Morris v. Jeffreys et al

Filing 58

ORDER denying 46 Motion for Summary Judgment. For the reasons outlined in the attached Order, the Court DENIES Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative Remedies 46 . Signed by Magistrate Judge Gilbert C. Sison on 9/24/2024.(kbh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT MORRIS,
Plaintiff,
vs.
SHERI BUETTNER, CHELSEA
REGELSPERGER,
Defendants.

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) Case No. 3:23-cv-01162-GCS
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MEMORANDUM & ORDER
SISON, Magistrate Judge:
Pending before the Court is Defendant’s Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies. (Doc. 46). Defendants filed the Motion
along with a Memorandum of Law in Support on January 18, 2024. (Doc. 46, 47). The
Court provided Plaintiff with two extensions of time. (Doc. 50, 52). The second extension
provided Plaintiff until April 18, 2024, to respond to the Motion. (Doc. 52). Plaintiff then
filed a timely Response to the Motion for Summary Judgment on April 11, 2024. (Doc.
53). For the reasons delineated below, Defendant’s Motion for Summary Judgment is
DENIED. (Doc. 46).
PROCEDURAL BACKGROUND
Plaintiff Robert Morris (“Morris”), an inmate of the Illinois Department of
Corrections (“IDOC”), brings this civil rights action pursuant to 42 U.S.C. § 1983 for
alleged deprivations of his constitutional rights at Menard Correctional Center
(“Menard”). (Doc. 13). Plaintiff’s First Amended Complaint contains six general groups
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of claims, including: a mental health incident that occurred on October 12, 2021 (Doc. 13,
p. 14-15); a disciplinary proceeding that occurred on October 19, 2021 (Doc. 13, p. 15-16);
an alleged excessive force incident by the use of chemical agents on January 12, 2022 (Doc.
13, p. 16-17); a mental health crisis/hunger/water strike beginning on March 28, 2022;
and a medical incident coupled with alleged excessive force on April 4, 2022 (Doc. 13, p.
18-19).
On September 5, 2023, the Court conducted is preliminary review of Plaintiff’s
First Amended Complaint pursuant to 28 U.S.C. § 1915A. (Doc. 17). The Court construed
Plaintiff’s Amended Complaint into the following counts:
Claim 1:
Eighth Amendment deliberate indifference claim against
Defendants Rowland and BHT Ms. R for refusing/ignoring Plaintiff’s
expression of suicidal and homicidal ideation one hour prior to a mass
suicide attempt on October 12, 2021;
Claim 2:
Eighth Amendment excessive force claim against Defendants
C/O Agne and Sgt. Royster for excessively deploying mace and a fire
extinguisher into Plaintiff’s cell on October 12, 2021, in response to the mass
suicide attempt;
Claim 3:
Eighth Amendment deliberate indifference or cruel and
unusual punishment claim against Defendant MHP Ms. Buettner for
refusing to decontaminate Plaintiff on October 12, 2021, and for placing him
in a filthy cell;
Claim 4:
Eighth Amendment excessive force or cruel and unusual
punishment claim against Defendants Rowland, Lt. Zang, Lt. Bradley
Sadler, Sgt. Royster, C/O Hoffman, C/O Evans and C/O Dulaney for
directing or participating in the January 12, 2022, incident of excessive use
of chemical agents during a “peaceful protest,” which included spraying
Plaintiff for over 3-5 minutes with mace and fire extinguishers, and then
failing to offer decontamination;
Claim 5:
Eighth Amendment deliberate indifference claim against
Defendant Dr. Meyers for refusing medical treatment or ignoring Plaintiff’s
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claims of chest pain and intermittent consciousness during a hunger/water
strike on March 31, 2022;
Claim 6:
Eighth Amendment excessive force or cruel and unusual
punishment claim against Defendants Royster, C/O Evans, Lt. Zang, Lt.
Bradley Sadler, C/O Agne, Sgt. Story, Sgt. Gaetz, Sgt. Laminack and Sgt.
Morris for releasing pepper spray on April 4, 2022, on individuals who were
on a hunger strike, which caused Plaintiff a panic attack, chest pain, and
intermittent consciousness;
Claim 7:
Eighth Amendment deliberate indifference or cruel and
unusual punishment claim against Defendant Crane who was
“unprofessional” towards Plaintiff when he was brought to the healthcare
unit on April 4, 2022, after the pepper spray incident and who sent him
away after he was washed and received an EKG; and
Claim 8:
Eighth Amendment excessive force or cruel and unusual
punishment claim against Defendants Lt. Bradley Sadler, Sgt. Story, Sgt.
Gaetz, Sgt. Laminack, Sgt. Morris, and C/O Agne for allegedly beating
Plaintiff on April 4, 2022, after removing him from the healthcare unit, and
for then placing him in a cell contaminated with chemical agents without
any ability to decontaminate for “days.”

