Kitterman v. Dunne et al

Filing 174

ORDER denying 145 Motion for Summary Judgment. Signed by Magistrate Judge Gilbert C. Sison on 5/6/2021. (mjf)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANE A. KITTERMAN,
Plaintiff,
vs.
MICHAEL DUNNING, OFFICER
SAMMS, OFFICER EDWARDS,
JERID PICKFORD, JEFFREY
DENNISON, JOHN BALDWIN and
WARDEN WALKER,
Defendants.

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Case No. 3:18-cv-00114-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
At the time of his complaint, Plaintiff Shane Kitterman was incarcerated in the
custody of the Illinois Department of Corrections (“IDOC”) at Shawnee Correctional
Center (“Shawnee”). (Doc. 2). Plaintiff brings his complaint against Defendants pursuant
to 42 U.S.C. § 1983. In his amended complaint, Plaintiff outlines seven counts against
Defendants for violation of his constitutional rights. (Doc. 131). In Counts 1 and 2,
Plaintiff alleges that Dunning, Samms, and Edwards were deliberately indifferent to a
substantial risk of harm to Plaintiff in violation of the Eighth Amendment. Id. In Count 4,
Plaintiff claims that Defendants Dennison and Baldwin violated the Eighth Amendment
by failing to protect him. Id. Plaintiff also alleges two state law claims for assault against
Defendant Dunning in Counts 6 and 7, a First Amendment retaliation claim against
Defendants Dunning, Edwards, and Samms in Count 3, and a civil conspiracy claim

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against Defendants Dunning, Edwards, Samms, Pickford, Banks, and Walker in Count 5.
Id.
On September 14, 2020, Defendants moved for summary judgment on all counts
arguing that Plaintiff failed to exhaust his administrative remedies. (Doc. 145). During a
hearing on the motion, the Court ordered Defendants to supplement the evidentiary
record and file a status report within thirty days of the hearing. (Doc. 169). Defendants
complied on March 4, 2021. (Doc. 173). For the reasons outlined below, Defendants’
motion for summary judgment is DENIED.
FACTUAL BACKGROUND
On June 21, 2017, mental health professional Lauren Oestmann submitted an
incident report noting that during a mental health evaluation Plaintiff had reported that
Defendant Dunning grabbed his genitals during a strip search on April 26, 2017. (Doc.
173, Exh. E, p. 2). In her report, Ms. Oestmann noted that Plaintiff had not reported the
incident earlier because he feared retaliation from the officer who groped him. (Doc. 173,
Exh. F, p. 19). Ms. Oestmann also reported that she informed Plaintiff that she would
“pass the information given to the [Prison Rape Elimination Act (“PREA”)] compliance
manager.” Id.
In order to pass along the information Plaintiff provided her, Ms. Oestmann
contacted Swiv Hammersley, who, in turn, informed PREA Compliance Manager Walker
and Internal Affairs Officer Brian Banks about the situation. (Doc. 173, Exh. E, p. 2). As
part of the Internal Affairs investigation, Defendant Pickford then interviewed Ms.
Oestmann, Plaintiff, and Defendant Dunning. Id. On July 14, 2017, Defendant Pickford

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found that Plaintiff’s allegations were unfounded, which was noted in a memorandum
forwarded to Defendant Dennison. Id.
On January 3, 2018, Plaintiff filed an emergency grievance alleging that Officer
Anderson groped his genitals while the officer escorted Plaintiff to the Jefferson County
Courthouse for a hearing. (Doc. 146, Exh. C, p. 19). The warden expedited this grievance
as an emergency; however, the grievance officer denied the grievance after interviewing
Plaintiff, as Plaintiff stated that he believed the incident was a misunderstanding. Id. at
p. 18. Plaintiff did not appeal this decision to the ARB. (Doc. 146, p. 3).1 Plaintiff initiated
litigation in the present case shortly thereafter, on January 19, 2018. (Doc. 1, 2).
During the hearing on this matter, Plaintiff explained that he did not grieve the
sexual assault underlying this case because the standard PREA procedure at Shawnee
requires inmates to first report to a Health Care Unit (“HCU”) administrator; that
administrator would then report to Internal Affairs. See also (Doc. 159, p. 4). Plaintiff
stated that this procedure prevented the officers who allegedly committed the assaults
from having advanced notice of the investigation against them. Furthermore, Plaintiff
claimed that he was told there was no need to file a grievance because the Internal Affairs
investigation fulfilled the Prison Litigation Reform Act (“PLRA”)’s statutory requirement
that prisons be permitted to investigate and attempt to resolve inmate complaints
internally prior to litigation. Plaintiff testified that Defendant Pickford told him not to

