Blakes v. Godinez et al

Filing 67

CASE MANAGEMENT ORDER entered by Judge Sue E. Myerscough on 9/11/2018. Plaintiff's motion for leave to file a second amended complaint is granted pursuant to FRCP 15, d/e 45 . Plaintiff's motion to supplement the second amended complaint to add his requested damages is also granted, d/e 62 . Plaintiff's motion to file an affidavit in support of his response to the summary judgment motion, and Defendants' motion for additional time to file a reply to Plaintiff's resp onse are both granted, d/e's 57 and 58 . Defendants have filed their reply. Defendants' motion for summary judgment on the issue of exhaustion of administrative remedies is granted in part and denied in part, d/e 48 . Defendants Hami lton, Korte and all John Does are dismissed. The following new defendants are added: Mark Smith; Thomas Thompson; John Peterson; Heath McDowell; Derek Durbin; Monte Waterman; Mario Catarinachhia; Darryl Davenport; Garret Nickle; Troy Greene; John Sonneborn; Peter Sitch; John Brotz; Josh Durbin; Sean Anderson; Duran Rademaker; T. J. Swarts; Tony Riss; Joe Curry; Ashley Shafer and Fred Burns. Pavey hearing to be scheduled. (SEE WRITTEN CASE MANAGEMENT ORDER) (MAS, ilcd)

E-FILED

Tuesday, 11 September, 2018 09:41:21 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS

MICHAEL BLAKES,
Plaintiff,
v.
DIRECTOR GODINEZ, et. al.,
Defendants.

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CASE NO. 16-CV-3107

CASE MANAGEMENT ORDER
Sue E. Myerscough, U.S. District Judge.
This cause is before the Court for consideration of Plaintiff’s
motion for leave to file an amended complaint, [45]; Plaintiff’s
motion to supplement his proposed amended complaint, [62];
Defendants motion for summary judgment on the issue of
exhaustion of administrative remedies, [48]; Plaintiff’s motion to file
an affidavit in support of his response to the dispositive motion,
[57]; and Defendants’ motion for additional time to file a reply to
Plaintiff’s response to the dispositive motion, [58].
I. BACKGROUND

Page 1 of 32 

Plaintiff, a pro se prisoner, filed his lawsuit pursuant to 42
U.S.C.§1983 alleging his constitutional rights were violated at
Western Illinois Correctional Center based on facility-wide
shakedowns and searches. Plaintiff currently has the following six
claims before the Court:
1) John Doe Orange Crush Team Members violated Plaintiff’s
Eighth Amendment rights during a strip search and
shakedown on April 16, 2014;
2) John Doe Orange Crush Team Members violated Plaintiff’s
his Eighth Amendment rights during a shakedown on April 18,
2014;
3) John Doe Orange Crush Team Members were deliberately
indifferent to Plaintiff’s serious medical condition on April 16,
2014;
4) John Doe Orange Crush Team Members used excessive
force against the Plaintiff in violation of his Eighth Amendment
rights on April 18, 2016;
5) Defendants Major Byron Law, Lieutenant John Hamilton,
John Doe #1 and John Doe #2 failed to intervene to stop the
violation of Plaintiff’s constitutional rights on April 16, 2014,
and April 18, 2014; and,
6) Defendants IDOC Director Salvador Godinez and Warden
Jeff Korte violated Plaintiff’s Eighth Amendment rights based
on the unconstitutional policy and practice of the Orange
Crush Teams. See July 22, 2016 Merit Review Order.
After repeated efforts to identify the John Doe Defendants,

Page 2 of 32 

Plaintiff filed a motion for substitution. See November 16, 2016 Text
Order; [21, 22, 23]. However, Plaintiff’s motion left confusion
concerning his intended claims.See September 5, 2017 Case
Management Order. Therefore, to clarify the record, Plaintiff was
directed to file an amended complaint “clearly setting forth each of
his intended claims against each of the identified Defendants.”
September 5, 2017 Case Management Order, p. 9.
II. MOTION TO AMEND
Plaintiff’s motion for leave to amend is granted pursuant to
Federal Rule of Civil Procedure 15. See Fed.R.Civ.P. 15.
Nonetheless, the Court is still required by 28 U.S.C. §1915A to
“screen” the Plaintiff’s amended complaint, and through such
process to identify and dismiss any legally insufficient claim, or the
entire action if warranted. A claim is legally insufficient if it “(1) is
frivolous, malicious, or fails to state a claim upon which relief may
be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. §1915A.
Plaintiff’s second amended complaint lists 53 separate
Defendants and again refers to two facility-wide events which

