United States District Court, N.D. Illinois
FREDERICK J. KAPALA District Judge
court has reviewed the Report and Recommendation
(“R&R”) of September 19, 2017, de novo and
agrees with the findings and conclusions. Accordingly,
Plaintiff's objections  are overruled. The court
adopts the R&R  in its entirety and dismisses the
complaint pursuant to 42 U.S.C. § 1997e(a) for failure
to exhaust administrative remedies prior to filing suit. The
case is terminated. Dismissal is without prejudice to
refiling suit after exhaustion should administrative remedies
remain available to plaintiff.
Marshaun Boykin, an Illinois state prisoner, brings this pro
se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that defendant Brett Sandholm, a
correctional officer at the Dixon Correctional Center
(“Dixon”), violated plaintiff's
constitutional rights in multiple respects when Sandholm
responded to an inmate disturbance in March 2016. The
magistrate judge held a Pavey hearing in this matter
on August 4, 2017, see Pavey v. Conley, 544 F.3d
739, 742 (7th Cir. 2008) (Pavey I), and it is before
the court for consideration of the magistrate judge's
Report and Recommendation (“R&R”), as well as
plaintiff's objections. For the reasons stated in this
order, the court overrules plaintiff's objections and
adopts the R&R.
to Rule 72 of the Federal Rules of Civil Procedure, the
district court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1)(c); Saucedo v. Illinois
Dep't of Corr., No. 15 CV 50136, 2017 WL 2274934, at
*1 (N.D. Ill. May 25, 2017). The court may “accept,
reject or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3); Farmer v.
DirectSat USA, No. 08 CV 3962, 2015 WL 13310280, at *1
(N.D. Ill. Sept. 24, 2015). The Seventh Circuit has explained
[d]e novo review requires the district judge to
decide the case based on an independent review of the
evidence and arguments without giving any presumptive weight
to the magistrate judge's conclusion. The district judge
is free, and encouraged, to consider all of the available
information about the case when making this independent
decision. A district judge may be persuaded by the reasoning
of a magistrate judge or a special master while still
engaging in an independent decision-making process.
Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir.
2013). “Being persuaded by the magistrate judge's
reasoning, even after reviewing the case independently, is
perfectly consistent with de novo review.”
Id.; see also Farmer, 2015 WL 13310280, at
*2 (same). That said, “[t]he magistrate judge's
recommendation on a dispositive matter is not a final order,
and the district judge makes the ultimate decision to adopt,
reject, or modify it.” Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009). Having
reviewed the record in the instant case, the court agrees
with the magistrate judge that dismissal on the ground of
non-exhaustion is appropriate.
is no question that plaintiff was required to exhaust the
grievance process before initiating this lawsuit. The Prison
Litigation Reform Act of 1996 (“PLRA”) contains a
comprehensive administrative exhaustion requirement. Under
that statute, “[n]o action shall be brought with
respect to prison conditions . . . by a prisoner . . . until
such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997(e)(a); see also
Jones v. Bock, 549 U.S. 199, 204 (2007); Maddox v.
Love, 655 F.3d 709, 720 (7th Cir. 2011). “[I]f a
prison has an internal administrative grievance system
through which a prisoner can seek to correct a problem, then
the prisoner must utilize that administrative system before
filing a claim” under § 1983. Massey v.
Helman, 196 F.3d 727, 733 (7th Cir. 1999); see also
Howard v. Maselko, No. 11 CV 9278, 2013 WL 1707955, at
*2 (N.D. Ill. Apr. 19, 2013). Correctional officials bear the
burden of pleading and proving failure to exhaust.
Maddox, 655 F.3d at 720 (citing Jones, 549
U.S. at 212).
order to satisfy the PLRA's exhaustion requirement,
“a prisoner must take all steps prescribed by the
prison's grievance system.” Ford v.
Johnson, 362 F.3d 395, 397 (7th Cir. 2004). An inmate
must comply with the rules established by the State with
respect to the form, timeliness, and content of grievances.
Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004);
Pozo v. McCaughtry, 286 F.3d 1022, 1023-25 (7th Cir.
