govinfo:USCOURTS-ilsd-3_26-cv-00227-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ILLINOIS 
 
KEYWUAN MELVIN, M43392,      ) 
                ) 
    Plaintiff,     ) 
          )  
vs.          )  Case No. 26-cv-227-MAB 
          )  
C/O STEBER,        )  
          )  
    Defendant.     ) 
       
MEMORANDUM AND ORDER 
 
BEATTY, Magistrate Judge: 
Plaintiff Keywaun Melvin, an inmate of the Illinois Department of Corrections 
(IDOC) housed at La wrence Correctional Center (Lawrence), brings this civil rights 
action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his rights under 42 U.S.C. 
§ 1983.  Plaintiff alleges that on December  5, 2025, Defendant Steber performed a strip 
search in an improper and harassing ma nner.  On April 21, 2026, the Court ordered 
Plaintiff to show cause about his exhaustion efforts prior to the filing of this suit, because 
some of his original exhibits strongly suggested he had not properly exhausted his 
claims.1  (Doc. 9).  Plaintiff has filed a timely response to the Show Cause Order, and it is 
now discharged.  (Doc. 10).  However, Plaintiff’s response confirms he has not properly 
exhausted his claims so this suit will now be dismissed as premature.  
 
1 The Court has jurisdiction to resolve Plaintiff’s motions and to screen his Complaint in light of his consent 
to the full jurisdiction of a magistrate judge and th e Illinois Department of Corrections’ and Wexford’s 
limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandums of 
Understanding between the Illinois Department of Corrections and Wexford and this Court.  
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The Prison Litigation Reform Act (PLRA) 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, 544 F.3d 739, 740 (7th Cir. 
2008).  For a prisoner to properly exhaust his 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).  “[A] prisoner who 
does not properly take each step within the administrative process has failed to exhaust 
state remedies.”  Id. at 1024.   
Although it is generally appropriate to wait for a defendant to raise an affirmative 
defense, the Seventh Circuit has noted that “when the existence of a valid affirmative 
defense is so plain from the face of the complaint that the suit can be regarded as 
frivolous, the district judge need not wait for an answer before dismissing the suit.”  
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).  A plaintiff can plead himself out 
of court, and if he includes allegations “that show he isn't entitled to a judgment, he's out 
of luck.”  Early v. Bankers Life and Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (citations omitted).  
Although a plaintiff need not anticipate o r  o v e r c o m e  a n  a f f irmative defense like 
exhaustion, if he alleges facts sufficient to establish that an affirmative defense applies, 
“the district court may dismiss the complaint on that ground.”  O'Gorman v. City of 
Chicago, 777 F.3d 885, 889 (7th Cir. 2015). 
As an inmate in the IDOC, Plaintiff was required to follow the grievance process 
outlined in the Illinois Administrative Code.  20 ILL. ADMIN. CODE § 504.800, et seq. (2017).  
The Illinois Administrative Code requires an inmate to file his grievance with his 
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counselor within 60 days of the discovery of an incident, occurrence, or problem that gave 
rise to the grievance.  20 I LL. ADMIN. CODE § 504.810(a).  If the complaint is not resolved 
through the counselor, the grievance may be submitted to a grievance officer, who reports 
his or her findings and recommendations in writing to the Chief Administrative Officer 
(CAO).  20 I LL. ADMIN. CODE § 504.830(e).  A grievance offi cer is supposed to report 
findings and recommendations to the CAO within two months of receipt of a grievance, 
when reasonably feasible.  20 I LL. ADMIN. CODE § 504.830(e).  Courts have held that the 
passage of an aspirational grievance processing deadline does not automatically trigger 
a right to sue.  See e.g., Ford v. Johnson , 362 F.3d 395, 400 (7th Cir. 2004) (finding that an 
inmate did not have an automatic right to sue when the Illinois Department of 
Corrections took more than 60 days to process his grievance). 
Once a grievance officer makes a recommendation, then the CAO provides the 
inmate with a written decision on the grievance.  Id.  If the inmate is not satisfied with the 
