govinfo:USCOURTS-ilsd-3_23-cv-02963-2

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ILLINOIS 
 
WILLIAM FRAKES, JR., 
As Successor in Interest and Special 
Representative of William L. Frakes, 
deceased, 
 
Plaintiff, 
 
vs. 
 
JUSTIN WARREN, 
JORDAN HECKLER, 
JOSEPH R. LAGESSE, and 
JOHN DOE CORRECTIONAL 
OFFICERS, 
 
 Defendants. 
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MEMORANDUM AND ORDER 
 
BEATTY, Magistrate Judge: 
This matter is currently before the Court on the motion for judgment on the 
pleadings and the motion for summary judgme nt on the issue of exhaustion, both of 
which were filed by Defendants Justin Warren and Jordan Heckler (Docs. 70, 71). For the 
reasons explained below, both motions are denied.
1 
 
 
 
1 The undersigned has authority to rule on these motions even though the John Doe Correctional Officers 
have not appeared and consented to magistrate ju dge jurisdiction because they are “unnamed and 
unknown,” which “indicates that they [are] not ‘parties’ whose consent § 636(c) requires.” Swisher v. Porter 
Cnty. Sheriff's Dep't , 761 F. App'x 616, 619–20 (7th Cir. 2019) (citing Williams v. King , 875 F.3d 500, 502–04 
(9th Cir. 2017) (holding that “parties” under § 636(c) means named parties, whether served or unserved)). 
Cf. Coleman v. Labor & Indus. Review Comm'n, 860 F.3d 461, 474 (7th Cir. 2017) (recognizing that unnamed 
class members are not parties to a class-action case and thus a magistrate judge may rule without their 
consent). Page ID
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BACKGROUND 
William Frakes filed this pro se civil action pursuant to 42 U.S.C. § 1983 on August 
30, 2023, while he was still an inmate of the Illinois Department of Corrections, for alleged 
deprivations of his constitutional rights at Robinson Correctional Center ( see Doc. 1). 
Following the threshold review of his complaint, Mr. Frakes was permitted to proceed 
on an Eighth Amendment claim against corr ectional officers Justin Warren and Jordan 
Heckler for failing to protect him from a fe llow inmate, who brutally attacked Frakes 
while he was sleeping in the early mornin g hours of May 21, 2023, leaving Frakes with 
second and third-degree burns, knocking out six of his teeth, and causing injuries that 
required over eighty staples and stitches (Doc. 10). 
Mr. Frakes was released from prison in January 2024 (Doc. 71-1), but died the 
following month (see Doc. 28, p. 1). Months later, Frak es’s son, William Frakes, Jr., was 
appointed Special Representative for his deceased father and was substituted in as the 
Plaintiff in this matter (Doc. 51).
2 Plaintiff, through retained counsel, filed a three-count 
Amended Complaint (Doc. 57). He maintained the Eighth Amendment failure to protect 
claim against Defendants Heckler and Warren and added an unspecified number of John 
Doe Officers as Defendants to that claim ( Id.). Plaintiff also asse rted a new state law 
negligence claim against De fendants Heckler, Warren, and the John Doe Officers ( Id.). 
And finally, Plaintiff added Joseph LaGesse, the inmate who purportedly attacked Mr. 
 
 
2 To avoid confusion, the deceased original Plaint iff—William Frakes—will be referred to as Mr. Frakes, 
while his son, the current Plaintiff in this matter—William Frakes, Jr.—will be referred to as Plaintiff. Page ID
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Frakes, as a Defendant and asserted a battery claim against him ( Id.). All claims are 
brought pursuant to the Illinois Survival Act, 755 ILCS 5/27-6 (Id.). 
Defendants Heckler and Jordan filed a motion for judgment on the pleadings, 
arguing that Plaintiff’s neglig ence claim (Count 2) should be dismissed because it is 
barred by sovereign immunity under the Illin ois State Lawsuit Immunity Act, 705 Ill. 
Comp. Stat. 505/8, and the common law doctrine of public o fficial immunity (Doc. 70). 
Defendants Heckler and Jordan also filed a motion for summary judgment on the issue 
of exhaustion, arguing that Mr. Frakes failed to exhaust his administrative remedies 
before commencing this suit (Doc. 71). Plaintiff filed responses in opposition to both 
motions (Docs. 76, 77). No reply briefs were filed. 
MOTION FOR JUDGMENT ON THE PLEADINGS 
Defendants Heckler and Warren argue that Count 2, Plai ntiff’s state law 
negligence claim, must be dismissed becaus e it is barred by sovereign immunity under 
the Illinois State Lawsuit Immunity Act, 705 Ill. Comp. Stat. 505/8, and the common law 
doctrine of public official immunity (Doc. 70). 
A Rule 12(c) motion for judgment on the pleadings is governed by the same 
standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. Federated Mut. 
