United States District Court, S.D. Illinois
GARRION J. MCKENNEY, Plaintiff,
C/O GERMAIN, et al., Defendants.
REPORT AND 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 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).
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.
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).
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
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.
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).
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