Hardy v. Rauner et al
ORDER granting in part and denying in part 125 Motion for Summary Judgment. Signed by Chief Judge Nancy J. Rosenstengel on 7/7/2020. (jrj)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NEDRICK JEFFREY HARDY, SR.,
Case No. 17-cv-01354-NJR
JACQUELINE LASHBROOK, and
JOHN DOE, correctional officer,
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on Defendants’ motion for summary judgment (Doc. 125).
Defendants Baldwin, Butler, and Lashbrook argue that Plaintiff Nedrick Hardy failed to exhaust
his administrative remedies prior to filing suit. Hardy filed a response in opposition to the
motion. (Doc. 134). On June 30, 2020, the Court held an evidentiary hearing.
Hardy, and inmate of the Illinois Department of Corrections (“IDOC”) who is currently
housed at Menard Correctional Center (“Menard”), commenced this action by filing a Complaint
pursuant to 42 U.S.C. § 1983 for the deprivation of his constitutional rights. (Doc. 1). On August
16, 2019, Hardy, through court recruited counsel, filed a Second Amended Complaint. (Doc. 122).
The Second Amended Complaint alleges the following claims: an Eighth Amendment claim for
the inability to exercise due to inadequate living conditions and overcrowding, causing and
contributing to various health issues (Count 1); a First Amendment claim for denying Hardy
access to the courts by denying him timely access to legal mail (Count 2); an Eighth Amendment
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claim for unconstitutional conditions of confinement resulting in the deprivation of shelter, water,
food, and proper sanitation that meet the contemporary standards of human decency (Count 3);
and an Eighth Amendment claim regarding the use of excessive force by the orange crush tactical
team maintained through policies and customs implemented at Menard (Count 4).
Defendants argue that Hardy failed to exhaust his administrative remedies on all of the
issues alleged in the Second Amended Complaint prior to commencement of this suit and
reference nine grievances in support of their argument. (Doc. 126, p. 2). Defendants argue that
the relevant grievances filed on June 19, 2014, September 4, 2015, November 8, 2015, March 10,
2016, October 28, 2016, November 9, 2016, and November 28, 2016, were not fully exhausted, and
the grievances filed on June 30, 2014, and July 17, 2014, complain of issues outside the scope of
this lawsuit. Defendants also claim that Hardy did not specifically name any of the defendants in
his grievances. (Id. at p. 12).
In response, Hardy argues that his grievances were not properly handled before he could
appeal to the Administrative Review Board. (Doc. 134, p. 5). He did not receive responses from
his counselor, grievance officer, or the chief administrative officer for every grievance he filed,
making the process unavailable to him. Hardy also claims that Defendants did not need to be
named in the grievances because they are the very people to whom he grieved. Finally, Hardy
argues that Defendants have failed to address and expressly argue for the dismissal of all of his
claims, specifically inadequate and overcrowded living conditions (Count 3) and policies related
to excessive force by the orange crush tactical team (Count 4), and thus, those arguments are
foreclosed. (Id. at p. 11-13).
“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
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judgment as a matter of law.” Wragg v. Vill. 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”).
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. The Seventh Circuit requires strict adherence to the PLRA’s
exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that “[t]his
circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur before the
suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). 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 properly utilize a prison’s grievance process, “the prison administrative authority can
refuse to hear the case, and the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d
Under Pavey, 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, 740-41(7th Cir. 2008). Thus, where
failure to exhaust administrative remedies is raised as an affirmative defense, the Court set forth
the following recommendations:
The sequence to be followed in a case in which exhaustion is contested is therefore
as follows: (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
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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.
Id. at 742. Because exhaustion is an affirmative defense, the burden of proof is on the defendants
to demonstrate that “remedies were available and that [the plaintiff] failed to use them.” Ried v.
Balota, No. 19-1396, 2020 WL 3248128, at *3 (7th Cir. June 16, 2020). See also Kaba v. Stepp, 458 F. 3d
678, 686 (7th Cir. 2006).
A. Illinois Exhaustion Requirements
As an inmate confined within the Illinois Department of Corrections, Hardy was required
to follow the regulations contained in the Illinois Department of Corrections’ Grievance
Procedures for Offenders (“grievance procedures”) to properly exhaust his claims. 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. 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. 20 ILL. ADMIN. CODE §504.820(a). The Grievance
Officer considers the grievance and reports his or her findings and recommendations “in writing
to the Chief Administrative Officer…” 20 ILL. ADMIN. CODE §504.830(e). The Chief
Administrative Officer then advises the offender of the decision in writing. Id.
