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Bobby Ford v. Warden Davis and Kim Butler

September 14, 2012

BOBBY FORD, PLAINTIFF,
v.
WARDEN DAVIS AND KIM BUTLER, DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 49), recommending that the motion for summary judgment for failure to exhaust administrative remedies filed by Defendants Warden Davis and Kim Butler (Doc. 24) be granted. Also before the Court is Plaintiff Bobby Ford's motion for a temporary restraining order (Doc. 48). The Report and Recommendation was entered on June 14, 2012. Mr. Ford filed an objection to the Report and Recommendation on June 18, 2012 (Doc. 52), to which Defendants replied on July 2, 2012 (Doc. 54). Defendants responded to Mr. Ford's motion for a temporary restraining order on June 19, 2012 (Doc. 53).

Background

In this 42 U.S.C. § 1983 case, Mr. Ford claims that Defendant Davis, Warden of Pinckneyville Correctional Center ("Pinckneyville"), and Defendant Butler, a corrections officer at Pinckneyville, transferred Mr. Ford to Lawrence Correctional Center under the guise of protecting Mr. Ford from harm--guards at Pinckneyville were allegedly "trying to kill" Mr. Ford, as they had taken away Mr. Ford's AIDS medication and taken away a pen so Mr. Ford could not document this abuse (Doc. 1). According to the complaint, however, the transfer and Mr. Ford's classification as an escape risk was made in retaliation for previous lawsuits he had filed (Doc. 1). Mr. Ford's retaliation claims survived 28 U.S.C. § 1915A threshold review (Doc. 13).

Defendants filed a motion for summary judgment claiming that Plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a) (Doc. 24). Plaintiff filed a response to the motion, and on April 26, 2012, Magistrate Judge Wilkerson held an evidentiary hearing on the issue of exhaustion as per Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (Doc. 39). Upon review of the papers, the docket, and Magistrate Judge Wilkerson's Report and Recommendation, the Court concludes that the Report and Recommendation accurately states the nature of the evidence presented by both sides on the issue of exhaustion, including the testimony heard during the Pavey hearing, as well as the applicable law and the requirements of the administrative process.

Evidence

As part of Defendants' motion for summary judgment, Jackie Miller, chairperson of the Administrative Review Board ("ARB") submitted an affidavit stating that, at least for the period from July 15, 2010 to September 15, 2010, the ARB had not received any grievances or appeals from Plaintiff regarding retaliatory transfer or naming Defendants (Doc. 25-1).

Plaintiff argued that he had filed an August 3, 2010 grievance, but the ARB was persuaded to conceal that grievance by "their Director and Transfer Coordinators" (Doc. 27, p. 7). As part of his complaint, and at the Pavey hearing, Plaintiff offered photocopies of a trust fund account statement and two Offender Authorization for Payment vouchers in support of his claim that he had mailed a grievance regarding Defendants (Doc 1, p. 8, 9). The trust fund statement shows an August 3, 2010 withdrawal of forty-four cents for "legal postage." The Offender Authorization for Payment form dated August 2, 2010 states, in handwriting, that it is for the purpose of "grievance concerning the 7-21-10 retaliation transfer from Pinckneyville Corr. Center to Lawrence C.C. sent to the Adm. Review for handling, Springfield A.R.B. Office." On the Offender Authorization for Payment form dated October 12, 2010, the handwritten "purpose" for the payment authorization is "Letter to acting Director inquiring about why I haven't receive a response to my 8/2/10 grievance sent to the A.R.B. about a 7/13/2010 incident at Pinckneyville."

Recognizing that the photocopied exhibits left open the possibility that the "purpose" for the payments had been added at a later time to bolster Plaintiff's exhaustion argument, at the Pavey hearing Magistrate Judge Wilkerson questioned Plaintiff about the statements on the photocopied Offender Authorizations for Payment:

COURT: Mr. Ford, did you write this information on there at the time you filled out these forms or at a later time?

FORD: When I filled out the money voucher, your Honor, I wrote down specifically what it was for and attached it to the grievance and mailed it from Lawrence Correctional Center from inside of my cell there, put it in the door like we have been told to do.

COURT: All right. Hold on. Hold on. You -- but here, listen to my specific question.

Okay. This offender authorization for payment, dated August 2, 2010, it says down on this line it says account for the purpose of it says "grievance concerning the 7/21 retaliation transfer from Pinckneyville Correctional Center to Lawrence sent to Administrative Review Board handling Springfield ARB Office." Did you fill that in at the same time you filled in all the other information on this form or did you fill it in later?

FORD: I filled it in exactly at that time when I mailed it. (Doc. 41, p. 20). Magistrate Judge Wilkerson granted Defendants leave to file the original vouchers in a supplement to the ...


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