(Doc. 17, p. 6-7). Claim 1 survived against Defendants Rowland and Reglesler.1 Id. at p.
15. Claim 2 survived against Defendants Ange and Royster. Id. Claim 3 survived against
Defendant Buettner. Id. The Court allowed Plaintiff to bring the remaining claims in
separate lawsuits.2 Id.

Per her answer, the correct spelling of this Defendant’s name is “Regelsperger” and will
be used hereinafter. (Doc. 35).

1

Plaintiff was allowed 21 days to inform the Court if he would like to proceed on the
following claims in separate cases:

2

Case B: Claim 4 concerning the January 12, 2022, incidents (Rowland, Zang,
Sadler, Royster, Hoffman, Evans, Dulaney);
Case C: Claim 5 concerning Dr. Meyers’s March 31, 2022, refusal of care; and
Case D: Claims 6-9 concerning the April 4, 2022, incidents (Royster, Evans, Zang,
Sadler, Agne, Story, Gaetz, Laminack, Morris, Crane)
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FACTUAL BACKGROUND
Plaintiff’s grievance records, obtained from the Administrative Review Board
(“ARB”) contain a total of 309 pages. (Doc. 47, p. 4). Plaintiff’s grievance records from
Menard, obtained from the Attorney General’s Office, contains a total of 236 pages.3 Id.
Plaintiff submitted a total of four grievances at Menard before the alleged October 12,
2021, incident.4 (Doc. 47, Exh. 2, p. 1). The Court will review those grievances related to

(Doc. 17, p. 15).
Defendants did not submit the Menard Grievances because none of them relate to the
October 12, 2021, incident. (Doc. 47, p. 4). Plaintiff submitted a total of four grievances at Menard
before the alleged incident on October 12, 2021. Id.

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Plaintiff’s grievance record from Menard shows that Plaintiff submitted a total of six
grievances at Menard during 2021. (Doc. 47, Exh. 2, p. 1). These grievances include:

4

Grievance No. 162-8-21: Plaintiff submitted this grievance on August 19, 2021. Id.
Grievance No. 162-8-21 concerned “N2 restrictions and privileges denied due to
COVID & pink tag status.” Id. at p. 2. The Grievance Log indicates the grievance
was reviewed by the CAO on September 2, 2021, deemed moot, and returned to
Plaintiff on September 7, 2021. Id. at p. 3.
Grievance No. 257-8-21: Plaintiff submitted this grievance on August 30, 2021. Id.
at p. 1. Grievance No. 257-8-21 concerned “N2 ADA hearing accommodations,
property.” Id. at p. 2. The Grievance Log indicates the grievance was reviewed by
the CAO on September 8, 2021, deemed moot, and returned to Plaintiff on
September 9, 2021. Id. at p. 3.
Grievance No. 74-9-21: Plaintiff submitted this grievance on September 9, 2021. Id.
at p. 1. Grievance No. 74-9-21 concerned “N2 property confiscated by IA, special
commissary shop & documents from IA.” Id. at p. 2. The Grievance Log indicates
the grievance was reviewed by the CAO on September 14, 2021, denied, and
returned to Plaintiff on September 15, 2021. Id. at p. 3.
Grievance No. 75-9-21: Plaintiff submitted this grievance on September 9, 2021. Id.
at p. 1. Grievance No. 75-9-21 concerned “N2 confiscated property.” Id. at p. 2. The
Grievance Log indicates the grievance was reviewed by the CAO on September
14, 2021, denied, and returned to Plaintiff on September 15, 2021. Id. at p. 3.
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the October 12, 2021, incident below.
Plaintiff submitted one grievance dated December 13, 2021, alleging that he was
sending it directly to the ARB because he had “been denied the grievance box” and when
he had been presented it Plaintiff wrote that “there wasn’t any responses and/or
counselor receipts to send in confirmation that someone ha[d] taken notice of it.”5 (Doc.
47, Exh. 1, p. 36). Plaintiff went on to detail the October 12, 2021, incident implicating both
Defendant Regelsperger and Defendant Buettner. Id. at p. 36-37. Plaintiff complained that
“Ms. R. never wrote [us] down for our crisis calls and hunger strike declaration” after he
and a group of inmates vowed to commit suicide because their complaints about
“commissary/ the business office/administration, dietary, law library and many more”
had not received any answer. Id. at p. 37. Plaintiff implicated Defendant Buettner by
stating that she “lied about his appearance upon his arrival into [health care]” after he

