that in the Title VII context, the exhaustion requirement is
satisfied when one member of a class has complied with the
requirement; each member of the class need not exhaust
administrative remedies. Romasanta v. United Airlines, Inc., 537
F.2d 915, 919 (7th Cir. 1976), aff’d sub nom. United Airlines, Inc.
v. McDonald, 432 U.S. 385 (1977). Both Rahim and Jones ‘El found
that this rule of vicarious exhaustion applies in PLRA class
actions. Rahim, 2001 WL 1263493 at *7; Jones ‘El, 172 F. Supp. 2d
at 1132-33. I find the analogy compelling, and likewise hold that
one class member’s exhaustion of administrative remedies satisfies
the PLRA’s exhaustion requirement as to the entire class.

The purpose behind enactment of the PLRA exhaustion
requirement was “to reduce the quantity and improve the quality of
prisoner suits.” Porter, 534 U.S. at 524. To this end, Congress
afforded corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal
case. Id. at 524-25. The Porter Court noted that in some cases,
prison officials may take corrective action to address an inmate’s
concerns, thus obviating the need for litigation. Id. at $25,
This rationale for the PLRA exhaustion requirement is similar to
the purpose behind the Title VII exhaustion requirement, which is

to allow the EEOC “an opportunity to settle disputes ... before the

bring suit in federal court. See Zugay v. Progressive Care, S.C.,
180 F.3d 901, 902 (7th Cir. 1999) (citing 42 U.S.C. §§ 2000e-5(b),

(e), (£))


Id. (citing Leatherman v. Tarrant County Narcotics & Intelligence
Coordination Unit, 507 U.S. 163, 168 (1993)). At the summary
judgment stage, however, more is required. Fed. R. Civ. P. 56(e)
(“When a motion for summary judgment is made and supported ... [the
adverse party] must set forth specific facts showing that there is
a genuine issue for trial.”). Here, defendants present affidavits
from Mr. Currie and Mr. Gaetz stating that while they were
responsible for assigning security staff to the protective custody
unit (including Category IV), they “did not administer, direct,
manage, provide or oversee the provision of programs or services
such as religious services, jobs, education or recreation to
[Category IV].” (Currie Aff. 71 2; Gaetz Aff. | 2.) In response,
plaintiffs present affidavits from inmates indicating that Mr.
Currie and Mr. Gaetz were aware of the conditions in Category IV
protective custody and failed to do anything about it. (Cage Aff.
at 1) (‘While in [Category IV] Warden Currie and Asst Warden Gaetz

.. has [sic] come up there on numerous occassion [sic] and seen
how the living condition’s was [sic] [and] neither one of them
attempted to do anything about what was going on.”); (Jamison Aff.
4] 7) (“I personally spoke with then Assistant Warden Tyree Currie
on two (2) separate occasions regarding the lack of appropriate
services in Category IV protective custody.”); (Parker Aff. at 1)
(“Donald Gaetz and Tyree Currie knew about the living conditions

{in Category IV] but fell [sic] to do anything about it.”),



least four plaintiffs here have complied with the exhaustion
requirement, I will not enter judgment against any class member for
failing to exhaust administrative remedies.
B. Case or Controversy

Defendants next argue that there is no case or controversy
because the named plaintiffs are no longer in Category IV
protective custody. While the general rule is that an Article III
case or controversy must exist at every stage of litigation, there
is a special rule for class actions that allows named plaintiffs to
continue representing a class even after their own claims are moot.
Trotter v. Klincar, 748 F.2d 1177, 1183 (7th Cir. 1984). This is
based on the fiction that once a class is certified, the class
obtains a legally cognizable interest independent of that of the
named plaintiffs, and the class claims thus preserve the
adversarial interest needed for the invocation of jurisdiction.
Id. (citing Sosna v. Iowa, 419 U.S. 393 (1975)). Because the named
plaintiffs were in Category IV protective custody when the original
complaint was filed, and because there are still inmates in
Category IV protective custody, there exists an Article III case or
controversy whether or not the named plaintiffs are still in
Category IV protective custody. See Sosna, 419 U.S. at 402 (noting
that a live controversy may exist “between a named defendant and a
member of the class represented by the named plaintiff, even though

the claim of the named plaintiff has become moot”).



