The opinion of the court was delivered by: Proud, Magistrate Judge:
REPORT AND RECOMMENDATION
This Report and Recommendation regarding the defendants' motions for summary judgment (Docs. 33 and 40) is respectfully submitted to United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c).
Plaintiff Rasheen Johnson is in the custody of the U.S. Bureau of Prisons, housed at all relevant times at the Federal Correctional Institution in Greenville, Illinois ("FCI-Greenville"). Plaintiff brings this action for deprivations of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).*fn1 Plaintiff's amended complaint (Doc. 31) alleges that between July 29 and August 3, 2006, he was placed in a "dry cell," and thereafter placed in solitary confinement ("the SHU") and subjected to conditions of confinement constituting cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff claims that his placement and in those cells was in retaliation for having filed suit against defendants Harry G. Lappin, C/O Petty, M. Gelios, D. Braning*fn2 and Sara Revell in Johnson v. Lappin, Case No. 05-900-MJR (S.D.Ill. filed Dec. 22, 2005, judgment for defendants Jan. 29, 2009, appeal dismissed July 2, 2009)*fn3 , thereby violating the First Amendment.
Plaintiff takes particular issue with being in the "dry cell" without clothing, bedding or personal hygiene items, and being in the SHU unit without telephone and visitation privileges. Plaintiff specifies that defendant Petty threatened, "I told you we gone [sic] get you," and then proceeded to remove all clothing items, hygiene products and personal items from the cell. Defendant Braning allegedly refused to replace clothing items during the clothing exchange, denied plaintiff adequate cold weather apparel, "and verbally threatened" plaintiff. Plaintiff filed grievances in an attempt to remedy the situation, but then defendant Gelios allegedly threatened plaintiff with more abuse if he did not stop "filing." Also, "Officer's [sic] in the SHU" allegedly did not properly process plaintiff's personal and legal mail. (Doc. 31.)*fn4
All defendants-- Lappin, Revell, Petty, Gelios, Braning and Harmon-- are before the Court seeking dismissal of both the Eighth Amendment "conditions of confinement" claims and the First Amendment "retaliation" claims, based on plaintiff's failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a).
Plaintiff, in essence, counters that his claims were presented in the BP-9 facility grievances, and the BP-10 and BP-11 regional and national appeal forms do not require that the claims be restated and, therefore, he has exhausted administrative remedies. (Docs. 35 and 43.)
1. The Relevant Legal Principles
Plaintiff's claims are subject to the exhaustion requirement set forth in 42 U.S.C. § 1997e(a):
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.
Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir.1999), clarified that exhaustion of administrative remedies under § 1997e(a)-- while not jurisdictional per se-- is a "precondition" to suit, regardless of the apparent futility of pursuing an administrative remedy, regardless of whether money damages are sought as a tangential remedy, and regardless of notions of judicial economy. The exhaustion requirement applies to all claims "about prison life." Porter v. Nussle, 534 U.S. 516, 532 (2002).
Significantly, exhaustion of administrative remedies is required before a case may be brought, even if exhaustion is accomplished during pendency of the case. See 42 U.S.C. § 1997e(a); Perez, 182 F.3d at 535-536. In other words, an inmate cannot file suit and then exhaust his administrative remedies while suit is pending. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). The Supreme Court has held that exhaustion means "proper exhaustion," that is, the inmate must file a timely grievance using the procedures put in place by the prison system, properly taking each step in the process. Woodford v. Ngo, 548 U.S. 81 (2006); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). And the law of the Seventh Circuit emphasizes that the purpose of exhaustion is to give prison officials an opportunity to address the inmate's claims administratively/internally, prior to federal litigation. Only when that is done has the prisoner properly exhausted all available remedies. See, e.g., Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); see also Porter v. Nussle, 534 U.S. 516, 524-525(2002).
The Bureau of Prisons has a detailed administrative remedy procedure through which inmates may lodge complaints relating to any aspect of their confinement. This multi-step process is set forth in the Code of Federal Regulations at 28 C.F.R. § 542.10- § 542.18. See Kaba, 458 F.3d at 681 (7th Cir. 2006) (each step of the process has a "prescribed deadline and a particular grievance form" which must be used).
First, the inmate must attempt to informally resolve his complaint by presenting the issue to staff, "and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 28 C.F.R. § 542.13. A "BP-8" form is used for this step.
