Ausmas v. Jeffreys ( 2021 )

NOTICE 2021 IL App (4th) 200521-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-20-0521 June 11, 2021
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
RICHARD AUSMUS, ) Appeal from the
Petitioner-Appellant, ) Circuit Court of
v. ) Logan County
ROB JEFFREYS, in His Official Capacity as Director of ) No. 20MR88
Corrections, and EMILY RUSKIN, in Her Official )
Capacity as the Warden of Lincoln Correctional Center, )
Respondents-Appellees. ) Honorable
) Thomas W. Funk,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Cavanagh and Holder White concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of petitioner’s petition for an injunction was proper.
¶2 In June 2020, petitioner, Richard Ausmus, filed a pro se petition for an injunction
against respondents, Rob Jeffreys, in his official capacity as Director of Corrections, and Emily
Ruskin, in her official capacity as warden of the Lincoln Correctional Center. In his petition,
petitioner sought an injunction to compel respondents to (1) reduce the population of Lincoln
Correctional Center by half, (2) apply good conduct credit sufficient to allow for his release,
(3) allow him access to fresh air as needed, and (4) maintain the ventilation system in
compliance with standards set by the United States Occupational Safety and Health
Administration (OSHA). He contended respondents acted with deliberate indifference to the
health risks possessed by the COVID-19 pandemic in violation of the eighth amendment (U.S.
Const., amend. VIII). In September 2020, respondent Jeffreys filed what was essentially a
combined motion to dismiss under section 2-619.1 of the Code of Civil Procedure (Procedure
Code) (735 ILCS 5/2-619.1 (West 2018)) and a supporting memorandum, asserting petitioner
failed to state a cause of action and failed to exhaust his administrative remedies at the
institutional level. After a September 2020 hearing, the Logan County circuit court dismissed
with prejudice petitioner’s petition.
¶3 Petitioner appeals pro se, asserting the circuit court erred by dismissing his
petition because (1) the doctrine of exhaustion of remedies did not apply and (2) he did specify
he was seeking relief under the eighth amendment. We affirm.
¶4 I. BACKGROUND
¶5 On March 28, 2020, petitioner, an inmate at the Lincoln Correctional Center, filed
a grievance alleging deliberate indifference and an eighth amendment violation. Petitioner stated
he was 54 years old with asthma, high cholesterol, and prostate issues. He noted the governor
had issued a stay-at-home order due to the COVID-19 pandemic with limitations on businesses
and social gatherings. Despite the need for social distancing, petitioner was forced to live on a
wing that had 5 dorms with 20 inmates in each dorm. As such, 100 inmates shared the same
restroom, telephones, kiosk machines, and showers. Petitioner noted he was also being forced to
walk to the inmate dining hall for meals and the inmates who worked there were from different
housing units, exposing petitioner to even more people. Petitioner asserted respondents had an
obligation to protect him and other inmates in the facility from the risk of COVID-19. He
requested the dorms be limited to 10 inmates and the inmates not be allowed to leave the wing.
Additionally, petitioner requested $20,000 or release from custody for the eighth amendment
violation.
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¶6 In June 2020, petitioner filed his petition for a “motion for emergency/mandatory
and/or preventive injunction.” In his petition, petitioner asserted he received a March 30, 2020,
counseling summary in response to his grievance, which noted petitioner’s grievance could not
be resolved at the facility and directed petitioner to mail his grievance to the administrative
review board. Petitioner forwarded his grievance to the administrative review board on April 3,
2020, but his grievance remained unresolved. He further alleged respondents were subjecting
him to cruel and unusual punishment by their deliberate indifference to the serious threat to
human life posed by COVID-19. Petitioner noted the lack of social distancing, an inadequate
ventilation system, his inability to access fresh air, and the housing of 100 inmates per wing in a
small area. He sought an injunction to compel respondents to (1) reduce the population of
Lincoln Correctional Center by half, (2) apply good conduct credit sufficient to allow for his
release, (3) allow him access to fresh air as needed, and (4) maintain the ventilation system in
compliance with OSHA standards.
