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Merrittee v. Brake

United States District Court, S.D. Illinois

November 22, 2017

CALVIN L. MERRITTE, Plaintiff,
v.
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

          DONALD G. WILKERSON UNITED STATES 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 filed by Defendants (Doc. 66) be DENIED and that the Court adopt the following findings of fact and conclusions of law.

         Findings of Fact

         Plaintiff, 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.

         In a 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.

         In an 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).

         In an 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.

         At a 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 time period.

         Conclusions of Law

         Summary 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).

         The 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.

         Under the procedures set forth in the Illinois Administrative Code, [1] an 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 ...


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