Hoskins v. Lueker et al
ORDER granting 68 Motion for Summary Judgment; granting 73 Motion for Summary Judgment. For the reasons stated in the attached order and memorandum, Defendants motions for summary judgment for failure to exhaust administrative remedies (Doc. 68, Doc. 73) are GRANTED. The Court directs the Clerk of the Court to dismiss this case without prejudice. Signed by Magistrate Judge Gilbert C. Sison on 8/1/2022. (mjf)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA LEE HOSKINS,
BRANDON LUEKER, C/O MAYS,
WESLEY SHIRLEY, P. BAKER, ERIC
TOMSHACK, G. HALE, DANIEL J.
HARRISS, CHAD WALL, C. HECK,
MICHAEL BAILEY, PATRICK PEEK,
JANA RUETER, OFFICER HAGSTON,
SETH MERACLE, BRIAN MILLER,
CHAD ADAMS, KALE LIVELY,
OFFICER BELL, SCOTT PETITJEAN,
SWISHER, JAMES GROVES, INTEL
Case No. 3:20-cv-00776-GCS
MEMORANDUM & ORDER
SISON, Magistrate Judge:
Plaintiff Joshua Hoskins, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”) currently incarcerated at Dixon Correctional Center, brought suit
against Defendants on August 10, 2020, for allegations stemming from actions against
(“Pinckneyville”). (Doc. 1). On August 31, 2020, Plaintiff filed an amended complaint, in
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which he brings two counts against all defendants pursuant to 42 U.S.C. § 1983: (i) a First
Amendment burden of religion claim, and (ii) a First Amendment claim for retaliation.
See (Doc. 29).
Now before the Court is a motion for summary judgment on the issue of
exhaustion of administrative remedies filed by Defendants Meracle, Adams, Bailey,
Baker, Bell, Cooley, Dudek, Groves, Hagston, Hale, Harriss, Heck, Herman, Johnson,
Lively, Lueker, Mays, Miller, Mumbower, Peek, Petitjean, Rodman, Shirley, Tomshack,
Wall, Wanack, and Wangler (the “IDOC Defendants”). (Doc. 73). Also, before the Court
is a motion for summary judgment on the issue of exhaustion of administrative remedies
filed by Defendant Rueter. (Doc. 68). For the reasons outlined below, both motions are
Plaintiff identifies as an Islam Muslim, and he alleges that Defendants did not
allow him to possess the Holy Quran, a kufi, a watch, or a prayer rug between April 1,
2020 and August 10, 2020. (Doc. 29, p. 2). He also claims that he was prohibited from
attending all Islamic services. Id. According to Plaintiff, Defendants told Plaintiff that
they would monitor his mail and destroy any requests related to his ability to practice his
religion; they would also place him in segregation on false disciplinary charges. Id. at p.
3. Specifically, from April 24th through May 25th, Plaintiff claims that Defendants
Lueker, Swisher, Wall, Hale, Heck, Brock, Bailey, Rueter, Grove, Meracle, Miller, Adams,
Lively, Bell, Cooley, Dudek, Petitjean, Mumbower, Mays, Shirley, Wangler, Wanack,
Peek, Hermann, Tomshack, Harriss, and Johnson prevented him from fasting during
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Ramadan. Id. On May 11th and June 11th, Defendants Wall, Harriss, and Brook allegedly
searched Plaintiff’s property and threatened to issue false disciplinary tickets if they
found Islamic materials. Id. In his amended complaint, Plaintiff states that the last date of
the events giving rise to the complaint was August 10, 2020.
None of the defendants identify any potentially exhausted grievance in Plaintiff’s
grievance file, and Plaintiff himself admitted during the hearing on the motions for
summary judgment that he did not attempt to exhaust any grievances on the issues
underlying his complaint. Instead, Plaintiff contends that such an attempt would be
futile, as his administrative remedies are unavailable to him. See (Doc. 78, p. 2).
Specifically, during the hearing, Plaintiff explained that his counselor, Counselor Brown,
refused to process his grievances relating to this event. Plaintiff contends that counselors
did not return grievances which would get the staff in trouble. Therefore, when he wrote
grievances which did not state that a specific counselor was denying him access to the
grievance process, he would get a response from the grievance office. See (Doc. 132, p. 8).
