West

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KENTES WEST, )

)

Plaintiff, )

)

vs. ) Case No. 23-cv-00224-SMY-MAB

)

SCOTT EBERS, )

ROBERT W. RHOADES, )

ZACKARY CONNOR, )

RYAN RAMSEY, )

KEVIN TILLEY, )

SYLVESTER LAMBERT, )

JESSICA ARMBRUSTER, )

MARK HANKS, )

MORGAN GIACOMO, )

and WARDEN OF MENARD )

CORRECTIONAL CENTER, )

)

Defendants. )

REPORT AND RECOMMENDATION

BEATTY, Magistrate Judge:

This matter has been referred to United States Magistrate Judge Mark A. Beatty by

United States District Staci M. Yandle pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule

of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on a

Joint Motion for Pavey Hearing on the issue of exhaustion filed by Defendants Scott Ebers,

Robert W. Rhoades, Zackary Connor, Ryan Ramsey, Kevin Tilley, Sylvester Lambert,

Jessica Armbruster, Mark Hanks, and Morgan Giacomo (Doc. 72). For the reasons set

forth below, this Court RECOMMENDS that the District Court GRANT the Joint Motion

for Pavey Hearing, ADOPT the following findings of fact and conclusions of law, and

FIND that the grievance process was unavailable to Plaintiff.

Background

Plaintiff Kentes West filed this pro se civil rights action pursuant to 42 U.S.C. § 1983

for alleged constitutional deprivations stemming from retaliation by staff at Menard

Correctional Center. In the Amended Complaint, Plaintiff claims that prison officials

retaliated against him for filing a past lawsuit against Lieutenant Ebers by denying him

“crush and float” medication for nerve pain unless he submitted to tight cuffing (Docs.

19, 25). When Plaintiff complained that the painful cuffs caused him to decline medication

in July 2022, Lieutenant Ebers said he should be glad there was nothing more to complain

about given that Plaintiff sued him (see Doc. 25 at p 2). Plaintiff requested a different

medication time to avoid Lieutenant Ebers, but his request was denied (Id.). From July

12-14, 2022, Lieutenant Ebers ordered the guards to cuff Plaintiff for all medication (Id.).

After that, Plaintiff only received medication when Lieutenant Ebers was not working,

and he was eventually denied medication when he offered to wear handcuffs (Id.). Nurse

Morgan Giacomo became so accustomed to Defendants Ebers, Rhoades, Connor,

Ramsey, Tilley, and Lambert’s refusal to give Plaintiff medication that she stopped

packing it (Id. at p. 3). Defendants Armbruster, Hanks, and Rhoades issued him false

disciplinary tickets in retaliation for filing grievances and complaints against staff (Id.).

The Amended Complaint survived screening under 28 U.S.C. § 1915A on two

claims: Count 1 - a First Amendment claim against Defendants Ebers, Rhoades, Connor,

Ramsey, Tilley, Lambert, and Morgan for interfering with Plaintiff’s medication from July

to October 2022 in retaliation for suing Ebers; and Count 2 – a First Amendment claim

against Defendants Armbruster, Hanks, and Rhoades for issuing Plaintiff disciplinary

tickets in September and October 2022 in retaliation for filing grievances against staff (Id.

at pp. 4-9).

Motions for Summary Judgment

Defendants moved for summary judgment based on Plaintiff’s alleged failure to

exhaust his administrative remedies before filing this suit1 (Docs. 56, 61). They identified

grievances relevant to this matter dated July 11, 2022, July 12, 2022, July 13, 2022, and

October 3, 2022, and argued that Plaintiff submitted each one directly to the

Administrative Review Board (ARB) without first using the institutional grievance

process to exhaust his administrative remedies at the prison (see generally Id.). Plaintiff

countered that the institutional grievance process was unavailable because Menard

officials routinely failed to respond to certain types of grievances, including those about

staff misconduct (Docs. 63, 67, 68). To demonstrate his good faith effort to exhaust

remedies before filing suit, Plaintiff says he submitted each grievance at the institution

and sent a copy to the ARB simultaneously (Id.).

