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Oliver v. Baldwin

United States District Court, S.D. Illinois

February 23, 2017

TYRONE OLIVER, B31327 Plaintiff,


          Michael J. Reagan United States District Judge

         I. Introduction

         This matter is now before the Court on a Report and Recommendation (R&R) from Magistrate Judge Stephen C. Williams (Doc. 73). The Plaintiff filed his Objections to the R&R at the institution on February 3, 2017, though the document did not reach the Court until February 14, 2017 (Doc. 74).[1] Plaintiff's underlying complaint alleges that the Defendants acted in deliberate indifference by failing to provide timely or sufficient treatment for his chronic hip pain and the stomach pain that resulted from prescription pain medications (Doc. 1). The Defendants moved for summary judgment on the premise that Plaintiff failed to exhaust the appropriate administrative channels to grieve his concerns (Docs. 48, 49, 51, 52). Plaintiff responded to the motions (Doc. 59). On January 17, 2017, an evidentiary Pavey[2] hearing was held before Magistrate Judge Williams to assess the credibility of conflicting accounts about the Plaintiff's use of the grievance process. The R&R recommends granting summary judgment in favor of all named Defendants because Plaintiff failed to exhaust administrative remedies (Doc. 73). Plaintiff opposes this recommendation (Doc. 74). The matter is now before the undersigned.

         II. Facts

         The facts set forth in this section will be limited to those necessary for this Court to review the R&R. A more comprehensive recitation of the facts can be found in Magistrate Judge Williams' R&R (Doc. 73).

         Plaintiff filed his first grievance-filed as an emergency-on April 2, 2015, while incarcerated at Shawnee Correctional Center. The grievance was returned to him after it was deemed a non-emergency. Kendra Seip (a former grievance officer) testified at the Pavey hearing that emergency grievances did not appear on the log form she had unless the grievances were officially deemed an emergency and were forwarded to the grievance officer.

         Plaintiff contends that once his grievance was deemed a non-emergency, he submitted it to his counselor. His counselor responded on April 16, 2015. Upon receiving the response from his counselor, Plaintiff testified both that he immediately submitted it to the grievance officer and that it took him a few days to submit it because he needed access to the law library and to copying facilities. It is unclear from Plaintiff's testimony and written filings the precise date upon which he allegedly submitted his grievance to the institutional grievance officer-but he appears to claim that he did so sometime between April 16 and April 29, 2015.

         Plaintiff's testimony and assertions that he submitted a grievance to the institutional grievance officer are directly contradicted by Seip's testimony that the 2015 grievance log at Shawnee did not reflect any grievances filed by Plaintiff. In his objections to the R&R Plaintiff claims that Seip testified that Shawnee did not keep a grievance log (Doc. 74). However, what Seip actually testified was that Shawnee did not keep a log of emergency grievances that were deemed non-emergencies.[3] By contrast, Seip testified that Shawnee did keep a log of grievances submitted through the normal channels and that the log did not reflect any grievances in 2015 by the Plaintiff.

         Plaintiff also alleges that he submitted the April 2, 2015 grievance and the April 24, 2015 grievance to the Administrative Review Board (ARB). ARB Manager, Leslie McCarty, testified that the ARB received a grievance from Plaintiff on April 29, 2015. The grievance included copies of Plaintiff's April 2 and April 24 institutional grievances. McCarty testified that the grievances were returned to Plaintiff because he failed to include proof that he had exhausted the grievances to the grievance officers or chief administrative officers at his institution. Plaintiff agreed that the ARB responded to his grievance, and he testified that on June 3, 2015, he provided copies of his grievances and the denials, but never heard back from the ARB. Plaintiff alleges that he followed up with the ARB via letter in July 2015, received no response, and subsequently filed the complaint in the underlying matter in November 2015.

         To date, Plaintiff maintains the position that he has not received any response to grievances he submitted at the institutional level.

         Upon review of the motions for summary judgment, the Plaintiff's response, and the testimony at the Pavey hearing, Magistrate Judge Williams found that Plaintiff's testimony lacked credibility, and that the record evidence supported granting the motions for summary judgment (Doc. 73 at 15). As a part of this finding, Magistrate Judge Williams specifically found that Plaintiff likely circumvented the institutional grievance procedure on April 24, 2015, and instead went straight to the ARB (Doc. 73 at 15-18). Judge Williams based this finding on the evidence that the institutional grievance logs did not reflect any grievances in 2015 by Plaintiff, and on the fact that it would have been impossible for Plaintiff to have filed and fully exhausted the institutional process between April 16, 2015, and the date the ARB received his grievance on April 29, 2015 (Id.). Accordingly, Judge Williams concluded that Plaintiff did not exhaust the institutional grievance procedure.

         III. Legal Analysis

         When a party timely objects to a magistrate judge's R & R, the district court- giving deference to the magistrate judge's findings of fact and credibility determinations as noted below-must undertake de novo review of the portions to which an objection has been made. 28 U.S.C. § 636(b)(1)(C). Here, Plaintiff's objections to the R&R largely reiterate things he already argued in his response to summary judgment (Compare Docs. 59 and 74). In addition to his previous arguments, Plaintiff also takes issue with the R&R's characterization of certain testimony at the Pavey hearing and alleges that the Defendants have failed to prove that there is still a remedy available to him (Doc. 74 at 5, 8-9).

         As an inmate, Plaintiff's lawsuit is governed by the Prison Litigation Reform Act (“PLRA”), which requires a prisoner to exhaust his administrative remedies before filing suit. 42 U.S.C. § 1997e.In Illinois, the grievance process requires a prisoner to speak with his counselor, file a written grievance, and then appeal that grievance through the institutional and state / ARB levels. 20 Ill. Admin. Code §§ 504.810-850. A prisoner may also request a grievance be handled “on an emergency basis” by forwarding it straight to the warden, who must expedite processing of the grievance; the inmate may directly appeal the warden's decision to the ARB. 20 Ill. Admin. Code §§ 504.840, 850(g).Though the Seventh Circuit requires strict adherence to the PLRA's exhaustion requirement, Dole v. Chandler,438 F.3d 804, 809 (7th Cir. 2006), the PLRA's plain language is clear: an inmate must exhaust only those administrative remedies that are available to him, 42 U.S.C. ยง 1997e(a). Administrative remedies ...

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