United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
DONALD G. WILKERSON, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion filed by Defendants S.A. Godinez and Jody Goetting (Doc. 34) be GRANTED, and that the Court adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff, Omar Grayson, an inmate at Pinckneyville Correctional Center ("Pinckneyville"), filed this action on December 3, 2013 alleging various violations of his constitutional rights. More specifically, Plaintiff alleges that in contravention of his religious beliefs, Defendant Goetting forced Plaintiff to remove his dreadlocks, citing security and safety concerns. Plaintiff also challenges the Illinois Department of Corrections ("IDOC") policy instituted by Defendant Godinez that requires him to shear his dreadlocks. Plaintiff is proceeding on the following three counts in this action: (1) First Amendment claim against Defendants Goetting and Godinez; (2) Religious Land Use and Institutionalized Persons Act ("RLUIPA") claim against Defendants in their official capacities; and (3) retaliation claim against Defendant Goetting.
On August 1, 2014, Defendants Goetting and Godinez filed a Motion for Summary Judgment on the Issue of Exhaustion (Doc. 34) arguing that Plaintiff failed to exhaust his administrative remedies before filing suit. Based on the affidavit of Billie Greer, Chairperson for the Administrative Review Board ("ARB"), Defendants assert that although Plaintiff filed a grievance on October 29, 2013 concerning the issues in this lawsuit, he filed suit before he received a response from both his institution and the ARB.
Plaintiff filed his response to Defendants' Motion on August 5, 2014 (Doc. 39), asserting that prior to filing the October 29, 2013 grievance, he filed an emergency grievance on September 9, 2013, for which he never received a response. As such, Plaintiff asserts that this suit was filed in accordance with the September 9, 2013 emergency grievance. According to Plaintiff, as there are no instructions on how to proceed if a grievance is not responded to, he sufficiently exhausted his administrative remedies with respect to this grievance.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on December 3, 2014. At the hearing, Plaintiff conceded that his grievance dated October 29, 2013 was not fully exhausted before he filed suit. However, as mentioned in his response, Plaintiff averred that he filed an emergency grievance on September 9, 2013, immediately following his transfer to Pinckneyville, after receiving an order to cut his dreadlocks for an identification picture. According to Plaintiff, in his emergency grievance he explained that he grows his hair in dreadlocks due to his religious practices as an African Hebrew Israelite. Plaintiff further testified that his emergency grievance indicated that Stateville Correctional Center allowed him to transfer to Pinckneyville with his dreadlocks once they declared that he was not a high-risk inmate. Plaintiff testified that he filed this grievance while he was in segregation by slipping it between the cracks of the door to allow a correctional officer to retrieve it.
Defendants asserted that Plaintiff did not file a grievance on September 9, 2013, as there is no record of this grievance on file. Moreover, Defendants argued that even if Plaintiff did file this emergency grievance, it is insufficient to exhaust the claims in this lawsuit as the content of the grievance, as described by Plaintiff, does not address the issues and claims in this lawsuit. Specifically, Defendants aver that the September 9, 2013 grievance was written before Plaintiff was ordered by Defendant Goetting to cut his hair and threatened forcible removal of his hair if Plaintiff refused to comply. Accordingly, Defendants contend that the events giving rise to this lawsuit did not occur until after the September 9, 2013 grievance was filed and, as such, it is insufficient to establish exhaustion in this case.
CONCLUSIONS OF LAW
Summary Judgment Standard
Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary 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." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
Exhaustion Requirements under the ...