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Hicks v. Irvin

July 8, 2010

CHAD ALAN HICKS, PLAINTIFF,
v.
SILAS M. IRVIN, DENNIS ROLKE, LAZO SAVICH, JAMES DIAMOND, AND JAMES HENRY, DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' motion for summary judgment [133], which seeks to nip Plaintiff's prison civil rights lawsuit in the bud. Defendants' motion invokes the Prison Litigation Reform Act's ("PLRA" or the "Act") requirement that inmates exhaust their administrative remedies before filing suit in federal court. Plaintiff's response resorts to the corollary to the Act's exhaustion requirement that an inmate need exhaust only "available" administrative remedies. For the reasons set forth below, Defendants' motion [133] is denied.

I. Procedural Background

Plaintiff, Chad Alan Hicks ("Hicks"), filed this prison civil rights lawsuit on May 2, 2006 [13]. After weathering a motion to dismiss [81, 82], Hicks filed his Third Amended Complaint ("Compl.") [124] in October 2009. The lawsuit, brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), arises directly under the United States Constitution. The complaint names as Defendants several officials at the Metropolitan Correctional Center in Chicago ("MCC"). Hicks maintains that he was falsely accused of assaulting a correctional facility officer; that he was placed for six days in a segregated, bug-infested "dry cell" that was inundated with feces; and that he was retaliated against for filing suit in response to these conditions. In November 2009, Defendants, Silas M. Irvin ("Irvin"), Dennis Rolke ("Rolke"), Lazo Savich ("Savich"), James Diamond ("Diamond"), and James Henry ("Henry"), filed the pending motion for summary judgment. Defendants' summary judgment motion contends that Hicks's suit cannot proceed because Hicks failed to exhaust his administrative remedies, as mandated by 42 U.S.C. § 1997e(a).

II. Facts

On summary judgment, the record evidence is viewed in the light most favorable to the non-moving party-in this instance, Hicks. The Court takes the relevant facts primarily from the parties' Local Rule ("L.R.") 56.1 statements: Defendant's Statement of Facts ("Def. SOF") [135], Plaintiff's Response to Defendant's Statement of Facts ("Pl. Resp. Def. SOF") [136], Plaintiff's Statement of Additional Facts ("Pl. SOAF") [136], and Defendant's Response to Plaintiff's Statement of Additional Facts ("Pl. Resp. Def. SOAF") [139].*fn1

Before delving into the facts, the Court must address at the outset several improper fact-denials by Defendants. Defendants incorrectly denied many of Hicks's L.R. 56.1 fact statements, including by citing to briefs rather than record evidence. More importantly, Defendants misperceived their summary judgment burden by incorrectly denying several of Hicks's declaration-supported fact statements, contending that "no independent testimony or documentary evidence" corroborates Hicks's fact statements. Defendants' argument is a non-starter, because Hicks supported his fact statements with citations to a declaration, and declarations, like affidavits, can be used to stave off summary judgment, so long as they represent admissible record evidence. "Provided that the evidence meets the usual requirements for evidence presented on summary judgment * * * a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts." Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003); see also 28 U.S.C. § 1746 (admissibility of unsworn declarations under penalty of perjury). Where Defendants have objected that Plaintiff's fact statements were not corroborated, the Court has deemed the fact statements admitted. See also Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006) (noting in a PLRA exhaustion case that the defendants, "though we have warned against this practice repeatedly in our opinions * * * [fell] into the trap of trying to discredit [the plaintiff's] affidavits as 'self-serving'").

Also, the Court will deem admitted Plaintiff's fact statements that are supported with citations to Pl. SOAF Ex. 1, which purports to be a copy of an Inmate Request to Staff form. Defendants maintain that the form should be excluded at summary judgment because there are indications that the form is not authentic. Defendants base their denials on the apparent presence of "shadow text" on the form-that is, faint text in the background of Hicks's writing. Federal Rule of Evidence 901 provides that a document meets the authentication requirement if there is sufficient evidence "to support a finding that the matter in question is what its proponent claims." As applied to Hicks's exhibit, the question is whether there is sufficient evidence to conclude that the proffered exhibit is, in fact, an Inmate Request to Staff form. Federal Rule of Evidence 901 provides guidance to courts about how the determination is to be made: the non-exhaustive illustrations in the rule include testimony by a person with knowledge that a document is what it claims to be (Fed. R. Evid. 901(b)(1)), as well as "distinctive characteristics" of a form that support authenticity when "taken in conjunction with the circumstances." Fed. R. Evid. 901(b)(4). For summary judgment purposes, the Court is satisfied that the document is authentic, based on the declaration-based testimony of Hicks and because the document bears indicia of an authentic BOP form. Moreover, given that Hicks is housed in a federal prison, the surrounding circumstances make it unlikely (one hopes) that Hicks has access to equipment that would allow him to manufacture fake documents. In addition, the form itself indicates that it is a carbon-copy form; that offers an authentication-bolstering explanation for the shadow text. See also Hicks Decl. ¶ 12 (referring to BOP grievance form carbon copies). Based on the evidence before the Court, the exhibit will be admitted for summary judgment purposes; and where the Defendants have denied a fact statement only by pointing to concerns about the authenticity of the document, the fact statement has been deemed admitted.