Page 3 of 32 

occurred on April 16, 2014 and April 18, 2014 at Western Illinois
Correctional Center.
On April 16, 2014, Plaintiff says the Orange Crush Team
entered his housing unit and yelled for all inmates to “strip.” (Amd.
Comp., p. 6). After Plaintiff complied, Defendants John Peterson
and Mark Smith physically searched Plaintiff ordering him to
spread his buttocks, lift his penis, and then use his fingers to open
his mouth. Plaintiff claims female officers were able to watch the
entire strip search.
Plaintiff was allowed to dress before Defendants Peterson and
Smith handcuffed him. Plaintiff says the handcuffs were
intentionally applied in a painful way with his palms out and his
thumbs facing up. When Plaintiff and other inmates complained of
pain, they were told to shut up.
Defendant Lenning ordered Plaintiff to put his head on the
inmate in front of him and he was forced to walk in this manner all
the way to the gym. Plaintiff complained he needed medical
attention for his back and wrist pain, but Defendant Smith again
told Plaintiff to shut up or he would be going to segregation.

Page 4 of 32 

Plaintiff claims several inmates lifted their heads to complain
about pain, but officers responded with violence. Plaintiff does not
allege any specific officer hit him or used any violence against him
during this time. However, Plaintiff says several officers were
clearly aware he was suffering in pain, but they failed to intervene
including: Steve Ryan, Steve Fulford, Octavis Payne, Trent Karnes,
Stephen Bradshaw, Roger Stirrett, Nicole Berry, Brian Moore,
Rebecca Chadwell, Chris Gideon, Caleb Duckett, Jeremy Harris,
Matt Beswick, Jacob Clements, Justin Dannehold, Lucas Edgar,
Josh Eichelberger, Kenneth Evans, John Graham, Chris Icenogle,
Brant Mountain, Kyle Mountain, Kendall Stinebaker, Fred Burns,
and Joe Curry. (Amd. Comp., p. 8).
Once the inmates arrived at the gym, Defendant Matt Smith
ordered Plaintiff and the other handcuffed inmates to stand with
their heads down and foreheads against the wall. Plaintiff says he
remained in this position for two hours without use of a bathroom,
water, or medical treatment. An officer yelled, “Thank your fellow
inmates for this shit, if you ask us for anything you’re getting
fucked up.” (Amd. Comp., p. 9).

Page 5 of 32 

Plaintiff says several officers again failed to intervene. Plaintiff
lists all of the same officers with the exception of Fred Burns and
Joe Curry. Instead, Plaintiff adds Defendants John Hamilton and
Byron Law to the list of officers who failed to intervene while
Plaintiff was forced to stand for two hours in the gym. (Amd. Comp.,
p. 9).
Eventually, Defendants Kenneth Evans and John Graham
pulled Plaintiff out of the line and took him to segregation. Plaintiff
claims the officers twisted his arms and ignored his requests for
medical treatment. Once in segregation, Plaintiff was again strip
searched. Plaintiff does not say who conducted this second search,
nor why he was sent to segregation.
On April 18, 2014, the Orange Crush Team entered the
segregation unit “and applied the same shakedown procedures.”
(Amd. Comp., p. 10). Plaintiff does not specifically state whether
inmates were strip searched. However, the Court notes Plaintiff
does not allege a strip search was conducted during this second
encounter in either of his two previous complaints. (Comp,[1], p. 7;
Amd. Comp., [11], p. 7). Instead, Plaintiff says the handcuffs were

Page 6 of 32 

again applied in a painful manner, the inmates were escorted to the
segregation yard, and forced to kneel on cement with their heads
leaning on a gate. Plaintiff says Defendant Law issued the orders to
the inmates and Defendant Smith applied the handcuffs to Plaintiff.
After 30 minutes in this position, Plaintiff says he fell to the
ground in extreme pain. Defendant Smith and others then began
kicking Plaintiff and forced him back to his knees.
Plaintiff again says several officers witnesses the incident, but
failed to intervene including: Defendants Thomas Thompson, John
Peterson, Heath McDowell, Derek Durbin, Monte Waterman, Mario
Catarinacchia, Darryl Davenport, Garret Nickle, Troy Greene, John
Sonneborn, Peter Sitch, John Brotz, Josh Durbin, Sean Anderson,
Duran Rademaker, T.J. Swarts, Tony Riss, Joe Curry, Ashley
Shafer, and Fred Burns. (Amd. Comp., p. 11).
As a result of the two incidents, Plaintiff says he suffered with
severe pain in his wrists, neck, and back, as well as severe
headaches, dizziness, blurred vision, and emotional distress.
Plaintiff says the two shakedowns conducted at Western
Illinois Correctional Center in April of 2014 were part of a policy

