Bentz v. Hoppensted et al

Filing 137

ORDER granting in part and denying in part 122 Motion for Summary Judgment. For the reasons stated in the attached Memorandum & Order, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Count 4 is dis missed without prejudice as to Defendant Mayhugh, and he shall be terminated from this action. Count 5 is dismissed without prejudice as to Defendants Brookman, Hart, and Hill, and Defendant Hill shall be terminated from this action. All other claims remain pending. Signed by Magistrate Judge Gilbert C. Sison on 6/29/2020. (kll)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
DAVID ROBERT BENTZ,
Plaintiff,
vs.
JAMES HOPPENSTED,
DARRON WHITLEY,
KENT BROOKMAN,
CLINT MAYER,
ANTHONY WILLS,
JOSHUA BERNER,
CHRISTOPHER FLEMING,
DONALD LINDENBERG,
VERGIL SMITH,
NATHAN BERRY,
MARC CONNER,
JERROD HAYSEMEYER,
RICHARD HARRIS,
CALEB ZANG,
SUSAN HILL,
TONYA KNUST,
LORI OAKLEY,
WILLIAM QUALLS,
JASON HART,
GREGORY MAYHUGH,
RYAN MARTIN, and
CALEB WEBB,1
Defendants.

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Case No. 3:17-cv-654-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
Plaintiff David Robert Bentz, an inmate in the custody of the Illinois Department

The Clerk of Court is DIRECTED to correct the name of Defendant C. Mayer to Clint Mayer, of
Defendant Sgt. Richard Harris to Richard Harris, and of Defendant C/O Ryan Martin to Ryan Martin.
1

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of Corrections (“IDOC”), alleges that Defendants violated his constitutional rights in a
myriad of ways while he was incarcerated at Menard Correctional Center (“Menard”).
By motion dated February 24, 2020, Defendants moved for partial summary judgment
arguing that Bentz failed to exhaust his administrative remedies prior to filing suit. (Doc.
122). Bentz, through appointed counsel, responded in opposition on May 8, 2020, and
supplemented his response without objection on May 15, 2020. (Doc. 133, 134). The Court
held an evidentiary hearing on June 18, 2020. For the reasons delineated below,
Defendants’ motion is granted in part and denied in part.
FACTUAL BACKGROUND
At all times relevant to his amended complaint, Bentz was incarcerated at Menard.
Defendants Susan Hill and Tonya Knust were correctional counselors, and Defendant
Lori Oakley was a correctional/grievance officer at Menard. Defendants Kent Brookman
and Jason Hart were hearing officers on the adjustment committee, and Defendant
Gregory Mayhugh was a clothing officer. Defendants Martin, Webb, Smith, Lindenberg,
Fleming, Berry, Zang, Conner, and Haysemeyer were correctional officers. Defendants
James Hoppensted, Clint Mayer, and Darron Whitley were lieutenants, and Defendants
Joshua Berner, Anthony Wills, Richard Harris and William Qualls were sergeants.
In his amended complaint, Bentz alleges that in April 2015, Defendants Berner,
Smith, Lindenberg, and Fleming destroyed his personal items, legal files, and law books
in retaliation for Bentz filing grievances and lawsuits (Count 1). After the destruction of
his property, Bentz claims that Defendants Berner, Smith, Lindenberg, Fleming, Berry,
Wills, Zang, Mayer, Harris, Conner, Haysemeyer, Hoppensted, Whitley, Qualls, Knust,

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Oakley, and Mayhugh retaliated against him by subjecting him to unconstitutional
conditions of confinement from April 2015 through August 2015. He claims that they
denied him basic needs like a change of clothes, bedding, pillows, linens, and laundry
(Count 4).
Bentz also brings claims related to conduct that took place in 2016. He alleges that
Defendants Hoppensted, Webb, and Martin either used, or failed to intervene against the
use of, excessive force against him on June 27, 2016, again in retaliation for grievances
and lawsuits Bentz had filed (Count 2). After the attack, Bentz claims that he was sent to
punitive segregation without due process by Defendants Hoppensted, Brookman, and
Hart in retaliation for his grievance activity in July 2016 (Count 3) and that he was
subjected to unconstitutional conditions of confinement in segregation by Defendants
Hoppensted, Brookman, Hart, and Hill from July 10, 2016, through August 10, 2016
(Count 5).
As to Count 1, Defendants argue that Bentz failed to exhaust his administrative
remedies against Defendants Smith, Lindenberg, and Fleming. Defendants also argue
that Bentz failed to exhaust his administrative remedies as to all named defendants in
Count 2, Count 4, and Count 5. Defendants concede that Bentz exhausted his remedies
as to Count 3 and as to Defendant Berner in Count 1.
1. Grievances Related to Counts 1 and 4 (2015 Conduct)
The records from the Administrative Review Board (“ARB”) reflect a single
grievance filed in April 2015. On April 14, 2015, Bentz filed a grievance (No. 65-5-15)
related to retaliation, the denial of various property and legal papers, and issues with