The Court denied summary judgment on the papers but gave the parties an

opportunity to request a Pavey hearing to resolve factual disputes surrounding the

availability of administrative remedies at Menard (Doc. 71). See also Pavey v. Conley, 544

F.3d 739 (7th Cir. 2008). Defendants requested a hearing (Doc. 72) and the matter was

then referred to the undersigned to conduct a Pavey hearing (see Doc. 73).

1 The Warden of Menard Correctional Center is named in an official capacity and did not participate in

summary judgment briefing.

A. Relevant Procedural Background

This Court scheduled a Pavey hearing for June 30, 2025 (see Doc. 74). Less than two

weeks before the scheduled Pavey hearing, the United States Supreme Court decided

Perttu v. Richards, 605 U.S. 460 (June 18, 2025). Pertinently, the Supreme Court’s opinion

in Perttu appeared to foreclose the use of Pavey hearings in a limited set of factual

situations. However, because of the timing of the Perttu decision and the significant

logistical challenges that go into scheduling a Pavey hearing2, the Court opted to leave

the Pavey hearing as scheduled and discuss a plan with the parties. At the outset of the

hearing, the Court raised the Perttu decision with Plaintiff and the attorneys for the

various Defendants (both IDOC employees and Wexford employees are named as

Defendants). Given the recency of Perttu, all parties, understandably, were not prepared

to have a detailed discussion on Perttu and its impact, if any, on the instant exhaustion

dispute. Accordingly, the Court determined that the best course of action would be to

conduct the evidentiary hearing as scheduled since all parties and witnesses were present

and ready to proceed (see Doc. 78). Thereafter, the Court took the matter under

advisement and allowed the parties additional time to assess the Perttu decision and

request permission to file supplemental briefing (Docs. 78, 79). Ultimately, after receiving

timely requests to supplement from Defendants (Docs. 81, 82), the Court allowed

supplemental briefing on the impact of Perttu, if any, on the instant exhaustion dispute

2 The Court had issued a video writ to Menard Correctional Center, which requires Menard to make video

conference space available for Plaintiff so that he could appear at the hearing and participate (Doc. 75).

Additionally, the Defendant had arranged to have two witnesses available to testify at the Pavey hearing

(Doc. 77).

(Doc. 83). The Court also decided to recruit counsel to represent Plaintiff in this case and

assist him in this supplemental briefing (Doc. 86).

B. Perttu v. Richards and its impact on the instant exhaustion dispute

The parties all filed Supplemental Perttu Briefs as directed (Docs. 88, 89, 93).

Accordingly, the first issue the Court must address before touching on any of the

testimony from the Pavey hearing is the impact, if any, the Perttu decision has on this case.

In Perttu, the Supreme Court held that a jury trial is required when PLRA exhaustion

disputes are intertwined with factual disputes on the merits of a claim covered by the

Seventh Amendment’s right to a jury trial. 605 U.S. at 479. In other words, the Perttu

decision forecloses the use of Pavey hearings to resolve factual disputes surrounding

exhaustion when those factual disputes are entangled or intertwined with the merits of

the ultimate claim or claims. Id. However, this does not foreclose Pavey hearings to resolve

factual disputes surrounding exhaustion when those disputes are not intertwined with

the ultimate merits of the claim or claims.3

After carefully considering the parties’ supplemental briefs, the Court believes this

case is distinguishable from Perttu and the factual disputes surrounding exhaustion are

not intertwined with the merits of Plaintiff’s claims. Plaintiff’s argument is that his

administrative remedies were rendered unavailable by the prison’s general practice of

providing no response to certain types of grievances, including those complaining of staff

misconduct. Plaintiff’s First Amendment claim against Defendants Ebers, Rhoades,

3 The Court expressed no opinion on whether a jury trial is required for all PLRA exhaustion disputes,

including those involving no intertwinement. Id. at 468.