aggrieved party [is] permitted to file a lawsuit.” Zuckerstein v.
Argonne Nat’l Lab., 663 F, Supp. 569, 572 (N.D. Ill. 1987) (Moran,
J.) (quoting Alexander v, Gardner-Denver Co., 415 U.S. 36, 44
(1974)). In the Title VII context, this purpose behind
administrative exhaustion is satisfied in class action suits where
there is one complying plaintiff because
{i]t would be wasteful, if not vain, for numerous employees,
all with the same grievance, to have to process many identical
complaints with the EEOC. If it is impossible to reach a
settlement with one discriminatee, what reason could there be
to assume that the next one would be successful.
Id. (quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498
(Sth Cir, 1968)). Similarly, in the PLRA context, the purpose of
affording prison officials an opportunity to address complaints
internally is met when one plaintiff in a class action has
exhausted his administrative remedies. To require each inmate with
the same grievance to exhaust their administrative remedies would
be wasteful, and “[a]s long as prison officials have received a
single complaint addressing each claim in a class action, they have
the opportunity to resolve disputes internally and to limit
judicial intervention in the management of prisons.” Jones ‘El,
172 F. Supp. 2d at 1133. The analogy to the Title VII exhaustion
requirement is apt. The purpose behind the PLRA requirement is met
when a single plaintiff in a class action has exhausted his
administrative remedies, and a rule of vicarious exhaustion in PLRA

cases is therefore appropriate. Because defendants admit that at


the commencement of this suit, is not implemented by statute or
regulation and could be changed again, so this voluntary cessation
of the challenged conduct does not eliminate the controversy.”),
The claim for injunctive relief may therefore proceed.’
D. Defendants Currie and Gaetz

Defendants next argue that Tyree Currie and Donald Gaetz, two
of the named defendants, were not sufficiently responsible for the
alleged constitutional violations such that they can be held liable
under § 1983. This argument was made earlier in this litigation on
a motion to dismiss. In denying that motion, I indicated that
“[i]f there is some causal connection or affirmative link between
the action complained about and the official sued, there can be
§ 1983 liability.” Lewis, 197 F.R.D. at 613-14 (internal citations
omitted) . I rejected defendants’ argument that plaintiffs had
failed to describe any of the specific acts or omissions of the

defendants because at that stage they were not required to do so,

3 Defendants in this section of their brief also argue that
plaintiffs have asserted no conditions of Category IV protective
custody that fall below the standard set by a 1989 remedial order
relating to protective custody conditions at Stateville. Reference
to the remedial order here is inappropriate, however, as the order
explicitly stated that it was not setting standards for Category
Iv. Williams v. Lane, No. 81 C 355 (N.D. Ill. remedial order
entered Feb. 28, 1989) (Shadur, J.) (“This Remedial Order does not
establish such standards for inmates ... who have been determined
not to need protective custody (currently those inmates are
referred to as Category 4 inmates) but who are held in a protective
custody unit pending the resolution of the grievance of that
determination. Any reference in this Remedial Order to Category 3
or 4 inmates is only for convenience and clarification.”).

8



Minute Order Form (0897)

United States District Court, Northern District of Illinois

Name of Assigned Judge Elaine E. Bucklo ing Judge if Other
+ or Magistrate Judge than Assigned Judge
CASE NUMBER 99 C7081 -01C$ OLC DATE 5/30/2003
6474, 01 C 7575, 02
C 1371 & 02
CASE Lewis, et al. vs. Washington, et al.
TITLE
[it the Following box (a) indicute the purty ling the motivn, e.g, plaintiff, defendant, 3rd party plaint(T, and (h) stale briefly the wature
MOTION: ‘of the motion being presented.]}

DOCKET ENTRY:

{1) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) i) Answer brief to motion due. . Reply to answer brief due
@ a Ruling/Ilearing on. set for _ al .
(5) Oo Status hearing{held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continucd to] [sct for/re-set for] on set for at .
(7) o Trial{set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to __|__ at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OrrRcP4(m) CLocal Rule 41.1 OO FRCP41(a)(1) [I FRCP41(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order granting in part and denying in part
defendants’ motion for summary judgment. Summary judgment on all claims is entered in favor of defendants
Currie and Gaetz . Summary judgment is also entered in favor of all other defendants with respect to claims against
them in their personal capacities. To the extent that plaintiffs’ action seeks relief against the remaining defendants
in their official capacities, summary judgment is denied. Pretrial order will be due by 7/11/03; and response to any
motions in timine by 7/25/03. Pretrial conference set for 8/8/03 at 3:30 p .m. Trial set for 9/8/03 at 9:30 a.m.
dl) (For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
s Number
No notices required. umber of notiogs
VY | Notices mailed by judge’s staff. ye 8
Notified counsel by telephone, site dosieted
Docketing to mail notices. a |
Copy to judge/mugistrate judge.
sis0ra0us