With those preliminary matters out the way, the Court turns to the facts themselves. Hicks first was housed at the MCC in August 2005. On October 8, 2005, Hicks was accused of assaulting Defendant Rolke. Compl. ¶¶ 17-20. Thereafter, Hicks was placed in the MCC's Special Housing Unit-segregated housing-where he would stay until October 25, 2005. Pl. SOAF ¶ 29. While housed at the Special Housing Unit, Hicks filled out a Bureau of Prisons ("BOP") form, captioned "Inmate Request to Staff"-this is Pl. SOAF, Ex. 1, whose authenticity the Court discussed above. The form was addressed to "Counselor Mr. Owens." On the form, Hicks wrote: "Can you please come down here to segregation to see me I need talk to you please? Also, I have administrative remedy forms to turn in to you" [sic throughout]. When Mr. Owens-subsequently identified as Phillip Owens ("Owens")-came to visit Hicks, the latter submitted "BP-8" and "BP-9" forms regarding the conditions of his confinement. Those forms relate to the grievance process at the warden level. However, Hicks did not receive a receipt, response, or notice of rejection for his grievance. Pl. SOAF ¶ 33; Pl. Resp. Def. SOF ¶ 3. When he never heard back, Hicks also filed a "BP-10" appeals form with the regional director. Again, he received no receipt, response, or notice of rejection. Pl. SOAF ¶ 33.

On May 2, 2006, Hicks filed an amended complaint (Judge Lefkow, to whom the case was assigned initially, granted Hicks in forma pauperis status the previous March but dismissed the complaint on initial review under the IFP statute) [6, 12]. After filing the amended complaint, Hicks was placed in the Special Housing Unit; he remained there from May 18 to June 7, 2006. Pl. SOAF ¶ 34. On June 1, 2006, Hicks filed a BP-9 form, complaining that he had been moved to segregated housing without a valid reason. He received no receipt, response, or notice of rejection. Pl. SOAF ¶¶ 35-36.

The BOP maintains a computer database known as "Sentry," in which it logs and tracks grievances filed by inmates. Def. SOF ¶ 4. Once a grievance is entered into the system, the BOP can generate a history of that which is filed-this is called an "Administrative Remedy Generalized Retrieval." Def. SOF ¶¶ 5-6. Defendant's next factual averment is problematic. Supported by a declaration and deposition testimony by BOP attorney-advisor Vincent E. Shaw, Defendant contends that for the 13 grievances*fn2 that Plaintiff has filed with BOP, he has not exhausted his administrative remedies. Def. SOF ¶ 7; see also Shaw Aff. ¶ 9 ("My thorough review of available records has revealed that Hicks has not exhausted his administrative remedies with respect to the issues presented in this lawsuit"); Shaw Dep. at 122-24. The problem for the Defendants is that exhaustion is a legal question. See Kaba, 458 F.3d at 681; Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003)). Shaw's declaration and deposition do not set out the underlying facts upon which Shaw based his conclusion, although the Court's review of Defendants' exhibits indicates that there is no record of Hicks having filed the grievances at issue. Equally important, Defendants have not offered the court a sufficient basis to consider Defendants' (possible) business records at summary judgment.*fn3 For these reasons, Defendants' fact statements on exhaustion have been disregarded. Defendants have probably not suffered for the evidentiary gap, however. The absence of a business record is evidence that something did not occur (Fed. R. Evid. 803(7))-but, as noted above, Hicks's declaration that he did submit the required forms is evidence, too. The Court is required to look at the evidence in the light most favorable to the non-movant at summary judgment.

III. Legal Standard

Summary judgment is proper where "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)(2). Factual disputes that are irrelevant to the outcome of the suit "will not be counted." Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted).In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the ...


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