintiff has responded (Doc. 81),

and Defendants have replied (Doc. 89). Additionally, Plaintiff has a pending Motion to

Amend (Doc. 82), and a Motion to Clarify the Motion to Amend (Doc. 87). For reasons

explained in this Order, the Motion for Summary Judgment (Doc. 76) will be granted.

BACKGROUND

On April 23, 2024, this case was opened at the direction of District Judge Stephen

P. McGlynn by the severance of a Motion for a Preliminary Injunction (Doc. 2) from a

different civil case of Plaintiff’s pending before District Judge McGlynn—Case No. 23-cv-

912. Given District Judge McGlynn’s expressed concern about Plaintiff’s welfare at the

time this action was opened, the undersigned immediately directed service upon Menard

Warden Anthony Wills to respond to the allegations pertaining to Plaintiff’s safety,

however the Court also simultaneously noted that Plaintiff needed to inform the Court

within 14 days if he wished to proceed in this newly created action, and he needed to file

an operative complaint. (Doc. 3).

On April 30, 2024, the Court received Plaintiff’s Complaint (Doc. 6), which it

interpreted as his indication he wished to proceed with this action. The Complaint

alleged that Defendants Hart and Bent assaulted him when he arrived at Menard on April

3, 2024, in retaliation for his filing of a prior lawsuit. He further alleged that Bent, Hart,

and Nurse Morgan denied him medical care for his injuries, and Bent deprived him of

access to food, showers, medical care and grievances. Notably, in the original complaint,

Plaintiff alleged that during the assault he was kicked and punched in the head and

stomach area by “C/O Bent, C/O Z. Hart and other C/O officer’s who Plaintiff could not

see due to mace was in Plaintiff eyes.” (Doc. 6 at 17-18). Plaintiff further alleged he was

“brutally assault by the many officials,” and he was forced to walk to a different location

by the “c/o’s on 3 to 11 shift of N-2 nake[d].” (Doc. 6 at 18). In the original complaint,

Plaintiff wrote, “C/O Bent has now been as of this court order trying to stop my mail

from going out, as he has taken overtime and 4/23/24 midnight shift and told Plaintiff

as long as he’s working my mail and grievance/complaint will never go out[.]” (Doc. 6

at 21). Despite this statement, in the original complaint Plaintiff indicated he had a

grievance at the second stage of review (Doc. 6 at 16), and he supplied a copy of the

receipt confirming that grievance had been received for grievance officer processing

(Doc. 6 at 29).

On October 23, 2024, the Court received Plaintiff’s Motion for Leave to File an

Amended Complaint (Doc. 48), and after directing Plaintiff to provide further

clarification about his exhaustion of administrative remedies, Plaintiff was allowed to

amend. (Docs. 50, 52, 53, 57). In the amended complaint, Plaintiff realleged the initial

claims against Bent, Hart, and Nurse Morgan, and added that eight additional officers

participated in the alleged beating on April 3, 2024, and the subsequent denial of medical

care. The new Defendants were C/O Koronado 1, C/O Koronado 2, C/O Huston, C/O

Hagein, C/O Kitchen, C/O Garcia, C/O Knight, and Sgt. Leposky. (Doc. 50 at 9-10). In

the amended complaint, Plaintiff indicated in the exhaustion section that he had

exhausted all his administrative remedies via grievance K4-0424-1734 (Doc. 50 at 8).

However, he also asserted in the factual allegations that from April 3, 2024 to June 10,

2024, Defendant Bent had deprived him of grievance and complaint filing, among other

things. (Doc. 50 at 11-12, ¶ 12).

Between the original and amended complaints, the Court allowed Plaintiff to

proceed on five claims related to these allegations:

Claim 1: Eighth Amendment excessive force claim against

Defendants Bent, Hart, C/O Koronado 1, C/O Koronado 2,

C/O Hagein, C/O Kitchen, C/O Garcia, C/O Knight, and Sgt.

