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Sultan v. Harmon

United States District Court, Seventh Circuit

September 19, 2013



STEPHEN C. WILLIAMS, District Judge.

I. Introduction

This case is before the Court on Defendants' Motion for Summary Judgment (Docs.26 & 27). Defendants argue in their motion that they are entitled to summary judgment due to Plaintiff's failure to exhaust administrative remedies and because the claim is barred by the statute of limitations. Plaintiff has filed a Response (Doc. 32) in opposition to the motion as well as a dueling motion for summary judgment (Doc. 38). Based on the following, the Court GRANTS the motion for summary judgment (Doc. 26 & 27).

II. Findings of Fact

Plaintiff initially filed the Complaint that forms the basis of this case on October 11, 2011, in the case Sultan v. Feinerman, Case No. 11-cv-911-MJR. In that case, among various other claims, Plaintiff alleged that Defendants Harmon and Coffey retaliated against him by placing him in segregation for acting as a jail-house attorney. Plaintiff's retaliation claim was severed into the instant case by District Judge Michael J. Reagan on August 22, 2012. Plaintiff was placed in segregation as a result of a disciplinary ticket issued on October 25, 2008.

In Response to Plaintiff's Complaint, Defendants Harmon and Coffey have filed a motion for summary judgment in which they argue that Plaintiff has failed to exhaust his administrative remedies and that, in the alternative, the statute of limitations has run. Defendants point to two grievances which were received by the ARB regarding the disciplinary ticket Plaintiff received on October 25, 2008. The first grievance was received by the ARB on April 2, 2009 (Doc. 27 Ex. F). The grievance is dated December 19, 2008 but Plaintiff's signature line is not dated ( Id. ). The ARB received what appears to be a second copy of this same grievance on June 29, 2009 (Doc. 27 Ex. G). This grievance appears to be word for word the same as the first grievance, but has a date on the signature line of December 19, 2008 ( Id. ). This grievance has the handwritten word "copy" at the top of the grievance ( Id. ). Neither grievance has a response from Plaintiff's counselor or grievance officer. Attached to Plaintiff's second copy of the grievance is a letter from Plaintiff to his grievance officer dated March 4, 2009 in which Plaintiff informs his grievance officer that his original grievance was misplaced or destroyed and that he is submitting another copy of the grievance to the grievance officer (Doc. 27 Ex. H). The ARB denied Plaintiff's grievance as to the disciplinary report issue on July 6, 2009 as untimely because it was filed outside of the deadlines for appealing grievances (Doc. 27 Ex. J).[1]

On March 31, 2009, Plaintiff filed another grievance, alleging that his December 19, 2008 grievance was either misplaced or destroyed by his counselor (Doc. 27 Ex. I). This grievance was received by Plaintiff's counselor on April 2, 2009 and on April 3, 2009, the counselor responded to the grievance, indicating that grievances regarding disciplinary issues are to be forwarded directly to the grievance officer and that the grievance officer had not received the grievance Plaintiff spoke of ( Id. ).

In Response to Defendants' motion for summary judgment, Plaintiff filed both a Motion for Summary Judgment (Doc. 38) and a Response in opposition to Defendants' summary judgment motion (Doc. 32). While Plaintiff's motion for summary judgment was titled as a dispositive motion, the motion appears to merely be a further response to Defendants' motion for summary judgment and will be construed as such. Plaintiff alleges that he did exhaust his administrative remedies because he gave his grievance to his counselor, Ms. Latoya Owens, on or about December 20, 2008 but that Owens either misplaced or destroyed his grievance. Specifically, Plaintiff points to a face-to-face meeting he had with Owens on March 13, 2009 in which she discussed his pending grievance and informed Plaintiff that she did not have in her possession a grievance based on the disciplinary report. On March 14, 2009, he sent another copy of the December 19, 2008 grievance directly to his grievance counselor, informing the officer that he had originally handed the grievance to counselor Owens, but as of March 13, 2009, Owens stated that she did not know what happened to the grievance (Doc. 32 at p.39). He received a counseling summary that same day which noted that the grievance officer did not have the grievance ( Id. at pp.39, 40). Plaintiff indicates that he also sent a letter to the ARB on March 14, 2009, indicating that his grievance had not been received by Menard Correctional Center because it had been lost by Owens (Doc. 32 at p.38). He argues that he did all he could to properly exhaust his grievance.

III. Conclusions of Law

Summary Judgment is proper if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that [Defendants are] entitled to judgment as a matter of law." Wragg v. Village of Thornton, 604 F.3d 464, 467 (7th Cir. 2010).

Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act ("PLRA"). 42 U.S.C. ยง1997e(a). That statute states, in pertinent part, that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA's exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that [t]his circuit has taken a strict compliance approach to exhaustion"). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id. Moreover, "[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to properly utilize a prison's grievance process, "the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted." Dole, 438 F.3d at 809.

Under Pavey, the Seventh Circuit held that "debatable factual issues relating to the defense of failure to exhaust administrative remedies" are not required to be decided by a jury but are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-41(7th Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, the Court set forth the following recommendations:

The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (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 to exhaust his administrative remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted administrative remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), and so he must be given another chance to exhaust (provided that there exist remedies that he will be permitted by the prison authorities to exhaust, so that he's not just being given a runaround); or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3)If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.

Id. at 742. Although the court in Pavey included a hearing as one of the steps in determining whether the plaintiff had satisfied the exhaustion requirement, "there is no reason to conduct an evidentiary hearing" in a "situation [where] there are no disputed facts regarding exhaustion, only a legal ...

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