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Latin v. Johnson

United States District Court, N.D. Illinois, Western Division

October 16, 2019

Demarcus D. Latin, Plaintiff,
Brian Johnson, et al., Defendants.


          Lisa A. Jensen United States Magistrate Judge.

         Plaintiff, Demarcus D. Latin, brought this pro se action under 42 U.S.C. § 1983 concerning events that occurred at the Winnebago County Jail. Defendants asserted the affirmative defense of failure to exhaust administrative remedies. On September 20, 2019, this Court conducted an evidentiary hearing on this affirmative defense pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Both parties consented to the jurisdiction of the U.S. Magistrate Judge for purposes of the Pavey hearing. For the following reasons, the Court holds that Winnebago County Jail's grievance procedure was unavailable to Plaintiff and as such he is excused from his obligation to exhaust his administrative remedies.

         By November 15, 2019, the parties are directed to file a proposed case management order, using the form available on Judge Jensen's webpage at Defense counsel shall coordinate with plaintiff in order to draft and file the proposed case management order. A future status hearing will be set by minute entry.

         I. BACKGROUND

         Plaintiff alleges an excessive force claim against Defendant Brian Johnson and a failure to intervene claim against Defendant Lt. Lukowski for events that occurred at the Winnebago County Jail on November 18, 2017. Dkt. 33. Before filing a grievance, Plaintiff filed his complaint in this lawsuit on April 10, 2018. Dkt. 1. Plaintiff did not file a grievance concerning the alleged events until September 5, 2018. Dkt. 71, Ex. 3 at 70. Plaintiff later filed an amended complaint, and Defendants answered and asserted, as an affirmative defense, that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e. On September 20, 2019, the Court held a Pavey hearing on the exhaustion issue. See Pavey, 544 F.3d at 742.

         Anthony Ponte, who works as an administrative sergeant over the corrections bureau at the Winnebago County Jail, testified at the hearing. He stated that Winnebago County Jail had a grievance procedure in 2017. That procedure was set out in the Inmate Handbook. Since 2007, Inmate Handbooks were available only via the facility computer kiosks (hereinafter “kiosks”) and the tablets.[1] Kiosks were in each housing unit, or pod, at the Winnebago County Jail, including in segregation and maximum-security units. The Inmate Handbook, revised on November 10, 2017, describes the inmate grievance procedure and requires, among other things, that grievances be filed as soon as possible but no later than five days after the alleged incident. Dkt. 71, Ex. 4 at 5.

         Sergeant Ponte testified that during intake at the Winnebago County Jail, inmates are informed of the facility rules and that the Inmate Handbook is available electronically on the kiosks. An inmate signs a document during the intake procedure indicating that he or she has been informed of this information. Defendants did not admit into evidence any such written acknowledgment from Plaintiff. On cross examination, Sergeant Ponte agreed that it was possible that an inmate may not be told that the Inmate Handbook is on the kiosks when he or she goes through intake. Sergeant Ponte went on to state that he could not state with certainty that Plaintiff was told about the Inmate Handbook and that it was located on the kiosks because he did not know when Plaintiff went through intake or the circumstances of his intake.

         Sergeant Ponte also testified that when inmates go to their housing unit, the officer in that housing unit would tell the inmates where the kiosks were and where to find the Inmate Handbook. The officer would also tell the inmates that it is the inmate's responsibility to read and follow the Inmate Handbook. Finally, Sergeant Ponte testified to certain records which identified Plaintiff's housing location while at the Winnebago County Jail. According to these records, Plaintiff was located on the third-floor housing unit from June 1, 2017 through September 5, 2017.[2] Dkt. 71, Ex. 6 at 3. According to duty roster records, Officer Michael Delgado was assigned to work during the day shift on the third-floor housing unit from June 2, 2017 through July 19, 2017. Dkt. 71, Ex. 7 at 1-2.

         Michael Delgado, a correctional officer at Winnebago County Jail, also testified. He stated that he had been a POD officer for the last ten years at the Winnebago County Jail. He testified that inmates are informed about the jail's rules and regulations through the use of an orientation video. This video is played twice a week. When he gets a call from central control that the video is available, he yells loudly to the inmates that the video is playing on the television and that they should watch it. Officer Delgado tells the inmates that there is an “orientation video.” He does not tell them anything else about the content of the video. He stated that he cannot force the inmates out of their cells, but he does ask them to watch it and then he opens the cell doors so they can come out. He testified that, as part of his custom and practice, he asks inmates to watch and he tells them that it is important. Officer Delgado testified that he followed the same procedures in June and July 2017.

         Officer Delgado testified that it is possible that when the orientation video is playing that an inmate could be at class, in health care, at religious service, or in court. However, because the video is played twice a week, the longer the inmate is in the jail the less likely it is that he or she is not present when it is played.

         The video was played and admitted into evidence at the hearing. That video is approximately nine minutes in length and goes over numerous topics: Medical Requests and Treatment, Visitations, Programs Offered, Haircuts, Commissary and Rules, Expectations, Privileges and Discipline. Dkt. 71, Ex. 8. In the Rules section, the video informs inmates that “the kiosk system in each housing unit has a digital version of the Inmate Handbook that can be accessed during your time out of your cell.” Id. It further states “if you have any questions regarding the facility rules, refer to the complete rule listing on the Kiosk system or ask your housing unit officer for clarification.” Id. The video also states that inmates can access the Inmate Handbook on the kiosk to learn more about the disciplinary hearing process. Id. Other than referencing the Inmate Handbook, the video did not address Winnebago County Jail's grievance procedure.

         Finally, Plaintiff testified at the hearing. He testified that he filed his complaint in this lawsuit on April 10, 2018. Following the alleged events on November 18, 2017, Plaintiff filed several unrelated requests via the inmate kiosk in November and December of 2017, but he did not file a grievance regarding the events alleged in this lawsuit until September 5, 2018, about ten months after the events and five months after filing this lawsuit. Dkt. 71, Ex. 3 at 58-60, 70. Plaintiff testified that while he learned about the grievance process from speaking with other inmates, he did not know that there was a requirement that grievances must be filed within five days of the incident or that a grievance had to be filed prior to bringing a lawsuit. He testified that he was never told that the Inmate Handbook was on the kiosks and that he never saw the orientation video while at the Winnebago County Jail. He questioned why the jail did not provide paper copies of the Inmate Handbook to inmates or why the jail did not post signs to notify inmates that the Inmate Handbook was available on the kiosks. Plaintiff also claimed that the grievance process was “very detailed, ” that he was terrified of filing a grievance immediately after the alleged events, and that the grievance process did not allow for the recovery of money damages so there was no reason to file a grievance. He asked the Court to excuse his failure to exhaust his administrative remedies “in the interests of justice.”


         The PLRA requires an inmate to properly exhaust his administrative remedies before filing an action concerning prison conditions. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); Pavey, 544 F.3d at 742 (providing that the district court can conduct a “hearing on exhaustion and [permit] whatever discovery relating to exhaustion he deems appropriate.”). Defendants bear the burden of proving a failure to exhaust defense. King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). “Courts analyze a prisoner's exhaustion under the preponderance of the evidence standard.” Lloyd v. Dart, No. 14 C 69, 2016 WL ...

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