Plaintiff also filed two grievances after initiating the present litigation. (Doc. 146, p. 3-4). However,
Plaintiff does not argue that either of these grievances are exhausted for the purposes of this litigation. See
generally (Doc. 159). Accordingly, the Court limits its analysis to the January 3, 2018 grievance against
Officer Anderson and Plaintiff’s claims regarding the Internal Affairs investigation.
1

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write a grievance during his interview, and that instead, he was to only write that he
“needed to speak to Internal Affairs.” (Doc. 159, p. 5). He also testified that Ms. Oestmann
told him not to write a grievance when he first reported to her. Plaintiff further noted that
when he discussed the ongoing investigation on the Informant Line, Internal Affairs
investigators repeated that Plaintiff need not file grievances about either the sexual
assault or the retaliation resulting from the investigation, as doing so would reveal
information to the officers against whom Plaintiff complained. Plaintiff explained that he
filed a grievance regarding the alleged sexual assault by Officer Anderson because he
first discussed the incident with the HCU, and administrators told him that he did not
need to go to Internal Affairs in that instance.
The Court ordered Defendants to supplement the record by providing a copy of
the Internal Affairs report, Plaintiff’s medical records, and the Informant Line Call Record
from April 1, 2017 through January 31, 2018. (Doc. 169). Defendants provided the internal
affairs report and Plaintiff’s medical records. (Doc. 173, Exh. E, Exh. F). Defendants also
provided a declaration from Defendant Pickford, who stated that he did not instruct
Plaintiff not to file grievances, and that there is no rule prohibiting inmates from filing
grievances relating to sexual assaults. (Doc. 173, Exh. G). Defendants also provided
Plaintiff with their Third Supplemental Initial Disclosures, including Plaintiff’s medical
records and a copy of the Informant Line Call Record for the relevant dates. (Doc. 173).
LEGAL STANDARDS
Summary judgment is proper when a moving party demonstrates that the record
cannot establish the presence of a genuine dispute of material fact. See FED. R. CIV. PROC.

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56(a). In order to survive a motion for summary judgment, the non-moving party must
provide admissible evidence for which a reasonable jury could find in favor of the nonmoving party. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). Traditionally,
the Court’s role in determining a motion for summary judgment is not to evaluate the
weight of the evidence, judge witness credibility, or determine the truth of the matter,
but is instead to determine whether there is a genuine issue of material fact. See Nat’l
Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in
Pavey v. Conley, the Seventh Circuit held that a judge, rather than a jury, should determine
whether factual issues relating to the defense of the failure to exhaust administrative
remedies exist. 544 F.3d 739, 741 (7th Cir. 2008). If the Court determines that a prisoner
did not exhaust his administrative remedies, the Court will outline one of three potential
outcomes: (a) if the plaintiff still has time to do so, the plaintiff must go back and exhaust
his administrative remedies; (b) if the plaintiff’s failure to exhaust was innocent, as where
prison officials prevent a prisoner from exhausting his remedies, the plaintiff must be
given another chance to exhaust; or (c) if the failure to exhaust was the prisoner’s fault,
the case is over. Id. at 742.
The PLRA governs lawsuits filed by inmates and states that “no action shall be
brought with respect to prison conditions under § 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.”42 U.S.C. § 1997e(a). In order to
satisfy the PLRA’s exhaustion requirement, prisoners must strictly adhere to the
grievance process. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Prisoners must