Leposky for the events on April 3, 2024;

Claim 2: Eighth Amendment deliberate indifference claim against

Defendants Bent, Hart, Giacomo, C/O Koronado 1, C/O

Koronado 2, C/O Hagein, C/O Kitchen, C/O Garcia, C/O

Knight, and Sgt. Leposky for the events on April 3, 2024;

Claim 3: Eighth Amendment cruel and unusual punishment claim

against Defendant Bent for depriving Plaintiff of food,

showers, and access to medical care and mail/grievances

from April 3, 2024, to present;

Claim 4: First Amendment retaliation claim against Defendants Hart

and Bent for their actions against Plaintiff;

Claim 6: State law assault and battery claim against Hart and Bent for

the April 3, 2024, events.

(Docs. 8, 57). In waivers of service (Doc. 59) and the answer to the Amended Complaint,

“Koronando 1” and “Koronando 2” self-identified as Daltyn Korando and Lance

Korando. (Doc. 68 at 1).

The parties agree that there is one fully exhausted grievance, grievance number

K4-0424-1734, signed by Plaintiff as an emergency on April 4, 2024. Plaintiff attached this

grievance to his complaint (Doc. 6) and his amended complaint. Plaintiff also contends

in response to summary judgment that he tried to submit grievances on April 3, 4, 5, 6, 7,

and 8, 2024, but that Defendant Bent destroyed them. (Doc. 81). In reply, Defendants

dispute this arguing that Bent did not work on the 7th or 8th. (Doc. 89).