Ins. Co. v. Coyle Mech. Supply Inc., 983 F.3d 307, 312 (7th Cir. 2020) (“The only difference 
between a motion for judgment on the pleadings and a motion to dismiss is timing; the 
standard is the same.”). As with a motion to dismiss, the court is confined to the matters 
presented in the pleadings and must accept all well-pleaded allegations in the complaint 
as true and draw all reason able inferences in favor of the non-moving party. Unite Here Page ID
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Loc. 1 v. Hyatt Corp., 862 F.3d 588, 595 (7th Cir. 2017); Brown v. Dart, 876 F.3d 939, 940 (7th 
Cir. 2017). Judgment on the pleadings is appr opriate only “when there are no disputed 
issues of material fact and it is clear that th e moving party . . . is entitled to judgment as 
a matter of law.” Unite Here, 862 F.3d at 595 (citing Nat'l Fidelity Life In s. Co. v. Karaganis, 
811 F.2d 357, 358 (7th Cir. 1987)). 
A. Sovereign Immunity
The Illinois State Lawsuit Immunity Act pr ovides that the State of Illinois is 
immune from suit in federal court for state law claims; rather, the Illinois Court of Claims 
has exclusive jurisdiction over state law tort claims against the state. Richman v. Sheahan, 
270 F.3d 430, 441 (7th Cir. 2001) (citing 745 Ill. Comp. Stat. 5/1). State sovereign immunity 
extends to claims against stat e employees, even when they ar e sued in their individual 
capacities, when the action is “nominally one against the servants or agents of the State” 
but “the real claim is against the State of Illin ois itself and . . . the State of Illinois is the 
party vitally interested.” Murphy v. Smith, 844 F.3d 653, 656 (7th Cir. 2016). 
However, as Defendants ackn owledged in their brief (D oc. 70, p. 3), there is an 
important exception to state sovereign immunity in suits against state officials or 
employees: the doctrine “does not apply to st ate-law claims against a state official or 
employee who has violated statutory or constitutional law. Murphy, 844 F.3d at 655 (citing 
Leetaru v. Board of Trustees of University of Illinois, 32 N.E.3d 583 (Ill. 2015)). “This exception 
is premised on the principle that while legal o fficial acts of state officers are regarded as 
acts of the State itself, illegal acts performed by the officers are not.” Murphy, 844 F.3d at 
659 (citation omitted). Page ID
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Here, Defendants argue that state sovere ign immunity bars Plaintiff’s negligence 
claim because: 
Plaintiff cannot show that either Defendants [sic] violated statutory or 
constitutional [law] by the alleged negligence at issue. . . . While Plaintiff’s 
constitutional claim of failure to prot ect is still pending, there is nothing 
that moves this state negligence claim to a claim that falls outside of the 
protection of the state-law sovereign immunity. 
(Doc. 70, p. 3). 
The Court is not persuaded by Defendants’ argument. Of course, Plaintiff cannot 
yet show Defendants’ conduct violated statutory or constitutional law—this matter is still 
in the pleadings stage, discovery has not taken place, and Plaintiff has not had to prove 
anything yet. Given the stage of the proceedings, the question for the Court is actually 
whether Plaintiff has alleged facts that, when accepted as true, are sufficient to bring his 
negligence claim within the exception to sovereign immunity for constitutional 
violations. See Murphy, 844 F.3d at 658–59 (quoting Healy v. Vaupel, 549 N.E.2d 1240, 1247 
(Ill. 1990) (“If the plaintiff alleges that state officials or employees violated statutory or 
constitutional law, [s]overeign immunity affords no protection.”)) (internal quotations 
marks omitted; emphasis added); Smith v. Jones, 497 N.E.2d 738, 740 (Ill. 1986) (“An action 
against a State official for conduct in his official capacity will withstand a motion to 
dismiss the complaint on sovereign immunity grounds if the complaint alleges that the 
official is enforcing an unconstitutional law or violating a law of Illinois and thus acting 
beyond his authority.”). See also Turpin v. Koropchak, 567 F.3d 880, 884 (7th Cir. 2009) 
(holding exception to state sovereign immunity could not save plaintiff’s claim from Page ID
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dismissal because “[n]othing in [plaintiff’s] complaint alleges a violation of the State 
constitution or a statute”). 
Here, Plaintiff alleged that Defendants’ conduct underlying the negligence claim 
also violated the Eighth Amendment (see Doc. 57). That is sufficient to defeat Defendants’ 
motion for judgment on the pleadings based on sovereign immunity. See Whitlock v. 
Brueggemann, 682 F.3d 567, 590 (7th Cir. 2012) (holdi ng Illinois State Police “cannot use 
the doctrine of sovereign immunity to avoid facing suit on Whitlock’s state law claims” 
because Whitlock had alleged that the defendants violated his constitutional rights). 
B. Public Official Immunity
Public official immunity is a common law defense to liability for employees of the 
State of Illinois for the negligent but good faith performance of discretionary duties. Mich. 