¶7 In September 2020, respondent Jeffreys filed a motion to dismiss petitioner’s
petition because petitioner failed to (1) exhaust the administrative remedies available to him and
(2) state a claim for deliberate indifference under the eighth amendment. Petitioner filed a
response to the motion, arguing he was not required to exhaust administrative remedies because
(1) only the federal Prison Litigation Reform Act of 1995 (42 U.S.C. § 1997e (2018)) required
exhaustion of remedies and it did not apply to state court actions, (2) petitioner made a timely
reservation of rights under the Uniform Commercial Code (810 ILCS 5/1-101 et seq. (West
2018)), and (3) an inmate alleging a deliberate indifference claim was not required to wait until
the harm occurred.
¶8 On September 17, 2020, the circuit court held a telephone hearing on respondent
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Jeffreys’s motion to dismiss. A report of proceedings for that hearing is not included in the
record on appeal. At the end of the hearing, the court took the matter under advisement. On
October 1, 2020, the court entered a written order dismissing with prejudice petitioner’s petition
in its entirety. The court treated the petition as one seeking mandamus relief. It found petitioner
failed to demonstrate his administrative remedies had been exhausted. The court also concluded
petitioner had failed to allege sufficient facts showing a deliberate indifference to his condition.
¶9 On October 8, 2020, petitioner filed a timely notice of appeal from the dismissal
of his petition in sufficient compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017).
Thus, this court has jurisdiction of petitioner’s appeal under Illinois Supreme Court Rule 301
(eff. Feb. 1, 1994).
¶ 10 II. ANALYSIS
¶ 11 In this case, petitioner appeals from the circuit court’s dismissal of his petition
seeking an injunction. Regardless of whether the circuit court’s dismissal of petitioner’s petition
was under section 2-615 of the Procedure Code (735 ILCS 5/2-615 (West 2018)) or section
2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2018)), or a combination of both sections
pursuant to section 2-619.1, this court’s standard of review is the same. Jane Doe-3 ex rel. Julie
Doe-3 v. White, 409 Ill. App. 3d 1087, 1092, 951 N.E.2d 216, 223 (2011). We review de novo
the circuit court’s dismissal. White, 409 Ill. App. 3d at 1092, 951 N.E.2d at 223. “In doing so,
we will accept as true all well-pleaded factual allegations.” White, 409 Ill. App. 3d at 1092, 951
N.E.2d at 223. We can affirm the circuit court’s dismissal for any reason found in the record.
Akemann v. Quinn, 2014 IL App (4th) 130867, ¶ 21, 17 N.E.3d 223.
¶ 12 “A party aggrieved by an administrative decision cannot seek judicial review
unless he has first pursued all available administrative remedies.” Ford v. Walker, 377 Ill. App.
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3d 1120, 1124, 888 N.E.2d 123, 126-27 (2007). “The doctrine of exhaustion of administrative
remedies applies to grievances filed by inmates.” Ford, 377 Ill. App. 3d at 1124, 888 N.E.2d at
127. Where an inmate fails to show his grievance had administrative finality, he does not meet
his burden of showing exhaustion of administrative remedies. Ford, 377 Ill. App. 3d at 1124,
888 N.E.2d at 127.
¶ 13 Plaintiff attached a copy of his March 2020 grievance to his petition showing he
raised a grievance about his living conditions in the Lincoln Correctional Center during the
COVID-19 pandemic. In his petition, he admits the administrative review board had not
rendered a final decision on his grievance. On appeal, petitioner does not argue he exhausted his
administrative remedies but instead contends he did not need to exhaust his remedies. He first
alleges he had a reservation of rights under the Uniform Commercial Code. However, the
Uniform Commercial Code governs commercial transactions (810 ILCS 5/1-103(a)(1) (West
2018)) and not prison grievances. Petitioner also argues the doctrine of exhaustion only applies
to federal actions under the Prison Litigation Reform Act of 1995 (42 U.S.C. § 1997e (2018))
and not State actions. However, petitioner raised an eighth amendment argument, a federal
claim. Moreover, as set forth above, the State has its own doctrine of exhaustion of remedies,
which applies to grievances filed by inmates. See Ford, 377 Ill. App. 3d at 1124, 888 N.E.2d at
127. Thus, petitioner has failed to show the doctrine of exhaustion of remedies does not apply to
his cause of action. On appeal, petitioner does not challenge the circuit court’s finding he failed
to exhaust his administrative remedies. Accordingly, we find the circuit court did not err by
dismissing petitioner’s cause of action in its entirety based on petitioner’s failure to exhaust his
remedies.
¶ 14 III. CONCLUSION
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¶ 15 For the reasons stated, we affirm the Logan County circuit court’s judgment.
¶ 16 Affirmed.
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