FINDINGS OF FACT

In the original grievance, Plaintiff wrote

On the date of 4/3/24 at about 6:00-7:00pm prison staff Z-Hart Badge

#10832 and C/O Bent, working the 3 to 11 shift, violated my rights to be

safe from violent assault and sexual assault by inmates & staff alike; yet as

to the AD:501 safeguard & [PREA] act, prison staff mention herein brought

me to a gated cage north 2 cage area were 3 rooms with glass doors at and

a room were the c/o officers were sitting playing card games, outside that

room were a black gated cage were the two officers Z Hart and c/o Bent

took me out of the room with the glass door and place me in the cell black

gated cage room and did I remember him form Lawrence Correctional

Center, stated, I talked all that shit in 7 house to him, I told the C/O Z Hart

that I don’t know him and you got the wrong guy he told me that I need to

take off all my clothing as I stripped out all my clothing and was standing

naket the officer Bent told me to back up to the black gate put my hands in

handcuff behind my back and C/O Hart then told me to face him as I turn

my face to the officer he sprayed OC gas in my face and head body upper

and lower, as I bent down trying to stop from being sprayed with mace the

officer said sprayed his hairy ass I was spray in my butt hole by the two

officers as they laugh at my pain while I was handcuff to the gated cage one

of the officer kept saying stand up or they would open the cage and kick

my ass Karondo and other officers was talking about my lawsuit against

Menard as I kept screaming I can’t see nor breath I have asthma and

bronchitis the officer said talk shit now, Another say file another lawsuit

bitch boy someone hit me in the head with the bus blue shoes and through

the jumpsuit at me and told me get dressed I told them I need medical

treatment I can’t see or move I was uncuffed from the gate forced to walk

blind down the stairs I was push down the steps punched in the face and

kicked in the balls and ass by the C/Os that pushed me down the steps. I

was pushed in to the cell of N-2 2 21, were C/O Bent is schedule to work 5-

days the C/O snatched my arms through the food slot and uncuff my hands

they cut my water off and I had to stick my face in the toilet bowl to breath

I was force to this very day to sleep in mace denied medical treatment, and

the two C/O Z Hart and C/O Bent broke my blue inhaler and threw it at

me while I was trying to splash toilet water in my face and body I couldn’t

breath they throw me in a cell with no running water no bedding no sheets

no clothing the C/O the next morning was notified that I need medical help

and mental health, I call for [PREA] and ask for IA officer, yet I was

threating with been through in the butt naket room on 5-gallery if I call for

[PREA], I told the Sgt. Hunt that I was just assault and sexually assaulted

by you officer Z Hart and C/O Bent, and they refuse to feed me refused me

medical treatment and showed him my swollen eye and scared injury arms

and my body that’s covered in mace, the C/O working N-2 2-gallery on

7:00am to 3:00pm shift took me to the mental health lady Mrs. R who took

my report on the assault and sexually assault and I was denied to report to

IA agent, and to have my injurys recorded by medical staff and the Sgt. that

threating me told the C/O Boucher to take me to the R&D, and to clothing

to get me bedding and turn my water back on so I can wash the mace off of

my body and face, I can’t see clear out my eyes and my left eye is swollen

and my bottom lip is swollen I can’t breath correctly and have my problem

sleeping due to being sprayed with OC gas and scared of being killed by

Menard Correctional Officers behind my lawsuit of them setting me up to

be killed by inmates here at Menard prison. The prison staff has retaliated

on me do to my prison lawsuit against Menard prison and I need help.

(Doc. 48-2 at 1-2). As relief, Plaintiff sought a transfer, medical care, and an investigation

of “all the staff of N-2 on 4/3/24 and review camera footage.” (Doc. 6 at 27-28).

Plaintiff signed the grievance April 4, 2024, though he indicates in his response to

summary judgment that it was not submitted until April 8, 2024, by an individual in a

neighboring cell. (Doc. 81 at p. 2 ¶ 4). On April 10, 2024, Warden Wills denied the

grievance emergency status, and on April 11, 2024, a counselor (Dinkins) indicated that

per intel and internal affairs the allegations were unsubstantiated. (Doc. 6 at 27). The

grievance was stamped as received for processing at the grievance officer level of review

on April 25, 2024. (Doc. 76-3 at 5). On June 3, 2024, the grievance officer recommended

that the grievance be deemed “resolved” and indicated it had been referred to internal

affairs for investigation. (Doc. 76-3 at 3). The Chief Administrative Officer conferred on

the same day, and Plaintiff appealed to the Administrative Review Board (ARB) on June

10, 2024. (Doc. 76-3 at 3-4). On July 8, 2024, the ARB denied the grievance as

appropriately addressed by the prison. (Doc. 76-3 at 2).

Aside from grievance K4-0424-1734, Plaintiff attests in his summary judgment

brief that on April 3, 4, 5, 6, 7, and 8, 2024 he attempted to submit grievances, but they

were thrown away by Defendant Bent on all five days that Bent worked his gallery. (Doc.

81 at p. 2 ¶ 3). Plaintiff tendered a copy of his cumulative counseling summary that

shows he was seen on weekly tour on April 8, 2024, and April 15, 2024, by Counselor

Dinkins and reported no issues at that time. (Doc. 81 at p. 27). The cumulative counseling

summary also demonstrates that grievance K4-0424-1734 was deemed a non-emergency

by the warden, and was forwarded for a counselor’s response. (Doc. 81 at p. 27). On

April 11, 2024, Counselor Dinkins indicated that intel and internal affairs had

investigated and found the allegations unsubstantiated. (Doc. 81 at 27). On April 25,

2024, the counseling summary reflects that the grievance was forwarded to the grievance

office for second level review. (Doc. 81 at 27). In support of his complaint, Plaintiff

submitted a counseling receipt indicating that his grievance had been forwarded for

second level review on April 25, 2024. (Doc. 6 at 29).

CONCLUSIONS OF LAW

A. Legal Standards

Summary judgment is proper if there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In

determining a summary judgment motion, the Court views the facts in the light most

favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex

Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).

Courts generally cannot resolve factual disputes on a motion for 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).

However, when the motion for summary judgment pertains to a prisoner’s failure to

exhaust 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).1 After hearing evidence,

finding facts, and determining credibility, the court must decide whether to allow the

claim to proceed or to dismiss it for failure to exhaust. Wilborn v. Ealey, 881 F.3d 998, 1004

(7th Cir. 2018). The court is not required to conduct an evidentiary hearing if there is no

genuine dispute of material fact, and the determination is purely legal. See e.g., Walker v.

Harris, 2021 WL 3287832 * 1 (S.D. Ill. 2021).

