The opinion of the court was delivered by: Williams, Magistrate Judge:
Before the Court is a Motion for Summary Judgment for Failure to Exhaust (Doc. 75) filed by Defendants Jeannette Cowan, Jay Hamilton, Frank Lawrence, Donald Lindenberg, Marc Quillman, David Rednour, Michael Schnicker, and Betsy Spiller. Specifically, Defendants argue that Plaintiff has failed to exhaust his administrative remedies as the ARB does not have any grievance on file regarding Plaintiff's specific allegations that Defendants retaliated against him by placing him in protective custody, denying him a job, and issuing him a false disciplinary report, nor does he have an exhausted grievance on his claim that Defendant Lindenberg used excessive force against him. Plaintiff has filed a Response (Doc. 89) and Defendants have filed a Reply (Doc. 91). The Court held a Pavey hearing on January 12, 2012 (Doc. 112). In response to that hearing, Plaintiff filed a motion to clarify his testimony (Doc. 115) as well as a supplemental exhibit (Doc. 116). Defendants, in response, have filed a motion to strike Plaintiff's motion to clarify (Doc. 119). Based on the following, the Court DENIES Defendants' motion for summary judgment (Doc. 75).
This matter stems from Plaintiff's Complaint for retaliation and excessive force filed on October 7, 2009 (Doc. 1). Plaintiff's Complaint alleges that several Defendants, including Defendants Cowan, Rednour, Spiller, Gaetz, Quillman, Schnickers, Lawrence, and Hamilton retaliated against Plaintiff for filing grievances. Specifically, Plaintiff alleges that in response to grievances he filed regarding staff conduct in July of 2009, Defendants Rednour, Cowan, and Spiller retaliated against Plaintiff by placing him in protective custody (Doc. 26 at p. 4). While in protective custody, Plaintiff alleges that Defendants Quillman and Schnickers retaliated against him by issuing him a false disciplinary ticket (Id.). Also in retaliation for filing grievances, Lawrence, Hamilton, and Spiller ensured that Plaintiff was denied a job assignment (Id.).Plaintiff's Complaint also alleges that Defendant Lindenberg used excessive force against Plaintiff by slamming a heavy steel door to the bull pen, where Plaintiff was held, shut several times causing Plaintiff head pain and temporary hearing loss (Id. at p. 8).
In response to Plaintiff's Complaint, Defendants filed a Motion for Summary Judgment for Failure to Exhaust (Doc. 75). In the motion, Defendants argued that they were entitled to summary judgment because Plaintiff had failed to exhaust his administrative remedies as to any of his claims against the various Defendants. Defendants argued that the ARB had reviewed the records for grievances filed by Plaintiff and was unable to locate any grievances filed by Plaintiff regarding his claims in the current suit (Doc. 75 Ex. A at ¶ 6).
Plaintiff filed a responsive brief to Defendants' motion (Doc. 89). In his response, Plaintiff argued that he had been thwarted from fully exhausting his administrative remedies. Plaintiff alleges that he filed several grievances regarding the issues raised in his Complaint. Plaintiff argues that he filed an Emergency Grievance regarding his protective custody placement and the false disciplinary report on August 10, 2009. He gave the grievance to a guard to turn over to the warden but he never received the grievance back from the warden (Doc. 89 at p. 4). Plaintiff also alleges that he filed two more grievances on August 16 and 17, 2009 which were originally filed with Counselor Latoya Owens and answered by Owens on August 21, 2009. Plaintiff alleges that upon receiving these grievances back from his counselor, he immediately forwarded them to Grievance Officer Cowan, but that he never received the grievances back from Cowan (Id. at pp. 4-5; Ex. G). On September 18, 2009, Plaintiff wrote a note to his counselor, Counselor Shellie Cartwright, inquiring about the status of his several grievances. Cartwright noted in the Cumulative Counseling Summary and in a memo to Plaintiff that the Grievance Officer did not have any outstanding grievances from Plaintiff, but could have emergency grievances in their possession (Doc. 89 Exs. G & H).
On September 1, 2009, Plaintiff was allegedly assaulted by Defendant Lindenberg, and in response to the assault, Plaintiff filed an emergency grievance on September 1, 2009. This grievance was logged and received on September 4, 2009 (Doc. 89 Ex. I). The grievance was returned to him after being deemed a non-emergency and Plaintiff forwarded the grievance to Counselor Cartwright on September 18, 2009 (Id.; see also Doc. 89 at Ex. G). Cartwright responded to the grievance on September 21, 2009 (Id.). Plaintiff acknowledges that he received the grievance back from his counselor, but alleges that he then placed the grievance in the institutional mail to be forwarded to the grievance officer. He alleges that he never received the grievance back.
Based on the Seventh Circuit's opinion inPav e y v . Co n le y , 544 F.3d 739 (7th Cir. 2008), the undersigned held a hearing in the matter on January 12, 2012 (Doc. 112). The following recommendations are based upon evidence adduced at that hearing.
At the hearing, the Court identified three issues as to whether Plaintiff had exhausted his administrative remedies. The first issue was whether Plaintiff was thwarted in his attempts to exhaust his administrative remedies by the Defendants not returning an emergency grievance he filed on August 10, 2009. The second issue before the Court was whether Plaintiff was thwarted in his attempts to exhaust by the grievance office failing to answer his grievances allegedly submitted on August 16 & 17. The last issue before the Court was whether Plaintiff was thwarted in his attempts to exhaust his September 1, 2009 grievance regarding the alleged assault by Defendant Lindenberg.
At the hearing, Terri Anderson, public service administrator for the Illinois Department of Corrections, testified that as part of her employment for the ARB she received and addressed inmate grievances. Anderson testified that she had searched for grievances filed by Plaintiff during the relevant time period and she was unable to locate any grievances related to Plaintiff's claims. Anderson also testified that grievance decisions are delivered by privileged mail directly to the offender while those grievances which are returned unanswered those are returned in bulk mail to the grievance office of the prison.
Jeannette Cowan, Grievance Officer at Menard Correctional Center, next testified as to the grievances that Plaintiff had filed. Cowan testified that upon reviewing the grievance logs for August, she located one grievance received on August 14, 2009 which was processed by the grievance office, sent to the warden for final determination, denied and mailed back to Plaintiff on August 25, 2009. She also pointed out that there was one grievance on the emergency grievance log which was received on August 17, 2009 and sent to the warden on the same day. He ...