date mailed notice

courtroom

MPI deputy’s Mp
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



functions so long as ‘their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Alvarado v. Litscher, 267
F.3d 648, 652 (7th Cir. 2001) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). This immunity provides protection for “all
but the plainly incompetent or those who knowingly violate the
law.” Sherman v. Four County Counseling Ctr., 987 F.2d 397, 402
(7th Cir. 1993) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). I find that the constitutional rights asserted by
plaintiffs here are not “clearly established” for purposes of
denying defendants qualified immunity. While inmates in protective
custody generally may have clearly established first amendment
rights to communal religious services and fourteenth amendment
rights to programs and services equivalent to those offered other
inmates, see, @.g., Williams v. Lane, 646 F. Supp. 1379, 1406-07,
1409 (N.D. Ill. 1986) (Shadur, J.), it is not clearly established
whether inmates in Category IV specifically share these rights. As
noted above, see supra note 3, the Williams remedial order
explicitly distinguished between Categories III and IV protective
custody and Categories I and II protective custody. Thus, this
remedial order, entered after the written opinion in Williams that
found that protective custody inmates had first and fourteenth
amendment rights to various programs and services creates confusion

as to whether these rights extend to Category IV inmates. This

it



The fact that Mr. Currie and Mr. Gaetz may have been aware of
how Category IV protective custody was run is not sufficient to
impose liability on them. Absent the power to change the way in
which Category IV is administered, Mr. Currie and Mr. Gaetz have no
causal connection or affirmative link to the alleged violations.
Here, defendants have provided evidence that Mr. Currie and Mr.
Gaetz had no hand in deciding which programs and services would be
provided to inmates in Category IV protective custody. Plaintiffs
present no evidence to the contrary. As such, summary judgment in
favor of defendants as to Mr. Currie and Mr. Gaetz is proper.

E. Qualified Immunity

Defendants next arque that they are protected from suit and
damages by the application of qualified immunity. Qualified
immunity is a defense only to personal capacity suits. Conner v.
Reinhard, 847 F.2d 384, 394 n.8 (7th Cir. 1988) (citing Kentucky v.
Graham, 473 U.S. 159, 166-67 (1985)). Thus, to the extent that
plaintiffs claims are brought against defendants in their official
capacities, (Compl. at 6) (‘All defendants are sued as individuals
and in their official capacities”), defendants are not shielded by
qualified immunity.

With respect to the extent to which the complaint asserts
personal capacity claims, I find that defendants are shielded by

qualified immunity. “Qualified immunity protects government

officials from civil liability when performing discretionary



Cc. Changed Circumstances

Defendants next argue that protective custody operations at
Stateville changed in February 2002 such that there are no longer
constitutional violations occurring that warrant injunctive relief.
Specifically, defendants claim that the length of time inmates
spend in Category IV protective custody has been reduced to less
than sixty days, and that the average number of inmates in Category
IV at any one time is less than ten. Even if it is true, as argued
by defendants, that only short term deprivation of constitutionally
required privileges or deprivation of various privileges to only
small groups of inmates now renders Category IV free of
constitutional violations, “[vloluntary cessation of allegedly
illegal conduct does not render a case moot unless the defendant
can demonstrate that ‘there is no reasonable expectation that the
wrong will be repeated.’"” Milwaukee Police Ass’n, 192 F.3d 742,
747 (7th Cir. 1999). The February 2002 changes to which defendants
refer apparently occurred because the closing of Joliet
Correctional Center that month created a bed space shortage at
Stateville, necessitating certain changes in protective custody
operations. (Catchings Aff. 15.) However, as defendants point to
no statute or regulation implementing the change, they have failed
to demonstrate that there is no reasonable expectation that the

