United States District Court, S.D. Illinois
JOHN D. HAYWOOD, Plaintiff,
C/O TUBBS, et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Report and Recommendation
(“Report”) of United States Magistrate Judge
Gilbert C. Sison (Doc. 43), recommending the undersigned
grant Defendants' Motion for Summary Judgment (Doc. 29).
Plaintiff filed a timely objection (Doc. 46). For the
following reasons, Judge Sison's Report and
Recommendation is REJECTED.
John Haywood, an inmate currently incarcerated at Lawrence
Correctional Center (“Lawrence"), brings this
civil rights action pursuant to 42 U.S.C. § 1983.
Haywood, who is wheelchair-bound, asserts Defendants were
deliberately indifferent to his serious medical needs by
confiscating and/or canceling his medical permits. Haywood
also brings a First Amendment retaliation claim against
Defendant Tubbs for shaking down his cell, destroying his
commissary property, and refusing to honor his medical
permits after Haywood filed grievances against Tubbs.
moved for summary judgment, arguing Haywood failed to exhaust
his administrative remedies prior to filing this lawsuit
(Doc. 29). Haywood filed a Response, contending that
Lawrence's wrongful conduct made it impossible for him to
comply with the grievance procedure (Doc. 35). Specifically,
Haywood included an affidavit averring that the grievance
process was unavailable because for at least 3 of the
grievances, Lawrence officials did not give him notice or
provide documentation of the denial until 30 or more days had
passed; making it impossible for him to timely appeal.
Id. Defendants filed a Reply Brief which included a
never-produced unauthenticated grievance log (Doc. 37).
Sison did not conduct a Pavey hearing and instead
relied on the written submissions of the parties. In his
Report, Judge Sison found that Haywood did not fully comply
with the required exhaustion procedures. Relying on the date
of the Chief Administrative Officer's ("CAO")
signatures on Haywood's grievances and the date the ARB
received the appeals, Judge Sison concluded that Haywood
failed to appeal denials of his grievances in a timely
manner, and as a result, failed to exhaust his administrative
timely objections are filed, this Court must undertake a
de novo review of the Report and Recommendation. 28
U.S.C. 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b); SDIL-LR
73.1(b); see also Govas v. Chalmers, 965 F.2d 298,
301 (7th Cir. 1992). The Court may accept, reject or modify
the magistrate judge's recommended decision. Id.
In making this determination, the Court must look at all of
the evidence contained in the record and give fresh
consideration to those issues to which specific objections
have been made. Id., quoting 12 Charles
Alan Wright et al., Federal Practice and Procedure
3076.8, at p. 55 (1st Ed. 1973) (1992 Pocket Part).
Prison Litigation Reform Act requires prisoners to exhaust
all available administrative remedies before filing suit. 42
U.S.C. § 1997e(a). Proper exhaustion requires that an
inmate file complaints and appeals in the place, at the time,
and in the manner the prison’s administrative rules
require. Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002). The Illinois Administrative Code (the
“Code”) governs the grievance and appeals process
available to prisoners. A prisoner may file a grievance in
the normal course which includes: (1) submitting a grievance
to a grievance officer; (2) the grievance officer's
findings and recommendations are reviewed by the CAO; (3) the
CAO renders a decision; (4) the CAO's decision may then
be appealed to the ARB in writing within 30 days. 20 ILCS
§§ 504.830, 504.850(a).
objection, Haywood claims Judge Sison erred in two respects:
(1) he relied on Defendants' never-produced,
unauthenticated Grievance Logs and (2) he misapplied the
summary judgment standard by making a credibility
determination, weighing the evidence, and drawing adverse
inferences against Haywood rather than acknowledge the
dispute of material fact between Haywood's sworn
affidavit and the Grievance Logs.
lawsuit is subject to the requirements of Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008). Under
Pavey, if exhaustion is contested, an evidentiary
hearing is held and a determination made regarding whether
the plaintiff has, or has not, exhausted his administrative
remedies. Id at 742. In this case, there is an
evidentiary dispute as to whether Haywood was thwarted from
timely appealing his grievances to the ARB. Haywood has
provided an affidavit stating that Lawrence provided late
notice of his grievance decisions making a timely appeal
unavailable. Defendants provided an unauthenticated Grievance
Log purporting to document the date the grievances were sent
to Haywood, not the actual date he received the grievance
back. As Haywood notes, at best the Grievance Logs create a
material dispute of fact (i.e., Haywood provided
sworn testimony that he did not receive notice and Defendants
provided an unauthenticated log arguing that it shows notice
was provided). Given the disputed facts, a hearing in
accordance with Pavey is warranted.
the Court DEFERS its ruling on
Defendants' Motion for Summary Judgment (Doc. 29) and
REFERS the matter to Judge Sison to conduct
a Pavey hearing on the Motion and to supplement his