Connor, Ramsey, Tilley, Lambert, and Morgan arise from their alleged use of tight

handcuffs to interfere with his medications in retaliation for a past lawsuit filed against

Lieutenant Ebers (Count 1). The First Amendment claim against Defendants Armbruster,

Hanks, and Rhoades arises from their alleged issuance of false disciplinary tickets in

retaliation for his miscellaneous grievances and complaints about prison staff (Count 2).

Plaintiff’s claims do not involve any assertion that Defendants interfered with the

grievance process to prevent him from grieving about his tight cuffs and medication

(Count 1) or his disciplinary tickets (Count 2). Accordingly, the factual disputes

surrounding the availability of administrative remedies can be resolved without reaching

the merits of either retaliation claim.

Moreover, different witnesses are needed to address exhaustion and the merits of

these claims. The exhaustion issue involves Plaintiff, grievance counselor(s), grievance

officer(s), and/or ARB staff. Meanwhile, addressing the merits of Plaintiff’s underlying

claims will likely involve testimony from Plaintiff and Defendants, who consist of the

prison’s nurses, guards, and internal affairs officers. Furthermore, Plaintiff’s testimony at

the Pavey hearing covered very different content from what the Court would expect for

his testimony at a trial on the merits. And, with the exception of Plaintiff, the witnesses

who testified at the Pavey hearing will almost certainly be entirely different from the

witness that may be offered at trial.

Accordingly, the Court RECOMMENDS that the District Court GRANT the Joint

Motion for Pavey Hearing (Doc. 72) and consider the undersigned’s findings of fact and

conclusions of law with respect to the Pavey hearing, because this exhaustion dispute is

not intertwined with the ultimate merits of Plaintiff’s claims.

The Pavey Hearing

At the Pavey hearing on June 30, 2025, Attorney Evan CreelGould appeared for the

Illinois Department of Corrections (IDOC) Defendants, Attorney Tim Dugan appeared

for Nurse Giacomo, and Plaintiff appeared pro se by video. Defendants presented

testimony from two witnesses, including Grievance Officer Jeffrey Olson and ARB

Chairperson Ryan Nothnagle. Plaintiff cross-examined both witnesses and offered his

own testimony. The Court took the matter under advisement while the parties filed

Supplemental Perttu Briefs (see Doc. 83). Having now recommended that this case does

not present any Perttu intertwinement concerns, the Court turns to the issue of whether

administrative remedies were available to Plaintiff at Menard.

A. Findings of Fact

According to Grievance Officer Olson and ARB Chairperson Nothnagle, every

inmate at Menard receives an orientation manual outlining the prison’s grievance process

(Doc. 90, p. 13, ll. 21-23). This process requires an inmate to complete the following steps

to exhaust a grievance about his conditions of confinement4 (Id. at pp. 11-13). The inmate

first files a grievance with his counselor. If this does not resolve the matter, the inmate

submits the grievance to a Grievance Officer, who reports findings and recommendations

in writing to the Chief Administrative Officer (Warden). The Warden then provides the

inmate with a written decision. If the issue is not resolved, the inmate appeals the decision

4 These steps are also set forth at 20 ILL. ADMIN. CODE § 504.800, et seq. (2017).

to the IDOC Director through the ARB. Along with the appeal, the inmate is required to

attach copies of the Grievance Officer’s report and Warden’s decision. The ARB considers

the matter and submits a written report of its findings and recommendations to the IDOC

Director for a final determination (Id).

An inmate facing an emergency uses a different route to exhaust his remedies

(Doc. 90, p. 15, ll. 17-25). Emergency grievances are sent directly to the Warden. If deemed

an emergency, the Warden expedites the matter. If deemed a non-emergency, the Warden

returns the grievance to the inmate for re-filing at each step of the grievance process5 (Id.).