Page 7 of 32 

and practice within the Illinois Department of Corrections (IDOC)
which allowed the same humiliating and painful searches at
facilities throughout the state. Plaintiff claims Defendants Warden
Korte, Illinois Department of Corrections (IDOC) Director Godinez
and Chief of Operations Yurkovich were responsible for these
policies and practices.
Based on the allegations in his complaint, Plaintiff says the
two shakedowns violated his Eighth Amendment rights, the
Defendants conspired to violate his Eighth Amendment rights,
Defendants failed to intervene to stop the Eighth Amendment
violation, Defendants were deliberately indifferent to his serious
medical condition, and Defendants committed the state law tort of
intentional infliction of emotional distress.
Plaintiff has adequately stated each claim. However, Plaintiff
is advised he may not recover damages for his official capacity
claim. See Williams v. Wisconsin, 336 F.3d 576, 580 (7th Cir. 2003).
Instead, he is limited to declaratory and injunctive relief. Id. at 581.
Furthermore, since Plaintiff’s official capacity claim is based
on an overall IDOC policy or practice, the appropriate Defendant for

Page 8 of 32 

his official capacity claim is IDOC Director Godinez, not the
Warden
or Chief of Operations. Therefore, the Court will dismiss
Defendants Korte and Yurkovich since Plaintiff does not allege an
individual capacity claim against either Defendant. See Wilson v.
Warren Cty., Illinois, 2016 WL 3878215, at *3 (7th Cir. 2016)(to be
held liable under §1983, a plaintiff must “show that the defendants
were personally responsible for the deprivation of their rights.”).
The Court also notes it is unfortunate the second amended
complaint includes so many Defendants when it is doubtful each of
the named individuals was directly involved with the Plaintiff.
However, Plaintiff says the Orange Crush Team was wearing gear
which hid their identities. When the Court asked Defendants to
provide the names of the Orange Crush team members who
participated in the two specific searches in the two specific areas
mentioned, Defendants provided all of the names Plaintiff has
identified in his second amended complaint. [21]. In addition,
Defendants chose not to file a response to Plaintiff’s motion for leave
to amend his complaint.

Page 9 of 32 

Therefore, based on the Court’s review of Plaintiff’s second
amended complaint, Plaintiff has articulated the following claims1:
1) Defendants John Peterson and Mark Smith violated
Plaintiff’s Eighth Amendment rights during a strip search and
shakedown on April 16, 2014.
2) Defendants Peterson, Smith, and Lenning violated Plaintiff’s
Eighth Amendment rights when Plaintiff was handcuffed too
tight, forced to walk in a painful manner, and forced to stand
with his head against the gym wall for approximately two
hours on April 16, 2014.
3) Defendants Steve Ryan, Steve Fulford, Octavis Payne, Trent
Karnes, Stephen Bradshaw, Roger Stirrett, Nicole Berry, Brian
Moore, Rebecca Chadwell, Chris Gideon, Caleb Duckett,
Jeremy Harris, Matt Beswick, Jacob Clements, Justin
Dannehold, Lucas Edgar, Josh Eichelberger, Kenneth Evans,
John Graham, Chris Icenogle, Brant Mountain, Kyle
Mountain, Kendall Stinebaker, Fred Burns, and Joe Curry
violated Plaintiff’s Eighth Amendment rights when they failed
to intervene during the painful and humiliating walk to the
gym on April 16, 2014.
4) Steve Ryan, Steve Fulford, Octavis Payne, Trent Karnes,
Stephen Bradshaw, Roger Stirrett, Nicole Berry, Brian Moore,
Rebecca Chadwell, Chris Gideon, Caleb Duckett, Jeremy
Harris, Matt Beswick, Jacob Clements, Justin Dannehold,
Lucas Edgar, Josh Eichelberger, Kenneth Evans, John
Graham, Chris Icenogle, Brant Mountain, Kyle Mountain,
Kendall Stinebaker, John Hamilton, and Byron Law failed to
intervene when Plaintiff was made to stand in a painful
position in the gym for approximately two hours on April 16,
2018.
For clarification, although Plaintiff mentions the impact the searches and
shakedowns had on other inmates, the claims before the Court are limited to
the Plaintiff. This is not a class action or multi-plaintiff lawsuit.
1