CAO’s response, he can file an appeal with the IDOC Director through the 
Administrative Review Board (ARB).  20 I LL. ADMIN. CODE § 504.850(a).  The ARB must 
receive the appeal within 30 days of the date of the CAO’s decision.  Id.  The inmate must 
attach copies of the responses from the grievance officer and CAO to his appeal.  Id.  The 
ARB submits a written report of its findings and recommendations to the Director, who 
makes a final determination.  20 ILL. ADMIN. CODE § 504.850(d), (e). 
For an inmate who submits an emergency grievance, the grievance is first 
reviewed by the Chief Administrative Officer.  20 ILL. ADMIN. CODE § 504.840.  If the CAO 
determines that the grievance should not be handled on an emergency grievance, then 
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the offender shall be notified in writing, and he must resubmit the grievance as non-
emergent per the standard grievance process.  20 ILL. ADMIN. CODE § 504.840(c).      
Plaintiff’s original exhibits show that he submitted an emergency grievance on 
December 5, 2025, that was receiv ed for processing in the gr ievance office on December 
12, 2025.  (Doc. 1 at 7).  The CAO deemed th e grievance a non-emergency on December 
15, 2025.  ( Id.).  Per the Administrative Code, on ce the grievance was deemed a non-
emergency, Plaintiff needed to re-submit the grievance for standard processing.  There is 
no evidence that Plaintiff re-submitted the grievance at the prison for standard 
processing.  Instead, he appealed directly to the ARB on or around January 20, 2026.  (Doc. 
1 at 6).  The ARB returned his documents to  him and informed him that he needed to 
complete the exhaustion process at the prison.  (Id.).  He was advised that he could submit 
a new appeal once he completed the process at  the prison. There is no indication that 
Plaintiff followed through with these directions and completed his grievance at all levels.  
The Court directed Plaintiff to show cause about the efforts he took to exhaust his 
grievance after the ARB sent it back, but he says nothing on this issue. 
Alternatively, Plaintiff argues that he submitted two grievances on December 5, 
2025—one as an emergency and one as a non-emergency.  (Doc. 10 at 1).  He argues that 
without a response to the regular grievance within 30 days, he submitted a third 
grievance on January 5, 2026, asking for a re sponse to both his emergency and non-
emergency grievances.  ( Id.).  He claims that this prompted a response on January 11, 
2026, to his emergency grievance, which he then appealed straight to the ARB.  (Id. at 2).  
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He also argues that because he has yet to get a response to his non-emergency grievance, 
he was refused the ability to pursue exhaustion.  (Id.).   
Plaintiff’s response is unavailing.  There is not any sort of 30-day timeline for the 
prison to respond to Plaintiff’s non-emergency grievance.  The Illinois Administrative 
Code clearly indicates that at most, there is an aspirational 60-day processing timeline, 
but courts have concluded that even if that  deadline is missed it does not automatically 
bestow a right to sue.  See, Ford, 362 F.3d at 400.  Furthermore,  Plaintiff sought a status 
update within 60 days, and his query produced the return of his emergency grievance.  
As the Court previously explained, Plaintiff was required to re-submit this emergency 
grievance via the normal channels instead of going straight to the ARB, but he failed to 
do this even when the ARB advised him of w h a t  t o  d o .   I n  s u m ,  t h e  C o u r t  r e m a i n s  
convinced that Plaintiff did not adequately pursue the exhaustion process prior to filing 
this complaint, and thus his lawsuit must be  dismissed without prejudice as premature.  
Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020) (a sue first, exhaust later approach is 
not acceptable, and cannot be cured by an amended complaint).    
 
 
 
 
 
 
 
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Disposition
Plaintiff’s Complaint (Doc. 1) is dismissed without prejudice for his failure to 
exhaust his administrative remedies prior to filing this suit as required by 42 U.S.C. § 
1997e(a).  The Clerk of Court shall enter judgment and CLOSE this case. 
IT IS SO ORDERED.
DATED:  May 4, 2025
_____________________________
MARK A. BEATTY
United States Magistrate Judge
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