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If the inmate is not satisfied with the Chief Administrative Officer’s response, he or she
can file an appeal with the Director through the Administrative Review Board (“ARB”). The
grievance procedures specifically state, “[i]f, after receiving the response of the Chief
Administrative Officer, the offender still feels 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.” 20 ILL.
ADMIN. CODE §504.850(a). The inmate shall attach copies of the Grievance Officer’s report and
the Chief Administrative Officer’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 do allow for an inmate to file an emergency grievance. In order
to file an emergency grievance, the inmate must forward the grievance directly to the Chief
Administrative Officer (“CAO”) who may “[determine] that there is a substantial risk of
imminent personal injury or other serious or irreparable harm to the offender” and thus 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 to him what action shall be
taken. 20 ILL. ADMIN. CODE §504.840(b).
A. Counts 1, 3, and 4
The emergency grievance dated June 19, 2014, is relevant to the claims alleged in Counts
1, 3, and 4. (See Doc. 126-1, p. 28-35). This grievance is seven pages long and includes numerous
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allegations regarding the living conditions at Menard including that (1) Menard is overcrowded;
(2) two inmates are celled in small cells designed for one inmate; (3) the cells become extremely
hot with no ventilation; (4) the cells contain mold; (5) the bunk beds do not have ladders or steps,
and Hardy has injured himself climbing to and from the top bunk; (6) Hardy is served low quality
food that causes various digestion issues; (7) Hardy is unable to exercise inside the cell because
of the small size and is given limited out of cell time to exercise; and (8) there is a high number of
staff assaults, specifically Hardy references the orange crush tactical team tearing up the cells of
inmates of color and assaulting them. (Id.). The grievance is marked as an emergency and signed
by Hardy but does not contain any notes from the warden in the “emergency review” section of
the form. The grievance was received by ARB on July 30, 2014, and on September 30, 2014, the
ARB determined that additional information for review was required and returned the grievance
to Hardy. (Id. at p. 27).
At the recent hearing, Hardy testified that he did not submit the emergency grievance
directly to the ARB, but submitted the grievance to the warden, as is the required procedure for
emergency grievances. He did not, however, receive a response. Sometime later, as the director
of IDOC was walking through the segregation unit, Hardy told the director about his grievance
and how he was having problems receiving a reply. Hardy testified that the director told Hardy
to send the grievance to him directly. Hardy then sent the grievance to the ARB, but the grievance
was returned without review because the grievance was not submitted with a copy of a response
from a grievance officer and the chief administrative officer. (Doc. 126-1, p. 27).
Defendants argued that Hardy failed to properly submit the June 19, 2014 emergency
grievance, and other grievances, according to grievance procedures. Although there is not a
written record or receipt demonstrating when an inmate receives a response to submitted
grievances, Defendants’ witnesses testified that responses to submitted grievances are returned
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to the inmates. Additionally, Counselor Mathis stated he responds to submitted kites and
grievances in writing. Defendants argued that Hardy has been incarcerated for twenty years and
knows not only how to use the grievance process, but how to follow up with staff if he is not
receiving a proper response. Defendants pointed to the ARB history log (Doc. 126-1, p. 36-41)
showing a number of grievances regarding occurrences at other facilities that Hardy correctly
submitted to the counselor, the grievance officer, and ultimately with the ARB. They also claimed
that Hardy has a history of not following the proper procedures for submitting and appealing
grievances. Instead of providing the necessary information for each grievance and appealing
them individually, in certain cases, he attached untimely grievances as exhibits to a grievance on
appeal before the ARB, in an effort to put information before the ARB without following the
The Court finds that Defendants have not met their burden of establishing that the
administrative remedy process was available to Hardy concerning the processing of the June 19,
2014 emergency grievance. As Defendants argued, and Hardy confirmed at the hearing, Hardy
knows how to use the grievance process. According to Hardy’s testimony, he sent the emergency
grievance to the warden, and when he did not receive a response, he sent a letter, and then he
sent the grievance to the ARB. The testimony and evidence submitted by Defendants does not
demonstrate otherwise. In fact, the Court finds that the testimony offered by Defendants revealed
several opportunities for error in the receipt and processing of inmate grievances. Witnesses for
Defendants testified that prior to 2017 (1) one counselor was assigned to one hundred and fifty
to two hundred inmates; (2) the grievances were not logged when they were submitted by
inmates but placed in a lock box or cell bars for collection; (3) counselors informally went through
the lock box and assigned the grievances to the correct counselor; (4) when a grievance was
marked as an emergency, it was sent to the grievance office, where it was not assigned to a
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grievance officer but placed in a stack of grievances; and (5) the emergency grievance was not
recorded in a log until processed by a grievance officer and sent to the warden for determination.