Page 10 of 32 

5) Defendants Smith, Evans, and Graham were deliberately
indifferent to Plaintiff’s serious medical condition when they
refused Plaintiff’s requests for medical care for his pain on
April 16, 2018.
6) Defendants Law and Smith violated Plaintiff’s Eighth
Amendment rights on April18, 2014 when handcuffs were
applied in a painful manner and Plaintiff was forced to kneel
for more than 30 minutes.
7) Defendant Smith used excessive force on April 18, 2018
when he repeatedly kicked Plaintiff after he fell in pain.
8)Defendants Thomas Thompson, John Peterson, Heath
McDowell, Derek Durbin, Monte Waterman, Mario
Catarinachhia, Darryl Davenport, Garret Nickle, Troy Greene,
John Sonneborn, Peter Sitch, John Brotz, Josh Durbin, Sean
Anderson, Duran Rademaker, T.J. Swarts, Tony Riss, Joe
Curry, Ashley Shafer, and Fred Burns failed to intervene on
April 18, 2014.
9) Defendant Godinez violated Plaintiff’s Eighth Amendment
rights based on an unconstitutional IDOC policy regarding
humiliating and painful strip searches and shakedowns.
10) All named Defendants conspired to violate Plaintiff’s
Eighth Amendment rights.
11) All named Defendants committed the state law tort of
intentional infliction of emotional distress.
III.MOTION TO SUPPLEMENT
Plaintiff has also filed a motion to supplement his second
amended complaint. [62]. Typically, the Court does not allow

Page 11 of 32 

piecemeal amendments to complaints in order to avoid confusion
over potential claims and defendants. However, Plaintiff is only
asking to add the dollar amount of damages he is requesting.
Therefore, the motion is granted. [62].
IV.MOTION FOR SUMMARY JUDGMENT
Defendants have filed a motion for summary judgment on the
issue of exhaustion of administrative remedies. [48]. Plaintiff’s
motion to file an affidavit in support of his response to the
dispositive motion, and Defendants’ motion for additional time to
file a reply to Plaintiff’s response are both granted. [57, 58].
Defendants have now filed their reply, and the Court will consider
all documents filed by the parties.
A. LEGAL STANDARD
The Court shall grant summary judgment 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). A movant may demonstrate the absence of a material
dispute through specific cites to admissible evidence, or by showing
that the nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed.R.Civ.P. 56(c)(B). If the movant
Page 12 of 32 

clears this hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to admissible
evidence in the record to show that a genuine dispute exists. Id.;
Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011).
“In a §1983 case, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must
come forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the
light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id.
B. FACTS
As noted, Plaintiff’s allegations occurred at Western Illinois
Correctional Center on April 16, 2014 and April 18, 2014. Plaintiff
filled out three separate grievances on April 23, 2014 and one
grievance on April 28, 2014. None of the grievances were submitted
Page 13 of 32 

through the emergency grievance procedures and only two of the
four grievances pertain to the claims before the Court.
For instance, in the first grievance dated April 23, 2014,
complained that members of the Orange Crush Team shook down
Plaintiff’s cell on April 16, 2014 and took several items of personal
property including a pillow, trimmers, a chessboard, lotion, gym
shoes, sweatpants, and other items. (Def. Resp., [26], Ex. A, p. 2).
The Administrative Review Board (ARB) received the grievance on
July 9, 2014 and informed Plaintiff he needed to first address
issues concerning personal property at his current facility prior to
ARB review. (Def. Resp., [26], Ex. A, p. 1).
In Plaintiff’s second April 23, 2014 grievance, Plaintiff said he
was placed on investigative status on April 16, 2014, but he was
not allowed to keep all of his property. The ARB also received this
grievance on July 9, 2014 and returned it to the Plaintiff. Plaintiff
was again directed to address the issue first at his facility, and to
include a copy of the grievance officer and warden’s response with
any appeal to the ARB. (Def. Resp., [26], Ex. A, p. 3).
Plaintiff’s final grievance dated April 23, 2014 addresses some,
but not all of the claims currently before the Court. (Def. Resp.,
Page 14 of 32 

[26], Ex. A, p. 6-7). Plaintiff notes he was placed in segregation on
April 16, 2018. However, the focus of his grievance pertains to April
18, 2014. Plaintiff says on this day, members of the Orange Crush
Team handcuffed him and forced him to kneel on concrete for so
long that he fell to the ground. Plaintiff claims the officers then
kicked him and forced him to continue kneeling. (Def. Resp., [26],
Ex. A, p. 6-7).
The grievance is also stamped received by the ARB on July 9,
2014, but it is not clear from the documents presented whether
Plaintiff received a separate response to this grievance, or the ARB’s
previous responses were also meant to include this grievance. (Def.
Resp., [26], Ex. A). In other words, Plaintiff submitted three
grievances dated April 23, 2014, each was received by the ARB on
July 9, 2014, but Plaintiff received only two responses from the
ARB.
On April 28, 2014, Plaintiff filled out a fourth grievance and
this document pertains to both incidents in Plaintiff’s complaint.
(Def. Resp., [26], Ex. A, p. 9-10). Plaintiff says on April 16, 2014,
the Orange Crush Team shook down his cell, handcuffed him, and
took Plaintiff to the gym where he was forced to stand for over an
Page 15 of 32 