Ave. Nat'l Bank v. Cnty. of Cook, 732 N.E.2d 528, 544 (Ill. 2000); Currie v. Lao , 592 N.E.2d 
977, 984 (Ill. 1992); Kinzer v. City of Chi., 539 N.E.2d 1216, 1220 (Ill. 1989). Officials are not 
immune, however, from ne gligence in performing ministerial functions. See Mich. Ave., 
732 N.E.2d at 544 (“[P]ublic official immunity attaches only to conduct by a state official 
that is discretionary, rather than ministerial, in nature.”). 
The common law defined discretionary acts as “those which are unique to a 
particular public office,” Snyder v. Curran Twp., 657 N.E.2d 988, 993 (Ill. 1995), and require 
the employee to exercise “per sonal deliberation and judgment in deciding whether to 
perform a particular act, or how and in what manner that act should be performed.” 
Andrews v. Metro. Water Reclamation Dist. of Greater Chicago, 160 N.E.3d 895, 905 (Ill. 2019) 
(citation omitted). See also Greeson v. Mackinaw Twp. , 565 N.E.2d 695, 699 (Ill. App. Ct. Page ID
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1990) (discretionary acts “req uire[e] personal deliberation, decision, and judgment.") 
(citing Prosser, Torts § 132, at 988–89 (4th ed.1971 )). In contrast, a mi nisterial act is one 
“amounting to obedience of orders or the performance of a task in which the officer had 
no choice of his own.” Greeson, 565 N.E.2d at 699 (citing Prosser, Torts § 132, at 988–89 
(4th ed.1971)). See also Snyder, 657 N.E.2d at 993 (“ministerial acts are those which a person 
performs on a given state of facts in a prescribed manner, in obedience to the mandate of 
legal authority, and without reference to the official's discretion as to the propriety of the 
act.”) It has long been recognized, however, “that the distinction between discretionary 
and ministerial functions resists precise formulation,” Snyder, 657 N.E.2d at 992, and the 
determination must “be made on a case-by-case basis in light of the particular facts and 
circumstances.” Monson v. City of Danville, 115 N.E.3d 81, 91 (Ill. 2018) (citing Snyder, 657 
N.E.2d at 992). 
Additionally, even when th e acts at issue are discret ionary, public officials’ 
immunity “does not extend to acts based on corrupt or malicious motives or willful and 
wanton acts.” McKay v. Kusper , 624 N.E.2d 1140,1148 (Ill. App. Ct.1993) (citation and 
internal quotation marks omitted). Willful and wanton conduct in Illinois can be pleaded 
by alleging the basic elements of a neglig ence claim—duty, breach, and causation—as 
well as “either a deliberate intention to harm or a conscious disregard for the plaintiff’s 
welfare.” E.g., Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Directors , 973 N.E.2d 880, 
887 (Ill. 2012). Accord McKay, 624 N.E.2d at 1148 (“To plead a cause of action for willful 
and wanton misconduct, a complaint must allege facts demonstrating that a defendant Page ID
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committed acts with actual or deliberate intention to harm or with an utter indifference 
or conscious disregard for the safety of others.”) 
Here, the Court finds that Defendants’ argument does not justify dismissal of 
Plaintiff’s negligence claim. Plaintiff alleged that Defendants acted not only negligently 
but with deliberate indifference to the safety of Plaintiff (and other inmates), when they 
violated established prison rules and policie s by not effectively separating Frakes and 
Lagesse after they had an altercation, allowing Lagesse to run a black-market commissary 
operation, and/or allowing Lagesse to possess a hot pot that had been turned into a boiler 
(Doc. 57, para. 8, 10, 11, 16, 17, 19, 24). Defendants say those decisions were “discretionary 
acts and judgment calls” (Doc. 70, p. 4), whil e Plaintiff says they were ministerial (Doc. 
77, p. 4). The complaint does not contain enou gh facts for the Court to definitively say 
one way or the other. Furthermore, Plainti ff alleged Defendants acted in a willful and 
wanton manner, (Doc. 57, para. 24, 25), and the Court finds that Plaintiff has supported 
that assertion with facts from which it can be inferred that Defendants acted with utter 
indifference or conscious disregard for the safety of others ( see Doc. 57, para, 1–19). 
Accordingly, Defendants are not entitled to judgment on the pleadings on their argument 
regarding public officials’ immunity. 
MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF EXHAUSTION 
Defendants contend that because Mr. Frakes filed this lawsuit while he was a 
prisoner, the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”) still 
applies even though he later died, his son is now the Plaintiff, and an amended complaint 
was filed (Id. at pp. 5–6). Defendants further argue that the evidence shows the grievance Page ID
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process was available to Mr. Frakes, but he failed to fully exhaust his administrative 
remedies because he filed suit prior to receiving a decision from the ARB (Id. at pp. 7–8). 
Plaintiff filed a response in opposition, arguing that the PLRA’s exhaustion 
requirement does not apply because he is and was not a prisoner subject to the dictates of 
the PLRA and, furthermore, this matter is proceeding on the amended complaint, which 
“effectively constitutes a new action for pu rposes of the PLRA” (Doc. 76). Plaintiff’s 
response did not address Defendants’ assertion that Mr. Frakes failed to fully exhaust his 
administrative remedies (see id.). 