The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring

a lawsuit about prison conditions unless and until he has exhausted all available

administrative remedies. 42 U.S.C. § 1997e(a); Pavey, 544 F.3d at 740. “The exhaustion

requirement is an affirmative defense, which the defendants bear the burden of proving.”

Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). For a prisoner to properly exhaust his

administrative remedies, the prisoner must “file complaints and appeals in the place, and

at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022,

1 For reasons explained later in this Order, the Court does not find that this exhaustion dispute invokes

Perttu v. Richards, 145 S.Ct. 1793 (2025).

1025 (7th Cir. 2002). “[A] prisoner who does not properly take each step within the

administrative process has failed to exhaust state remedies.” Id. at 1024.

There are no exceptions to the exhaustion requirement, however, the Supreme

Court and Seventh Circuit have emphasized in recent years that the exhaustion process

must be available. An ”available” remedy is one that is “capable of use for the

accomplishment of a purpose” and “is accessible or may be obtained.” Crouch v. Brown,

27 F.4th 1315, 1320 (7th Cir. 2022) citing Ross v. Blake, 578 U.S. 632, 642 (2016). If

availability is at issue, the Court must resolve that issue before proceeding to the merits

of the exhaustion dispute. Wallace v. Baldwin, 55 F.4th 535, 539 (7th Cir. 2022) (the district

court must first consider the threshold question of if exhaustion was available). There

are three circumstances that might support a finding of unavailability: (1) a process may

be unavailable if it is so opaque that it becomes incapable of use; (2) a process may be

unavailable if administrators thwart an inmate from using it via machination,

misrepresentation, or intimidation; or, (3) a process may be unavailable if it operates as a

“dead end” with officers unable or consistently unwilling to provide any relief for

aggrieved inmates. Ross v. Blake, 578 U.S. 632, 643-44 (2016).

As an inmate in the IDOC, Plaintiff was required to follow the grievance process

outlined in the Illinois Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017).

An inmate must file a grievance within 60 days of an event, 20 Ill. Admin. Code §

504.810(a), and generally, a grievance officer shall make a report to the Chief

Administrative Officer within two months of receipt of the written grievance, when

reasonably feasible, 20 Ill. Admin. Code § 504.830(e). If the inmate is not satisfied with

the CAO’s response, he can file an appeal with the IDOC Director through the

Administrative Review Board (ARB). 20 ILL. ADMIN. CODE § 504.850(a). The ARB must

receive the appeal within 30 days of the date of the CAO’s decision. Id. The inmate must

attach copies of the responses from the grievance officer and CAO to his appeal. Id. The

grievance process also provides for expedited handling of emergency grievances, and it

states that if a grievance is denied emergency status, then it shall be returned to the

offender for submission through the ordinary process. 20 ILL. ADMIN. CODE § 504.840(c).

B. Analysis

As an initial matter, in their reply brief, Defendants contend that Plaintiff’s

Response contains improper additional material facts that are irrelevant and are not

properly supported by the record. They also contend that because Plaintiff did not

respond to their own material facts in the format dictated by the Court’s Local Rules, their

facts should be treated as established. (Doc. 89). While the Defendants are correct on

both accounts, Plaintiff is a pro se litigant and the Court affords broad deference to pro

se litigants, particularly when it comes to technical formatting requirements for summary

judgment pleadings. The Court reviewed and considered Plaintiff’s additional material

facts and examined the evidence he cited to determine if the facts were supported and if

they were relevant to the issues in dispute at summary judgment.

The Court will begin with the impact of grievance K4-0424-1734, Plaintiff’s

grievance that he fully exhausted before the ARB on July 8, 2024. The grievance explicitly

complains of conduct by Defendants Bent and Hart that aligns with Claim 1 (excessive

force), Claim 2 (denial of medical care for associated injuries), Claim 4 (First Amendment

retaliation for using excessive force in response to a previous lawsuit), and Claim 6 (state

law assault and battery). The grievance also clearly alleges that Bent refused medical care

and food, which aligns with portions of Claim 3 against Bent. However, the claims

against Bent and Hart were presented in the original complaint that was filed on April

30, 2024, and the grievance was not exhausted until July 8, 2024, so this lawsuit constitutes

a sue first, exhaust later approach and is not permissible. Chambers v. Sood, 956 F.3d 979,

984 (7th Cir. 2020) (a premature lawsuit must be dismissed without prejudice, and the

prisoner must file a new suit after fully exhausting his remedies, a premature suit cannot

be cured by an amended complaint).