hour. Plaintiff again complains about officers taking his personal
property.
Plaintiff was taken from the gym to segregation and claims
officers were “severely twisting” his arms and shoulders backwards
while escorting Plaintiff to his new cell. (Def. Resp., [26], Ex. A, p. 910).
Plaintiff then alleges on April 18, 2014, the Orange Crush
Team shook down segregation cells. This time Plaintiff says he was
taken to the yard where he was forced to kneel on concrete for
about 30 minutes before he fell over in pain. Plaintiff says officers
kicked him and forced him back to his knees. (Def. Resp., [26], Ex.
A, p. 10).
The ARB received this grievance on May 5, 2014, but refused
to consider it. (Def. Resp., [26], Ex. A, p. 8). Instead the grievance
was returned to Plaintiff again reminding him he must first address
the issue at his facility and provide a copy of the grievance officer’s
and warden’s response with any appeal to the ARB.
Grievance Officer Tara Goins is familiar with all grievance
procedures at Western Illinois Correctional Center and the Illinois
Department of Corrections (IDOC). (Def. Reply, [59], Goins Aff., p.
Page 16 of 32 

1). Any inmate who wishes to file a grievance must use the
grievance form and indicate what happened, when it occurred, and
who was involved. The inmate must then sign and date the
document and place it in the grievance box on the wing of each
housing unit. The grievance officer then collects the grievances
from the box once a week. (Def. Reply, [59], Goins Aff., p. 1).
Goins says she reviews each grievance to see if it is marked as
an emergency or if it concerns a disciplinary issue. If the document
is marked as an emergency, then the grievance officer sends it to
the Warden’s office. If the grievance concerns a disciplinary issue,
the grievance bypasses the grievance counselor, and the issue is
directly addressed by the grievance officer. (Def. Reply, [59], Goins
Aff., p. 1).
All other grievances are given to the offender’s assigned
counselor. The grievance counselor then provides a response to the
inmate. If the inmate is not satisfied with that response, the inmate
can then appeal to Grievance Officer Goins. (Def. Reply, [59], Goins
Aff., p. 2). Grievance Officer Goins says when a grievance was
appealed, she would log the date received and then provide a
response to the inmate.
Page 17 of 32 

The name of the grievance counselor for each wing is posted in
the housing unit. (Def. Reply, [59], Goins Aff., p. 3). Officer Mark
Grille was Plaintiff’s assigned counselor from April 23, 2014 to May
6, 2014. Plaintiff’s assigned counselor in June of 2014 was Officer
Roger Landon who is currently on military leave. (Def. Reply, [59],
Goins Aff., p. 3).
Counselor Gille says he was assigned to all offenders housed
in Unit 1, C wing from February of 2014 through May of 2014. (Def.
Reply, [59], Gille Aff., p. 1). Gille states it was his practice to
respond to any grievance within two weeks of receipt unless he was
waiting for a response from a specific department. If Gille had not
received a department response within 60 days, he would fill out
the counselor’s response section of the grievance instructing the
inmate to send his grievance on to the grievance officer. (Def. Reply,
[59], Gille Aff., p. 1-2).
Gille says he has no memory of receiving any grievances from
the Plaintiff concerning April 2014 cell shakedowns or searches.
Grievance Officer Goins also says she has reviewed her
grievance log for 2014 and she has no record of any grievance from

Page 18 of 32 

the Plaintiff at Western concerning cell shakedowns in April of
2014. (Def. Reply, [59], Goins Aff., p. 2).
Goins admits sometimes inmates send letters to her asking
about the status of a grievance.
[I]t is my practice to check my log to see if I have a record
of receiving the grievance. If I have a record of it, I draft a
memo to the offender letting him know that I have
received his grievance and give him the grievance number.
If I do not have a record of receiving the grievance, I will
draft a memo to the offender letting him know I have
no record of receiving his grievance and instruct him to
follow up with his assigned counselor…Whether I have a
record of the grievance or not, I always respond to
the offenders request for status. ((Def. Reply, [59], Goins
Aff., p. 3).
C. ANALYSIS
Defendants argue Plaintiff cannot demonstrate he exhausted
his administrative remedies as required before filing his lawsuit on
April 14, 2016. The Prison Litigation Reform Act (PLRA) bars a
prisoner from filing actions under federal law “until such
administrative remedies as are available are exhausted.” 42 U.S.C.
§1997e(a). “To exhaust 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,