Filing a grievance directly with the ARB is not considered proper procedure6

(Doc. 90, pp. 24-25, 33). Submitting an appeal to the ARB without including the Grievance

Officer’s response and Warden’s decision is also improper. When the ARB receives an

improper grievance or appeal, the ARB generally checks a box indicating the grievance

is noncompliant and returns it to the inmate for re-filing through normal channels (Id.).

Plaintiff testified that he was very familiar with Menard’s grievance process in

2022 (Doc. 90, p. 41, ll. 18-22). He had been incarcerated for 30 years and used the process

regularly. Over time, Plaintiff learned to expect no institutional response to certain types

of grievances, including those about staff misconduct as in this case (Id. at pp. 39-40).

When he filed said grievances, Plaintiff used a different approach to document his efforts

to exhaust. Specifically, Plaintiff filed each grievance in the prison’s grievance box and

5 Beginning September 1, 2023, all non-emergency grievances were automatically sent back through the

normal grievance channels for processing (Doc. 90, p. 27, ll. 19-25; p. 28, ll. 1-3).

6 There are exceptions for grievances about certain issues arising at another facility (Doc. 90, pp. 26, 33).

None of these exceptions applied to Plaintiff.

also sent a handwritten copy to the ARB (Id. at p. 40, ll. 17). In 2022, the metal grievance

box was easily breached (Id. at pp. 41-42). Grievances could be extracted from the box

using a pen. Consequently, inmate grievances regularly went missing. After inmates

complained, the metal box was eventually replaced with a wooden box (Id. at p. 42).

When sending his grievances directly to the ARB, Plaintiff described his difficulties

getting institutional level responses, and he requested the ARB’s help (Id.). Plaintiff knew

this was not the proper grievance procedure, but this was also the only way to document

his efforts to exhaust (Id. at ll. 19-20).

Grievance Officer Olson admits that staffing and resource shortages caused delays

in processing grievances at Menard in 2022 (Doc. 90, p. 17, ll. 24-25; p. 18, ll. 5-9). Inmates

with medical complaints had to wait 1- to 2- years to receive grievance responses (Id.). To

check on the status of a grievance, Olson explained that inmates could file a “kite” with

the grievance office (Id. at p. 17, ll. 14-22). Making an inquiry did not reduce the grievance

response time, but it helped inmates determine whether their grievances were lost (Id.).

The grievances at issue were all filed about staff misconduct in 2022 (Doc. 90, p.

23, ll. 20-25). Plaintiff did not receive an institutional response to any, and he believed

each grievance was lost (Id. at pp. 44-46). The ARB rejected each grievance as improperly

filed. When he commenced this lawsuit, Plaintiff was surprised that the IDOC could

produce receipts or responses for the grievances dated July 11, July 12, July 13, and

October 3, 2022 (Id. at p. 41, ll. 8-14; pp. 47-48). He thought the prison discarded,

destroyed, misplaced, or lost them (Id. at pp. 44, 47-48). Plaintiff points out that each

institutional grievance response lacked his signature because he never signed a response

indicating he received it (Id. at p. 53).

B. Conclusions of Law

The Prison Litigation Reform Act (“PLRA”) requires inmates who have complaints

about prison conditions to exhaust all available administrative remedies before bringing

suit in federal court. 42 U.S.C. § 1997e(a). When a motion for summary judgment on the

issue of exhaustion presents material factual disputes and no Perttu intertwinement

problems, the Court conducts an evidentiary hearing to resolve contested issues of fact

concerning a prisoner’s efforts to exhaust, see Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.

2008). After hearing evidence, finding facts, and determining credibility, the Court must

decide whether to allow a claim to proceed or to dismiss it for failure to exhaust. See id.;

Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018). Summary judgment is proper when

there is no genuine issue as to any material fact and the movant is entitled to judgment

as a matter of law. See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

To properly exhaust administrative remedies, a prisoner must “file complaints

and appeals in the place, and at the time, the prison’s administrative rules require.” Pozo

v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “[A] prisoner who does not properly

take each step within the administrative process has failed to exhaust state remedies.” Id.

at 1024.