The Court notes as an initial matter that if William Frakes had waited a few months 
to file suit until after he was released from prison in January 2024, there is no question 
that Prison Litigation Reform Act’s exhaustion requirement would not apply. Kerr v. 
Puckett, 138 F.3d 321, 323 (7th Cir. 1998). Similarly, after William Frakes, Jr. was 
substituted in as the plaintiff in this case in July 2024 (Doc. 51), had he opted to voluntarily 
dismiss this case and file a new suit asserting the same claims (as the two-year statute of 
limitations had not yet elapsed), Defendants would have had no basis for asserting 
exhaustion as an affirmative defense. See Johnson v. Daley , 339 F.3d 582 (7th Cir. 2003) 
(stating that the Supreme Court has repeated ly “interpreted and enforced the PLRA's 
rule, 42 U.S.C. § 1997e(a), that prisoners (and only prisoners) must exhaust administrative 
remedies before filing suit under Section 1983”) (alteration in original). However, for the 
sake of efficiency, economy, and convenience, Plaintiff filed an amended complaint. And 
Defendants Heckler and Warren responded by filing a motion for summary judgment on Page ID
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the issue of exhaustion (Doc. 71). So now the Court is left with the question of whether 
the exhaustion requirement applies in this particular instance. 
There is case law from other district courts, none of which is binding on this court, 
holding that the PLRA’s exhaustion requir ement still applied even after the original 
plaintiff passed away during the litigation and a non-prisoner party was substituted in 
his place as the plaintiff. Sultaana v. McConahay, No. 1:23-CV-01791, 2025 WL 2780618, at 
*12 (N.D. Ohio Sept. 30, 2025); Jackson v. Hall , No. CV 1:20-3036-DCC-SVH, 2021 WL
6843284, at *6–7 (D.S.C. Aug. 2, 2021), report and recommendation adopted , No. 1:20-CV-
03036-DCC, 2022 WL 92615 (D.S.C. Jan. 10, 2022); Tretter v. Pennsylvania Department of 
Corrections, No. 3:11-cv-00423, 2012 WL 360029, at *4 (M.D. Pa. Feb. 2, 2012). And yet there 
are sound policy reasons as to why the PLRA’s exhaustion requirement should not apply 
to Plaintiff William Frakes, Jr. ( see Doc. 76). The Court, however, declines to definitively 
answer the question beca use, even if the Court assumes that exhaustion does apply, 
Defendants have failed to carry their burden of proof to demonstrate that they are entitled 
to judgment as a matter of law on the affirmative defense of exhaustion. 
Facts 
Plaintiff did not respond to Defendants’ statement of undisputed facts ( see Doc. 
76). Those facts are therefore deemed admitted for purposes of summary judgment so 
long as they are properly supported by evidence in the record. See SDIL-LR 56.1(g); Fed. 
R. Civ. P. 56(e)(2); Keeton v. Morningstar, Inc. , 667 F.3d 877, 884 (7th Cir. 2012) (citations
omitted). Because Defendants’ facts were very bare-bones (see Doc. 71, pp. 2–3). The Court 
will also consider supplemental facts that are contained in the record and are not subject Page ID
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to any reasonable dispute in order to provide a more complete picture of Frakes’s use of 
the grievance process. 
It is alleged that Defendant Joseph Lagesse attacked Mr. Frakes in the early 
morning hours of May 21, 2023 (Doc. 57, par a. 8). Frakes submi tted an emergency 
grievance dated June 28, 2023 (Doc. 71-4, pp. 3–4). The Court notes that it was “collected” 
five days later on July 3rd and sent to the Cl inical Services office, where it was assigned 
number 23-0994E (Doc. 71-2, p. 7; see Doc. 71-4, p. 3). Clinical Services then forwarded the 
grievance to the warden on July 5th, (Doc. 71-2, p. 7), who decided it was in fact an 
emergency (see Doc. 71-4, p. 3; see also Doc. 71-3, p. 61). 
Also on July 5th, Frakes filed anothe r emergency grievanc e (Doc. 71-4, pp. 5–6), 
which is substantially the same as the June 28th grievance. The Court notes that it was 
collected on July 6th and sent to Clinical Services, who then forwarded it to the counselor 
that same day (see id; Doc. 71-2, p. 7). The resubmitted grievance was also numbered 23-
0994E and “aggregated,” which a pparently means it was combined with Frakes’s June 
28th grievance ( see Doc. 71-4, pp. 5–6). The Court notes that the aggregated grievances 
were received by Grievance Officer, Miramony Chenault, on July 6, 2023 ( see id. at p. 1; 
Doc. 71-2, p. 7). 
