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Alann Vega v. Terry Mccann

January 4, 2011


The opinion of the court was delivered by: Magistrate Judge Sheila Finnegan


Plaintiff Alann Vega is an inmate at Stateville Correctional Center in Joliet, Illinois ("Stateville"). He filed suit alleging that Defendants, all officials and employees of Stateville and the Illinois Department of Corrections, violated his constitutional due process and Eighth Amendment rights by administering a flawed drug test and then placing him in disciplinary segregation where he was exposed to unsanitary conditions. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Defendants now seek summary judgment based on Plaintiff's failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). For the reasons explained here, the Court cannot determine the issue of administrative exhaustion without holding a hearing in accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Defendants' motion for summary judgment is entered and continued pending that hearing.


Plaintiff is currently serving a 35-year sentence at Stateville. On August 11, 2008, he filed a pro se complaint charging eight Defendants with violating 42 U.S.C. § 1983 by subjecting him to a faulty drug test. Plaintiff claimed that he falsely tested positive for marijuana in his system, resulting in six months of disciplinary segregation. He further alleged that four Defendants, Stateville Warden Terry McCann, Correctional Lieutenant James Burzinski, Correctional Lieutenant Alsheena Vaughn, and Correctional Counselor Edmund V. Butkiewicz, subjected him to cruel and unusual punishment based on the unsanitary conditions of his segregation. Specifically, Plaintiff claimed that: his cell did not have clean bedding or a pillow; his mattress was infested with bed mites; his cell had a broken window and mildew on the walls; he was given roach-infested food; he did not receive cleaning supplies or toiletries on a regular basis; and he was not allowed to exercise regularly or access materials from the law library.

On September 4, 2008, the district court dismissed Plaintiff's due process claim regarding the drug test, and allowed Plaintiff to proceed solely on his Eighth Amendment claim relating to the conditions of his confinement while in segregation. (Minute Order of 9/4/08, Doc. 5, at 2.) Plaintiff objected to the dismissal of all but Defendants McCann, Burzinski, Vaughn and Butkiewicz, but the court affirmed its decision and denied Plaintiff's request to reinstate the other named defendants. (Minute Order of 10/3/08, Doc. 12.)

Shortly thereafter, in January 2009, the district court appointed counsel to represent Plaintiff in this case. Plaintiff then filed a First Amended Complaint, reasserting two due process claims along with his allegations of an Eighth Amendment violation. On March 23, 2009, the district court dismissed Plaintiff's claim that Defendants deprived him of a constitutionally protected liberty interest by administering a faulty drug test. Vega v. McCann, No. 08 C 4536, 2010 WL 1251444, at *2-3 (N.D. Ill. Mar. 23, 2010). The court also dismissed Plaintiff's request for an injunction "preventing Defendants from punishing inmates on the basis of a single, unconfirmed drug test." Id. at *3. Finally, the court held that Plaintiff may not recover damages for mental or emotional injuries. Id. at *3-4.

All that remains for consideration is Plaintiff's Eighth Amendment claim.*fn1 Defendants argue that this claim cannot proceed to the merits because Plaintiff failed to exhaust his administrative remedies as required by the PLRA. Plaintiff disagrees, insisting that he exhausted all administrative remedies that were available to him. The Court considers the arguments below.


Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." FED. R. CIV. P. 56(c). In viewing the facts presented on a motion for summary judgment, the court must construe the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). "A court's role is not to evaluate the weight of the evidence, to judge credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." National Athletic Sportswear, 528 F.3d at 512.

A. The Exhaustion Requirement

Under the PLRA, "[n]o 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). The Supreme Court has found "no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). See also Fletcher v. Menard Correctional Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) ("Exhaustion is explicitly required by the Prison Litigation Reform Act.") This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). That said, "[i]f administrative remedies are not 'available' to an inmate, then the inmate cannot be required to exhaust." Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). When "prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting," then "the administrative process . . . that exists on paper becomes unavailable in reality." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Kaba, 458 F.3d at 684.

In Illinois, Grievance Officers are responsible for reviewing grievances on a weekly basis, and for submitting written findings and recommendations to their facility's warden.

20 Ill. Admin. Code §§ 504.820, 504.830. A grievance may go directly to the warden only if there is a risk of imminent injury or irreparable harm to the inmate. 20 Ill. Admin. Code § 504.840. Pursuant to the Stateville Offender Handbook, an inmate's grievance form "must be completed and signed by the offender and given to his counselor." (Doc. 113, at 9.) A Grievance Officer "will not accept grievances, other than those concerning discipline, unless signed by a member of the counseling staff," and ...

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