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David Gevas, #B-41175 v. Derwin Ryker

February 29, 2012

DAVID GEVAS, #B-41175, PLAINTIFF,
v.
DERWIN RYKER, HARRINGTON, J. BROWN, AND C. VAUGHN, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

On August 15, 2011, Defendants Lee Ryker, Noble Harrington, Jeremiah Brown and Cecil Vaughn moved for summary judgment (Doc. 53), arguing that Plaintiff David Gevas failed to exhaust administrative remedies prior to filing this civil rights action, as is required by 42 U.S.C. § 1997e(a). Before the Court is the Report of United States Magistrate Judge Stephen C. Williams (Doc. 65) recommending that the motion for summary judgment be granted in part and denied in part. Also before the Court is Plaintiff Gevas's Objection to the Report and Recommendation (Doc. 69), along with his related motion for leave to file a second, amended affidavit in support of his objection (Doc. 72).

1. Introduction

Plaintiff David Gevas, who is in the custody of the Illinois Department of Corrections, filed suit on July 8, 2010, pursuant to 42 U.S.C. § 1983, for alleged violations of his constitutional rights while he was housed at Lawrence Correctional Center ("Lawrence") in 2008. Plaintiff Gevas alleges that when he was transferred into Lawrence on July 9, 2008, he was held for seven days in a cell that lacked water for consumption and sanitation, and lacked a working toilet. He made requests to Defendants Lee Ryker, Noble Harrington, Jeremiah Brown and Cecil Vaughn for water, plumbing repairs, and to be moved to a cell with functioning water, but was not moved until July 15, 2008. As a result, Plaintiff alleges that he suffered dehydration, headaches, constipation, insomnia, and other discomfort including nausea from the foul odor of the un-flushed toilet. The Court has construed the complaint as asserting a claim of deliberate indifference to unsanitary conditions of confinement, under the "cruel and unusual punishment" clause of the Eighth Amendment (see Doc. 9).

The Report of United States Magistrate Judge Stephen C. Williams (Doc. 65) recommends that the motion for summary judgment filed by Defendants Ryker, Harrington, Brown and Vaughn (Doc. 53) be granted in part and denied in part. More specifically, Judge Williams recommends that only Defendant Vaughn be granted summary judgment, due to Plaintiff Gevas's failure to exhaust administrative remedies prior to filing suit. Judge Williams acknowledges that Vaugh is mentioned by name in a grievance dated August 28, 2008, that proceeded through the full administrative process. However, Judge Williams construes the August 28, 2008, grievance as complimentary to Vaughn and not actually asserting a grievance against him. With respect to Defendants Ryker, Harrington and Brown, Judge Williams finds that administrative remedies were exhausted, despite Defendants' assertions to the contrary.

Defendants have not objected to Judge Williams's Report and Recommendation. Plaintiff Gevas has filed an objection pertaining only to Defendant Vaughn (Doc. 69).

2. Applicable Legal Standards

Plaintiff Gevas has objected to the Report and Recommendation; accordingly, the Court will undertake de novo review of the portions of the Report to which specific objection was made. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or modify the recommended decision, or recommit the matter to the Magistrate Judge with instructions. Fed.R.Civ.P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999).

Defendants have moved for summary judgment, asserting that Plaintiff Gevas failed to exhaust administrative remedies before filing suit, as required by 42 U.S.C. § 1997e(a). See Doc. 54. As a procedural matter, Defendants cite Federal Rule of Civil Procedure 56. However, analysis of the exhaustion requirement is governed by unique procedures, different from those generally applicable to motions under Rule 56.

The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners to exhaust administrative remedies before filing suit in federal court. That requirement applies to all suits challenging prison conditions under 42 U.S.C. § 1983, as well as actions under "any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility." 42 U.S.C. § 1997e(a).Exhaustion of administrative remedies under the PLRA is a condition precedent to suit in federal court. Dixon v. Page, 291 F.3d 485, 490 (7th Cir. 2002). The law of this Circuit establishes that the inmate must comply with the rules and procedures governing grievances in the particular institution of incarceration, including any time limitations and all steps in a multi-step grievance process.

To properly exhaust remedies within the meaning of the PLRA, the inmate "must 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). See also Burrell v. Powers, 431 F.3d 282, 284 (7th Cir. 2005). If administrative remedies are not properly exhausted prior to commencement of the federal lawsuit, the district court must dismiss the suit (or any claims not fully exhausted). Burrell, 431 F.3d at 285; Jones v. Bock, 549 U.S. 199, 201 (2007). The IDOC's three-stage administrative process for resolving inmate grievances is delineated in 20 Ill. Admin. Code Section 504.810. The inmate is required to follow the sequential process, concluding with an appeal in writing to the Director of the IDOC, by way of the Administrative Review Board (ARB). See 20 Ill. Admin. Code §§ 504.810, 504.830, 504.850.

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 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 ...


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