The grievance does not contain any allegations that connect to Nurse Morgan, who

allegedly participated in denying medical care as stated in Claim 2. The grievance also

does not complain of Defendant Bent denying showers or mail/grievances from April 3,

2024, as alleged in Claim 3. Therefore, grievance K4-0424-1734 is not sufficient to exhaust

Claim 2 against Nurse Morgan, or the showers and grievance/mail aspect of Claim 3

against Defendant Bent.

Defendants argue that grievance K4-0424-1734 also does not contain sufficient

details about the involvement of the defendants added by the Amended Complaint (Doc.

50)-- Garcia, Hagene, Hutson, Kitchen, Knight, Daltyn Korando, Lance Korando, and

Leposky. Plaintiff counters that controlling precedent does not require an inmate to name

all defendants in the grievance in order to exhaust his administrative remedies. (Doc. 81

at 13-14). Before analyzing the substance of this grievance in relation to the defendants

added by the amended complaint, it is worth noting that because the defendants were

added by amended complaint, the exhaustion process had to be completed for the claims

against them by the date of the amended complaint (October 23, 2024). See Barnes v. Briley,

420 F.3d 673 (7th Cir. 2005) (finding that an inmate who initially filed an FTCA claim

against the CDC, but later amended to add Section 1983 claims against individual

defendants, had to complete exhaustion of the 1983 claims before amending his

complaint, but not before he had filed the entire action with the FTCA claims); Cannon v.

Washington, 418 F.3d 714, 719-20 (7th Cir. 2005) (finding that additional 1983 claims added

by an amended complaint were properly exhausted where the inmate exhausted them

after filing the lawsuit, but before adding new claims and parties by an amended

complaint). Plaintiff exhausted grievance K4-0424-1734 on July 8, 2024, so exhaustion

was complete by the filing of the amended complaint on October 23, 2024.

Turning to the substance of grievance K4-0424-1734 in relation to the allegations

against the newly added defendants, the Court finds that the grievance is not sufficient

to exhaust the allegations. Neither the PLRA nor IDOC’s grievance rules require an

inmate to name each individual involved in an incident within the body of the grievance.

See Jones v. Bock, 549 U.S. 199, 217 (2007) (“[N]othing in the [PLRA] imposes a ‘name all

defendants’ requirement.”). The Seventh Circuit has recently reiterated that a grievance

must contain enough information about a problem so that the prison can properly

investigate and resolve the grievance. See Jackson v. Esser, 105 F.4th 948, 960 (7th Cir.

2024). The primary requirement is that a grievance contain enough information to put

the prison on clear notice that unnamed defendants were involved. Id. In Jackson, the

inmate fully exhausted several grievances that complained a single officer refused to turn

on the water in his crisis cell and singled him out for mistreatment via the water issue. In

litigation, the inmate pursued claims against the single officer but also added that six

additional prison employees knew of and refused to fix his lack of access to water. The

Jackson Court concluded that the inmate’s fully exhausted grievances about the single

officer were not sufficient to exhaust the claims he later added against the six individual

employees because “the allegation[s] in his grievance[s] [are] substantively distinct from

the allegation[s] in his federal complaint.” Jackson, 105 F.4th at 960, citing Bowers v. Dart,

1 F.4th 513, 517 (7th Cir. 2021).

While Plaintiff is correct that courts do not strictly enforce a name all defendants

requirement, a comparison of the allegations in his grievance relative to those in the

amended complaint leads to the conclusion that the grievance was not sufficient to

exhaust conduct by Defendants Garcia, Hagene, Hutson, Kitchen, Knight, Daltyn

Korando, Lance Korando, and Leposky. The situation in this case is on all fours with the

situation in the Jackson case where the inmate grieved conduct of one defendant who

turned off his water, and in the lawsuit tried to hold six additional defendants liable.