Although the Seventh Circuit requires strict adherence to the exhaustion

requirement, an inmate is required to exhaust only those administrative remedies that

are available to the inmate. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Prison

officials cannot utilize the exhaustion process to unfairly prejudice inmates. Grievance

procedures are unavailable to prisoners where prison officials do not respond to properly

filed inmate grievances or use affirmative misconduct to prevent prisoners from pursuing

administrative remedies. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016) (citing Dole,

438 F.3d at 809).

The exhaustion requirement is an affirmative defense, which Defendants bear the

burden of proving. Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011); Banks v. Patton, 743

F. Appx. 690, 695 (7th Cir. 2018). When considering availability, Defendants bear the

burden of showing “beyond dispute” that Plaintiff’s administrative remedies were

available to him. Ramirez v. Young, 906 F.3d 530, 533 (7th Cir. 2018). This unavailability

exception to the exhaustion requirement is nevertheless, “meant to be narrow.” Wallace

v. Baldwin, 55 F.4th 535, 543 (7th Cir. 2022).

Here, Defendants have not met their burden of showing “beyond dispute” that

Plaintiff’s administrative remedies were available to him. Ramirez v. Young, 906 F.3d 530,

533 (7th Cir. 2018). Admittedly, it is undisputed that Plaintiff failed to comply with the

grievance procedure because he filed each grievance at the prison and simultaneously

sent a copy to the ARB. As a result, the ARB rejected each copied grievance for failing to

include a counselor’s response, grievance officer’s response, or CAO’s decision. Thus,

Plaintiff did not comply with the process outlined in the Illinois Administrative Code for

these grievances. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017).

However, Plaintiff presented credible testimony that the institutional grievance

process was unavailable. Plaintiff testified that over the course of 30 years in prison, he

became accustomed to receiving no responses to grievances addressing certain topics,

including staff misconduct (Doc. 90 at pp. 39-40). This is why he adopted the practice of

both placing his grievances in the grievance box and sending a copy to the ARB (Id.). In

addition, the metal grievance box was not secure and was frequently blamed for

grievances that went missing (Id. at pp. 41-42). For those grievances that reached

grievance officials, Grievance Officer Olson admits that grievance responses were

delayed up to 1 or 2 years (Id. at pp. 20-21).

The grievances at issue were filed in 2022, at a time when Grievance Officer Olson

described shortages in staff and resources that caused significant delays in grievance

processing at Menard. Plaintiff testified that he received no receipt, no response, and no

returned copy of his grievances. He was surprised when the IDOC produced copies of

receipts and responses in conjunction with this lawsuit. However, Plaintiff credibly

claims that he did not receive these receipts or responses before filing the lawsuit, and

that is why the responses do not bear his signature. Ultimately, based on the evidence

and arguments proffered by the parties related to Plaintiff’s grievances filed at the

institutional level, the Court finds that Plaintiff’s administrative remedies were

unavailable at Menard. Therefore, Plaintiff was not required to exhaust the institutional

grievance process before filing this lawsuit.

The undersigned RECOMMENDS that the District Court ADOPT the findings of

fact and conclusions of law and FIND that the grievance process was unavailable to

Plaintiff.

Recommendation

Based on the foregoing, it is RECOMMENDED that the District Court GRANT

the Joint Motion for Pavey Hearing (Doc. 72), ADOPT the findings of fact and conclusions

of law, FIND that the grievance process was unavailable to Plaintiff, and ALLOW Counts

1 and 2 to proceed.

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties may object to

any or all of the proposed dispositive findings in this Report and Recommendation

within 14 days of service (see attached Notice). The failure to file a timely objection may

result in the waiver of the right to challenge this Report and Recommendation before

either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279,

284 (7th Cir. 2004).

DATED: February 9, 2026

/s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge