Cano v. Dixon Correctional Center

          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. ...