Opinion
3:20-cv-01100-SMY-RJD
08-12-2021
CHARLES E. THORNTON, #Y19115, Plaintiff, v. ROB JEFFREYS, et al., Defendants.
REPORT AND RECOMMENDATION
Hon. Reona J. Daly United States Magistrate Judge
This matter is before the Court on the Motion for Summary Judgment on Exhaustion (Doc. 43) filed by Defendants Rob Jeffreys and Anthony Wills. The motion has been referred to United States Magistrate Judge Reona J. Daly by United States District Judge Staci M. Yandle (Doc. 91) pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation. It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law and GRANT the motion.
Background
Plaintiff Charles E. Thornton, an inmate of the Illinois Department of Corrections (“IDOC”) currently incarcerated at Menard Correctional Center (“Menard”), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. He alleges claims of unconstitutional conditions of confinement, deliberate indifference to serious medical needs, and retaliation. 1
Specifically, Plaintiff alleges the following in the Amended Complaint (Doc. 15): Plaintiff was relocated to a cell in the North 2 cell house by Correctional Officer Maynard Agne on May 12, 2020. Plaintiff complained to Agne about the size of the cell and about being double-celled. Agne became irate and told Plaintiff to go in the cell or go back to segregation. Agne threatened to give Plaintiff a disciplinary ticket if he did not go in the cell.
Due to inadequate space in the cell, Plaintiff is unable to exercise which causes him pain due to a pre-existing medical condition. The stress of living in a cramped space and the decline in Plaintiff's physical condition have caused a deterioration in his mental health. Plaintiff informed his assigned mental health professional, S. Buettner, and assigned psychiatrist, Dr. Thena Potete, that being double-celled in an inadequate living space was having a negative psychological effect on him. They increased his psychotropic medications, but otherwise ignored his complaints and refused to assist him in his efforts to be moved out of the cell.
Plaintiff complained to Menard Warden Anthony Wills about the inadequate cell space when Warden Wills was touring the housing unit on August 14, 2020. Warden Wills told Plaintiff there was nothing wrong with the cell size. Plaintiff also filed a grievance on August 16, 2020 in which he complained about being double-celled in an inadequate living space and stated it was harming his physical, mental, and emotional well-being. He did not receive a response to his grievance. Plaintiff mailed a copy of the grievance to IDOC Director Rob Jeffreys but did not receive a response. He subsequently filed an emergency grievance on the issue and Warden Wills denied expedited review. 2
Following screening of the Amended Complaint under 28 U.S.C. § 1915A, Plaintiff is proceeding on the following claims:
Count 1: Eighth Amendment claim against Jeffreys, Wills, Agne, Buettner, and Dr. Potete for unconstitutional conditions of confinement.
Count 2: Eighth Amendment claim against Jeffreys, Wills, Agne, Buettner, and Dr. Potete for deliberate indifference to Plaintiff's serious medical needs by refusing to move Plaintiff from a cell that was causing a decline in Plaintiff's physical and mental health and failing to provide adequate mental health treatment.
Count 3: First Amendment claim Jeffreys, Wills, Agne, Buettner, and Dr. Potete for retaliating against Plaintiff for filing grievances and lawsuits complaining about his conditions of confinement.
Subsequently, Defendants Jeffreys and Wills filed motions for summary judgment asserting Plaintiff failed to properly exhaust his administrative remedies prior to filing this action (Doc. 43). Plaintiff filed a response in opposition to the motion (Docs. 67, 68, 69). The Court held an evidentiary hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) on August 5, 2021 (Doc. 101). Plaintiff testified via video from Menard and Defendants appeared by counsel. (Id.)
Findings of Fact
A. Grievance records
The Menard and Administrative Review Board (“ARB”) grievance records submitted by Defendants include the following grievance documents:
Grievance # 65-5-20, dated May 7, 2020: Plaintiff grieves placement in a 3 segregation cell on April 30, 2020 without a mattress or toilet paper and the sink and toilet did not work. The grievance was submitted as an emergency, the Chief Administrative Officer (“CAO”) determined it was not an emergency on May 11, 2020, and returned the grievance to Plaintiff. The grievance was then submitted in accordance with standard grievance procedures and was exhausted.
Grievance 58-6-20, dated June 2, 2020: Plaintiff grieves property issues related to his placement in segregation on April 30, 2020. The grievance was submitted as an emergency, the CAO determined it was not an emergency on June 5, 2020, and returned the grievance to Plaintiff. The grievance was then submitted in accordance with standard grievance procedures and was exhausted.
