United States District Court, S.D. Illinois
CALVIN L. MERRITTE, Plaintiff,
C/O BRAKE, C/O DEAN, LT. CHAD RAY, C/O OCHS, C/O JOHNSON, C/O HUNDLEY, and C/O SELBY, Defendants.
REPORT AND RECOMMENDATION
G. WILKERSON UNITED STATES MAGISTRATE JUDGE
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 filed by Defendants (Doc. 66) be
DENIED and that the Court adopt the
following findings of fact and conclusions of law.
Calvin Merritte, an inmate formerly incarcerated at the
Lawrence Correctional Center, alleges that Defendants
retaliated against him and failed to protect him by placing
him in a cell with a dangerous cellmate in September, 2014.
September 8, 2014 grievance, Plaintiff stated that he was
placed in a cell, by Correctional Officers Ochs and Johnson
and Lieutenant Ray, with a person he had reported as an enemy
(Doc. 67-1, pp. 1-2). In a letter attached to the grievance,
Plaintiff explained that prison officials were trying to have
him killed in retaliation for filing a habeas corpus action
(Doc. 67-2, pp. 1-2). He stated that officials, such as Lt.
Ray, Lt. McCarthy, C/O Ochs, C/O Brakes, and other officers,
were hindering his ability to prosecute the habeas action,
that C/O Ochs was angry about grievances he had submitted,
and that C/O Johnson and Lt. Ray then placed him in the
offending cell (Id.). Even when Plaintiff refused to
go in the cell because he was afraid and requested a
“crisis team member, ” he was compelled to enter
the cell. In the letter and the grievance, Plaintiff
requested protective custody. On the grievance itself,
Plaintiff checked the box marking it an emergency and also
circled “protective custody” in the section which
instructs inmates to send grievances to the Administrative
Review Board (“ARB”) directly in certain
circumstances. He sent the grievance directly to the ARB
which received it on September 12, 2014.
October 14, 2014 response, the ARB informed Plaintiff that he
had not followed procedure and that he should have received
institutional responses prior to submitting the grievance to
the ARB (Doc. 67-3).
affidavit attached to his response, Plaintiff states that he
submitted an emergency grievance on September 8, 2014 to the
Warden but that he received no response (Doc. 76, p. 15).
Between the dates of August 17, 2014 and October 8, 2014, his
counselor, Collin Ray (who is Lt. Ray's brother) failed
to process various grievances (Id.). In an October
3, 2014 grievance, that Plaintiff sent directly to ARB which
received it on October 8, 2014, Plaintiff complained that
Counselor Ray was failing to process his grievances about the
retaliatory conduct of Lt. Ray and C/O Johnson, his requests
for medical care, and other grievances (Id. 21-22).
In an October 10, 2014 grievance (filed after Plaintiff had
been transferred to Pinckneyville CC), Plaintiff again raised
the issue of being placed in a cell with a dangerous cellmate
by Lt. Ray in retaliation (Id. 30-31). He noted that
C/Os Hundley, Ochs, and other unknown correctional officers
joked and laughed about him being in a dangerous situation
for the 3 days that he was housed with the dangerous cellmate
(Id.). Finally, he grieved a disciplinary ticket he
received for fighting and disobeying orders because he was
attempting to protect himself from the dangerous cellmate
(Id.). This grievance also was sent directly to the
ARB which received it on October 16, 2014. There is no
evidence in the record that the ARB, even though it received
both grievances, responded to either the October 3 or the
October 10, 2014 grievances.
hearing held on November 14, 2014 pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), Plaintiff
testified that each of Defendants were officers working in
the segregation unit where he was housed during the relevant
judgment is proper only if the moving party can demonstrate
“that there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of
law.” Federal Rule of Civil Procedure 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).
Prison Litigation Reform Act 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). Exhaustion of available
administrative remedies is a precondition to suit. Dale
v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See
also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535
(7th Cir. 1999) (stating that §1997e(a) of the PLRA
“makes exhaustion a precondition to bringing
suit” under § 1983). Failure to exhaust
administrative remedies is an affirmative defense; defendants
bear the burden of proving a failure to exhaust. See
Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v.
Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme
Court has interpreted the PLRA to require “proper
exhaustion” prior to filing suit. See Woodford v.
Ngo, 548 U.S. 81, 84 (2006). This means “using all
steps that the agency holds out, and doing so properly (so
that the agency addresses the issues on the merits).”
Id. at 90 (quoting Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA
requires proper exhaustion, the Supreme Court agreed with the
Seventh Circuit's interpretation of the statute as stated
in Pozo, which required an inmate to “file
complaints and appeals in the place, and at the time, the
prison's administrative rules require.”
Pozo, 286 F.3d at 1025. In Pavey, the
Seventh Circuit instructed District Courts to conduct a
hearing to determine whether a Plaintiff has exhausted his
remedies. 544 F.3d at 742. If a Plaintiff has exhausted his
remedies, the case will proceed on the merits. If, however, a
Plaintiff has not exhausted, the Court may either allow
Plaintiff to exhaust or terminate the matter.
the procedures set forth in the Illinois Administrative Code,
inmate must first attempt to resolve a complaint informally
with his Counselor. Ill. Admin. Code tit. 20, §
504.810(a). If the complaint is not resolved, the inmate may
file a grievance within 60 days after the discovery of the
incident, occurrence, or problem that gives rise to the
grievance. Id. §504.810(b). The grievance
officer is required to advise the Chief Administrative
Officer (“CAO” - usually the Warden) at the
facility in writing of the findings on the grievance.
Id. §504.830(d). The CAO shall advise the
inmate of the decision on the grievance within two months of
it having been filed. Id. § 504.830(d). An
inmate may appeal the decision of the CAO in writing within
30 days to the Administrative Review Board for a final
decision. Id., § 504.850(a). See also Dole
v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). An
inmate may request that a grievance be handled as an
emergency by forwarding it directly to the CAO. If the CAO
determines that there exists a ...