United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
Lisa
A. Jensen United States Magistrate Judge.
For the
following reasons, Defendants have failed to prove by a
preponderance of the evidence that Plaintiff did not exhaust
all available administrative remedies. By January 28, 2020,
the parties are directed to file a proposed case management
order using the form available on Judge Jensen's webpage
at www.ilnd.uscourts.gov. A future status hearing will be set
by minute entry.
I.
BACKGROUND
Plaintiff
Tyler Cano was an inmate at Dixon Correctional Center and
brought this civil rights action under 42 U.S.C. § 1983,
claiming excessive force stemming from an incident on July 3,
2017. Defendants answered Plaintiff's complaint and
asserted as an affirmative defense that Plaintiff failed to
comply with the exhaustion requirements of the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a). On December 6, 2019, the Court held an evidentiary
hearing pursuant to Pavey v. Conley, 544 F.3d 739,
742 (7th Cir. 2008). Both parties consented to the
jurisdiction of the U.S. Magistrate Judge for purposes of the
Pavey hearing, and both parties were represented by
counsel.
II.
EVIDENCE AT THE HEARING
Plaintiff
testified that he arrived at Dixon Correctional Center in
April of 2017. He did not recall receiving an orientation
manual outlining the grievance procedure when he arrived at
Dixon Correctional Center. After the alleged incident on July
3, 2017, Plaintiff spoke with another inmate nicknamed Tiki
about the incident. Tiki told Plaintiff he should file a
lawsuit, but he needed to file a grievance before he could
file suit. Plaintiff then asked correctional officers about
the grievance process, and they provided him with a grievance
form. Plaintiff testified that he filled out a grievance form
on July 9, 2017 and placed the grievance in the crack in his
cell door so that it would be picked up for institutional
mail. He never received a response to this grievance. He
followed up on this grievance in August of 2017 with Lt.
Kopie. In response, Lt. Kopie gave Plaintiff two grievance
forms in Spanish because they did not have any more English
forms. Plaintiff testified that he filled out the Spanish
forms (in English) and again submitted the grievance forms
but did not receive any response. Then, in September of 2017,
Plaintiff alleged that he followed up with his counselor Tim
Gray regarding the grievances. Mr. Gray told Plaintiff that
he would look into it. At some point unclear in the
testimony, Mr. Gray ceased being Plaintiff's counselor.
While at Dixon Correctional Center, Plaintiff testified that
he filed between 10 and 20 grievances in total. On March 1,
2018, Plaintiff filed this lawsuit.
During
the pendency of the suit, in response to discovery requests
concerning the exhaustion issue, Magistrate Judge Iain
Johnston ordered Plaintiff to submit to Defense counsel all
grievances that he had in his possession. Plaintiff testified
that, in compliance with Judge Johnston's order, he sent
a letter dated December 3, 2018 to Defense counsel along with
copies of several grievances dated February 2018 and one
grievance dated August 2018. In his letter, Plaintiff stated
that these grievances were “not relevant to case but
proof that [he] filed them especially in the month of
February all after my grievance was not returned.”
Defs.' Ex. C. Plaintiff conceded that none of the
enclosed grievances detailed the events of the July 3, 2017
incident or name any of the Defendants. After this letter was
sent, Plaintiff filed a December 11, 2018 grievance, which
explicitly referenced his prior July and August 2017
grievances and requested an explanation for why they were
never returned to him. Pl.'s Ex. A. On March 22, 2019, he
also filed a written offender request asking to speak to
counselor Tim Gray regarding obtaining a copy of a
“grievance back from July-August 2017 when he worked
e-wing.” Id. Plaintiff was asked if it was his
custom to make copies of grievances. Plaintiff responded,
“Yes. I did get a copy. I kept all of my grievances and
I had to get a copy of them to you.” When asked if he
had a copy of his alleged July 9, 2017 grievance, Plaintiff
answered no. He finally testified that during the time of the
incident, he was suffering from schizophrenic disorder,
anxiety, and post-traumatic stress disorder and was in
X-house for mental health treatment.
Defendants
also called Sherry Benton, the chairman of the Administrative
Review Board (ARB). Ms. Benton testified that the ARB
received only one grievance from Plaintiff. This grievance,
dated February 22, 2018, made no mention of the alleged
incident of excessive force on July 3, 2017. Defs.' Ex.
A. Ms. Benton also testified that she reviewed
Plaintiff's CHAMP notes before the hearing. CHAMP notes
reflect the staff's interactions with inmates. Ms. Benton
testified that Plaintiff's CHAMP notes indicated that
Plaintiff received an orientation manual on May 2, 2017. She
also testified that if a counselor received a grievance from
an inmate, it would have been logged as a CHAMP note.
Finally,
Defendants called Andrea Toth who served as a grievance
officer and was formerly a correctional counselor at Dixon
Correctional Center. Ms. Toth testified that, when an inmate
files a grievance at Dixon, it is sent to the grievance
office where it is then sent on to the appropriate counselor.
She described this as the first level of the grievance
process. Prior to December 1, 2018, non-emergency grievances
were logged only at the second level. Thus, if a grievance is
received in the grievance office and forwarded to a
counselor, it would not be logged. If the inmate receives a
response to the grievance from his counselor and forwards
that grievance on to the grievance office, then this is the
second level of the grievance process. All grievances at the
second level are recorded in the inmate's grievance log.
Ms. Toth separately testified that based on her recollection
of Plaintiff's CHAMP notes, she did not see a note
indicating that Plaintiff discussed his July 9, 2017
grievance with a counselor.
According
to Plaintiff's grievance log, prior to December 1, 2018,
[1]
there were no non-emergency grievances received at the second
level. Defs.' Ex. B. On cross examination, Ms. Toth
conceded that if Plaintiff's testimony is true-that he
filed non-emergency grievances in July and August 2017, but
the counselor never responded to them-there would be no entry
on his grievance log.
III.
LEGAL STANDARD
A.
The Prison Litigation Reform Act
The
PLRA requires a prisoner 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.”). Defendants
bear the burden of proving a failure to exhaust affirmative
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 232422, at *2
(N.D. Ill. Jan. 20, 2016).
The
Seventh Circuit has taken a “strict compliance approach
to exhaustion.” Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006). “[A] prisoner who does not
properly take each step within the administrative process has
failed to exhaust state remedies, and thus is foreclosed by
§ 1997e(a) from litigating.” Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). In
determining whether a plaintiff properly exhausted his
administrative remedies, however, the Seventh Circuit focuses
on “whether the plaintiff did all he could to avail
himself of the administrative process.” Wilder v.
Sutton, 310 Fed.Appx. 10, 13 (7th Cir. ...