Although Defendants claim the grievance was not submitted through proper grievance
procedures, given the lack of record keeping throughout the grievance process and the number
of inmates assigned to a counselor, it is very possible that Hardy did submit the emergency
grievance as he claims, and the grievance was someone how lost or overlooked.
Furthermore, David White, chairperson with the ARB, testified that the ARB is unable to
review a grievance without a counselor’s response and an answer from the grievance officer. In
Hardy’s situation, because he claims he did not receive an answer from the warden and the ARB
would not review the grievance without an answer from Menard staff, the grievance process
operated “as a simple dead end.” See Ross v. Blake, 136 S. Ct. 1850, 1853 (2016).
Finally, the Court is not persuaded by Defendants’ argument that Hardy failed to exhaust
because the emergency grievance was not directed towards the named Defendants, who are the
former director of IDOC, John Baldwin, and the former wardens of Menard, Kim Butler and
Jacqueline Lashbrook. 1 Not only is an inmate not required to provide personal notice of suit to
an individual defendant through his grievance, but in the June 19, 2014 emergency grievance
Hardy states that “the warden, the director, and the governor have all turned a blind eye to the
inhumane living conditions at Menard Correctional Center.” (Doc. 126-1, p. 30). See Maddox v.
Love, 655 F.3d 709, 722 (7th Cir. 2011). The grievance meets the PLRA’s requirements of alerting
“the prison to the nature of the wrong for which redress is sought[.]” Westefer v. Snyder, 422 F.3d
570, 580 (7th Cir. 2005) (citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
The Court draws “all reasonable inferences in the light most favorable to the non-moving
1 Hardy also brings claims against a fourth defendant who is currently listed as John Doe correctional officer and has
yet to be identified or file an answer to the Second Amended Complaint.
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party[,]” Kaba, 458 F. 3d at 681, and finds that there is a genuine issue of material fact as to whether
the administrative remedies were available to Hardy regarding the June 19, 2014 emergency
grievance. 2 See Dole v. Chandler, 438 F. 3d 804, 809 (7th Cir. 2006); Walker v. Sheahan, 5226 F. 3d
973, 979 (7th Cir. 2008). Therefore, the Court denies the summary judgment motion as to Counts
1, 3, and 4.
B. Count 2
In Count 2, Hardy claims that Defendants denied him access to timely legal mail,
understaffed the mailroom, and failed to train mailroom staff, which impeded or prevented him
from prosecuting postconviction appeals and lawsuits. Regardless of whether or not the
grievances presented by Defendants or Hardy were fully exhausted, Hardy’s grievances did not
put prison officials on notice about the issues regarding timely access to legal mail and problems
with mailroom staff resulting in prejudice to his postconviction claims. See Maddox, 655 F. 3d at
722 (the function of a grievance is to provide “prison officials a fair opportunity to address [an
The grievance dated June 30, 2014 (Doc. 126-1, p. 24), which the parties agree was fully
exhausted, grieves a situation where mailroom staff opened a piece of legal mail outside of
Hardy’s presence because the letter had not been clearly marked. The grievance dated July 17,
2014 (Doc. 126-1, p. 21), also fully exhausted, describes an event where a correctional officer
ripped open an envelope in front of Hardy and took a self-addressed envelope. Additionally, the
grievances and letters presented by Hardy regarding denial of access to the courts grieve issues
regarding access to the law library and legal documents and confidentiality and privacy during
legal calls. (See Doc. 122-1, pp. 30, 31, 37, 38, 44, 56-59, 70-77). All these grievances were insufficient
Because the emergency grievance dated June 19, 2014, provides notice to prison officials of the issues alleged in
Counts 1, 3, and 4, the Court will not address the arguments raised by the parties regarding the grievances dated
September 4, 2015, November 8, 2015, March 10, 2016, October 28, 2016, November 9, 2016, and November 28, 2016.
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to provide prison officials with notice that there was an issue of receiving and sending timely
legal mail and improperly trained and understaff mailroom employees, and so, Count 2 will be
dismissed for failure to exhaust administrative remedies.
For the reasons stated above, summary judgment (Doc. 125) is GRANTED in part and
DENIED in part. Count 2 is dismissed without prejudice. Counts 1, 3, and 4 remain pending.
IT IS SO ORDERED.
DATED: July 7, 2020
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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