Second, if informal efforts fail, the inmate may file a formal complaint with the Warden (on form "BP-9") within 20 days of the date on which the complained-of activity occurred. Additional time is allowed for this step, if the inmate demonstrates a valid reason for delay. 28 C.F.R. § 542.14. The Warden has 20 days to respond to the inmate's complaint. Id.
If the inmate is dissatisfied with the Warden's response, he can appeal to the Regional Director/Regional Office using a "BP-10" form, submitted "within 20 calendar days of the date the Warden signed the response." 28 C.F.R. § 542.15. The Regional Director then has 30 days to respond.
If the inmate is not satisfied with the Regional Director's response, "within 30 calendar days of the date the Regional Director signed the response," the inmate can file a final appeal with the General Counsel, using a "BP-11" form, mailed to the National Inmate Appeals Administrator, Office of General Counsel. 28 C.F.R. § 542.15 and § 542.18. The inmate's receipt of the General Counsel's response to his BP-11 completes the administrative process.
Failure to exhaust administrative remedies is an affirmative defense; the defendant correctional officials have the burden of proving that the inmate had available remedies that he did not utilize. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004).A remedy is "available" if the administrative procedure can lead to some relief, even if it is not the precise relief the inmate wants. See Booth v. Churner, 532 U.S. 731, 741 and f n. 6 (2001); Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir. 2001). "Prison officials may not take unfair advantage of the exhaustion requirement . . . and a remedy becomes 'unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (emphasis added) (citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); and Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
In Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Seventh Circuit delineated a three-step process for cases in which exhaustion is contested.
(1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, the judge will then determine whether (a) the plaintiff has failed to exhaust his administrative remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.
2. The Evidence Proffered and Proposed Findings of Fact
An evidentiary hearing was not conducted because there are no material questions of fact relative to the exhaustion issue to be resolved; a decision can be made as a matter of law, viewing the evidence in the light most favorable to plaintiff.
In his amended complaint, plaintiff asserts that he did exhaust administrative remedies. (Doc. 31, p. 10.) The defendants have submitted a list of all 80 administrative remedy submissions by plaintiff, as tracked in the BOP's computerized database, as well as copies of all documentation of 11 specific grievances filed after July 29, 2006, which could have possibly been used to exhaust administrative remedies prior to October 14, 2008, when this action was initiated. (Docs. 33-1-- 33-4.) The documentary evidence is undisputed. The parties only dispute whether the steps taken by plaintiff fulfill the exhaustion requirement. Therefore, this Court's findings of fact will be limited to the 11 relevant grievances and pertinent aspects of the various BOP forms and procedural requirements. Each possibly relevant grievance is summarized below, with respect to references to the individuals and claims specified in the complaint.
The BP-9 "Request for Administrative Remedy" form is simplistic, providing a space to write, date and sign the "Inmate Request," and further including a space for the response, and a receipt portion. (See Doc. 33-4, p. 3.) A "Regional Administrative Remedy Appeal" BP-10 form directs the inmate to attach a copy of the BP-9 with the appeal, and has a section for the inmate to set forth, sign and date the "Reason for Appeal." (See Doc. 33-4, p. 26.) The BP-11 "Central Office Administrative Remedy Appeal" form directs the inmate to attach copies of the BP-9 and BP-10 with the appeal, and has a section for the inmate to set forth, sign and date the "Reason for Appeal." (See Doc. 33-4, p. 7.) Neither the forms nor the aforementioned regulations contain a specificity requirement.
B. Administrative Remedy 422940 (Doc. 33-4, pp. 3-8)
Request for Administrative Remedy 422940 was initiated via BP-9 on August 7, 2006. Plaintiff complained of being placed in a dry cell from July 29 through August 3, 2006. The grievance further states that defendant Petty told plaintiff that "this is payback time," and references Petty being a defendant in an earlier lawsuit. The BP-9 states that plaintiff is requesting a clothing exchange. The BP-9 also broadly states, "This is Retaliation." These issues were acknowledged in Warden Revell's response.
Plaintiff's August 30, 2006, BP-10 Regional Appeal does not reiterate the claims, but does generally complain about continued placement in a dry cell. The BP-10 concludes by requesting restoration of visitation and telephone privileges. The Regional Director's response, in apparent recognition of the BP-9, acknowledges the claim of retaliation, states that the Warden's response had been reviewed and claims discussed and investigated. The BP-11 final appeal again references placement in a dry cell and loss of ...