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access to the courts and to laundry, showers, and recreation. (Doc. 123-1, p. 156). In the
grievance, Bentz explained that on April 8, 2015, Defendant Berner told him to pack his
property because he was moving to a different cell. He alleged that Berner then sifted
through his legal papers and took those documents that involved lawsuits against Berner
and that Berner took or damaged various other items of Bentz’s personal property.
According to Bentz, Berner acted in retaliation for recent lawsuits he filed,
including one filed against Defendants Lindenberg and Smith. Bentz wrote that he only
had excess legal materials because Defendant Smith denied him storage space for them.
He did not allege that Defendants Lindenberg and Smith destroyed or confiscated his
property, but he did ask that all three be transferred to a different cell house. (Doc. 123-1,
p. 156-157).
Bentz filed another grievance on July 1, 2015, which he labeled “65-5-15 (#2).”
(Doc. 123-1, p. 164). In that grievance, Bentz again addressed the events involving Berner
on April 8, 2015. He wrote that Berner made it “crystal clear his retaliation was also a
result of a recent lawsuit against Donald Lindenberg and Vergil Smith.” He again alleged
that Smith was responsible for denying him access to storage for his legal documents,
resulting in confiscation of his materials, and that “the aforementioned C/Os to include
Berner have made it known to grievant that they will continue to retaliate and punish
this grievant and put grievant . . . in segregation for bogus/false disciplinary tickets . . .
.” (Doc. 123-1, p. 165).
Bentz went on to explain that Defendant Fleming also came to his cell on April 8,
2015, and told him that his property was destroyed in retaliation for filing grievances and

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lawsuits. The grievance goes on to allege that between April 8, 2015, and July 1, 2015,
Bentz asked Defendants Berry, Wills, Lindenberg, Fleming, Smith, Zang, Mayer, Harris,
Berner, Conner, Haysemeyer, and “other unidentified John Does” for his clothing,
property, bedding, and for storage space for his legal materials. (Doc. 123-1, p. 165). Bentz
also mentions the memorandum from Defendant Knust before asking (1) that his
personal property be returned, (2) that his legal materials be returned, (3) that his legal
books be returned, (4) that his damaged lamp and Con Air trimmers be repaired, (5) that
his damaged television be repaired, and (6) that the healthcare unit repair or replace his
eyeglasses, which he claims were damaged. (Doc. 123-1, p. 165).
Defendant Tonya Knust, in her role as grievance counselor, responded to the April
14, 2015 grievance with a memorandum dated April 30, 2015, the same memorandum
mentioned in Bentz’s July 2015 grievance. (Doc. 123-1, p. 154). On July 2, 2015, a grievance
counselor responded to the July 1, 2015 grievance and explained that the issues were
addressed previously and that the grievance was untimely. (Doc. 123-1, p. 164).
Defendant Lori Oakley, in her role as grievance officer, denied the grievance on July 13,
2015. Her response referenced the July 1, 2015 grievance stating: “[a] second grievance is
attached with duplicate issues but added Con Air Trimmer as missing.” (Doc. 123-1, p.
150). The grievance officer, in denying the grievance, found that the “television and
trimmers contract dates are 2010 and have no monetary value.” (Doc. 123-1, p. 151). The
Chief Administrative Officer (“CAO”) concurred in the grievance officer’s decision on
July 23, 2015. (Doc. 123-1, p. 150).