Grievance No. 359-10-21: Plaintiff submitted this grievance on October 29, 2021.
Id. at p. 1. Grievance No. 359-10-21 concerned “N2 property misplaced in transit.”
Id. at p. 2. The Grievance Log indicates the grievance was returned to Plaintiff by
a Counselor at the first level on November 16, 2021. Id. The Grievance log does not
show that the Grievance was forwarded on to the second level for review by the
CAO. Id. at p. 3.
Grievance No. 242-12-21: Plaintiff submitted this grievance on December 22, 2021.
Id. at p. 1. Grievance No. 242-12-21 concerned “N2 ADA watch.” The Grievance
Log indicates the grievance was reviewed by the CAO on September 14, 2021,
deemed moot, and returned to Plaintiff on January 20, 2022. Id. at p. 3.
Along with Plaintiff’s written grievance, Plaintiff submitted affidavits from nine inmates
indicating that Plaintiff was being denied access to the grievance process. (Doc. 47, Exh. 1, p. 1533). Inmate Sherman Gibson wrote that he observed that on the week of November 8 – November
14, 2021, that the grievance box officer refused to stop by and pick up Plaintiff’s complaints. Id. at
p. 33. Inmate Michael Wilson noted that he had “seen multiple staff destroy and throw away
many individuals in custody complaints/grievances from the Grievance Procedure: Grievance
Box.” Id. at p. 25.
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was dragged out of his cell and placed on suicide watch. Id. Plaintiff claims Buettner told
him that she would say what she needed to say to protect staff at Menard. Id. The
grievance was not reviewed because the facility responses were not provided as required.
Id. at p. 12.
Plaintiff submitted another grievance directly to the ARB dated December 22,
2021, about the October 12, 2021, incident. (Doc. 47, Exh. 1, p. 8-11). Plaintiff wrote that
he had attempted suicide by arson on October 12, 2021, and that he was “wrongfully”
given three months in segregation. Id. at p. 11. He indicated that nurses had denied him
from seeing a doctor after the incident. Id. The grievance was not reviewed by the ARB
because Plaintiff did not provide his original written grievance along with the responses
from the counselor, Grievance Officer, and Chief Administrative Officer. Id. at p. 8.
Plaintiff submitted a grievance dated March 27, 2022, directly to the ARB, about
the October 12, 2021, incident as well. (Doc. 47, Exh. 1, p. 5-7). Plaintiff grieved that he
had attempted to “kill himself in a fire” on October 12, 2021. Id. at p. 7. In the “relief
requested” section of Plaintiff’s grievance he wrote that he would “like the ARB to
properly answer this because the Grievance Box and its procedure was not made
available to [him].” Id. at p. 6. This grievance was not reviewed by the ARB because the
facility responses were not included with Plaintiff’s submission. Id. at p. 5.
Lastly, Plaintiff submitted a grievance dated April 17, 2022, regarding several
issues including the October 12, 2021, incident to the ARB. (Doc. 47, Exh. 1, p. 1-4).
Plaintiff grieved that in October 2021 he had a “crisis situation along with others . . . where
[he] was actually punished for trying to commit self-harm.” Id. at p. 3. Plaintiff also
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reported to the ARB that he had “tried his best to submit [his] issues to the grievance box
and to the counselor.” Id. at p. 2. However, Plaintiff indicated that the counselor would
“retrieve [his] grievances without any response.” Id. This grievance was not reviewed by
the ARB because no facility responses were included, and he was not within the 60-day
time frame to grieve. Id. at p. 1.
LEGAL STANDARDS
Summary judgment is proper when a moving party cannot establish the presence
of a genuine dispute of material fact. See FED. R. CIV. PROC. 56(a). To survive a motion for
summary judgment, the non-moving party must provide admissible evidence which
would allow a reasonable jury to find in his or her favor. See Maclin v. SBC Ameritech, 520
F.3d 781, 786 (7th Cir. 2008). Generally, in determining the outcome on a motion for
summary judgment, the Court’s role is not to evaluate the weight of the evidence, judge
witness credibility, or determine the truth of the matter, but instead is to determine
whether a genuine issue of material fact exists. 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 “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.” 544 F.3d 739, 740-741 (7th Cir. 2008). Therefore, it is up to the
Court to evaluate whether a prisoner has exhausted his or her administrative remedies
when the affirmative defense of non-exhaustion is raised. If the Court determines that a
prisoner did not exhaust administrative remedies, the Plaintiff is given the opportunity

