United States District Court, S.D. Illinois
MARIO S. ENLGISH, JR., Plaintiff,
MONICA NIPPE, Defendant.
REPORT & RECOMMENDATION
Reona J. Daly United States Magistrate Judge
matter has been referred to United States Magistrate Judge
Reona J. Daly by United States District Judge Staci M. Yandle
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 based on Plaintiff's Failure to Exhaust
Administrative Remedies filed by Defendant Monica Nippe (Doc.
46) be GRANTED, that Plaintiff's Motion
for Summary Judgment on Exhaustion of Remedies (Doc. 53) be
DENIED, and that Plaintiff's Motion for
Leave to Amend his Motion for Summary Judgment on Exhaustion
(Doc. 57) be DENIED, and that the Court
adopt the following findings of fact and conclusions of law.
Mario English Jr., an inmate in the custody of the Illinois
Department of Corrections (“IDOC”), brings this
lawsuit pursuant to 42 U.S.C. § 1983, alleging that his
constitutional rights were violated while he was incarcerated
at Menard Correctional Center (“Menard”).
Plaintiff alleges Defendant Nippe denied him a supply of
money vouchers to subsidize his legal mailings thus violating
his right to access the courts. Following threshold review,
Plaintiff proceeds on the following claim:
Count 1 - Denial of access to the courts
against Monica Nippe for failing to provide English with a
sufficient number of money vouchers to mail his legal
argues he exhausted his administrative remedies by filing two
grievances. Defendant contends these two grievances were
never received by prison staff. Pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a
hearing on the issue of exhaustion on February 15, 2018. The
Court considers each grievance in turn, as set forth below.
missing January 14, 2016 grievance: In support
of his claim that he exhausted his administrative remedies,
Plaintiff submitted a grievance dated January 14, 2016, which
bears no indication it was received by prison staff. This
grievance states that English saw counselor, Monica Nippe, on
January 14, 2016, at an unknown time. He informed her he
needed ten money vouchers to mail legal correspondence; Nippe
refused to give him ten money vouchers, stating she would
only give two money vouchers per month. According to the
grievance, if English mailed out more than two legal letters
per month it was because he used another prisoner's money
vouchers. He states that staff does not pass out money
vouchers, and staff says that inmates can get money vouchers
from the counselor. English states that he should be allowed
to mail out 100 legal letters per week if he wants. Prisoners
are told that there are no money vouchers in the cell house,
however, every time an inmate sees the nurse for sick call,
money vouchers are found so that the prisoners can pay the $5
copay. English states in the grievance that Nippe is denying
him access to the courts in violation of the 5th
and 14th Amendments. In the grievance, he
requested to be sent ten money vouchers for legal issues, to
be sent a copy of the disciplinary card for legal reasons,
and to be sent a copy of his legal mail card for all incoming
and outgoing legal mail.
missing January 20, 2016 grievance: This
grievance was marked as an emergency to be sent to the
Warden. In this grievance, English alleges he sent a
grievance to Counselor Monica Nippe on January 14, 2016, and
did not get a response. He then restates the grievance from
January 14, 2016 and requests the same relief. Like the
January 14, 2016 grievance, this grievance includes no
indication that it was received by prison staff.
judgment is appropriate only if the moving party can
demonstrate “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 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). The moving
party bears the initial burden of demonstrating the lack of
any genuine issue of material fact. Celotex, 477
U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth
specific facts showing there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Estate
of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017)
(quoting Anderson, 477 U.S. at 248). In determining
a summary judgment motion, the district Court views the facts
in the light most favorable to, and draws all reasonable
inferences in favor of, the nonmoving party. Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962,
965 (7th Cir. 2013) (citation omitted).
to 42 U.S.C. § 1997e(a), prisoners are required to
exhaust available administrative remedies prior to filing
lawsuits in federal court. “[A] prisoner who does not
properly take each step within the administrative process has
failed to exhaust state remedies.” Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002).
“[A] suit filed by a prisoner before administrative
remedies have been exhausted must be dismissed; the district
court lacks discretion to resolve the claim on the merits,
even if the prisoner exhausts intra-prison remedies before
judgment.” Perez v. Wisconsin Dep't of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll
dismissals under § 1997e(a) should be without
prejudice.” Ford v. Johnson, 362 F.3d 395, 401
(7th Cir. 2004).
inmate in the custody of the Illinois Department of
Corrections must first submit a written grievance within 60
days after the discovery of the incident, occurrence or
problem, to his or her institutional counselor, unless
certain discrete issues are being grieved. 20 Ill. Admin.
Code § 504.810(a). If the complaint is not resolved
through a counselor, the grievance is considered by a
Grievance Officer who must render a written recommendation to
the Chief Administrative Officer - usually the Warden -
within two months of receipt, “when reasonably feasible
under the circumstances.” Id.
§504.830(e). The CAO then advises the inmate of a
decision on the grievance. Id.
inmate may appeal the decision of the Chief Administrative
Officer 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). The ARB will submit a
written report of its findings and recommendations to the
Director who shall review the same and make a final
determination within 6 months of receipt of the appeal. 20
Ill. Admin. Code § 504.850(d) and (e).
inmate may request that a grievance be handled as an
emergency by forwarding it directly to the Chief
Administrative Officer. Id. § 504.840. If it is
determined that there exists a substantial risk of imminent
personal injury or other serious or irreparable harm, the
grievance is handled on an emergency basis, which allows for
expedited processing of the grievance by responding directly
to the offender. Id. Inmates may further submit
certain types of grievances directly to the Administrative
Review Board, including grievances related to protective