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Bentz timely appealed the denial of the April 2015 grievance to the ARB. The ARB
received the grievance on August 4, 2015. See, e.g., (Doc. 123-1, p. 150). The July 1, 2015
grievance is also stamped as received by the ARB on August 4, 2015. (Doc. 123-1, p. 164).
The ARB responded to the appeal on January 25, 2016. The response classified the
complaint as one for personal property and for retaliation by correctional officers. The
appeal was denied because the ARB found that prison officials appropriately addressed
Bentz’s issues, writing, “[c]laims against C/O’s Berner, Lindenberg, and Smith are
unsubstantiated.” (Doc. 123-1, p. 149).
2. Grievances Related to Count 2 (Excessive Force in June 2016)
In a grievance dated June 30, 2016, Bentz alleged that Defendant Hoppensted used
excessive force against him on June 27, 2016. He wrote that Lieutenant Fricky and John
and Jane Does, including administrative, supervisory, security, and medical personnel,
allowed it to happen and failed to address the assault after it occurred. (Doc. 123-1, p.
102). He refers to Defendant Hoppensted as the person who attacked him and to John
Doe C/Os who were with him at various points, allegedly handcuffing Bentz and
refusing to help him get medical treatment. (Doc. 123-1, p. 102). Bentz also asked for the
identities of all the John Does described in the grievance. (Doc. 123-1, p. 103).
Susan Hill, in her role as a grievance counselor, responded to the grievance on July
21, 2016. (Doc. 123-1, p. 102). Defendant Oakley, as the grievance officer, denied the
grievance on August 2, 2016. The CAO concurred in the recommendation on August 4,
2016. The grievance log shows that the grievance was returned to Bentz on August 10,
2016 (Doc. 123-5, p. 13). Bentz signed the appeal section of the grievance form on August

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29, 2016, but the grievance was not marked as received by the ARB until September 14,
2016. (Doc. 123-1, p. 101). The ARB declined to rule on the merits of the grievance, finding
that it was received outside the timeframe required by Department Rule 504. (Doc. 1231, p. 100).
3. Grievances Related to Count 5 (Conditions of Confinement in 2016)
In Count 5, Bentz alleges that Defendants Hoppensted, Brookman, Hart, and Hill
subjected him to unconstitutional conditions of confinement from July 10, 2016, until
August 10, 2016, when he was confined to an excessively hot and soiled cell with no
window, no ventilation, and a solid steel door. He claims that the sink and toilet leaked
and that there was raw sewage in his cell. He also alleges that he was deprived of sleep
due to a broken light switch and that the cell had mold and mildew. Bentz further claims
that he was forced to sleep on a soiled mattress and pill and that he was not given clean
clothes, soap, toothpaste, or toilet paper. Defendants Brookman, Hart, and Hill allegedly
knew of the harsh conditions and failed to assist Bentz.
In addition to the June 30, 2016 grievance, which did not involve conditions in
segregation, Bentz filed two additional grievances during the summer of 2016. On July
28, 2016, he filed a grievance challenging a July 10, 2016 disciplinary report. (Doc. 123-1,
p. 60). In the grievance, Bentz references an emergency grievance submitted on June 13,
2016, about excessive heat. He claims that he was moved as a result of filing the
emergency grievance and that Major Bill Westfall told him that he should not have filed
the grievance. Bentz claims that on June 26, 2016, Defendant Hoppensted said that Bentz
couldn’t continue to file grievances “without consequences.” He claims Hoppensted then

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threatened him with segregation for no reason and that on June 27, 2016, Hoppensted
assaulted him when Hoppensted caught Bentz writing a grievance. (Doc. 123-1, p. 60-61).
Bentz explained that after he filed a grievance about the assault, he spoke with
Sergeant Spiller in internal affairs. Then, on July 10, 2016, Bentz saw Hoppensted, who
stopped him and told him that he was sending Bentz to segregation for reporting him to
internal affairs. Hoppensted allegedly told Bentz that he hoped Bentz died in segregation
and that Hoppensted would ensure that Bentz was put into a bad cell. Bentz claims that
he was placed into a cell behind a solid door under unconstitutional conditions, as
described in an earlier grievance about the “excessive heat, sewer, and other.” (Doc. 1231, p. 61). Bentz also alleged that Brookman told him that he was giving him segregation
for suing him. (Doc. 123-1, p. 62).
On September 2, 2016, Bentz filed another grievance about the July 10, 2016
disciplinary report and labeled it as a supplement to the July 28 grievance. He explained
that he received a report in discovery in one of his other pending lawsuits that was not
disclosed to him during his disciplinary proceedings. He also mentions Defendants Hart
and John and Jane Does as people who had the documents but allowed the false report
to proceed.
A grievance officer responded jointly to the July 28, 2016, and September 2, 2016
grievances and labeled the response as No. 13-9-16, the number on the September
grievance. The officer denied the grievance on September 19, 2016, and the CAO
concurred in the recommendation on September 22, 2016. Bentz timely appealed. With
his appeal, he included a proof of service document in which he stated he was sending

