United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
NANCY J. ROSENSTENGEL, District Judge.
This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 78), recommending that the Motion for Summary Judgment on the issue of exhaustion filed by Defendants Richard Harrington, Tracy Heiman, and Frank Eovaldi (Doc. 63) be denied. The Report and Recommendation was entered on August 27, 2014, and Defendants filed a timely objection (Doc. 80).
Because timely objections were filed, the undersigned must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F.Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the district judge to "give fresh consideration to those issues to which specific objections have been made" and make a decision "based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion." Harper, 824 F.Supp. at 788 (citing 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part)); Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court "may accept, reject or modify the magistrate judge's recommended decision." Harper, 824 F.Supp. at 788. For the reasons stated below, the Court overrules Defendants' objections and adopts the Report and Recommendation of Magistrate Judge Wilkerson.
Plaintiff Toby Godfrey, an inmate in the Illinois Department of Corrections, is currently incarcerated at Lawrence Correctional Center. He filed this action on March 20, 2013, alleging that his constitutional rights were violated during his incarceration at Menard Correctional Center. In particular, he alleges that he was attacked by his cellmate on March 4, 2013. He claims that Defendants Traci Heiman and Frank Eovaldi, who are correctional officers at Menard, failed to protect him from the attack (Doc. 13). He further alleges that Defendant Michael Moldenhauer, a medical doctor, failed to provide adequate medical care after he was attacked (Doc. 13; Doc. 86). Godfrey did not state any viable claim against Richard Harrington, the warden at Menard, but Harrington remained in the action as a defendant in his official capacity for the purpose of injunctive relief (Doc. 13)
On February 20, 2014, Defendants Harrington, Heiman, and Eovaldi filed a Motion for Summary Judgment on the issue of exhaustion (Doc. 63). They assert that there is one relevant grievance dated March 28, 2013, which Godfrey submitted directly to the ARB. They argue that Godfrey failed to exhaust that grievance because he submitted it after he had already filed suit.
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on the issue of exhaustion on April 17, 2014 (Doc. 73). At the hearing, Godfrey testified that the March 28th grievance was not the only relevant grievance (Doc. 78). He claimed that he submitted an emergency grievance on March 4, 2013, to Warden Harrington but never received a response (Doc. 78). Following the hearing, Godfrey submitted to the Court a copy of the March 4th grievance (Doc. 75). Magistrate Judge Wilkerson then issued the Report and Recommendation currently before the Court (Doc. 78).
THE REPORT AND RECOMMENDATION AND OBJECTIONS
Magistrate Judge Wilkerson found that the March 28th grievance that Godfrey submitted directly to the ARB was not relevant to the issue of exhaustion because it was filed eight days after Godfrey filed this lawsuit (Doc. 78). Accordingly, the question of whether Godfrey exhausted his administrative remedies came down to the March 4th grievance. Magistrate Judge Wilkerson found Godfrey credible in his assertion that he filed this grievance. It was marked as an emergency and stated that Godfrey told Defendants Heiman and Eovaldi that he was being threatened by his cellmate and needed to be moved. Both Defendants, however, refused to move Godfrey, and he was attacked by his cellmate. The grievance further states that Godfrey suffered significant injuries and was not given proper medical care.
Magistrate Judge Wilkerson noted that there was no indication on the March 4th emergency grievance that the warden responded. Godfrey waited in vain for sixteen days for a response from the warden and then filed suit. Magistrate Judge Wilkerson concluded that sixteen days was a sufficient period of time to wait for a response, and the failure to provide a response within that time rendered the grievance process unavailable to Godfrey. Therefore, Godfrey should be deemed to have exhausted his administrative remedies.
Defendants had no objections to Magistrate Judge Wilkerson's factual findings, but they objected to his conclusion of law that Godfrey waited long enough before filing suit (Doc. 80). Defendants point out that resource and staffing limitations in the IDOC, in combination with increasingly larger quantities of grievances, has created a backlog and more time is required to respond to each grievance. They argue that "sixteen days is still within a reasonable time period to respond to an emergency grievance, and prisoners should be required to wait longer than that before filing their federal lawsuits" (Doc. 80).
Based on Defendants' objection to the Report and Recommendation, the Court must determine whether the warden's failure to respond to Godfrey's emergency grievance within sixteen days rendered the grievance process unavailable, which in turn permitted him to file suit.
The Prison Litigation Reform Act ("PLRA") requires prisoners to exhaust their administrative remedies before bringing a civil rights lawsuit. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). But prisoners "must exhaust only those administrative remedies that are available." Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). Administrative remedies become "unavailable" if prison officials fail to respond to an inmate's grievances. Id .; Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). "Exhaustion is an affirmative defense that the ...