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Chad Alan Hicks v. Silas M. Irvin

June 7, 2011

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

Plaintiff, Chad Alan Hicks ("Hicks") filed this prison civil rights lawsuit on May 2, 2006 [13]. After weathering a motion to dismiss, Hicks filed his Third Amended Complaint ("Compl.") [124] in October 2009. Defendants' position in this lawsuit is that Hicks did not exhaust his administrative remedies before filing suit in federal court, which he was required to do under the Prison Litigation Reform Act ("PLRA" or the "Act"). The Court denied Defendants' motion for summary judgment on the exhaustion issue [142]. To finally resolve the exhaustion issue, the Court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Upon careful consideration of the testimony and evidence presented at the hearing, and the parties' post-hearing briefs, the Court concludes that Defendants have not met their burden of proving that Hicks failed to exhaust all available administrative remedies before bringing suit.

I. Factual Background

Hicks was housed at the Chicago Metropolitan Correctional Center ("MCC") in October of 2005 and again in April-June of 2006.*fn1 Hicks alleges that his cell conditions in the MCC "for at least 6 days" in October 2005 were such that Defendants deprived him of his "basic human needs." Compl. at ¶¶ 33-37. Hicks further alleges that in May 2006, he was placed in administrative detention by Defendant Dennis Rolke, a correctional officer at the MCC, "in retaliation for Plaintiff's actions relating to this law suit." Id. at ¶¶ 39-43. Hicks testified that he submitted grievances regarding both his cell conditions and his retaliation claim within the time period allotted for submitting each of the grievances.

A. BOP Policies Regarding Inmate Grievances

The Federal Bureau of Prisons ("BOP") has established an administrative remedy procedure though which inmates may seek review of a complaint relating to any aspect of their confinement. See28 C.F.R. § 542.10 et seq. The Court discussed these procedures at length in its prior memorandum opinion and order, but they bear repeating here. Under the regulations, an inmate commences the grievance process by "presenting an issue of concern informally to staff."

28 C.F.R. § 542.13(a). This may be done orally, or through the use of a "BP-8" form. Filing a BP-8 form is not mandatory. (Tr. at 123).*fn2

If there is not a satisfactory resolution through the informal process, the regulations provide, with exceptions not applicable here, that the inmate must complete a form BP-9 within 20 days of the complained-of incident. Id. § 542.14(a). The form must be submitted "to the institution staff member designated to receive such Requests (ordinarily a correctional counselor)." Id. § 542.14 (c)(4). The MCC's Inmate Handbook expressly instructed inmates to submit their grievance forms to their counselors. (See, e.g. Def. Ex. 1, pg. 7).*fn3 In all instances, an inmate who properly submits a BP-9 form is entitled to some type of notification or response from the correctional facility indicating that his grievance form was received and processed. (Tr. at 128); 28 C.F.R. § 542.11 (a)(2) (prison officials "shall * * * [a]cknowledge receipt of a Request or Appeal by returning a receipt to the inmate.").

For those who are unsatisfied with the Warden's response to the BP-9 form, Section 542.15 of the regulations governs appeals. The regulation provides:

An inmate who is not satisfied with the Warden's response may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response. [* * *] Appeal to the General Counsel is the final administrative appeal.

28 C.F.R. § 542.15(a). Section 542 also governs the form that the appeal generally must take. "Appeals to the Regional Director shall be * * * accompanied by one complete copy or duplicate original of the institution Request and Response." Id. § 542(b)(1). If a Request or an Appeal does not conform to regulatory requirements, it may be bounced back to the inmate: "The Coordinator at any level (CCM, institution, region, Central Office) may reject and return to the inmate without response a Request or an Appeal that * * * does not meet any * * * requirements of this part." Id. § 542.17(a). When a submission is rejected, the inmate must be provided with a written notice explaining the reason for the rejection (id. § 542.17(b)) and the rejection, too, may be appealed (id. § 542.17(c)). At each level of the process, after 40, 50, or 60 days (as applicable), "the inmate may consider the absence of a response to be a denial at that level." Id. § 542.18.

Board of Prisons ("BOP") attorney Vincent Shaw testified at the Pavey hearing. Shaw was the Administrative Remedies Coordinator at the MCC during the relevant period. Shaw's duties as Administrative Remedies Coordinator included overseeing the operation of the remedies process, ensuring that inmates had access to necessary forms, and reviewing the official responses that were generated in response to grievances. (Tr. at 64-65). Shaw testified at length regarding the computer database known as "Sentry" in which the BOP tracks grievances filed by inmates in the BOP system, including the regular practices used at the MCC for accepting grievances and entering them in to the Sentry system. (Tr. at 76-91). He was a highly credible witness on general practices concerning the handling of grievances at the MCC, but he presented no first-hand testimony in regard to Hicks's tenure at the MCC.

Shaw testified that if an inmate submitted a BP-9 that was facially defective in some way (for example, if the inmate failed to sign the form), the inmate would receive a computer-generated notice of rejection. (Tr. at 129-37). If, on the other hand, the form was facially satisfactory, the inmate's request would be entered into the Sentry database and a computer-generated receipt would be sent to the inmate. (Id.). The gist of Shaw's testimony was that any BP-9 that arrived at the administrative remedies offices would be "clerked in" to the Sentry system, regardless of whether the BP-9 was accepted for filing or was rejected for being procedurally defective. In all cases, Sentry would maintain a record of any BP-9 form that was clerked into the system. Shaw testified that the BOP Regional Director's Office in Kansas City tracks grievance forms in the same way as does the MCC, and logs both BP-9 and BP-10 forms that it receives.

From the Sentry system, the BOP can generate an Administrative Remedy Generalized Retrieval, which is a history of all the administrative remedies that an inmate has filed in the BOP. (Tr. at 96-98). The Administrative Remedy Generalized Retrieval tracks all BP-9, BP-10, and BP-11 grievance forms that are filed by an inmate and entered into the Sentry system. (Id.). There is no record in the Sentry system for Chad Alan Hicks reflecting the filing of a BP-9 or BP-10 relating to Hicks's October ...


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