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exhaust their remedies before filing suit. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
2004). A plaintiff cannot file a suit and then exhaust administrative remedies while that
suit is pending. Id. 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.
Prisoners must follow a prison’s administrative rules when exhausting their
remedies. See Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). As an inmate
confined within the IDOC, Plaintiff is required to follow the regulations contained in the
IDOC’s Grievance Procedures for Offenders (“grievance procedures”) in order to
properly exhaust his claims. See 20 ILL. ADMIN. CODE § 504.800, et seq. The grievance
procedures require prisoners to submit a grievance to a counselor within sixty days of
discovering the underlying incident. See 20 ILL. ADMIN. CODE § 504.800. These grievances
must state the “factual details regarding each aspect of the offender’s complaint including
what happened, when, the name of any individual involved, and where the incident
occurred.” 20 ILL. ADMIN. CODE § 504.810(a). If a prisoner is not satisfied with the
counselor’s response to the grievance, then that prisoner can submit a formal grievance
to the prison’s grievance officer. Id. at (a)-(b). The officer must then review the grievance
and provide a written response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a).
Within two months of receipt of the grievance, when reasonably feasible under the
circumstances, the grievance officer must report findings and recommendations in
writing to the Chief Administrative Officer (“CAO”). See 20 ILL. ADMIN. CODE
§ 504.830(e). If the prisoner is still not satisfied with the CAO’s decision, the prisoner can

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formally appeal to the Director through the ARB within thirty days of the CAO’s decision.
See 20 ILL. ADMIN. CODE § 504.850(a). The inmate must attach copies of the grievance
officer’s report and the CAO’s decision to the appeal. Id. The ARB then submits its
recommendation to the Director, who is then responsible for issuing the IDOC’s final
decision. See 20 ILL. ADMIN. CODE § 504.850(f).
The grievance process also allows for an inmate to file an emergency grievance
directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The CAO may determine if
there is a substantial risk of imminent personal injury or other serious harm to the
offender. Id. If the CAO determines that the grievance is a non-emergency, the prisoner
is notified in writing that the prisoner may resubmit the grievance as a non-emergency
and move forward with the standard grievance process. See 20 ILL. ADMIN. CODE
§ 504.840(c).
The statutory purpose of the PLRA is to “afford corrections officials time and
opportunity to address complaints internally before allowing the initiation of a federal
case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Begolli v. Home Depot U.S.A., Inc., 701
F.3d 1158, 1161 (7th Cir. 2012). This allows the prison administration an opportunity to
fix the problem or to reduce damages and to shed light on factual disputes that may arise
in litigation. See Pozo, 286 F.3d at 1023-24. To allow otherwise would frustrate the purpose
of the grievance process. See Porter v. Nussle, 534 U.S. 516, 526 (2002). Accordingly, a
prisoner cannot satisfy the exhaustion requirement by filing an untimely or otherwise
procedurally defective grievance. See Woodford, 548 U.S. at 83. Unless a prisoner

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completes the administrative review process by following the rules established for that
process, exhaustion has not occurred. See Pozo, 286 F.3d at 1023.
ANALYSIS
There are three circumstances in which an administrative remedy is not capable of
use to obtain relief, and is therefore unavailable: (i) when the remedy operates as “a
simple dead end,” in which officers are unable or unwilling to provide relief; (ii) when,
though mechanisms exist through which inmates can technically obtain relief, the
mechanisms are so opaque no ordinary inmate can navigate them; or (iii) when prison
administrators thwart an inmate’s attempt to take advantage of available remedies
through “machination, misrepresentation or intimidation.” Ross v. Blake, 136 S.Ct. 1850,
1859-60 (2016); see also Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008); Pavey, 544 F.3d
at 742; Dole 438 F.3d at 808. When a plaintiff properly followed the procedure for
exhausting administrative remedies, but prison officials mishandled the grievance, the
remedy is rendered unavailable. See Dole, 438 F.3d at 811. For example, if the ARB rejected
an appeal on the basis of a grievance officer’s misidentification of the inmate’s prison
number, a plaintiff could argue that this mistake rendered his attempts to exhaust his
administrative remedies thwarted. See Ross v. Bock, No. 16-C-8672, 2017 WL 6758394, at
*3 (N.D. Ill. Nov. 29, 2017).
The ”mere existence of an internal affairs investigation does not absolve an
inmate” of their obligation to exhaust their administrative remedies. Hallstrom v.
Hammonds, No. 16-cv-107-MJR-SCW, 2018 WL 1275931, at *4 n.2 (S.D. Ill. Jan. 3, 2018)
(internal citations omitted). Nevertheless, administrative remedies are unavailable and

