The opinion of the court was delivered by: Reagan, District Judge
In this lawsuit under 42 U.S.C. § 1983, Plaintiff Richard Titus alleges that Defendants - employees of the Menard Correctional Center - violated his Eighth Amendment freedom from cruel and unusual punishment in December 2006 two ways:
(1) by employing excessive force during a tactical team detention on December 23 and
(2) by being deliberately indifferent to his resultant injuries thereafter. Titus filed his lawsuit in late August 2007 naming 24 Defendants. In a July 2009 Order (Doc. 9), the Court dismissed 17 Defendants and referred the claims against the remaining 7 Defendants to Magistrate Judge Philip M. Frazier for all pretrial matters, including preparation of reports and recommendations on dispositive motions.
Currently pending before the undersigned District Judge is Magistrate Judge Frazier's August 31, 2010 Report and Recommendation on Defendants' motion for summary judgment based on failure to exhaust administrative remedies (Doc. 73).
Defendants raised the issue via affirmative defense in their answers and again when they moved for summary judgment (Docs. 31, 58).
Plaintiff Titus failed to respond to the summary judgment motions. Judge Frazier appointed counsel for Plaintiff Titus and later held an evidentiary hearing on the exhaustion issue. He then submitted a Report to the undersigned Judge. The Report indicates that Judge Frazier was not persuaded Defendants had satisfied their burden of proof on the affirmative defense and recommends that the Court deny the summary judgment motions. Defendants timely objected to the recommended disposition, specifically with respect to several of Judge Frazier's findings of fact.
Because of the timely and specific objection, the Court must make a de novo determination of the matters in the Report to which Defendants object and may accept, reject or modify the recommended decision or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1)(B) (2006); Fed. R. Civ. P. 72(b); S.D. Ill. Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). After making a de novo determination, the undersigned District Judge reaches the same conclusion as Judge Frazier and will adopt his Report.
A prisoner must seek all available administrative remedies before challenging his conditions of confinement in court. 42 U.S.C. § 1997e(a). However, he need not prove that he has complied with the exhaustion requirement. Failure to exhaust administrative remedies is an affirmative defense, meaning that a defendant must raise it and also bears the burden of proving it. Obreicht v. Raemisch, 517 F.3d 489, 492 (7th Cir. 2008). This affirmative defense is not entitled to trial by jury but instead is tried by the court as an issue of "judicial traffic control" comparable to personal jurisdiction or venue.*fn1 Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008).
To prove that the prisoner plaintiff has not exhausted his administrative remedies, a defendant must show that the prisoner failed to 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). In Illinois, the prison grievance process has these steps. First, the prisoner is to resolve the complaint through a counselor to obtain an informal remedy. 20 Ill. Admin. Code § 504.810(a) (2009). If not satisfied with that remedy, the prisoner submits a formal written grievance to the prison's grievance officer within 60 days of the discovery of the incident. Id.The grievance officer makes findings and recommendations to the Chief Administrative Officer of the prison (the warden), who makes the final decision. Id., § 504.830(d).
If still unsatisfied, the prisoner may appeal the decision to the Director of the Department of Corrections within 30 days. Id., § 504.850(a). The appeal to the director is handled by the Administrative Review Board (ARB), which makes a recommendation on how the director should ultimately handle the grievance. Id., § 504.850(b)--(f). The director has 6 months after receipt of the grievance to make a decision. Id., § 504.850(f).
Thus, to exhaust administrative remedies, the prisoner should consult a counselor, file a written grievance with the prison grievance officer, and appeal the determination to the director. If after complying with this procedure the prisoner receives no response in 6 months or an unfavorable response, the prisoner can sue.
To prove their defense that Plaintiff failed to fully exhaust his remedies in the instant case, Defendants argued that Titus did not file a written grievance with the prison and did not file an appeal with the ARB. Judge Frazier reported that the evidence preponderated in favor of Titus on those issues, and Defendants object to that aspect of the Report. Specifically, Defendants argue that Titus' testimony at the hearing regarding the exhaustion of his remedies should be discounted. It was incredible, they argue, because Titus did not provide documentation to support his testimony that he drafted and submitted grievances at the proper times and because his testimony contradicts his own answers to interrogatories. They further argue that the rest of the evidence, consisting of two affidavits from Menard employees, supports their position that Titus did not exhaust his remedies.
As to the credibility of Titus' in-court testimony, Defendants' objection is unavailing. The district judge reviews the magistrate judge's report de novo based upon the record but is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations. Presently, there is no record of the evidentiary hearing before the Court. As of the date this Order was drafted, the objecting parties (Defendants) have not arranged for the hearing's transcription, which is fatal if they seek to challenge the Report based on Judge Frazier's impression of in- court testimony: "the objecting party must ...