Grievance 249-6-20, dated June 20, 2020: Plaintiff grieves placement in a cell with an inmate who had a higher aggression level and that on April 30, 2020 he and his cellmate were taken to segregation on investigative status for assault. He alleges he was placed with the higher aggression level inmate as a result of a conspiracy and retaliation. He also grieves that he did not receive all of his state pay. The grievance was submitted in accordance with standard grievance procedures and was exhausted.
Grievance #364-8-20, dated August 29, 2020: According to the Cumulative Counseling Summary, this grievance was received as an emergency regarding “single cell/issues with cellie.” The CAO denied emergency review and the grievance was returned to Plaintiff on September 2, 2020. There is no other record of this grievance in the Menard or ARB grievance records. 4
B. Pavey Hearing
Plaintiff testified that he filed an emergency grievance dated August 16, 2020 by placing it in the clinical service box but never received a response. In the grievance, he complained about his cellmate bullying him and the inadequate living space for two inmates. He detailed the size of the cell, that he was unable to exercise, and the negative impact on his mental health. He testified that he also sent a copy of the grievance to IDOC Director Jeffreys but did not receive a response.
Plaintiff further testified that there are issues with the grievance process at Menard with inmate grievances disappearing. He contends he wrote kites to the counselor about not receiving a response to his August 16 grievance but did not receive a response to his kites either. He did not talk to the counselor in person about the lack of a response to his grievance because she had already done her monthly tour.
Legal Standards
A. Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. 5
When a motion for summary judgment pertains to a prisoner's failure to exhaust administrative remedies, the Seventh Circuit has instructed courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a prisoner's efforts to exhaust. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding facts, and determining credibility, the court must decide whether to allow the claim to proceed or to dismiss it for failure to exhaust. Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (citing Pavey, 544 F.3d at 742).
B. The PLRA and Illinois Exhaustion Requirements
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, 544 F.3d at 740. “The exhaustion requirement is an affirmative defense, which the defendants bear the burden of proving.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). For a prisoner to exhaust his administrative remedies, the prisoner must “file complaints and appeals in the place, and 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. “[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). 6
The Seventh Circuit requires strict adherence to the exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). However, an inmate is required to exhaust only those administrative remedies that are available to him. 42 U.S.C. § 1997e(a). Administrative remedies become “unavailable” when prison officials fail to respond to a properly filed inmate grievance or when prison employees thwart a prisoner from exhausting. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 809.
As an inmate in the Illinois Department of Corrections, Plaintiff was required to follow the grievance process outlined in the Illinois Administrative Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017). The standard grievance process requires an inmate to file his grievance with his counselor within 60 days of the discovery of an incident, occurrence, or problem that gave rise to the grievance. 20 ILL. ADMIN. CODE § 504.810(a). An inmate may request that a grievance be handled as an emergency by forwarding it directly to the CAO. 20 ILL. ADMIN. CODE § 504.840. If it is determined that there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is handled on an emergency basis, which allows for expedited processing of the grievance. Id. If the CAO determines the grievances “should not be handled on an emergency basis, the offender shall be notified in writing that he or she may resubmit the grievance as non-emergent, in accordance with the standard grievance process.” 20 ILL. ADMIN. CODE § 504.840(c).
Administrative regulations require the grievance “contain 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 7 the complaint.” 20 ILL. ADMIN. CODE § 504.810(c). If the names of the individuals are unknown to the offender, he can still file the grievance but “must include as much descriptive information about the individual as possible.” Id.
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 CAO. 20 ILL. ADMIN. CODE § 504.830(e). The CAO then 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 ARB. 20 ILL. 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 then makes a final determination. 20 ILL. ADMIN. CODE § 504.850(d), (e).
Conclusions of Law
Based on the grievance documents in the record, Plaintiff did not exhaust any grievance relevant to the claims in this lawsuit. The three exhausted grievances in the record, #65-5-20, #58-6-20, and #249-6-20, grieve issues that predate the cell placement of May 12, 2020 that Plaintiff complains about in the Amended Complaint. Although Grievance #249-6-20 complains about retaliation, it does so only as it relates to Plaintiff's placement with an inmate with a higher aggression level prior to April 30, 2020. The only other grievance documented in the record, #364-8-20, was not re-submitted in the 8 standard grievance process after emergency review was denied. Plaintiff testified that he received the CAO's denial of expedited review and conceded that he took no further action on the grievance.