Here, Plaintiff’s grievance clearly focused on the physical abuse from Hart and Bent, with

a passing mention that “Karondo” and other officers were talking nearby. In the demand

for relief section of the grievance, Plaintiff did ask that all N2 staff on the day of the

incident be investigated, but he did not make any clear attempt to fault specific unknown

individuals in the body of the grievance for harming him during the encounter. (Doc. 6

at 27-28). In fact, in the grievance he says that the day after the assault he ”told Sgt. Hunt

that [he] was just assault & sexually assaulted by your officer Z Hart & C/O Bent, and

they refuse to feed me and refused medical treatment[.]” (Doc. 6 at 28).

The assertions in grievance K4-0424-1734 are simply incongruent with the much

broader allegations in the amended complaint (Doc. 50) where Plaintiff claimed that in

addition to Bent and Hart, Defendants Garcia, Hagene, Hutson, Kitchen, Knight, Daltyn

Korando, Lance Korando, and Leposky all participated in pulling him off of the ground

and physically battered him in a mass assault event on April 3, 2024, or that they all

collectively denied him medical care. (Doc. 50 at pp. 9-10). While a grievance does not

need to contain the names of unidentified individuals, it does at least need to provide

enough information for a prison to investigate and address a harmful situation. A

grievance that complains of an explicit assault by two named employees is simply not the

same as a grievance alleging an inmate was assaulted by a group of ten officers, only

some of whom he was able to see and identify at the time of the incident. Grievance K4-

0424-1734 clearly complained of an assault by Bent and Hart with the possibility that

there were an unquantified number of bystanders either within the line of sight or within

earshot. By contrast, the amended complaint (Doc. 50) complains of a mass assault and

denial of medical care by ten officers who actively participated. The differences are too

great. Grievance K4-0424-1734 does not exhaust the claims in this lawsuit against

Defendants Garcia, Hagene, Hutson, Kitchen, Knight, Daltyn Korando, Lance Korando,

and Leposky.

If grievance K4-0424-1734 were the only grievance to review, this lawsuit would

be dismissed in full for exhaustion reasons. The grievance was not fully exhausted as to

Claims 1, 2, 3, 4, and 6 against Bent and Hart by the filing of the complaint on April 30,

2024, and it did not contain sufficient allegations about Nurse Morgan or portions of

Claim 3 against Bent (denial of showers and mail/grievances). The grievance also does

not contain sufficient allegations to exhaust Claims 1 and 2 against any of the other

defendants (Garcia, Hagene, Huston, Kitchen, Knight, Daltyn Korando, Lance Korando,

or Leposky) who were added by the amended complaint. However, in addition to

grievance K4-0424-1734, Plaintiff argues in his summary judgment response that he

attempted to submit additional grievances on April 3, 4, 5, 6, 7, and 8,, but Defendant Bent

trashed them. The Defendants argue in their reply brief that this assertion is not plausible

because Bent was not working on the 7th or 8th. (Docs. 89, 89-1).

A closer examination of this issue is needed. Plaintiff’s assertions about alleged

grievance interference have changed over time. Reading the original complaint closely,

Plaintiff alleged that on April 23, 2024, Bent told him that his grievances would never go

out. (Doc. 6 at 21). At the same time, in the original complaint Plaintiff also clearly and

unequivocally indicated that he had a grievance pending at the second level of review,

and in the section of the complaint form asking about grievances he did not mention any

prior grievances that had been refused or destroyed. (Doc. 6 at 16). In the factual

allegations of the amended complaint, he adjusted his statement about grievances to

allege that from April 3, 2024, through June 10, 2024, he was denied the ability to file

grievances by Bent and others. (Doc. 50 at 11-12). He further stated that he filed an

emergency grievance on April 3, 2024, that was trashed and not turned in, and he then

had a second grievance turned in by a neighbor that was denied emergency status by

Warden Wills. (Doc. 50 at 12). However, in the section of the amended complaint on

exhaustion he indicated he fully exhausted the grievance process via grievance K4-0424-

1734. (Doc. 50 at 8). He made no mention of trashed grievances. (Id.).