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“grievance[s] #13-9-16, regarding disciplinary report dated 7/10/2016 304-insolince [sic]
dated (grievance) 09/02/2016, and regarding disciplinary report dated 07/10/2016
(above) and constitutional violations, dated (grievance) 07/28/2016 (both combined
respon[s]e) and attached letter to A.R.B.” (Doc. 123-1, p. 69).
On April 6, 2017, the ARB responded to grievance 13-9-16. The ARB noted that
issues of excessive heat were addressed in an earlier grievance, No. 7-2-16, which was
filed in December 2015, and declined to consider Bentz’s complaints about heat.2 The ARB
also noted that the alleged use of force was addressed through the June 30, 2016 grievance
(No. 12-8-16) and would not be readdressed. The ARB then upheld the disciplinary
sanction, ruling on the merits of the July 28 and September 2 grievances. (Doc. 123-1, p.
56).
In the supplement to his response, Bentz submitted an affidavit stating that he
filed another grievance with his counselor on August 24, 2016. He did not receive a
response from his counselor, preventing him from exhausting the grievance. He included
a second exhibit that he describes as his personal copy of the August 24, 2016 grievance.
In the grievance, he specifically complains about the conditions of confinement in
segregation at issue in Count 5. He does not name any defendants by name, but he
describes John and Jane Doe actors, including north two cell house staff and those

Grievance No. 7-2-16 was dated December 13, 2015, and the ARB found that only a single sentence
on the back page about events in December 2015 was grieved within the timeline required by Department
Rule 504. That sentence related to excessive heat over 90 degrees in the south cell house due to the furnace
running “full blast.” (Doc. 123-1, p. 104, 107). A grievance officer recommended denying the grievance, and
the CAO concurred. (Doc. 123-1, p. 105). The ARB found the issue was handled appropriately by officials
at Menard. (Doc. 123-1, p. 104). The issues raised by Bentz were unrelated to conditions in segregation.

2

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supervisors and security personnel who directed that he be confined in the cell about
which he complained. (Doc. 134-2).
4. Evidentiary Hearing
The Court held an evidentiary hearing on June 18, 2020. Bentz testified and
explained that he submitted grievances to his counselor in two ways. Sometimes he put
the grievances in institutional mailboxes, but he also submitted grievances by leaving
them between the bars of his cell to be picked up by prison officials. Bentz explained that
he usually was only out of his cell for one hour each day, so he often used the bars of his
cell to mail documents within Menard. He also testified that he kept handwritten
personal copies of the grievances he filed and that he marked on his copies information
about how he submitted the original. As to the August 24, 2016 grievance, Bentz wrote
on his copy that he filed it by placing it between his cell bars for retrieval.
The Court also heard testimony from Russell Niepert, a counselor at Menard, who
explained that inmates are supposed to put grievances in the locked institutional
mailboxes. Niepert also conducted rounds on August 26, 2016, and his records reflect that
Bentz had no issues to discuss with him that day. Niepert did acknowledge that
sometimes inmates use their bars to file grievances. However, he testified that the
procedure called for using the mailboxes unless an inmate was confined to his cell due to
a lockdown or was in segregation, neither of which applied to Bentz on August 24, 2016.
Bentz countered Niepert’s testimony about their conversation by explaining that
he did not always raise his complaints during counseling rounds because he tended to
rely on and use the written grievance procedure. The Court also heard testimony from

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Kelly Pierce, a grievance officer, regarding grievance procedures. Pierce agreed that
inmates were supposed to use the mailboxes to submit grievances, but testified that
grievances were not rejected if an inmate submitted them using the cell-bar method.
LEGAL STANDARDS
Summary judgment is “proper if the pleadings, discovery materials, disclosures,
and affidavits demonstrate no genuine issue of material fact such that [Defendants are]
entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467
(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison
Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). That statute states, in pertinent
part, that “no action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
Id. (emphasis added).
Generally, the Court’s role on summary judgment is not to evaluate the weight of
the evidence, to judge witness credibility or to determine the truth of the matter. Instead,
the Court is to determine whether a genuine issue of triable fact exists. See Nat’l Athletic
Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). In Pavey, however, the
Seventh Circuit held that “debatable factual issues relating to the defense of failure to
exhaust administrative remedies” are not required to be decided by a jury but are to be
determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-741 (7th Cir. 2008).
The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)(noting that “[t]his