On July 15th, Frakes resubmitted the Jul y 5th grievance and marked it as an 
emergency (see Doc. 71-3, pp. 6–7). Frakes wrote that he had asked about the status of the 
July 5th grievance and a counselor told him that it “must of been lost” so he was 
resubmitting it ( Id.). The Court notes that the resubmitted grievance was collected and 
sent to Clinical Services on July 18th, wher e it was numbered 23-1113 (Doc. 71-2, p. 6). Page ID
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Although Frakes had marked it as an emergency ( see Doc. 71-3, p. 6), it was not sent to 
the warden to determine whether it should be processed on an expedited basis ( see id.; 
Doc. 71-2, p. 6). It was instea d forwarded to the counselor, who received it on July 18th 
(Doc. 71-2, p. 6; Doc. 71-3, p. 6). The coun selor responded on July 19th, and the Court 
notes that the response was forwarded to Frak es that same day (Doc. 71-2, p. 6; Doc. 71-
3, p. 6). The Court further notes that Frakes submitted the grievance for second level 
review, and on July 21st, it was collected, forwarded to Clinical Services, then passed on 
to and received by Grievance Officer Chenault (Doc. 71-2, p. 6; see Doc. 71-3, p. 5). 
Chenault was now in possession of two grievances from Frakes: the original 
aggregated grievance #23-0994E and the resubmission #23-1113. Chenault responded to 
the aggregated grievance #23-0994E on July 28, 2023 (Doc. 71-4, p. 1). She indicated that 
an Internal Affairs officer told her the “investigation is still in progress” and she 
recommended that the grievance be denied” be cause “[t]here is no evidence to support 
allegations of staff misconduct” ( Id.). The warden did not receive Chenault’s 
recommendation until almost two weeks later on August 9, 2023 (see id.). That same day, 
the warden concurred with the recomme ndation and denied the grievance ( Id.). The 
Court notes that, according to the Cumulative Counseling Summary, the warden’s 
decision was “forwarded to [Frakes] for appeal consideration” on August 10, 2023 (Doc. 
71-2, p. 5). 
Chenault then responded to the resu bmitted grievance #2 3-1113 on August 14, 
2023 (Doc. 71-3, p. 5). She once again wrote that Internal Affairs said the incident was still 
under investigation and therefore reco mmended the grievance be denied ( Id.). The Page ID
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warden received the grievance th e following day and concurred ( Id.). The Court notes 
that, according to the Cumulative Counseling Summary, the warden’s decision was 
forwarded to Frakes on August 16, 2023 (Doc. 71-2, p. 4). 
Frakes appealed the denial of both grievances to the ARB, although it is unclear 
when exactly he put his appeals in the mail (see Docs. 71-2, 71-3, 71-4). The ARB received 
Frakes’s appeal of the resubmitted grievance #2 3-1113 on September 27, 2023 ( see Doc. 
71-3, pp. 1, 3). Even though that was 43 days after the warden’s decision, the ARB did not
immediately reject the appeal as untimely (see Doc. 71-3). The ARB finally reviewed it on 
February 26, 2024, noted that Frak es had been released from custody a month prior and 
therefore sent the appeal “to file” without issuing a decision (Doc. 72, para. 9; Doc. 71-3, 
p. 2). a
As for the appeal of the aggregated grievance #23-0994E, the ARB received it on 
November 1, 2023, nearly three months after the warden’s decision (see id. pp. 1, 59, 60). 
A week later, on November 8, 2023, the ARB returned the aggregated grievance to 
Plaintiff without review because it was receiv ed more than 30 days after the date of the 
warden’s decision (Id. at p. 59). 
Meanwhile, Frakes had already filed his complaint, initiating this lawsuit on 
August 30, 2023 (Doc. 1). 
The Court notes that, according to the ARB’s records, Frakes had six other appeals 
that were deemed untimely because they we re received by the ARB more than 30 days 
after the warden’s decisions ( see Doc. 71-3, pp. 17–20, 29–32, 41–43, 46–55). All of those 
appeals were from grievances that Frakes submitted during the summer of 2023 (June, Page ID
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July, or August) and were decided by Warden William Loy in August or September 2023 
(see Doc. 71-3, pp. 17–20, 29–32, 41–43, 46–55). But then sometime in or around the middle 
of October 2023, a new warden, Chad Jennin gs, began deciding the grievances ( see Doc. 
71-3, pp. 13–16, 21–24, 25–28, 33–36, 37–40). Every one of Frakes’s appeals of Warden
Jennings’ decision was received by the ARB within the required 30-day window (see id.). 
Legal Standard 
Summary judgment is proper if the movant shows that there is no genuine issue 
as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. 
P. 56(a). In deciding a motion for summary judgment, the court’s task is to view the
record, and draw all reasonable inferences, in the light most favorable to the non-moving 
party and decide if there is a genuine material dispute of fact. Stewart v. Wexford Health 
Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021); Hansen v. Fincantieri Marine Grp., LLC , 763 
F.3d 832, 836 (7th Cir. 2014). A genuine issue of material fact exists when “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Estate of 
Simpson v. Gorbett , 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). 
Even when “a nonmovant fails to respond to a motion for summary judgment, the 
movant ‘still ha[s] to show that summary judgment was proper given the undisputed 
facts,’ with those facts taken as usual in the light most favorable to the nonmovant.” 
Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021) (quoting Yancick v. Hanna Steel Corp., 
653 F.3d 532, 543 (7th Cir. 2011)). Page ID
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Discussion 
A. The Exhaustion Requirement
The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit 
about prison conditions unless and until he has exhausted all available administrative 
remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). In order 
for a prisoner to properly exhaust his or he r administrative remedies, the prisoner must 
“file complaints and appeals in the place, an d at the time, the prison’s administrative 
rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see also Woodford v. 
Ngo, 548 U.S. 81, 90 (2006). The Seventh Circuit requires strict compliance with the 
exhaustion requirement. E.g., Smallwood v. Williams, 59 F.4th 306, 313 (7th Cir. 2023). “[A] 
prisoner who does not properly take each step within the administrative process has 
failed to exhaust state remedies.” Pozo, 286 F.3d at 1024. 
Despite the strict exhaustion requirem ents, the PLRA “does not demand the 
impossible,” and a prisoner n eed not exhaust remedies that are “genuinely unavailable 
or nonexistent.” Smallwood, 59 F.4th at 313 (citation omitte d). An “available” grievance 
procedure means “‘capable of use’ to obtain ‘some relief for the action complained of.’” 
Wallace v. Baldwin, 55 F.4th 535, 542 (7th Cir. 2022) (quoting Ross v. Blake, 578 U.S. 632, 642 
(2016)). Administrative remedies become “u navailable” when prison officials, for 
example, altogether fail to respond to a properly filed grievance, fail to respond in a 
timely fashion, or otherwise use affirmat ive misconduct to thwart a prisoner from 
exhausting. Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016); Dole v. Chandler, 438 F.3d 
804, 809 (7th Cir. 2006); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). Page ID
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Administrative remedies are additionally un available “when (despite what regulations 
or guidance materials may promise) [the proc ess] operates as a simple dead end—with 
officers unable or consistently unwilling to provide any relief to aggrieved inmates.” 
Wallace, 555 F.4th at 542 (quoting Ross, 578 U.S. at 643). “In such cases, the prisoner is 
considered to have exhausted his administrative remedies.” Pyles, 829 F.3d at 864 (citation 
omitted). 
B e c a u s e e x h a u s t i o n i s a n a f f i r m a t i v e d e f e n s e , “ t h e b u r d e n o f p r o o f i s o n t h e 
defendants to establish that administrative remedies were not exhausted, and not on the 
prisoner to show that administrative remedies were unavailable.” Smallwood, 59 F.4th at 
315 (citations omitted). 
B. The IDOC’s Grievance Procedure
As an inmate in the IDOC, Mr. Frakes was required to follow the grievance process 
outlined in the Illinois Administrative Code to exhaust his claims. 20 ILL. ADMIN. CODE § 
504.800, et seq. (2017). The standard grievance process requires the inmate to first submit 
their grievance to their counselor and then to the grievance officer to issue a 
recommendation to the warden, who then provides the inmate with a written decision 
on the grievance. Id. at §§ 504.810(a), 504.830(e). If, however, the inmate designates the 
grievance as an emergency, it is submitted directly to the warden. Id. at § 504.840. If the 
warden finds that an emergency exists, then the grieva nce will be handled on an 
expedited basis by the grievance officer; the grievance bypasses the counselor entirely. 
Id. On the other hand, if the warden determines that the grievance should not be handled Page ID
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on an emergency basis, the inmate is notified and must resubmit the grievance through 
the standard grievance process. Id. 
Regardless of whether the grievance was processed in the normal manner or as an 
emergency, if the inmate is unsatisfied with the warden’s decision, he or she can appeal 
to the Administrative Review Board (“ARB”). 20 ILL. ADMIN. CODE § 504.850(a). The ARB 
must receive the appeal within 30 days of the warden’s decision. Id. The ARB submits a 
written report of its findings and recommendations to the Director of the IDOC, who then 
makes a final decision. Id. at § 504.850(d), (e). 
C. Mr. Frakes’s Use of the Grievance Procedure
Defendants note that Mr. Frakes filed th e original complaint in this matter on 
August 30, 2023, which was before the ARB ever received his appeals for the aggregated 
or resubmitted grievances, let alone responded to them (Doc. 71, p. 8). Defendants argue 
that Frakes knew about the grievance process, that it was available to him, and that he 
was “saavy” at utilizing it (Doc. 71, pp. 7, 8). Th ey further intimate that, in this instance, 
Frakes simply chose not to follow the grievance process and filed suit before he had fully 
exhausted his administrative remedies (Id.). The Court is unpersuaded. 