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to exhaust should time still permit or if the failure to exhaust was innocent.6 Id. at 742.
Alternatively, if the Court determines that the failure to exhaust was the prisoner’s fault,
the case is over. Id.
Under the Prison Litigation Reform Act (“PLRA”), which governs lawsuits filed
by inmates, “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) (emphasis added). This comports with the PLRA’s statutory purpose
of “afford[ing] correction 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).
Additionally, it affords prison administrations an opportunity to fix the problem, reduce
damages, and shed light on the factual disputes that may arise in litigation. See Pozo v.
McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002).
When attempting to exhaust administrative remedies, prisoners must follow their
prison’s administrative rules. See Pozo, 286 F.3d at 1023. As an inmate confined within the
IDOC, Plaintiff is required to follow the regulations contained in the IDOC’s Grievance

Pavey provides that an “innocent” failure to exhaust includes situations where prison
officials prevent prisoners from pursuing exhaustion of their administrative remedies. 544 F.3d
at 742. Further, if an inmate submits a grievance and does not receive a response, the inmate’s
attempts at exhaustion will be deemed thwarted, and the inmate will be allowed to proceed with
the lawsuit. See, e.g., Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008) (noting that an inmate is
not required to appeal his grievance if he submits the grievance to the proper authorities but
never receives a response); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (indicating that a
remedy can be unavailable to a prisoner if the prison does not respond to the grievance or uses
misconduct to prevent a prisoner from exhausting his remedies).

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Procedures for Offenders (“IDOC Grievance Procedures”) to properly exhaust his claims.
See 20 ILL. ADMIN. CODE § 504.800, et seq. The Seventh Circuit requires strict adherence to
a prison’s grievance procedures to satisfy the exhaustion requirement under the PLRA.
See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Accordingly, a prisoner cannot
satisfy the exhaustion requirement by filing untimely or otherwise procedurally defective
grievances. See Woodford, 548 U.S. at 83. Nor may a prisoner file a lawsuit while the
prisoner is simultaneously proceeding through the required grievance process. See Ford
v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). 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.
To initiate the grievance process, the IDOC Grievance Procedures first require that
inmates file a grievance with a Counselor at their correctional institution within 60 days
of the discovery of an incident. See 20 ILL. ADMIN. CODE § 504.810(a). In the grievance, the
prisoner must provide: “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.”7 20 ILL. ADMIN. CODE § 504.810(a).
Should the prisoner not be satisfied with the Counselor’s response, the prisoner can then
submit a formal grievance to the prison’s Grievance Officer. Id. at (a)-(b). The Grievance

This 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. See 20 ILL. ADMIN. CODE § 504.810(a).