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circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur
before the suit is filed. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot
file suit and then exhaust his administrative remedies while the suit is pending. Id.
Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the
place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to use a prison’s grievance
process properly, “the prison administrative authority can refuse to hear the case, and
the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.
In Pavey, the Seventh Circuit set forth procedures for a court to follow in a situation
where failure to exhaust administrative remedies is raised as an affirmative defense. The
Seventh Circuit stated the following:
(1) The district judge conducts a hearing on exhaustion and permits
whatever discovery relating to exhaustion he deems appropriate. (2) If the
judge determines that the prisoner did not exhaust his administrative
remedies, the judge will then determine whether (a) the plaintiff has failed
to exhaust his administrative remedies, and so he must go back and
exhaust; (b) or, although he has no unexhausted administrative remedies,
the failure to exhaust was innocent (as where prison officials prevent a
prisoner from exhausting his remedies), and so he must be given another
chance to exhaust (provided that there exist remedies that he will be
permitted by the prison authorities to exhaust, so that he’s not just being
given a runaround); or (c) the failure to exhaust was the prisoner’s fault, in
which event the case is over. (3) If and when the judge determines that the
prisoner has properly exhausted his administrative remedies, the case will
proceed to pretrial discovery, and if necessary a trial, on the merits; and if
there is a jury trial, the jury will make all necessary findings of fact without
being bound by (or even informed of) any of the findings made by the
district judge in determining that the prisoner had exhausted his
administrative remedies.
Pavey, 544 F.3d at 742.

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As an inmate confined within the IDOC, Bentz was required to follow the
regulations contained in the IDOC’s Grievance Procedures for Offenders (“grievance
procedures”) to exhaust his claims properly. See 20 ILL. ADMIN. CODE § 504.800, et seq. The
grievance procedures first require inmates to file their grievance with the counselor
within 60 days of the discovery of an incident. See 20 ILL. ADMIN. CODE § 504.810(a). The
grievance form must:
contain factual details regarding each aspect of the offender’s complaint,
including what happened, when, where, and the name of each person who
is the subject of or who is otherwise involved in the complaint. This
provision does not preclude an offender from filing a grievance when the
names of individuals are not known, but the offender must include as much
descriptive information about the individual as possible.
20 ILL. ADMIN. CODE § 504.810(c). Grievances that are unable to be resolved through
routine channels are then sent to the grievance officer. See 20 ILL. ADMIN. CODE
§ 504.820(a). The grievance officer will review the grievance and provide a written
response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a). “The Grievance Officer shall
consider the grievance and report his or her findings and recommendations in writing to
the Chief Administrative Officer within two months after receipt of the grievance, when
reasonably feasible under the circumstances.” 20 ILL. ADMIN. CODE § 504.830(e). “The
Chief Administrative Officer shall review the findings and recommendation and advise
the offender of his or her decision in writing.” Id.
If the inmate is not satisfied with the CAO’s response, he or she can file an appeal
with the Director through the ARB. See 20 ILL. ADMIN. CODE § 504.850(a). The grievance
procedures specifically state, “[i]f, after receiving the response of the Chief

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Administrative Officer, the offender still believes that the problem, complaint or
grievance has not been resolved to his or her satisfaction, he or she may appeal in writing
to the Director. The appeal must be received by the Administrative Review Board within
30 days after the date of the decision.” 20 ILL. ADMIN. CODE § 504.850(a). The inmate shall
attach copies of the Grievance Officer’s report and the CAO’s decision to his appeal. Id.
“The Administrative Review Board shall submit to the Director a written report of its
findings and recommendations.” 20 ILL. ADMIN. CODE § 504.850(d). “The Director shall
review the findings and recommendations of the Board and make a final determination
of the grievance within six months after receipt of the appealed grievance, when
reasonably feasible under the circumstances. The offender shall be sent a copy of the
Director’s decision.” 20 ILL. ADMIN. CODE § 504.850(e).
The grievance procedures also allow an inmate to file an emergency grievance. See
20 ILL. ADMIN. CODE § 504.840. In order to file an emergency grievance, the inmate must
forward the grievance directly to the CAO who may “[determine that] there is a
substantial risk of imminent personal injury or other serious or irreparable harm to the
offender [such that] the grievance [should] be handled on an emergency basis.” 20 ILL.
ADMIN. CODE § 504.840(a). If the CAO determines the grievance should be handled on an
emergency basis, then the CAO “shall expedite processing of the grievance and respond
to the offender indicating what action shall be or has been taken.” 20 ILL. ADMIN. CODE
§ 504.840(b). If the CAO determines the grievances “should not be handled on an
emergency basis, the offender shall be notified in writing that he or she may resubmit the
grievance as non-emergent, in accordance with the standard grievance process.” 20 ILL.