2002). Where exhaustion of administrative remedies is a
contested issue, the courts must hold a Pavey
hearing on exhaustion before reaching the substantive merits
of a given case. Wagoner v. Lemmon, 778 F.3d 586,
588 (7th Cir. 2015). Courts analyze a prisoner's
exhaustion under the “preponderance of the
evidence” standard. Saucedo, 2017 WL 2274934,
at *1. In the case at bar, defendants have met their burden
of establishing non-exhaustion.
testified that he was familiar with grievance procedures at
Dixon and that he knew he had to file a grievance within
sixty days of an incident. Plaintiff conceded that he has
memory problems due to a brain injury. He nevertheless
claimed that he believed he filed a grievance on March 26,
2016, but that he received it back with no response. Though
plaintiff acknowledged that he did not resubmit the
grievance, he speculated that he “might have”
submitted additional grievances in connection with the
incident, but that he was not certain.
Dixon's Grievance Officer and its Clinical Services
Supervisor denied that plaintiff filed a grievance regarding
the events giving rise to this lawsuit. They stated that they
kept a log of all grievances, and that their log book
reflected no grievance filed by plaintiff on or around March
26, 2016. They also asserted that they would not have
returned a grievance to an inmate without writing a response
of some kind. Defendants produced a Grievance Tracking Log
documenting plaintiff's numerous grievances at Dixon.
on the above evidence, the magistrate judge concluded that
plaintiff did not file a grievance relating to the events
underlying the instant complaint. The court reviews
credibility determinations for clear error. Pavey v.
Conley, 663 F.3d 899, 904 (7th Cir. 2011) (Pavey
II) (affirming dismissal for failure to exhaust
following remand). Here, the magistrate judge expressly found
plaintiff's testimony “incredible” and noted
plaintiff's memory problems, in contrast with defense
witnesses' routine record-keeping and standard handling
of grievances. The magistrate judge pointed out that the
grievance attached to the complaint bore no response or
directions from correctional officials and observed that,
even assuming (a) plaintiff did submit a grievance on March
26, 2016, and (b) correctional officials for some reason
returned the grievance without providing a written response
of some kind, plaintiff had ample time to resubmit the
purportedly returned grievance. Plaintiff failed to take
advantage of that opportunity. The court discerns no clear
error in the magistrate judge's determinations concerning
the parties' and witnesses' relative credibility or
in the conclusions he reached on the basis of the evidence.
contention that the exhaustion process was somehow
unavailable to him is without merit. It is true that a
prisoner is not obligated to exhaust administrative remedies
that are unavailable. Pyles v. Nwaobasi, 829 F.3d
860, 864 (7th Cir. 2016); Pavey I, 544 F.3d at 742.
“Administrative remedies are primarily
‘unavailable' to prisoners where ‘affirmative
misconduct' prevents prisoners from pursuing
administrative remedies.” Hernandez v. Dart,
814 F.3d 836, 842 (7th Cir. 2016) (quoting Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (remedies
unavailable where prison officials “do not respond to a
properly filed grievance”)); Thomas v. Reese,
787 F.3d 845, 847-48 (7th Cir. 2015) (remedies unavailable
where correctional officer tells prisoner that prisoner
cannot file grievance when in fact prisoner can do so);
Kaba v. Stepp, 458 F.3d 678, 680, 686 (7th Cir.
2006) (remedies unavailable where prisoner presents evidence
that prison personnel have “denied [prisoner] grievance
forms, threatened him, and solicited other inmates to attack
him in retaliation for filing grievances”); Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (remedies
unavailable where prison personnel prevent prisoner access to
grievance forms)). However, this case presents no such
alleged obstruction on the part of Dixon officials. To the
contrary, the magistrate judge expressly found “no
evidence that [plaintiff] was prevented from filing a
grievance” before the deadline for doing so expired.
Because defendants have demonstrated to the court's
satisfaction that plaintiff never submitted a grievance
concerning the altercation of March 26, 2016, plaintiff
cannot claim that Dixon officials refused to process his
court likewise rejects plaintiff's argument that
defendants withheld or destroyed crucial evidence tending to
establish exhaustion. A party who claims spoliation of
evidence must show destruction in bad faith, which
“requires destruction ‘for the purpose of hiding
adverse information.'” Bracey v. Grondin,
712 F.3d 1012, 1019 (7th Cir. 2013). In the case at bar, it
is perhaps conceivable that a camera might have captured
plaintiff submitting a grievance in the lock box on his tier
on the date in question, but there is no suggestion that an
occurrence of any significance took place on the day
plaintiff thinks he may have submitted the grievance.
Therefore, it would be unreasonable to make the logical leap
that IDOC officials intentionally failed to preserve evidence
that, though immaterial to ...