The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the Court is the motion for summary judgment by Defendants Emery and Phares on the grounds that the plaintiff failed to exhaust her administrative remedies before filing this suit. For the reasons below, the motion is granted. However, Defendant Hall remains in the case, for further development of the record with regard to whether Hall is equitably estopped from asserting exhaustion as a defense.
Summary Judgment Standard
A party moving for summary judgment must show, from the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . ." that there is no genuine issue of material fact and that the "moving party is entitled to judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Fed. R. Civ. P.56(c). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e).
The plaintiff was incarcerated in McLean County Jail in April 2007 and working as a hall worker. Defendant Hall, a correctional officer at the Jail, was one of the plaintiff's supervisors. Here are the plaintiff's allegations verbatim:
[Hall] seemed interest in my case trying to give me sound advice. A week later he told me he noticed how shapely I was while I'd been sleeping. It threw me off but I didn't respond. I would talk over him when he'd say things sometimes. I'd loosen up and try to act like it was nothing. He asked me did I want him to stop talking like that. I said yes. A week or so later we were talking and he mentioned how he'd put me in different positions sexually. He asked me if I knew about the cameras. Where they were and weren't. He mentioned the closet where the mop is and the work release storage area. He asked me to mop the work release storage room. So, as I'm mopping he walks toward me reaching for my face as if to kiss me. I rejected him. He walked out and said nothing. The next time he worked he apologized.
Days later he asked to see my breasts but I said no. He said he could tell I had tear shaped breasts. Embarrassed I just laughed it off. I felt uncomfortable but I didn't say anything because I needed to get away from the room. Away from the arguing and loudness. So I endured it. Regretting it. Telling no one. The last incident was when he stood at the counter and pulled out his penis twice that day, asking me to touch his penis. But I said no. He's talked about his sex life, oral sex and the last officer involved in a sexual incident didn't handle it right. . . . He [saw] me getting dressed and came back past and stood there watching. . . . Another incident, I needed paperwork to be given to my family at a visit.. . . He told me I owed him for getting it to them. . .Cleaning, he's looked down my shirt. He asked to take a picture on his phone of me. He begged. I said no. He's shown me weight-lifting women in a porn video on the computer. He asked have I ever had a dream about him and officer Boyd. I said, No! He wanted to feel me up in the closet in front of the women's pods, but I said no. I thought he'd be someone to confide in. He ended up [preying on] me.
The plaintiff filed this case in April 2008.*fn1
The Prison Litigation Reform Act requires an inmate to exhaust available administrative remedies before filing a § 1983 lawsuit. 42 U.S.C. § 1997e(a)("[n]o action shall be brought with respect to prison conditions . . . by a prisoner . . . until such administrative remedies as are available are exhausted."); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); Perez v. Wisconsin Dept of Corrections, 182 F.3d 532, 535-38 (7th Cir. 1999). Exhaustion means properly and timely taking each step in the established administrative process. Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002). "Exhaustion gives an agency 'an opportunity to correct its own mistakes with respect to the programs it administers before it is hauled into federal court,' and it discourages disregard of [the agency's] procedures." Woodford v. Ngo, 548 U.S. 81, 88 (2006). Exhaustion "gives prisoners an effective incentive to make full use of the prison grievance process and accordingly provides prisons with a fair opportunity to correct their own errors. This is particularly important in relation to state corrections systems because it is 'difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.'" Id. at 94 (citation omitted). However, only available remedies require exhaustion. "[W]hen prison officials prevent inmates from using the administrative process . . . , the process that exists on paper becomes unavailable in reality." Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
The undisputed facts show that the Jail has a grievance procedure: inmates can file an "inmate request form" with the appropriate designated person of unit. (Mclean County Detention Facility Inmate Information and Orientation Handbook, Section XII, d/e 26, Exhibit A, attached to Affidavit of Defendant Allen). It is not clear exactly to whom the plaintiff would have filed her grievance, but presumably it would be the "inmate services bureau" (which handled "personal problems") or the watch commander (who handled"concerns about day to day operations of the Facility"). Inmates may appeal the response to the operations supervisor, then to the assistant superintendent, then to the superintendent, then finally to the Sheriff. Id. The inmate request form requires the inmate to specify the person or unit with which she "request[s] an interview", and there is a space to state the reason for the request. Id., Ex. B.
The plaintiff admits that she did not file a grievance. (Complaint p. 4). The plaintiff seems to assert in her response that she did not know about the grievance procedure, but she does not put into dispute that the handbook is given to each inmate and is readily available in the common areas.
The plaintiff also asserts in her response that inmate request forms "can be picked up and read by any officer. The use of the inmate request form to complain about conduct of staff can cause retaliation since there is no secure way to submit the form to manag[e]ment." She ...