alleged wrong will be repeated. See Sefick v. Gardner, 164 F.3d

370, 372 (7th Cir. 1998) (“[T]he current .,., policy, adopted after



A. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act (“PLRA”), “{n]o action
shall be brought with respect to prison conditions under section
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). This exhaustion requirement “applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S.
516, 532 (2002). Defendants argue that many members of the
plaintiff class have not exhausted their administrative remedies,
and that judgment should therefore be entered against those
plaintiffs. Defendants do admit, however, that four plaintiffs
“have nominally complied with exhaustion requirements.”  (Defs.’
Mem. Supp. Mot. Summ. J. at 10 n.2.) Plaintiffs argue that
exhaustion of administrative remedies by one class member is
sufficient to satisfy the exhaustion requirement as to the entire
class. In support, they cite Rahim v. Sheahan, No. 99 C 0395, 2001
WL 1263493 (N.D. Ill. Oct. 19, 2001) (Schenkier, Mag.) and Jones
‘El v. Berge, 172 F. Supp. 2d 1128 (W.D. Wis. 2001).

Both Rahim and Jones ‘El analogized the exhaustion requirement
in PLRA class actions to the exhaustion requirement in Title VII

employment discrimination class actions.* It is well established

2 Title VII requires a plaintiff to file a timely complaint
with the EEOC and receive a right to sue letter before they may

3



custody. Inmates whose applications are denied are returned to the
general prison population, unless they appeal the denial. In that
case, inmates are placed in Category IV.

Plaintiffs claim that while in Category IV protective custody,
they are denied access to communal religious services, educational
opportunities, drug and alcohol rehabilitation services, the gym,
and hot food. They also claim that they are denied access to the
main exercise yard, and instead relegated to a small yard without
amenities available in the main yard.!

II. Analysis

Defendants raise five arguments in their motion for summary
judgment. First, they argue that the claims of any plaintiffs who
have not exhausted their administrative remedies should be
dismissed. Second, they argue that there is no case or controversy
because plaintiffs are no longer in Category IV protective custody.
Third, they argue that injunctive relief is unwarranted because the
operation of Category IV protective custody has changed. Fourth,
they argue that the involvement of defendants Tyree Currie and
Donald Gaetz in Category IV decision-making was not sufficient to
make them liable under § 1983. Finally, defendants argue that they

are entitled to qualified immunity.

a Plaintiffs also complained that while in Category IV
protective custody, they are denied access to the law library and
trained legal assistance. These claims were previously dismissed.
Lewis, 197 F.R.D. at 616.



”

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION ay

MICHAEL LEWIS, et al., No, 99 C 7081

}
)
Plaintiffs, ) RELATED CASES:
) Nos. 01 € 5139
Vv. ) 01 ¢C 6474
) 01 ¢ 7575
ODIE WASHINGTON, et al., ) QO1 Cc 7659
) 02 C 1371
Defendants, ) 02 Cc 7760

MEMORANDUM OPINION AND ORDER

Plaintiffs, state inmates at Stateville Correctional Center in
Joliet, sued defendants, various prison officials, under 42 U.S.C.
§ 1983 for violations of their constitutional rights while they
ware in “Category IV Protective Custody.” I certified a class of
about 160 inmates who have been placed in Category IV since the
beginning of 1995. Lewis v. Washington, 197 F.R.D. 611, 612 (N.D.
Ill. 2000). Defendants now move for summary judgment. I grant the
motion in part.

I. Background

Protective custody refers to the separation of inmates from
the general prison population. Inmates may request to be placed in
protective custody, which is divided into four categories. When an
inmate so requests, he is placed in protective custody as soon as
possible. While his application for protective custody is pending,
he is placed in Category III protective custody. Inmates whose

applications are approved are placed in Category I or II protective



confusion is sufficient for me to find that defendants are entitled
to qualified immunity against personal capacity claims alleging
abridgement of these rights. See Alvarado, 267 F.3d at 652 (“[T]he
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
III. Conclusion

Defendants’ motion for summary judgment is GRANTED IN Part.
Summary judgment is entered in favor of defendants Currie and
Gaetz. Further, summary judgment is entered in favor of all other
defendants with respect to claims against them in their personal
capacities. To the extent that plaintiffs’ action seeks relief
against the remaining defendants in their official capacities,

however, summary judgment is denied.

one 2 }

Elaine E. Bucklo
United States District Judge

Dated: May 30, 2003

12