The opinion of the court was delivered by: David R Herndon Chief Judge United States District Court
I. Introduction and Background
Pending before the Court is a Report and Recommendation ("the Report") submitted by Magistrate Judge Clifford J. Proud recommending that Defendants Roger Walker, Mark Carich, and Karen Spilman's Motion for Summary Judgment (Doc. 73) and Defendant Angeline Stanislaus' Motion for Summary Judgment (Doc. 81) be granted in its entirety (Doc. 106). Specifically, Judge Proud recommends that all claims against Defendants Karen Spilman and Angeline Stanislaus be dismissed without prejudice. Further, Judge Proud recommends that all of the claims brought by Plaintiffs David Tiffany, Michael Cramer, David Williams, Jerry Smock, Strong Eagle, and Paul Reeves be dismissed without prejudice for failure to exhaust. Plaintiffs have filed objections to the Report (Doc. 108). Defendants have filed a response to those objections (Doc. 111). Based on the following, the Court ADOPTS the Report in its entirety.
The Plaintiffs are all confined at the Big Muddy Correctional Center under the Illinois Sexually Dangerous Persons Act, 725 ILCS 205/1.01, et seq. Their Amended Complaint (Doc. 71) alleges that various aspects of their confinement violate their rights under the United States Constitution and under Illinois law. Specifically, Plaintiffs have brought eight claims under 42 U.S.C. § 1983 and state law regarding their confinement and medical treatment.
On September 1, 2009, Defendants Roger E. Walker, Jr., Mark Carich, and Karen Spilman filed a motion for summary judgment regarding exhaustion of administrative remedies (Doc. 73). Defendants argued that Plaintiffs Smock, Tiffany, Reeves, Eagle, and Cramer had either failed to file any grievances or had failed to file grievances related to the issues present in this case. Further, Defendants argued that while Plaintiff Ambrose had exhausted his administrative remedies as to some claims, he had failed to exhaust on the issues of assault by staff and inmates or his claims regarding adequate medical and dental care. Defendants also argued that none of the grievances mentioned Defendant Spilman and thus she should be dismissed. On September 11, 2009 Defendant Angeline Stanislaus, M.D. also filed a motion for summary judgment for failure to exhaust administrative remedies (Doc. 81). Specifically Defendant Stanislaus argued that Plaintiffs Smock, Tiffany, Reeves, Eagle, and Cramer had failed to file any grievances relating to the claims against Stanislaus and Plaintiff Ambrose failed to mention or describe Defendant Stanislaus in any of his grievances. Plaintiffs filed responses to each motion (Docs. 90 & 93). Judge Proud determinated that no hearing was necessary as the facts were not in dispute and the briefings only raised legal issues.
Thereafter, Judge Proud issued the Report on April 12, 2010 (Doc. 106). Plaintiffs have filed objections to the Report (Doc. 108). Plaintiffs' only objection focuses on the dismissal of the claims by Plaintiffs Tiffany, Cramer, Williams, Smock, Eagle, and Reeves for failure to exhaust. While Plaintiffs admit that it is undisputed that the Plaintiffs had failed to exhaust their administrative remedies, Plaintiffs argue that they should have been deemed to have vicariously exhausted their administrative remedies.
Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P. 72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objections have been made. Id.
FEDERAL RULE OF CIVIL PROCEDURE 56(c) states that summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The initial burden is upon the moving party to establish that no material facts are in dispute as to an essential element of the nonmoving party's case. Delta Consulting Group, Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009). Once the moving party meets the burden, the non-moving party must come forward with evidence that establishes a genuine issue for trial. FED.R.CIV.P. 56(e).
A non-moving party may not rest on his pleadings but must set forth specific facts showing there is a genuine issue for trial. Heft v. Moore, 351 F.3d 278, 283 (7th Cir. 2003); see also Winters v. Fru-Con, Inc., 498 F.3d 734, 744 (7th Cir. 2007) (noting that "the district court is not required to scour the record in search of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity the evidence upon which the party relies."). Consequently, when a non-moving party fails to respond to a motion for summary judgment, a court has no choice but to deem the moving party's factual assertions as true and grant summary judgment in its favor. Heft, 351 F.3d at 283 (holding that summary judgment is proper when the plaintiff's case consists of factually unsupported claims); Thurman v. Village of Homewood, 446 F.3d 682, 687 (7th Cir. 2006) (affirming the district court's decision to grant summary judgment when the opposing party failed to provide the court with evidence). See Celotex, 477 U.S. at 320 (noting that "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.").
Lawsuits filed by inmates are governed by the provisions of the Prisoner Litigation Reform Act ("PLRA"). That statute states, in pertinent part, that "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." 42 U.S.C. § 1997e(a). Persons detained under the Sexually Dangerous Persons Act are also considered prisoners under Section 1997e and thus must also exhaust their administrative remedies. Kalinowski v. Bond, 358 F.3d 978, 978-979 (7th Cir. 2004). The burden of proof on the affirmative defense of exhaustion lies with the defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005). The Seventh Circuit, however, requires strict adherence to the PLRA's exhaustion requirement.Doe v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that "[t]his circuit has taken a strict compliance approach to exhaustion."). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id. Moreover, "[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to properly utilize a prison's grievance process, "the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted." Doe, 438 F.3d at 809.
As inmates confined with the Illinois Department of Corrections, Plaintiffs were required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures For Offenders ("grievance procedures") to properly exhaust his claims. 20 Ill. Admin. Code § 504.800, et seq. The grievance procedures first require inmates to speak with their counselor about their complaint.
20 Ill. Admin. Code § 504.810(a). Then, if the counselor does not resolve the issue, the inmate must file a grievance form directed to the Grievance Officer within 60 days of the incident. Id. The grievance form must contain "factual details regarding each aspect of the offender's complaint, including what happened, when, where, and the name of each person who is subject of or who is otherwise involved in the complaint. [This] provision does not preclude an offender from filing a grievance when the names of individuals are not known, but the offender must include as much descriptive information about the individual as possible." 20 Ill. Admin. Code § 504.810(b). "The Grievance Officer shall [then] consider the grievance and report his or her findings and recommendations in writing to the Chief Administrative Officer...[who] shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, where reasonably feasible under the circumstances." 20 Ill. Admin. Code § 504.830(d). If the inmate is not satisfied with the Chief Administrative Officer's response, he or she can file an appeal with the Director through the Administrative Review Board ("ARB"). The grievance procedures specifically state, "[i]f after receiving the response of the Chief Administrative Officer, the offender still feels that the problem, complaint or grievance has not been resolved to his or her ...