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McKenney v. Germain

United States District Court, S.D. Illinois

June 20, 2019

GARRION J. MCKENNEY, Plaintiff,
v.
C/O GERMAIN, et al., Defendants.

          REPORT AND 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 J. Phil Gilbert 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. § 1997(e)(a). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law, and GRANT Defendants' Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 22).

         Findings of Fact

         Plaintiff Garrion J. McKenney filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was a detainee at the St. Clair County Jail (“the Jail”). Plaintiff alleges that in February 2018, while housed in the Jail's L-Block, he was intermittently exposed to exhaust fumes that were coming into the housing area from a box truck parked outside. Plaintiff complained about the fumes to C/O Harris, Collins, Reid, and Germain, but they failed to address the situation. Plaintiff is proceeding against Harris, Collins, Reid, and Germain on a Fourteenth Amendment claim for exposing Plaintiff to harmful exhaust fumes in his housing unit.

         Defendants filed a motion for summary judgment arguing Plaintiff failed to exhaust his administrative remedies prior to filing this action (Doc. 22). Defendants assert Plaintiff filed four Captain's complaints while at the Jail, none of which concern the alleged fumes in the L-Block in February 2018. These complaints were responded to by an officer or supervisor in less than a week (see Doc. 22-5).

         Plaintiff did not file a response to Defendants' motion; however, this matter was set for a hearing based on Plaintiff's filing of a declaration on May 31, 2018 (Doc. 4) wherein he asserts he complained verbally and through Captain's complaints to several officers on different shifts about the harmful exhaust fumes. Attached to his declaration were the following Captain's complaints:

1. Complaint dated February 22, 2018 wherein Plaintiff asserts that Officer Lanzante refused to provide captain's complaints and get a supervisor to assist with health concerns and conditions of confinement. There is no response to this Complaint.
2. Complaint dated February 8, 2018 wherein Plaintiff complains about exhaust fumes and indicates that the “C.O.” refused to open the door or turn on the fan in the hallway. There is no response to this Complaint.
3. Complaint dated March 8, 2018 wherein Plaintiff asserts he is being subjected to hazardous conditions. Plaintiff asserts he complained to “CO and supervisors” and notes that Germain disregarded his plea for help, as did the person in the command center. There is no response to this Complaint.
4. Complaint dated February 15, 2018 wherein Plaintiff asserts that he is being exposed to leaking exhaust from a box truck every Thursday from 7-9 a.m. He asserts that officials know about the issue and indicates that Harris opened the block door to give inmates circulation, but the exhaust still made Plaintiff feel ill.

         Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on June 19, 2019. At the hearing, Plaintiff testified that he filled out Captain's complaints concerning the exhaust fumes at issue in this case from February 2018 through summer 2018. Plaintiff did not specify when the complaints were submitted or to whom. Plaintiff did not specify or estimate about how many complaints were submitted. Plaintiff testified that he did not receive a response to his complaints until this lawsuit was filed. He testified he received responses to all of his complaints at one time in a package sent by the Jail. After he received these responses, he hand-delivered a grievance concerning the exhaust fumes to Sgt. Collins in mid-June, but did not receive a response. During the hearing, Plaintiff made no reference to the Captain's complaints he submitted to the Court along with his declaration on May 31, 2018 (see Doc. 4).

         Defendant Sgt. Collins also testified at the hearing. Sgt. Collins stated he had no recollection of Plaintiff hand delivering a grievance to him. Sgt. Collins testified that he would likely recall receiving a grievance in this manner as it is not a frequent occurrence.

         Legal Standards

         Summary ...


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