As an initial matter, the Court has serious concerns as to whether the grievance 
process was truly available or whether it operated as a dead end with officials unwilling 
or unable to provide any relief. See Wallace, 555 F.4th at 542 (explain ing courts should 
resolve any “dead end” argument before proceeding to the merits of the exhaustion 
dispute). Mr. Frakes was required to file a grievance within 60 days of the attack, see 20 
I
LL. ADMIN. CODE § 504.810(a), which he did (despite his significant injuries and extended Page ID
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hospitalization). In fact, his resubmitted grievance #23-1113, dated July 15, 2023, was filed 
within a week of the 60-day deadline. Mr. Frakes’s grievances, however, were summarily 
denied without any consideration of their merit because the investigation into the 
incident was not complete. Moreover, Mr. Frakes was not provided with any information 
about the timeline of the investigation and when it might conclude. Nor was he told if he 
would even be notified when the investigation concluded, or if he had any other avenue 
for recourse. The prison, in e ssence, refused to hear his cla im. A judge in this district 
concluded under simi lar circumstances tha t the grievance process was a dead end and 
therefore exhaustion was not required. Johnson v. Sadler, No. 24-CV-1385-DWD, 2025 WL 
3753970, at *6–7 (S. D. Ill. Dec. 29, 2025). The Court finds the same conclusion to 
be true here: the grievance process was a dead end for Mr. Frakes. 
In the alternative, if the Court assume s th at the grievance process was not a 
dead end, the Court finds that, after review ing Defendants’ evide nce in a light most 
favorable to Frakes, there are a number of un answered questions and several material 
issues of fact that pr eclude the entr y of summa ry ju dgment for Defendants. The 
Court be gins w ith Defendants’ assertion that Frakes was “very savvy” at u tilizing the 
grievance process. If Frakes was as savvy as Defendants claim, then it simply does not 
make sense as to why he would rush to file suit before a n appeal to the ARB played 
out. A truly savv y inmate would know that he had nothing to gain a nd everything to 
lose by filing suit befor e fully exhausting his grievances. See, e.g., Chambers v. Sood, 956 
F.3d 979, 981 (7th Cir. 2020) (“By its plain terms, the PLRA require s 
prisoners to exhaust administrative 
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remedies before filing suit; a ‘sue first, exhaust la ter’ approach is not acceptable.”) 
(emphasis in original; citation omitted); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 
(7th Cir. 1999) (“[A] suit filed by a prisoner before administrative remedies have been 
exhausted must be dismissed . . . .”). Un der the circumstances here, it would be 
particularly senseless for Frakes to file su it in the middle of th e exhaustion process 
when—as previously stated—all he had to do was wait a few more months until he was 
released from prison to file his complaint and then the PLRA’s ex haustion requirement 
would not have applied to him at all. 
So why did Mr. Frakes file his complaint when he did? Defendants want the Court 
to accept at face value that Frakes filed su it prematurely, but the Court must still take a 
careful and critical look at the evidence ( see Doc. 71). Moreover, at summary judgment, 
the Court is required to view the evidence in a light most favorable to Frakes and to draw 
all reasonable inferences in his favor. Keeton, 667 F.3d at 884. When the Court does so, the 
evidence suggests there may be many other reasons for the timing of Frakes’s complaint 
aside from an unwise or impulsive rush to file. 
First, there is evidence that perhaps Mr. Frakes did not know the grievance process 
as well as Defendants say he did. Every one of Frakes’s grievances from June, July, and 
August 2023 that he appealed was received by the ARB more than 30 days after the 
warden’s decision. Eight appeals in total. And then a switch flipped, and all of Frakes’s 
subsequent appeals were received on time. The total about-face is striking, and it leaves 
the Court wondering if Frak es was initially unaware of the 30-day deadline for 
submitting an appeal to the ARB but later le arned about it. “Prisons must affirmatively Page ID
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provide the information needed to file a grievance.” Ramirez v. Young, 906 F.3d 530, 538 
(7th Cir. 2018). And “[b]efore dismissing a prisoner's complaint for failure to exhaust, the 
district court should be able to point to evidence that the relevant administrative 
procedures were explained in terms intelligible to lay persons.” Id. at 535 (citation and 
internal quotation marks omitted). Here, however, Defendants did present any facts 
showing that officials at Robinson Correctional Center had provided information to 
Frakes about each and every step of the grievance process and the relevant deadlines (see 
Doc. 71). 
On the other hand, if Mr. Frakes knew that he had to appeal to the ARB within 30 
days, then why didn’t he do so for the grievances at issue? Defendants’ argument 
assumes that whatever the reason was, it was attributable solely to Frakes ( see Doc. 71). 
Specifically, Defendants appear to assume th at Frakes promptly re ceived the warden’s 
decisions and then opted to file suit without first letting the appeals play out ( see Doc. 
71). Defendants did not, however, present any undisputed facts to support this timeline. 