In response to summary judgment, Plaintiff claims that Defendant Bent actively

hindered his ability to submit a grievance between April 3 and 8, 2024, on the days he

was working in the cellhouse. (Doc. 81 at 2). Plaintiff claims he inquired about the

missing grievances with counselors Teas and Dinkins (Doc. 81 at 6, ¶ 16), and he claims

that his counseling log supports the assertion that no grievances were reported from

April 3 to 11, 2024 (Doc. 81 at 9, ¶ 24). Plaintiff attached the counseling summary to his

response, but the summary does not align with his written version of events. He claims

that he asked Teas and Dinkins about the status of his grievances, but the counseling log

indicates that on April 8 and 15, 2024, Counselor Dinkins saw Plaintiff on tour and he did

not report any issues. (Doc. 81 at 27). Plaintiff also claims he was not apprised of the

status of grievance K4-0424-1734 while it was being processed, but again, the counseling

summary shows otherwise: it notes receipt of the grievance on April 11, 2024; denial of

emergency status; indicates Dinkins responded as counselor on April 11; and the

grievance was received for second level review on April 25, 2024. (Doc. 81 at 27).

Additionally, with the original complaint, Plaintiff attached the receipt that correlates to

the counseling log, showing that on April 25, 2024, he was notified that his grievance had

been forwarded to the grievance office for second level review. (Doc. 6 at 29).

The documentary evidence in the record simply does not provide any support for

Plaintiff’s position that he tried and failed to submit grievances prior to successfully

submitting grievance K4-0424-1734. Plaintiff’s assertions in his complaints and in his

summary judgment brief are sworn statements because he signed the pleading, and at

summary judgment the Court can take properly supported sworn statements as enough

to establish a genuine dispute of material fact.2 However, it will not do so here because

Plaintiff’s latest statements appear to violate the prohibition on sham affidavits.3 This is

so because in the sworn complaint Plaintiff indicated Bent did not hinder his grievances

or threaten to hinder them until April 23, 2024, and now at summary judgment he is

claiming without evidentiary support that Bent specifically rejected the grievances on

April 3-8, 2024. Plaintiff offers no explanation for the sudden change in his narrative.4

Furthermore, at no point in this litigation has Plaintiff provided a description of the

contents of the alleged missing grievances. He has not said how many he tried to submit

that got lost, nor has he explained how he tried to submit them or how he corresponded

2 See McDaniel v. Syed, 115 F.4th 805, 813-14 (7th Cir. 2024) (an inmate’s statements made in a brief that is

signed under the penalty of perjury can be considered evidence at the summary judgment phase); see

also Widmar v. Sun Chem. Corp., 772 F.3d 457, 459–60 (7th Cir. 2014) (“Self-serving affidavits can indeed be

a legitimate method of introducing facts on summary judgment.”).

3 Under the sham affidavit rule, a party cannot overcome a motion for summary judgment by “submitting

an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or

otherwise sworn testimony.” Adusumilli v. Chicago, 164 F.3d 353, 360 (7th Cir. 1998); see also James v. Hale,

959 F.3d 307, 317 (7th Cir. 2020) (“parties cannot circumvent the purpose of summary judgment by creating

sham issues of fact with affidavits that contradict their prior depositions.”). Courts “may disregard new

sworn testimony when it (1) contradicts that same witness's earlier sworn testimony and (2) fails to explain

the contradiction or resolve any disparities.” James, 959 F.3d at 317; see also, Truly v. Sheahan, 135 Fed. Appx

869 (7th Cir. 2005) (applying the sham affidavit rule to an inmate who changed his stance on exhaustion in

response to summary judgment).

4 There are three exceptions to the sham affidavit rule. James v. Hale, 959 F.3d at 317. An affidavit that

contradicts prior testimony but is supported by newly discovered evidence may be allowable, an affidavit

that contradicts a prior sworn statement but shows the prior statement was clearly a mistake may be

allowable, and an affidavit that clarifies an ambiguous or confusing sworn statement may be allowed. Id.