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therefore exhausted when prison officials inaccurately describe the steps needed to
pursue the remedy. For example, if an official erroneously informs an inmate that
cooperating in an Internal Affairs investigation is sufficient to initiate the grievance
process, that misrepresentation could effectively thwart an inmate’s attempt to take
advantage of available remedies. See Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011)
(hereinafter “Pavey II”).
However, the attempts to exhaust are only thwarted if the officials lead the
plaintiff to an erroneous belief; if officials say nothing about the grievance process, they
have not thwarted the plaintiff’s attempt to exhaust. For instance, in Pavey II, the Seventh
Circuit noted that the plaintiff’s attempts to exhaust would be thwarted if officers
informed the plaintiff that beginning an investigation with Internal Affairs would initiate
the grievance process. Id. However, in that case, the plaintiff’s testimony contradicted his
claims; specifically, the plaintiff stated that the officers he spoke to did not mention the
grievance process during their conversations. Id. He also testified that he had filed at least
ten grievances in the past and thus was familiar with the grievance process. Id.
Accordingly, the Court held that the plaintiff was not thwarted from exhausting his
administrative remedies. Id.
Plaintiff asserts that both Ms. Oestmann, in her capacity as a mental health
professional with the HCU, and Internal Affairs officers, including Defendant Pickford,
thwarted his attempts to exhaust his remedies when they told him that he should not file
grievances regarding sexual assaults. As for Defendant Pickford, he states in his
declaration that he did not instruct Plaintiff not to file grievances and that there is no rule

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against filing grievances about sexual assaults. (Doc. 173, Exh. G). While the Court credits
Defendant Pickford’s declaration and finds that he did not tell Plaintiff not to file a
grievance, the Court cannot say that no Internal Affairs officer told Plaintiff not to file a
grievance. For example, both Plaintiff and Defendants agree that the Informant Line Call
Report recorded information pertinent to Plaintiff’s complaint, and Defendants sent
Plaintiff a copy of the Report dated April 1, 2017 through January 31, 2018. (Doc. 173).
However, Defendants did not provide the Informant Line Call Report in their
supplement to the evidentiary record, which could have shed more light on the matter.
Moreover, the fact that Plaintiff continued to rely on the Informant Line regarding this
matter for several months reinforces Plaintiff’s assertions that there was no need to file a
formal grievance because Internal Affairs was handling it.
Even though Defendant Pickford did not instruct Plaintiff not to file a grievance,
there is no similar evidence for Ms. Oestmann. On a motion for summary judgment on
the issue of exhaustion of administrative remedies, Defendants bear the burden of
proving non-exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007); Maddox v. Love, 655
F.3d 709, 720 (7th Cir. 2011). In order to satisfy that burden, Defendants must do more
than point to a lack of evidence in the record. Instead, Defendants must affirmatively
establish that the evidence conclusively shows that no reasonable fact-finder could find
that Plaintiff was prevented from exhausting his administrative remedies. See Branham v.
Snow, 392 F.3d 896, 906–907 (7th Cir. 2004). Unlike Defendant Pickford, there is no
declaration from Ms. Oestmann indicating that she did not tell Plaintiff not to file
grievances. Instead, in her report, Ms. Oestmann notes that she did tell Plaintiff she would

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inform Internal Affairs about his claim. (Doc. 173, p. 19). Construed in the light most
favorable to the Plaintiff as the non-moving party, the Court finds that this evidence may
support Plaintiff’s allegations that Ms. Oestmann told him not to file grievances during
an Internal Affairs investigation. See Maclin, 520 F.3d at 786. At the very least, it
corroborates Plaintiff’s assertions about the need to report sexual assaults first to the
HCU, who would, in turn, report the matter to Internal Affairs. Given the corroboration
of Plaintiff’s assertions and the lack of an unequivocal statement from Ms. Oestmann
indicating that she did not advise Plaintiff to forego filing a formal grievance, the Court
finds that the Defendants have failed to meet their burden of proof on this point.
During the hearing, Defendants also questioned why Plaintiff used the grievance
procedure when complaining about Officer Anderson’s alleged assault, but did not do so
for the alleged assault involving Defendant Dunning. According to Defendants,
Plaintiff’s past use of the grievance procedure contradicted his testimony that officers
told him he should not use the grievance procedure when complaining of sexual assaults.
Defendants’ argument is similar to the Seventh Circuit’s reasoning in Pavey II, as the
Court noted that the plaintiff had testified as to his familiarity with the grievance process,
and thus should have known that an Internal Affairs investigation did not initiate the
grievance process. 663 F.3d at 906. However, in that case, the plaintiff filed grievances
prior to, rather than after, the grievance at issue. Because the defendants did not discuss
grievances when conducting their investigation, the plaintiff had no reason to believe that
his prior grievances were not indicative of how he should file grievances in that case. In
contrast, here, Plaintiff filed the grievance regarding Officer Anderson after the Internal

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Affairs investigation into the alleged assault at issue; this grievance therefore does not
demonstrate Plaintiff’s knowledge of the grievance procedure at the time of the relevant
investigation.
Furthermore, Plaintiff’s complaint about Officer Anderson’s conduct is consistent
with Plaintiff’s overall assertions that he was required to report such matters initially to
the HCU Administrator. Plaintiff testified that he filed a grievance against Officer
Anderson, but only did so after he first reported the matter to the HCU Administrator.
Plaintiff then filed a grievance against Officer Anderson after the HCU Administrator
told Plaintiff that the matter did not need to be reported to Internal Affairs. This is
consistent with Plaintiff’s allegations about the purported grievance procedure regarding
sexual assaults at Shawnee where the HCU administrator makes the determination of
whether the matter should be referred to Internal Affairs. In the case of Defendant
Dunning, the HCU Administrator thought it was appropriate to go to Internal Affairs,
which explains why Plaintiff did not pursue the regular grievance process with respect
to those allegations. However, with respect to Officer Anderson, Plaintiff pursued the
regular grievance process because the HCU Administrator told him the matter did not
need to be reported to Internal Affairs. Thus, Plaintiff’s handling of his complaints against
Officer Anderson is consistent with Plaintiff’s explanation for how the grievance process
with respect to sexual assaults at Shawnee apparently worked. And, without any
evidence to the contrary from the HCU administrator or any other HCU personnel, the
Court chooses to credit Plaintiff’s testimony, which the Court finds to be internally
consistent. Accordingly, the Court concludes that Plaintiff was thwarted from exhausting

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his administrative remedies due to representations made to Plaintiff by the HCU
regarding how to handle complaints of sexual assaults. Plaintiff’s remedies are therefore
exhausted.
CONCLUSION
For the above stated reasons, Defendants’ motion for summary judgment for
failure to exhaust administrative remedies (Doc. 145) is DENIED.
IT IS SO ORDERED.
Dated: May 6, 2021.

Digitally signed
by Judge Sison 2
Date: 2021.05.06
15:06:40 -05'00'
______________________________
GILBERT C. SISON
United States Magistrate Judge

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