Instead, Plaintiff contends the administrative process was unavailable to him because he did not receive a response to an August 16, 2020 grievance that he testified he placed in the clinical service box. Although Plaintiff testified that he has a copy of the August 16 grievance, he did not file it with the Court. The Court finds Plaintiff's testimony as to the existence of the August 16 grievance, and a lack of a response thereto, lacks credibility and is not supported by the documentary evidence.
The grievance documents show that the CAO responded within 3-4 days to the three emergency grievances in the record and therefore a lack of response to an emergency grievance is inconsistent. The Cumulative Counseling Summary shows that the counselor was making weekly tours of North 2 cell house during the relevant time period but it does not reflect Plaintiff raising the issue of a grievance without a response to the counselor. Plaintiff testified that he filed the August 29 emergency grievance, #364-8-20, because he had not received a response to the August 16 grievance and described the August 29 grievance as addressing the same issues but less detailed. If he had a copy of the August 16 grievance, it would be logical to resubmit the copy as opposed to creating a second, less-detailed grievance on the same issues. 9
When questioned as to why he had not provided the Court with the August 16 grievance, Plaintiff's response was that the Defendants have the burden of proof and he had set forth the information about the grievance in the Declaration that he filed. While he is correct that Defendants bear the burden of proof on failure to exhaust, they met that burden by submitting evidence of Plaintiff's grievance records at Menard and the ARB showing he did not exhaust any grievance relevant to the claims in this case. Because Plaintiff is claiming the grievance process was unavailable, it is then incumbent upon Plaintiff to provide evidence of any grievance he alleges he submitted for which he did not receive a response and the content of that grievance.
Even if the Court were inclined to believe Plaintiff submitted the August 16 grievance, the Court must determine whether the content of the grievance was sufficient to cover the claims in this lawsuit against Defendants. A lack of response does not render a grievance adequate; it merely excuses the failure to take any further steps in the grievance process. As the Ninth Circuit has articulated, “a prisoner must show that he attempted to exhaust his administrative remedies but was thwarted . . . In particular, [he] must establish . . . that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court . . . .” Sapp v. Kimbrell, 623 F.3d 813, 823-824 (9th Cir. 2010). Judges in this district have found the Ninth Circuit's rationale in Sapp to be persuasive and have adopted it. See Anderson v. Thole, No. 3:20-cv-00151-SMY, 2021 WL 2554111, at *2 (S.D. Ill. June 22, 2021); Russell v. Lashbrook, No. 19-cv-963-DWD, 2021 WL 1165120, at *3 (S.D. Ill. Mar. 26, 2021); Walker v. Butler, No. 19-cv-0446-SPM, 2021 WL 857355, at *6 (S.D. Ill. Mar. 8, 2021); 10 and Russell v. Wexford Health Sources, Inc., No. 3:19-CV-681-MAB, 2021 WL 793994, at *3 (S.D. Ill. Mar. 2, 2021).
In detailing the August 16 grievance in Plaintiff's Declaration, he made no mention of the alleged actions of Defendants Jeffreys, Wills, Agne, Buettner, or Potete that are the basis of the claims against them or that he identified them by name or description. Likewise, when asked for his recollection of the content of the August 16 grievance during his testimony, Plaintiff made no mention of the alleged actions of Jeffreys, Wills, Agne, Buettner, or Potete or that he identified them by name or description. As such, there is no evidence that the alleged August 16 grievance would have sufficed to exhaust the claims against Defendants that Plaintiff seeks to pursue in this lawsuit.
For the foregoing reasons, the Court finds that the grievance process was available to Plaintiff but he failed to exhaust his administrative remedies on the claims in this case against Defendants Rob Jeffreys and Anthony Wills. As there is no indication in the record or the filings that Plaintiff submitted any other exhausted grievance, the Court must reach the same conclusion as to the other Defendants in this case. Pursuant to Federal Rule of Civil Procedure 56(f), Plaintiff is notified that summary judgment may and should be granted in favor of Defendants Maynard Agne, S. Buettner, and Thena Potete for the same reasons set forth above. 11
Recommendation
Based on the foregoing, it is RECOMMENDED that the Court ADOPT the foregoing findings of fact and conclusions of law, GRANT the Defendants' Motion for Summary Judgment on Exhaustion (Doc. 43), and DISMISS without prejudice the claims in Counts 1, 2, and 3 against Defendants Rob Jeffreys, Anthony Wills, Maynard Agne, S. Buettner, and Thena Potete, and this action in its entirety.