Though Plaintiff contends that his grievances would not be processed, he also
admitted that his CHAMPS records show that Counselors Mercier, King, Reid, Hale,
Rodely and Brown each processed his grievances at different times. (Doc. 132, p. 14).
However, the counselors who processed Plaintiff’s grievances were not the same as those
who collected grievances directly from him. Id. Plaintiff asserts that the counselors who
directly collected his grievances would destroy them before putting them in the lockbox
for delivery to the individuals who would then process the grievances. Id. at p. 14-15.
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During the hearing, Plaintiff called Ms. Shayne Mercier and Ms. Amy Hill as
witnesses. Ms. Mercier is a grievance officer at Pinckneyville. When asked about the
procedure for missing grievances, Ms. Mercier explained that she personally told Plaintiff
to refile his grievances if he did not receive a response within forty-eight hours of initially
submitting the grievances. See (Doc. 138, p. 51). Ms. Mercier also explained that
counselors who collect grievances have combinations necessary to open the lockboxes
where the grievances are initially deposited. Id. at p. 60. If an inmate then attempted to
follow up on a grievance before receiving a response, she would respond to that second
grievance by stating that the first grievance is still pending investigation. Id. at p. 52. If a
grievance described improper conduct by a member of the prison staff, she would
question that staff directly as to the events at issue. Id. at p. 54.
Ms. Hill testified that she is currently employed as a counselor at Pinckneyville.
She explained that she needed an inmate to provide general dates when asking about
missing grievances; when she had those dates, she could ask the Grievance Officer
whether that inmate had any open grievances fitting that timeframe. See (Doc. 138, p. 64).
She also explained that if an inmate wrote a grievance stating that he had previously filed
a grievance for misconduct, but he had not received a response to that previously filed
grievance, then the second grievance would act as a request slip because it would not be
addressed to the officer accused of misconduct. Id.
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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.
56(a). In order to survive a motion for summary judgment, the non-moving party must
provide admissible evidence from 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 may select one of the three
following 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 Prisoner Litigation Reform Act (“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
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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 exhaust their remedies before filing suit. See Ford v. Johnson, 362
F.3d 395, 398 (7th Cir. 2004). A plaintiff cannot file 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 exhaust
his claims properly. 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. The grievance 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, then the 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
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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 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 permits 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
The statutory purpose of the PLRA is to “afford corrections officials [the] 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
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procedurally defective grievance. See Woodford, 548 U.S. at 83. Unless a prisoner
completes the administrative review process by following the rules established for that
process, exhaustion has not occurred. See Pozo, 286 F.3d at 1023.
Though Defendant Rueter focuses on the credibility of Plaintiff’s assertion that
Counselor Brown refused to process his grievances, as a primary and decisive concern,
the Court finds the IDOC Defendants’ assertion that Plaintiff prematurely filed his
complaint before exhausting his remedies to be determinative. See (Doc. 74, p. 11).
Because Plaintiff filed his lawsuit prematurely, the Court finds that his grievances were
not exhausted at the time he filed suit. Accordingly, the motions for summary judgment
There are three circumstances in which an administrative remedy is not capable of
use to obtain relief (and 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 follows the procedure for exhausting
administrative remedies, but prison officials mishandle the grievance, the remedy is
rendered unavailable. See Dole, 438 F.3d at 811. For example, if the ARB rejected an appeal
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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.
If grievance personnel do not respond to an inmate’s grievance, that inmate’s
administrative remedies are also rendered unavailable. See Dole, 483 F.3d at 809.
However, in order for an inmate’s remedies to be unavailable due to lack of a response,
an inmate must have no indication that officials are pursuing his case. See Reid v. Balota,
962 F.3d 325, 331 (7th Cir. 2020). For example, when prison officials state that they will
inform an inmate of the status of his or her grievance within sixty days, “whenever
possible,” a period of silence exceeding six months nevertheless does not render remedies
unavailable because officials may still be investigating a complicated case. Ford, 362 F.3d
at 400. In contrast, in Reid, the Seventh Circuit Court of Appeals found that a two-month
period of silence rendered administrative remedies unavailable only because the inmate
had no other reason to believe that anyone was “looking into” his grievance. 962 F.3d at
Although prison officials may, in some circumstances, render a prisoner’s
administrative remedies unavailable by failing to respond to a grievance, a court cannot
find that the administrative process was not available when a prisoner rushed to court to
file a lawsuit shortly after an administrative response was required. See, e.g., Mlaska v.