Plaintiff’s situation does not fit any of these three scenarios because his new evidence (the counseling log)

does not support the testimony, he has not shown the statement in his complaint was mistaken, and his

new statements do not clarify something that was previously ambiguous. The original complaint stated

clearly and unequivocally that Defendant Bent told Plaintiff he would hinder grievances on April 23, 2024,

and the new sworn statements claim Bent hindered grievances from April 3-8, 2024.

with counselors Dinkins or Teas to ask about the status of the missing grievances.5 He

faults the prison for not keeping him apprised of the status of pending grievances, but

his own evidence suggests he knew the status of grievance K4-0424-1734, and he has no

concrete evidence of unanswered queries about other “missing” grievances. Because

Plaintiff’s factual account of what happened with Defendant Bent and grievances

between April 3 and 8, 2024, has changed over time and is not supported by any new

evidence, the Court finds that this sworn statement in his summary judgment response

violates the prohibition on sham affidavits.

In this case, the sham affidavit conclusion has a significant impact. If the Court

were to find the affidavit was not a sham, this case would present factual disputes about

the availability of the grievance process, and it could possibly even present a scenario

where the Supreme Court’s recent Perttu v. Richards6 holding might be invoked. Because

the Court finds that the affidavit is a sham, the Court concludes that there are not genuine

disputes of material fact concerning the availability of the grievance process and Perttu

intertwinement concerns do not exist. It is significant to note that, even though this case

5 Evidence about how many grievances were submitted or what they contained is the sort that might have

created a genuine dispute of fact about the availability of the grievance process if the Court had not reached

the conclusion that Plaintiff’s summary judgment response on missing grievances was a sham. See e.g.,

Jackson, 105 F.4th at 957-58 (finding that an inmate created a genuine dispute over availability by

consistently attesting that he filed grievances that went missing before filing five that were successfully

processed. The inmate submitted a declaration, supported by requests he had filed to staff seeking an

update on the grievances, and he also described the contents of the allegedly missing grievances in detail).

6 The Supreme Court’s recent opinion in Perttu v. Richards, 605 U.S. 460 (2025), held that if the facts necessary

for a ruling on exhaustion are intertwined with the merits of the claim, a jury trial is required. But the

Perttu Court did not go so far as to extend the Seventh Amendment right to a jury trial to all exhaustion

disputes. Here, the Court finds that there is not a genuine dispute of fact about whether Plaintiff submitted

additional grievances from April 3-8 that Defendant Bent trashed. Because the Court does not find a

genuine dispute about this, there is not an intertwinement issue as there was in Perttu.

is being dismissed for failure to exhaust administrative remedies, Plaintiff’s opportunity

to further pursue his claims is not over. The claims against Bent and Hart were filed

prematurely, and this dismissal is without prejudice, so Plaintiff has the option to revive

those claims by filing a new lawsuit now that he has exhausted grievance K4-0424-1734.

Plaintiff’s Motion for an Extension of Time (Doc. 80) to Respond to the Defendants’

summary judgment motion is granted instanter and his response was considered fully

above. Plaintiff’s Motion for Leave to Amend (Doc. 82) is denied as moot, because he

explains in his subsequent Motion (Doc. 87) that he did not submit the document

intending it to be construed as a second amended complaint, and instead meant for it to

be appended to his summary judgment response as an exhibit. Thus, the Motion (Doc.

87) that clarifies his intentions is granted.

DISPOSITION

Defendants’ Motion for Summary Judgment (Doc. 76) is GRANTED in full and all

claims in this case are dismissed without prejudice for Plaintiff’s failure to exhaust his

administrative remedies. The Clerk of Court shall enter judgment and CLOSE this case.

Plaintiff’s Motion for an Extension (Doc. 80) and Motion for Notice (Doc. 87) are

GRANTED, and his Motion to Amend (Doc. 82) is DENIED as MOOT for reasons

explained above.

IT IS SO ORDERED.

Dated: February 27, 2026

/s/ David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge