REPORT & RECOMMENDATION
STEPHEN C. WILLIAMS, Magistrate Judge.
This § 1983 case, in which pro se Plaintiff Pierre James has alleged excessive force, is before the Court on the Defendants' Motion for Summary Judgment (Doc. 30). The matter has been referred to United States Magistrate Judge Stephen C. Williams by United States District Judge Michael J. Reagan pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a) for a Report and Recommendation on whether James exhausted his administrative remedies before filing suit. For the following reasons, it is RECOMMENDED that the Defendants' motion (Doc. 30) be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2011, Pierre James, an inmate at Stateville Correctional Center in Illinois, brought the instant suit pursuant to 42 U.S.C. § 1983. Plaintiff's sole remaining allegation after threshold review stated a claim against the Tactical Team at Stateville for beating him during an August 10, 2010 cell extraction. (Doc. 9). Plaintiff was able to identify one member of the tactical team, Sgt. Cartwright, and Defendant has been ordered to produce the names of the other tactical team members. (Doc. 40).
In the meantime, Defendant filed the instant motion on January 22, 2013. (Doc. 30). Defendant argued that Plaintiff never adequately described the August 10, 2010 incident in any grievance, and alternatively, that Plaintiff did not complete the grievance process. Plaintiff filed a Response in Opposition to Defendant's Motion admitting that he never completed the grievance process, but arguing that the grievance process was unavailable to him because he never received any responses to his grievances, thus making any appeal impossible. (Doc. 32). The Court held a hearing in which Jeannette Cowan, former grievance officer at Stateville, and Plaintiff offered their testimony. Having thoroughly reviewed the entire record, the undersigned RECOMMENDS as follows.
In support of his Complaint, Plaintiff submitted a grievance dated September 4, 2010, which challenged both staff conduct and the disciplinary report that was generated against Plaintiff as a result of the incident. (Doc. 1, p. 32). Although most of the grievance addresses the disciplinary hearing, the grievance also cites to the 8th Amendment and alleges that the grievant was pepper-sprayed and beaten while handcuffed by the Tactical Unit. (Doc. 1, p. 32). The grievance also alleges that Plaintiff filed two other grievances that had been ignored. (Doc. 1, p. 32). The grievance does not contain a response from Plaintiff's counselor, the grievance officer, or the CAO. Plaintiff also submitted a grievance dated September 7, 2010 where he contested his cell placement after the August 10, 2010 incident. (Doc. 1, p. 34). This grievance also lacked an institutional response. (Doc. 1, p. 34). Plaintiff testified that he wrote these grievances himself, and they bear his signature at the bottom. (Doc. 1, p. 32-35).
In his Response to Defendant's Motion for Summary Judgment, Plaintiff clarified that the September 4, 2010 grievance and the September 7, 2010 grievances were actually faxed to the ARB and the CAO by Plaintiff's mother, Ms. James. (Doc. 32, p. 3, p. 20). Plaintiff testified at the hearing that he felt forced to take this step because he had attempted to grieve the August 10, 2010 previously and received no response. No record of these earlier grievances has been found. Ms. Cowan testified that she never received any grievances. Plaintiff testified that he put them in the slot of his suicide cell within three to four days after the incident, and assumed that they had been picked up by the staff. Ultimately, the faxed grievances were returned to Ms. James on September 15, 2010 by the CAO with the explanation that she could not file grievances on Plaintiff's behalf. (Doc. 32, p. 26). Still, it was undisputed that the COA and Ms. Cowan were aware of the faxed grievances. The correspondence also indicated Plaintiff would be given a housing change, which is part of the relief he requested in the September 7, 2010 grievance. (Doc. 32, p. 26). Plaintiff testified he believed this statement indicated that his earlier lost grievances had actually been received. He also testified that he received the housing re-assignment.
Finally, Plaintiff submitted a third grievance dated November 19, 2010 along with his Complaint, which mentioned that Plaintiff could no longer grieve the discipline as a result of the August 8, 2010 incident and requested relief related to the segregation time he was awarded as a result. (Doc. 1, p. 36). The document submitted by Plaintiff contained no response, however, at the May 20, 2013 hearing, Defendants submitted a copy of the same grievance with the grievance officer's response (Exhibit C). Plaintiff testified the hearing was the first occasion that he had seen any response from the November 19th grievance. The grievance had been considered on the merits, but addressed the adjustment committee's decision, rather than the cell extraction itself. Plaintiff also generally testified the Menard has a history of losing his grievances.
1. Summary Judgment Standard
Summary judgment-which is governed by FEDERAL RULE OF PROCEDURE 56- is proper only if the admissible evidence considered as a whole shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 517 (7th Cir. 2011) (citing FED. R. CIV. P. 56(a)). The party seeking summary judgment bears the initial burden of demonstrating-based on the pleadings, affidavits and/or information obtained via discovery-the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
After a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011) ("When a summary judgment motion is submitted and supported by evidence... the nonmoving party may not rest on mere allegations or denials in its pleadings."). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. A mere scintilla of evidence supporting the non-movant's position is insufficient; a party will successfully oppose summary judgment only when it presents definite, competent evidence to rebut the motion. Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001). See also Steen v. Myers , 486 F.3d 1017, 1022 (7th Cir. 2007) ("[S]ummary judgment is... the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.") (internal quotation marks omitted). In other words, there is "no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Van Antwerp v. City of Peoria, 627 F.3d 295, 297 (7th Cir. 2010). Accord Anderson, 477 U.S. at 248 (material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party).
Finally, the Court's role on summary judgment is not to evaluate the weight of the evidence, to judge witness credibility, or to determine the truth of the matter, but rather to determine whether a genuine issue of triable fact exists. Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). The Court considers the facts in a light ...