United States District Court, C.D. Illinois, Peoria Division
SUMMARY JUDGMENT OPINION
JOE BILLY McDADE, District Judge.
Defendants Millsap and Lovrant move for summary judgment on the issue of exhaustion [d/e 14]. Plaintiff, a state prisoner, filed his lawsuit pursuant to 42 U.S.C. § 1983 on December 4, 2012 claiming that his constitutional rights were violated at Pontiac Correctional Center on November 11th and 12th, 2012. The Court conducted a merit review of the Plaintiff's Complaint and found that Plaintiff stated an excessive force claim against Defendant Lovrant, a failure to intervene claim against Defendant Milsap, and a conditions of confinement claim. Plaintiff did not file a response to Defendants' Motion for Summary Judgment though he was given the opportunity to do so. Therefore, the Court will take Defendants' Undisputed Material Facts as true.
A. LEGAL STANDARD
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). All facts must be construed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Defendants argue that there is no record of any grievances, emergency or otherwise, that Plaintiff filed regarding the claims in his Complaint. The Prison Litigation Reform Act (PLRA) provides:
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.
42 U.S.C. § 1997e(a).
The Seventh Circuit has taken a strict compliance approach to exhaustion requiring a prisoner to pursue all available administrative remedies and comply with the prison's procedural rules and deadlines. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Therefore, if an inmate fails to follow the grievance procedure rules, his claims will not be considered to be exhausted, but instead forfeited, and he will be barred from filing suit in federal court even if administrative remedies are for practical purposes no longer available to him due to his procedural default. Pozo, 286 F.3d at 1025.
The Illinois Department of Corrections has an established grievance process. See 20 ILL. ADMIN. CODE §§ 504.800 et seq. An inmate is first required to speak with a counselor about the contested issue. 20 ILL. ADMIN. CODE § 504.810(a). If the counselor does not resolve the problem, the inmate must file a grievance form directed to the Grievance Officer within 60 days of the incident. Id. The Grievance Officer submits his recommendation to the Chief Administrative Officer who "shall advise the offender of the final decision in writing within two months after receipt of the written grievance, where reasonably feasible." 20 ILL. ADMIN. CODE § 504.830(d). If the inmate is not satisfied with the Chief Administrative Officer's response, he or she can file an appeal with the Director through the Administrative Review Board within 30 days after the date of the Chief Administrative Officer's decision. 20 ILL. ADMIN. CODE § 504.850(a). The Director shall then review the findings and recommendations of the board and make a final determination within six months after receipt of the grievance. 20 ILL. ADMIN. CODE § 504.850(f). When an inmate has received a copy of the Director's decision, the grievance procedure is complete.
Here, Defendants attached the Affidavit of Sherry Benton, an Administrative Review Board (ARB) Chairperson with the Office of Inmate Issues for the Illinois Department of Corrections (IDOC), which provides that Benton searched Plaintiff's ARB records for grievances concerning the use of excessive force against him on November 11th and 12th, 2012. ARB records indicated that the ARB received no grievances from Plaintiff related to the use of excessive force on those dates. Because Plaintiff stated in his Complaint that he filed an Emergency Grievance to the Warden, his Grievance Counselor, and his Grievance Officer on "the same day this took, " Defendants also attached the Affidavit of Sharon Simpson, the Primary Grievance Officer at Pontiac who maintains a record of Emergency Grievances filed by inmates with the Warden of Pontiac. Simpson's Affidavit provides that she looked specifically in the Emergency Grievance Log at Pontiac for a grievance in which Plaintiff grieved about the use of excessive force on the relevant dates in November 2012 and found no such grievance. She also attached the Emergency Grievance Log from Pontiac for the dates November 7, 2012 through November 21, 2012 which also does not show that Plaintiff filed any Emergency Grievances during that time period.
Thus, Defendants say that Plaintiff failed to exhaust his administrative remedies regarding his excessive force and failure to intervene claims, so they are entitled to summary judgment.
The Court finds that Plaintiff did not properly and fully exhaust his administrative remedies as to the claims in his Complaint. The question then becomes whether administrative remedies were truly "available" to Plaintiff. 42 U.S.C. § 1997e(a). The Court finds that they were. The PLRA, does not define "availability" for purposes of the exhaustion requirement. However, the Seventh Circuit has held that the "availability of a remedy is not a matter of what appears on paper, but, rather, whether the paper process was in reality open for the prisoner to pursue." Wilder v. Sutton, 310 F.Appx. 10, 13 (7th Cir. 2009) ( quoting Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). Prison officials who engage in affirmative misconduct, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), or fail to respond to grievances, render the grievance process unavailable to an inmate. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002).
While Plaintiff stated in his Complaint that he filed an Emergency Grievance with the Warden, Counselor, and Grievance Officer "the same day this took, " and while he also alleged that Pontiac played "diabolical games" with grievance forms, those statements were not sworn to and he has not provided any further evidence or arguments to refute Defendants' Motion for Summary Judgment. Even after construing the facts in the light most favorable to Plaintiff, and drawing all reasonable inferences in his favor, the Court ...