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Officer must review the grievance and provide a written response to the inmate. See 20
ILL. ADMIN. CODE § 504.830(a). Within 60 days of receipt of the grievance, when
reasonably feasible under the circumstances, the Grievance Officer must report his or her
findings and recommendations in writing to the Chief Administrative Officer (“CAO”).
See 20 ILL. ADMIN. CODE § 504.830(e). The CAO shall review the findings and
recommendations from the Grievance Officer and advise the inmate of his or her decision
in writing. Id. If the prisoner is not satisfied with the CAO’s decision, the prisoner can
then formally appeal to the Director through the ARB within 30 days of the CAO’s
decision. See 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 written recommendation to the Director, who is responsible for issuing the
IDOC’s final decision within six months. See 20 ILL. ADMIN. CODE § 504.850(d)–(e).
A separate procedure exists for emergency grievances. Inmates may file
emergency grievances directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The
CAO will determine if there is “a substantial risk of imminent personal injury or other
serious or irreparable harm” to the inmate that warrants the grievance being handled on
an emergency basis. Id. If the CAO classifies the grievance as an emergency grievance,
the CAO shall “expedite the process of the grievance and respond to the offender
indicating what action shall be or has been taken.” See 20 ILL. ADMIN. CODE § 504.840(b).
The inmate will also be informed by the CAO if it is determined that the grievance is nonemergent. See 20 ILL. ADMIN. CODE § 504.840(c). In such a case, notification will be made
in writing that the inmate should “resubmit the grievance as non-emergent, in accordance
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with the standard grievance process.” Id. When an inmate appeals a grievance that has
been deemed emergent by the CAO, the ARB “shall expedite the processing of the
grievance.” 20 ILL. ADMIN. CODE § 504.850(f).
Lastly, there are certain circumstances where a prisoner may exhaust his or her
administrative remedies by filing a grievance directly with the ARB. See 20 ILL. ADMIN.
CODE § 504.870. Those circumstances include grievances addressing: (1) placement in
protective custody; (2) involuntary administration of psychotropic medication; (3)
decisions regarding disciplinary proceedings that took place at an institution other than
where the inmate currently resides; and (4) all other issues, with the exception of personal
property issues, that occurred at a previous institution.” Id. The ARB “shall review and
process . . . [such] grievance[s] in accordance with Section 504.850.” Id.
DISCUSSION
Whether Plaintiff Morris exhausted his administrative remedies comes down to
one question: did Plaintiff have access to the administrative remedy process from October
2021 through mid-December 2021?8 Defendants assert that Plaintiff did have access to the
administrative grievance process. (Doc. 47, p. 12). In support of their assertion, they point
the Court to a single grievance – Grievance No. 359-10-21 – that Plaintiff filed on October
29, 2021, which was returned to Plaintiff by a counselor on November 16, 2021. Id.
Defendants also argue that Plaintiff conceded in his response to Defendants’ Motion for
The Court believes that Plaintiff’s grievance dated December 13, 2021, is the only
grievance concerning the October 12, 2021, event that sufficiently details the involvement of
Defendants Regelsperger and Buettner. Therein, Plaintiff specifically describes the same conduct
alleged in counts one and three of his complaint against these defendants. See (Doc. 47, Exh. 1., p.
37).
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Summary Judgment that he did not first attempt to submit the December 13, 2021,
grievance at the first level prior submitting it to the ARB. (Doc. 56, p. 2). Plaintiff however
contends that he lacked access to the administrative remedy process and that was why
he mailed the December 13, 2021, grievance directly to the ARB. (Doc. 53, p. 2-3). In
viewing the evidence in the light most favorable to Plaintiff, the Court is not convinced
that Defendants have met their burden of proof in demonstrating that Plaintiff failed to
exhaust his administrative remedies in this case.
An administrative remedy is available if it is ‘capable of use’ to obtain ‘some relief
for the action complained of.’” Ramirez v. Young, 906 F.3d 530, 535 (7th Cir. 2018) (quoting
Ross v. Blake, 578 U.S. 632, 642 (2016)). Unavailability does not necessarily have to be
caused by the misconduct of the defendants; a process can be unavailable where-as herean “inmate through no fault of his own, could not [access] the grievance process.”
Lanaghan v. Koch, 902 F.3d 683, 688 (7th Cir. 2018). The availability of an administrative
remedy is a fact specific inquiry. Id. at 688. The unavailability of a grievance process “lifts
the PLRA exhaustion requirement entirely and provides immediate entry into federal
court.” Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016).
In this case, more than just mere speculation is present in the record to corroborate
Plaintiff’s assertion that he was thwarted from accessing the grievance process at Menard
after the October 12, 2021, mental health incident. C.f. Hoskins v. Swisher, Case No. 20-CV522-SMY, 2022 WL 226063, at *5 (S.D. Ill. Jan. 26, 2022) (finding that Plaintiff’s mere
speculations about the grievance processes’ unavailability was not enough of a record on
its own to demonstrate unavailability of the administrative remedy process). The Court
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acknowledges that Plaintiff did submit one grievance successfully on October 29, 2021,
which dealt with property misplaced in transit. The Court, however, also notes that prior
to the incident date of October 12, 2021, Plaintiff filed four grievances which all contained
responses. These grievances dealt with issues ranging from restrictions and privileges to
accommodations and property. It is difficult to imagine that the Plaintiff would not have
grieved about the October 12, 2021, incident, especially given its alleged severity, when
he had grieved about relatively minor issues as previously mentioned. This fact gives
added credence to Plaintiff’s claims that he had been denied access to the grievance box;
hence his need to file the grievances directly with the ARB. This, in turn, is corroborated
by the affidavits of several fellow inmates indicating that they witnessed Plaintiff being
denied access to the grievance box during the relevant period. This is sufficient to give
the Court pause. Accordingly, Defendants’ Motion for Summary Judgment is DENIED.
CONCLUSION
For the reasons outlined about the Court DENIES Defendants’ Motion for
Summary Judgment for Failure to Exhaust Administrative Remedies. (Doc. 46).
IT IS SO ORDERED.
DATED: September 24, 2024.

Digitally signed by
Judge Sison
Date: 2024.09.24
13:34:06 -05'00'
___________________________________
GILBERT C. SISON
United States Magistrate Judge

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