The opinion of the court was delivered by: Reagan, District Judge
Fabian Santiago, a prisoner, has sued several employees of the Illinois Department of Corrections (IDOC), including the former director of the department, Roger Walker, Jr. Defendant Corrections Officer Jeffrey Mitchell worked at Menard Correctional Center. Corrections Officers Robert Smithson, Jeremy Anderson, Joel Starkey, Benny Dallas, Paul Siepp and Warden Stephen Mote worked at Pontiac Correctional Center. Defendant Sherry Hile (now Benton) was a member of the IDOC Administrative Review Board (ARB). After threshold review, Counts 1, 3, 5 and 8 remain, alleging that the defendants violated Santiago's rights under the First and Eighth Amendments and are accordingly liable under 42 U.S.C. § 1983. The factual allegations are more adequately summed up in Magistrate Judge Clifford J. Proud's Report to this Court (Doc. 213 at 2-- 4). Judge Proud submitted that Report on the defendants' joint motion for summary judgment (Doc. 168), and the Report includes a recommended disposition of the motion.
Santiago submitted an objection filed 15 days after the Report was served on him by mail (Doc. 216), meaning that his objection was timely. See Fed. R. Civ. P. 72(b) (requiring objections to a magistrate judge's report to be filed within 14 days of service); R. 6(d) (allowing an additional three days when service is accomplished by mail). Because timely objections were filed, the Court must review de novo those portions of the report to which specific objections have been made. 28 U.S.C. § 636(b)(1)(B) (2006); Fed. R. Civ. P. 72(b); S.D. Ill. R. 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or modify the recommended disposition and may, if necessary, recommit the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b); S.D. Ill. R. 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999). Finding Santiago's objections without merit, this Court will adopt the recommendations of Judge Proud. For reasons detailed below, Santiago's case is dismissed without prejudice and with leave to reinstate once the authority of the Court is vindicated.
Summary Judgment Standard
Summary judgment is appropriate where the pleadings, discovery and disclosure materials on file and any affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Estate of Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 563 (7th Cir. 2009) (citing Fed. R. Civ. P. 56(c)); accord Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008); Levy v. Minn. Life Ins. Co., 517 F.3d 519 (7th Cir. 2008).
In ruling on a summary judgment motion, the Court construes all facts and reasonable inferences in the light most favorable to the non-moving party. Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir. 2009); TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
The non-moving party cannot rest on its pleadings, though; to avoid summary judgment, the non-moving party must provide evidence on which a reasonable fact-finder could find in favor of the non-moving party. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). As the Seventh Circuit recently explained:
[T]he non-moving party must submit evidence that there is a genuine issue for trial. The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party.
Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 531--32 (7th Cir. 2009) (citation omitted) (citing Fed. R. Civ. P. 56(e); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006)).
Santiago's objections can be placed under four distinct headings. He objects to the magistrate judge's conclusions that (1) he did not exhaust administrative remedies on the Eighth Amendment excessive force claim against Mitchell (Count 1) (Pltf.'s Mot. ¶¶ 1--13); (2) he did not exhaust administrative remedies against Smithson, Dallas, Bernard and Siepp for destroying legal documents (part of Count 8) (id. ¶ 14); (3) he did not exhaust grievances against Walker, Mote and Hile (part of Count 8) (id. ¶¶ 16--23); and (4) there is no evidence that Walker participated in any First Amendment retaliation (part of Count 8) (id. ¶ 15).
The bulk of the objections relate to Congress's requirement that a prisoner exhaust administrative remedies before bringing suit regarding conditions of confinement. See 42 U.S.C. § 1997e(a) (2006) ("No 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."). If a prisoner does not exhaust the administrative remedies, the defendants in the suit may use that failure against the prisoner, but to do so they must assert the failure to exhaust as an affirmative defense and bear the burden of proof. Jones v. Bock, 549 U.S. 199, 211--17 (2007); Pavey v. Conley, 544 F.3d 739, 740--41 (7th Cir. 2008) (citing Jones, 549 U.S. 199). This affirmative defense, however, is not entitled to a jury trial; it is instead tried by the Court at this juncture. See Pavey, 544 F.3d at 741 (comparing the failure-to-exhaust defense to other defenses and determining that the Court decides the issue, not the jury). If material issues of fact exist on the question of exhaustion of remedies, the Court is to hold a hearing on the question of exhaustion. Id. at 742. If, after a hearing, the Court determines that the prisoner exhausted his administrative remedies, then the case goes forward. See id. If the prisoner failed to exhaust but the failure was innocent "as where prison officials prevent a prisoner from exhausting his remedies," then the prisoner is given another chance to exhaust. Id. Otherwise, the prisoner's unexhausted claims are dismissed. Id.
Eighth Amendment Excessive Force
The excessive force claim stems from an alleged incident on July 18, 2003, in which Mitchell assaulted Santiago while he was at Menard Correctional Center. Viewing the evidence regarding the submission of the grievance in the light most favorable to Santiago, this incident was included in a grievance submitted on August 29, 2003, to the Pontiac grievance officer along with two other alleged incidents occurring on July 24--25, 2003. The July 24 and 25 incidents occurred at Pontiac, subsequent to Santiago's transfer from Menard. The Pontiac grievance officer addressed the Pontiac issues but did not address the Menard issues, and correctly so. Inmates housed at one facility that grieve about an incident at another facility must submit that grievance directly to the ARB. Ill. Admin. Code tit. 20, § 504.870(a)(4). Instead of submitting the Menard grievance to the ARB, Santiago erroneously submitted the grievance to the Pontiac grievance officer.
The Pontiac grievance sequence was completed on September 25, 2003, when the Pontiac Chief Administrative Officer concurred in the denial of the grievances. Santiago asserts, by affidavit, that he submitted the denied grievance to the ARB on October 3, 2003. He argues that this submission was effective to get the Menard grievance before the board because the two concurrently-submitted Pontiac events were continuing violations of the July 18, 2003, event. He argues, then, that the last date of the continuing violation (July 25, 2003) should be the date from which the time for submitting a grievance runs. Even assuming, without deciding, that the "continuing violation" doctrine also applies to exhausting administrative remedies,*fn1 this argument fails. The time frame for submitting a grievance is 60 days. Ill. Admin. Code tit. 20, § 504.810(a). The last day of the "continuing violation" was July 25, 2003, and 60 days later is September 23, 2003. October 3 is simply too late.
Because October 3 was, as a matter of law, too late to submit a grievance that should have been submitted by September 23,*fn2 the Court need not address the further arguments regarding whether Santiago actually submitted the grievance on October 3. Even if he did, he would have been too late. As such, the alleged July 18, 2003, event is procedurally defaulted, meaning that Judge Proud was correct to recommend the dismissal of the Eighth Amendment excessive force claim (Count 1). Santiago's objection is overruled.
Destruction of Legal Documents
Santiago alleges as part of Count 8 that Smithson and Dallas destroyed his legal documents on August 26, 2004, in retaliation for his litigiousness. He also alleges that Bernard and Siepp were present and did nothing to stop Smithson and Dallas from destroying his documents. He argues that this incident was properly presented in a grievance submitted on the day of the incident, August 26, 2004. Judge Proud disagreed in his report, and Santiago objects.
The fact that a grievance was submitted on August 26 is not in dispute, but the parties disagree as to what, exactly, was grieved on that date. The only indication with respect to legal ...