Page 19 of 32 

1025 (7th Cir.2002). If a prisoner fails to follow the specific
requirements, his case will be dismissed. Id.
However, an inmate is only required to pursue “available”
administrative remedies. 42 U.S.C. §1997e(a). The PLRA does not
define “availability” for purposes of the exhaustion requirement.
However, the Seventh Circuit has held that the “availability of a
remedy is not a matter or what appears on paper, but, rather,
whether the paper process was in reality open for the prisoner to
pursue.” Wilder v Sutton, 2009 WL 330531 at *3 (7th Cir. Feb. 11,
2009) citing Kaba v Stepp, 458 F.3d 678, 684 (7th Cir. 2006). For
instance, the grievance procedure is unavailable “if prison
employees do not respond to a properly filed grievance or otherwise
use affirmative misconduct to prevent a prisoner from exhausting.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). “In such cases,
the prisoner is considered to have exhausted his administrative
remedies.” Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016); see
also Turley v. Rednour, 729 F.3d 645, 650 n. 3 (7th Cir. 2013)
(collecting cases).

Page 20 of 32 

Since exhaustion is an affirmative defense, the burden of proof
is on the defendants. See Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006).
Defendants argue Plaintiff did not name the Defendants or
include all of his allegations in his grievances. The exhaustion
requirement was designed to give prison officials the chance to
address an inmate’s complaint internally before the filing of federal
litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
Therefore, an inmate is not required to name each Defendant as
long as the grievance alerts prison staff to the nature of the
problem, so prison officials are afforded an opportunity to respond
to the alleged problem. See Westefer v. Snyder, 422 F.3d 570, 580
(7th Cir. 2005); Pavey, 663 F.3d at 905-06; see also Conley v.
Mathes, 2010 WL 3199750, at *3 (C.D.Ill. Aug.10, 2010)( the
majority of the federal courts of appeals have not endorsed a
requirement that a defendant to a civil suit first be named in an
inmate's prison grievance to constitute exhaustion under 42 U.S.C.
§ 1997e(a).”); Shaw v. Frank, 2008 WL 283007 at 10 (E.D.Wis. Jan.
31, 2008) (“the standard is whether the offender complaint would
put an official on notice of the plaintiff's claim.”).
Page 21 of 32 

The Plaintiff clearly alleges the officers were members of the
Orange Crush Team wearing “tactical gear” which covered their
faces and therefore Plaintiff could not identify them by name. (Def.
Resp., [26], Ex. A, p. 9). In short, Plaintiff provided sufficient notice
that his complaints involved members of the tactical team.
In addition, Plaintiff provided enough details of the alleged
events on April 18, 2014 to put the Defendants on notice of his
claims. For instance, Plaintiff states in two grievances that he was
handcuffed and forced to kneel on cement for more than 30
minutes. (Def. Resp., [26], Ex. A, p. 6, 10). Plaintiff also claims
when he fell in pain, officers picked him up and forced him to
continue kneeling. (Def. Resp., [26], Ex. A, p. 6, 10).
However, Plaintiff’s grievances do not include all of the
allegations before this Court concerning the events of April 16,
2014. In fact, Plaintiff’s biggest complaint in two of the four
grievances is that officers took his property.
However, one of Plaintiff’s April 23, 2016 grievances and his
April 28, 2014 grievance both mention the time Plaintiff spent in
the gym. (Def. Resp., [26], Ex. A, p. 6-7, 9-10). Plaintiff says he was
handcuffed and made to stand with his head on the wall for over an
Page 22 of 32 

hour. Plaintiff again mentions officers taking his property and
officers twisting his arms and shoulders when he was later moved
to segregation. (Def. Resp., [26], Ex. A, p. 9-10). However, Plaintiff
makes no mention of a strip search or female officers in the vicinity.
(Def. Resp., [26], Ex. A, p. 9-10). Plaintiff makes no mention of
officers applying handcuffs too tightly or forcing him to walk in a
painful manner to the gym. (Def. Resp., [26], Ex. A, p. 9-10).
In his response to the dispositive motion, Plaintiff fails to
explain why none of this information was included in any grievance
and why he failed to put the Defendants on notice of these claims.
Instead, Plaintiff simply says the “institution was put on notice”
that he “had issues regarding his handcuffs and the condition in
the gym.” (Plain. Resp., [56], p. 3).
Therefore, the Court finds Plaintiff has failed to properly
exhaust his administrative remedies for any claims involving a strip
search or a painful and humiliating walk to the gym on April 16,
2014, so the motion for summary judgment is granted as to these
two claims.