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ADMIN. CODE § 504.840(c). When an inmate appeals a grievance deemed by the CAO to
be an emergency, “the Administrative Review Board shall expedite processing of the
grievance.” 20 ILL. ADMIN. CODE § 504.850(f).
ANALYSIS
1. 2015 Claims
In Count 1, Bentz alleges that Defendants Berner, Smith, Lindenberg, and Fleming
destroyed or interfered with his personal items in retaliation for Bentz filing grievances.
Two grievances apply to these claims, one filed April 14, 2015, and the other filed July 1,
2015. The July grievance was marked as a supplemental or secondary grievance to the
April 14, 2015 grievance, and it was considered by the grievance officer in responding to
the April grievance, as evidenced by the mention of the Con Air trimmers, which were
not mentioned in the April 2015 grievance. The grievances clearly address Defendant
Berner’s conduct, but the response from the ARB also acknowledges that Bentz was
grieving conduct by Defendants Lindenberg and Smith. The content of the two
grievances makes that clear as well.
An inmate is not required to provide personal notice to an individual defendant
through his grievances. See Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011)(citing Jones
v. Bock, 549 U.S. 199, 219 (2007)(citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir.
2004)(stating that “[w]e are mindful that the primary purpose of a grievance is to alert
prison officials to a problem, not to provide personal notice to a particular official that he
may be sued.”))). Instead, the purpose of a grievance is to provide “prison officials a fair
opportunity to address [an inmate’s] complaints.” Id. Defendant Fleming is mentioned in

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the July 2015 grievance as telling Bentz that his property was being mishandled or
destroyed in retaliation for Bentz filing grievances and lawsuits, which is sufficient to put
prison officials on notice about issues with Defendant Fleming’s conduct. As such, the
Court finds that Bentz fully exhausted his remedies as to all defendants in Count 1.
In Count 4, Bentz alleges that many individuals subjected him to unconstitutional
conditions of confinement in 2015. Many of the defendants in Count 4 are listed
individually in the exhausted July 1, 2015 grievance as engaging in conduct that is at the
core of Bentz’s claim against them. Defendants Knust and Oakley were involved in
responding to the grievances, which is sufficient to satisfy the notice requirements of the
grievance process. However, the July 2015 grievance does not mention Defendants
Whitley, Qualls, or Mayhugh. Defendant Whitley is a lieutenant and Defendant Qualls is
a sergeant, much like the other named parties, and the grievance includes unidentified
John Does following the list of correctional officers, lieutenants, and sergeants. Defendant
Mayhugh, on the other hand, is a clothing officer. Complaints about his conduct or the
conduct of a clothing officer are not readily identifiable by Bentz’s description of the
grieved conduct. As such, the Court finds that Bentz exhausted his claims in Count 4 as
to all defendants except for Defendant Mayhugh because the July 2015 grievance does
not provide notice of any issues with Mayhugh’s conduct.
2. 2016 Claims
In Count 2, Bentz alleges that Defendants Hoppensted, Webb, and Martin either
used excessive force against him or failed to protect him from the use of excessive force
on June 27, 2016. Bentz filed a grievance related to his excessive force claim on June 30,

