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Enlgishl v. Nippe

United States District Court, S.D. Illinois

February 16, 2018

MARIO S. ENLGISH, JR., Plaintiff,
v.
MONICA NIPPE, Defendant.

          REPORT & RECOMMENDATION

          Hon. Reona J. Daly United States Magistrate Judge

         This 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.

         Findings of Fact

         Plaintiff 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 correspondence.

         Plaintiff 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.

         Alleged 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.

         Alleged 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.

         Legal Standard

         Summary 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).

         Pursuant 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).

         An 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.

         An 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).

         An 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 ...


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