Page 23 of 32 

Defendants also argue Plaintiff failed to abide by the
requirements of the grievance procedures because he did not first
address his complaints at his facility before appealing to the ARB.
Defendants maintain Plaintiff frequently ignores the required
procedures, and sends his grievances directly to the ARB. For
instance, the Grievance Officer says Plaintiff has bypassed the
facility grievance procedure on 20 occasions since 2011. (Def.
Reply, [59], Goins Aff., p. 3).
Even when the ARB specifically admonished Plaintiff that he
must first file his grievances at his correctional center, Defendants
argue Plaintiff took no further steps to abide by the grievance
requirements.
In response to the dispositive motion, Plaintiff says he did
attempt to submit a grievance at Western Illinois Correctional
Center. Plaintiff says he sent his relevant grievance dated April 23,
2014 to “the counselor, grievance officer, and warden.” (Plain.
Resp., [56], p. 1, Ex.A). Plaintiff does not explain why he submitted
the grievance to all three individuals. In addition, the Court notes
this grievance is limited to the events which Plaintiff alleges
occurred on April 18, 2018.
Page 24 of 32 

Plaintiff says he next sent a grievance to the ARB on April 28,
2014. However, Plaintiff sent a different grievance to the ARB that
complained about incidents which occurred on both April 16, 2014
and on April 18, 2014. (Plain. Resp., [56], p. 1, Ex. B). Plaintiff
admits he received an ARB response on June 16, 2014 reminding
him he must complete the grievance procedures at his facility before
appealing to the board.
Rather than submit this second grievance at Western Illinois
Correctional Center, “Plaintiff waited for a response to his 4/23/14
grievance.” (Plain. Resp., [56], p. 2). When he heard nothing back,
Plaintiff says he sent letters to the counselor, grievance officer, and
warden on June 29, 2014. (Plain. Resp., [56], p. 2, Ex. C). Plaintiff
has attached three letters and each simply asks why he has not
received a response to his April 23, 2014 grievance. (Plain. Resp.,
[56], Ex. C).
Plaintiff says, when he still had not received a response by
July 7, 2014, he sent a “letter/grievance” to the ARB notifying the
board that Western Illinois Correctional Center was not processing
his grievances. (Plain. Resp., [56], p. 2). Plaintiff says he specifically

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complained he had not received a response to his original grievance
dated July 23, 2014.
Plaintiff has provided a copy of the “letter/grievance” he sent
to the ARB and an affidavit verifying he put the document in the
institutional mail on July 7, 2014 with copies of seven grievances.
(Plain. Resp., [56], p. 14, Ex. D). Plaintiff specifically mentions his
relevant grievance dated April 23, 2014 and the lack of response
received at Western. However, while Plaintiff outlines other
grievances he claims were ignored, he makes no reference to his
grievance dated April 28, 2014. (Plain. Resp., [56], p. 14, Ex. D).
Furthermore, the actual document sent to the ARB refers to
Plaintiff’s previous grievance complaining about officers taking his
property on April 16, 2014 and a previous grievance pertaining to
“staff conduct and being assaulted by staff on 4/18/14.” (Plain.
Resp., [56], Ex. D, p. 17). Plaintiff does not mention any previous
grievances referring to a strip search, a painful and humiliating
walk to the gym, or standing with his head against a wall.
Nonetheless, Plaintiff argues the ARB ignored his complaints
about the grievance process, and continued to give him the “run
around” by again instructing him to submit his grievance at his
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facility before appealing to the ARB. (Plain. Resp., [56], p. 4, Ex. D).
Based on the lack of response to his grievances, Plaintiff says he
exhausted all available administrative remedies.
The Court notes Plaintiff admits he only filed two grievances
which pertain to the claims before the Court. The first is dated April
23, 2014, and the second is dated April 28, 2014.
Plaintiff says he submitted the first, April 23, 2014 grievance
to the appropriate individuals at his correctional center, but he did
not receive a response. Arguably, Plaintiff exhausted all available
administrative remedies.
However, Plaintiff also admits he only submitted the second,
April 28, 2014 grievance to the ARB and he never followed the
required procedures by filing this grievance at his facility. In
addition, any of Plaintiff’s subsequent letters or complaints about a
lack of response only made reference to Plaintiff’s first grievance.
Therefore, Plaintiff did not exhaust his administrative remedies for
his second, April 28, 2014 grievance.
The surviving, April 23, 2014 grievance further limits Plaintiff’s
claims since Plaintiff does not mention the alleged incidents on
April 16, 2014. In fact, the only mention of April 16, 2014 in the
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document is Plaintiff’s statement that he was moved to segregation
on this date.
Therefore, taking all the evidence in the light most favorable to
the Plaintiff, he failed to exhaust his administrative remedies for
any grievance complaining about any incident on April 16, 2018,
and the Court must dismiss any remaining claims pertaining to this
date.
Defendants next argue the Court should also dismiss
Plaintiff’s allegations concerning the second incident on April 18,
2014. Defendants maintain Plaintiff’s claims that he did submit his
surviving grievance at his facility and sent follow-up letters is
simply not credible.
The Court’s “job when assessing a summary judgment motion
is not to weigh evidence, make credibility determinations, resolve
factual disputes and swearing contests, or decide which inferences
to draw from the facts.” Miller v. Gonzalez, 761 F.3d 822, 827 (7th
Cir. 2014). Defendants have not met their burden concerning
Plaintiff’s allegations regarding the second incident on April 18,
2018, and the motion for summary judgment regarding these
claims is denied.
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However, since exhaustion of administrative remedies is an
issue the Court must address before considering the merits of
Plaintiff’s specific claims, the Court will set this matter for a hearing
to address the remaining factual disputes. See Pavey v Conley, 554
F3d. 739, 741 (7th Cir. 2008)(“debatable factual issues relating to
the defense of failure to exhaust administrative remedies” are to be
determined by the judge, not a jury).
CONCLUSION
The motion for summary judgment on the issue of exhaustion
of administrative remedies is granted in part and denied in part.
[48]. Plaintiff now has the following surviving claims:
1) Defendants Law and Smith violated Plaintiff’s Eighth
Amendment rights on April18, 2014 when handcuffs were
applied in a painful manner and Plaintiff was forced to kneel
on cement for more than 30 minutes.
2) Defendant Smith used excessive force on April 18, 2018
when he repeatedly kicked Plaintiff after he fell.
3) Defendants Thomas Thompson, John Peterson, Heath
McDowell, Derek Durbin, Monte Waterman, Mario
Catarinachhia, Darryl Davenport, Garret Nickle, Troy Greene,
John Sonneborn, Peter Sitch, John Brotz, Josh Durbin, Sean
Anderson, Duran Rademaker, T.J. Swarts, Tony Riss, Joe
Curry, Ashley Shafer, and Fred Burns failed to intervene on
April 18, 2014.