Shah, Nos. 10-2255, 10-2401, 10-3795, 428 Fed. Appx. 642, 645 (7th Cir. June 29,
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2011)(stating that prisoner failed to exhaust where, at best, he filed lawsuit one month
after the warden's 60–day response period elapsed); Jamison v. Franko, No. 12 C 0242, 2013
WL 5166626, at *3 (N.D. Ill. Sept. 13, 2013)(noting that prisoner failed to exhaust where
he filed suit less than two weeks after the 30–day response period had elapsed); Gregory
v. Santos, No. 07-669-JPG-CJP, 2010 WL 750047, at *6 (S.D. Ill. Jan. 19, 2010)(stating that
prisoner failed to exhaust where he gave the ARB “only a few days leeway beyond the
six-month period”). Instead, prisoners must file suit only after a sufficient period of time
has elapsed for a required administrative response. See, e.g., Kyles v. Mathy, No. 09–1084,
2010 WL 3025109, at *4 (C.D. Ill. Aug. 2, 2010)(noting that a prisoner exhausted his
administrative remedies when he waited approximately one and a half months after the
expiration of the two-month response deadline before moving on to the next step of the
grievance process); Green v. Hartman, No. 04 C 4304, 2006 WL 2699336, at *3 (N.D. Ill. Sept.
18, 2006)(finding that prisoner exhausted where he waited to file suit until two months
after the expiration of the 30–day response deadline); Goodman v. Carter, No. 2000 C 948,
2001 WL 755137, at *3 (N.D. Ill. July 2, 2001)(noting that prisoner exhausted where he
waited to file suit until 45 days after the warden's response was due). In Illinois,
grievances officers are generally permitted sixty days in which to report his or her
findings and recommendations to the CAO. See 20 ILL. ADMIN. CODE § 504.830(e).
As the IDOC Defendants point out, Plaintiff filed his complaint simultaneously
with the last day of his allegations. The final date of the incidents Plaintiff alleges and the
date on which Plaintiff first filed his complaint are both on August 10, 2020. See (Doc. 74,
p. 11); see also (Doc. 29). Plaintiff further filed his amended complaint only three weeks
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later, on August 31, 2020. See (Doc. 29). Plaintiff therefore failed to wait an appropriate
amount of time for officials to investigate his claims and respond to his grievances before
filing either his complaint or his amended complaint, and thus Plaintiff failed to exhaust
his administrative remedies.
Plaintiff asserts that his administrative remedies were not available to him because
his counselor, Counselor Brown, refused to process his grievances in retaliation for
Plaintiff’s past litigation history. See (Doc. 78, p. 2-3). Plaintiff explained at the hearing
that counselors would not process grievances which would support Plaintiff bringing a
lawsuit against prison staff, but would process those which otherwise did not name
prison administration or grievances against them. So, for example, staff would answer
Plaintiff’s grievances requesting information on his open grievances, which did not
directly reflect on staff conduct, but they would not process grievances which complained
directly that staff would not permit Plaintiff to attend religious services.
If true, Plaintiff’s contentions could render his administrative remedies
unavailable to him. However, Plaintiff must nevertheless wait a sufficient amount of time
to file his complaint and give prison officials an opportunity to make his administrative
remedies available and to investigate his claims. An administrative remedy is considered
“available” under the PLRA so long as an administrative authority has the ability to take
some action in response to the grievance. See Booth v. Churner, 532 U.S. 731, 741 (2001).
An inmate’s belief that exhaustion is futile is insufficient to render a remedy unavailable
if officials still have a window of time in which they may investigate or otherwise act on
a grievance. See Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016); see also Dole, 438 F.3d
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at 809. As Plaintiff filed his complaint on the last day of the events underlying his
complaint, Pinckneyville administrators would have had at least sixty days in which to
respond to any grievances filed on that same day. As officials still had an opportunity to
investigate Plaintiff’s claims, his administrative remedies were available to him, and
exhaustion was not futile. Accordingly, the motion for summary judgment on the issue
of exhaustion is granted.
For the above stated reasons, Defendants’ motions for summary judgment for
failure to exhaust administrative remedies (Doc. 68, Doc. 73) are GRANTED. The Court
directs the Clerk of the Court to dismiss this case without prejudice.
IT IS SO ORDERED.
DATED: August 1, 2022.
by Judge Sison 2
GILBERT C. SISON
United States Magistrate Judge
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