While the Cumulative Counseling Summary indicates that Clinical Services “forwarded” 
the warden’s decisions to Frakes the same day (or the day after) the decisions were made 
(see Doc. 71-2, pp. 4, 5), that says nothing ab out when Frakes actually received the 
decisions. There is no evidence as to when Frakes had the wardens’ decisions in hand (see 
Doc. 71). Similarly, there is no evidence as to when Frakes put his appeals in the mail to 
the ARB. Notably, Frakes did not sign or date the designated section of either grievance 
indicating that he was appealing to the ARB (see Doc. 71-3, p. 60; Doc. 71-4, p. 1). Page ID
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Furthermore, there is evidence in the record that gives the Court reason to question 
whether the grievance process and prison mail system were functioning properly, which 
Defendants assume. During the Court’s review of the evidence, there were a number of 
obvious irregularities and abnormalities in how the grievance process operated while 
Warden Loy was in charge. For example, it took an entire week before the June 28th 
grievance was even presented to the warden to decide whether it was indeed an 
emergency. The Court knows fr om its experience in handling hundreds of motions for 
summary judgment on the issue of exhaustion that this timeframe is atypically long. That 
delay presumably prompted Mr. Frakes to file a duplicate emergency grievance on July 
5th. There is no evidence that Mr. Frakes was ever advised that his June 28th and July 5th 
grievances were aggregated or that they were being processe d on an emergency, 
expedited basis. In fact, the evidence suggests he was not ever told as much given that he 
inquired sometime around July 15th about the status of his grievance. A counselor then 
mistakenly told him that the July 5th grievance had been lost, so Frakes resubmitted it for 
a third time. Even though the resubmitted grievance was marked as an emergency, it was 
never presented to the warden to determine whether an emergency was substantiated. It 
was instead handled as an entirely new, non-emergency grievance by the counselor, even 
though it was duplicative of the aggregated grievances already under consideration. 
Additionally, after the grievance officer issued her recommendation to deny the 
aggregated grievance, there was a two-week delay before the warden saw it, which the 
Court again knows from experience is atypical. None of these issues are dispositive as to Page ID
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whether Frakes exhausted his administrative remedies, but they do leave the Court with 
the inescapable impression that the grievance process was in some degree of disarray. 
The Court also notes the unusual timelin e of when the ARB received Frakes’s 
appeals. Warden Loy decided the aggregated grievance first, on August 9, 2023, and the 
resubmitted grievance second, on August 15th. But the ARB curiously received the 
appeal of the latter decision first (on September 27th) and then did not receive the appeal 
of the former decision until over a month later (on November 1st). If Frakes received both 
of the warden’s decisions in a timely manner, then it simply makes no sense that he would 
mail in his appeal for the second decision but inexplicably wait to appeal the first 
decision. That leads the Court to question whether there was some kind of delay or hiccup 
in Frakes receiving the warden’s decisions an d being able to mail out his appeals. The 
Court’s curiosity is heightened even further by the fact that the ARB did not reject 
Frakes’s appeal of the resubmitted grievance as untimely even though it was not received 
until 43 days after the warden issued his decision. Based on the Court’s experience in 
deciding issues of exhaustion in prisoner cases, that suggests the ARB knew or had reason 
to know that its late receipt of the appeal was due to circumstances outside of Frakes’s 
control. 
Given the general disarray of the grievance process, the disordered timing of when 
the ARB received the appeals, and the ARB’s acceptance of an arguably untimely appeal, 
it would be improper for the Court to infer that Frakes promptly received the warden’s 
decisions but simply chose to hold off on mailing his appeals to the ARB and instead 
opted to file suit prematurely. See Keeton, 667 F.3d at 884 (explaining that even when non- Page ID
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movant “has not provided [their] own version of the facts, we still view all of the facts 
asserted by [the movant] in the light most favorable to . . . the nonmoving party, and we 
draw all reasonable inferences in [their] favor.”). Rather, the ev idence establishes a 
material question of fact as to whether Mr. Frakes was thwarted from filing a timely 
appeal to the ARB due to circumstances outside of his control. For example, perhaps 
Frakes filed suit when he did because he thought that that his grievances had been lost 
or destroyed, but then later received the warden’s decisions and appealed them to the 
ARB. 
In light of all of these questions and holes in the evidence, the Court must conclude 
that Defendants have failed their burden of demonstrating they are entitled to judgment 
as a matter of law. Normally, the Court would resolve the issues of fact by holding an 
evidentiary hearing known as a “Pavey hearing.” Smallwood v. Williams, 59 F.4th 306, 315 
(7th Cir. 2023) (citing Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)). Accord Wagoner v. 
Lemmon, 778 F.3d 586, 590 (7th Cir. 2015); Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014). 
However, the Court believes that holding a Pavey hearing in this instance would be futile 
because the issues of fact cannot be resolved without Mr. Frakes’s side of the story. The 
Court suspects that Mr. Frakes is the only one who knew the details of his efforts to 
exhaust, and it is impossible for him to share that information given his untimely death. 
Consequently, the motion for summary judgment on the issue of exhaustion is denied. 
Conclusion 
Defendants Justin Warren and Jordan Heckler’s motion for judgment on the 
pleadings (Doc. 70) is DENIED. Their motion for summary judgment on the issue of Page ID
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exhaustion (Doc. 71) is likewise DENIED. The stay on discovery on the mer its 
of Plaintiff’s claims (see Doc. 69) is LIFTED. A status hearing will be set by separate 
order to discuss a new schedule in this case and the possibility of mediation. 
IT IS SO ORDERED.
DATED: May 13, 2026
MARK A. BEATTY
United States Magistrate Judge Page ID
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