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4) Defendant Godinez violated Plaintiff’s Eighth Amendment
rights based on an unconstitutional policy regarding
humiliating and painful strip searches and shakedowns in
IDOC facilities.
5) All named Defendants conspired to violate Plaintiff’s Eighth
Amendment rights.
6)) All named Defendants committed the state law tort of
intentional infliction of emotional distress.
All other claims and Defendants will be dismissed.
This matter will now be set for a Pavey hearing. During the
hearing, the Court will only consider evidence concerning whether
or not Plaintiff exhausted his administrative remedies for his
surviving claims. The Court will not consider any evidence
regarding the veracity of Plaintiff’s surviving claims.
Therefore, the Court will first schedule a telephone status
hearing to determine whether any witnesses or additional evidence
is necessary for the Pavey hearing.
IT IS THEREFORE ORDERED:
1) Plaintiff’s motion for leave to file a second amended
complaint is granted pursuant to Federal Rule of Civil
Procedure 15. [45]. Plaintiff’s motion to supplement the second

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amended complaint to add his requested damages is also
granted. [62].
2) Plaintiff’s motion to file an affidavit in support of his
response to the summary judgment motion, and Defendants’
motion for additional time to file a reply to Plaintiff’s response
are both granted. [57, 58]. Defendants have filed their reply.
3) Defendants motion for summary judgment on the issue of
exhaustion of administrative remedies is granted in part and
denied in part. [48]. Plaintiff’s claims are limited to the events
of April 18, 2014 as outlined in this order.
4) The Court notes Plaintiff’s surviving claims are alleged
against Defendants Law, Smith, Thomas Thompson, John
Peterson, Heath McDowell, Derek Durbin, Monte Waterman,
Mario Catarinachhia, Darryl Davenport, Garret Nickle, Troy
Greene, John Sonneborn, Peter Sitch, John Brotz, Josh
Durbin, Sean Anderson, Duran Rademaker, T.J. Swarts, Tony
Riss, Joe Curry, Ashley Shafer, Fred Burns, and Godinez. The
Clerk of the Court is to add the new Defendants and dismiss
Defendants Hamilton, Korte, and all John Does as Plaintiff has

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failed to articulate a claim upon which relief can be granted
against these individuals.
5) Before addressing service of process of the additional
Defendants, the Court will conduct a hearing pursuant to
Pavey v Conley, 554 F3d. 739 (7th Cir. 2008) to resolve the
remaining factual disputes.
ENTERED: September 11, 2018.
FOR THE COURT:
s/ Sue E. Myerscough
___________________________________________

SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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