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2016, but his appeal of the grievance was rejected as untimely by the ARB. The CAO’s
response to the grievance was sent to Bentz on August 10, 2016. (Doc. 123-5, p. 13). Bentz
signed the grievance indicating his intent to appeal on August 29, 2016, and testified that
he put the appeal in institutional mail that day. The ARB did not receive his appeal until
September 14, 2016, more than 30 days after it was returned to Bentz.
The Court finds Bentz’s testimony that he sent the appeal on August 29, 2016,
credible. In the same time period, Bentz appealed a different grievance, No. 13-9-16, that
also was delayed in reaching the ARB. That grievance was returned to Bentz on
September 23, 2016, and he signed the section indicating his intent to appeal on
September 30, 2016. (Doc. 123-1, p. 57). Bentz also noted that he sent the appeal on
September 30, but the ARB did not receive the appeal until October 14, 2016. This delay
is nearly identical in length to the delay in the receipt of the June 30, 2016 grievance appeal
and lends credibility to Bentz’s testimony. The Court finds that Defendants failed to carry
their burden of showing that the June 30, 2016 grievance was not fully exhausted. The
grievance addresses the use of force by Defendant Hoppensted either with, or in the
presence of, John Doe correctional officers. As such, the Court finds that Bentz’s claims
in Count 2 were exhausted fully before he filed suit.
In Count 5, Bentz alleges that Defendants Hoppensted, Brookman, Hart, and Hill
subjected him to unconstitutional conditions of confinement while he was in segregation
from July 10 through August 10, 2016. The ARB has record of two fully-exhausted
grievances related to the claims in Count 5 dated July 28, 2016, and September 2, 2016.
Susan Hill was not involved in the response to either grievance, nor is she named in the

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grievances. The grievances mention that Defendant Hoppensted told Bentz that he would
be sent to a “bad cell” and also allude to Bentz’s claim about being locked behind a heavy
door. With respect to Defendants Brookman and Hart, however, Bentz does not allege
that they subjected him to unconstitutional conditions in these grievances other than by
sending him to segregation following a disciplinary hearing. That is insufficient to
provide prison officials with notice that there was an issue with Brookman or Hart’s
conduct towards Bentz’s confinement in segregation.
The Court heard testimony about an August 24, 2016 grievance that is not in the
ARB’s files but that Bentz maintains he submitted and never received a response to. In
the grievance, Bentz addresses all of the conditions of confinement that are alleged in
Count 5 and asks for the identities of the responsible N-2 employees who were
responsible for Bentz’s confinement in a deficient cell. Defendants Brookman and Hart
were members of the adjustment committee, so complaining about correctional officers
subjecting Bentz to unconstitutional conditions would not provide prison officials with
notice of issues with Brookman and Hart. Because the exhausted grievances discussed
above do provide notice as to Hoppensted, the Court need not determine whether
remedies were available to Bentz with respect to this grievance because it does not
exhaust his claims against Brookman, Hart, or Hill as the grievance does not address any
conduct by these three parties.
Further, it is clear from the ARB’s response to the 2016 grievances that the
reviewing official recognized a claim about conditions, namely excessive heat, but chose
not to address the conditions of confinement aspect of the grievance because a December

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2015 grievance also complained about excessive heat. The heat issue in the December
2015 grievance was separate and distinct from the conditions complaints Bentz raised as
to his time in segregation in July and August 2016.
To the extent that the ARB declined to address Bentz’s complaints about his
segregation cell, administrative remedies could be deemed unavailable to him as to his
claims in Count 5. A prisoner is not obligated to exhaust administrative remedies that are
unavailable. See Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016). “Administrative
remedies are primarily ‘unavailable’ to a prisoner where ‘affirmative misconduct’
prevents prisoners from pursuing” them. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir.
2016)(quoting Dole, 438 F.3d at 809 (noting that remedies were unavailable where prison
officials “do not respond to a properly filed grievance.”)). For all these reasons, the Court
finds that Defendants failed to carry their burden as to the claims against Defendant
Hoppensted in Count 5, and Count 5 shall remain pending against him.
CONCLUSION
For the above-stated reasons, Defendants’ motion for summary judgment for
failure to exhaust administrative remedies (Doc. 122) is GRANTED in part and DENIED
in part. Count 4 is dismissed without prejudice as to Defendant Mayhugh, and he shall
be terminated from this action. Count 5 is dismissed without prejudice as to Defendants
Brookman, Hart, and Hill, and Defendant Hill shall be terminated from this action. All
other claims remain pending.

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Digitally signed
by Judge Sison
Date:
2020.06.29
17:30:33 -05'00'
______________________________

IT IS SO ORDERED.
Dated: June 29, 2020.

GILBERT C. SISON
United States Magistrate Judge

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