Opinion
Case No. 3:17-cv-460-NJR-DGW
07-13-2018
KENNETH JOHNSON, Plaintiff, v. LILLIAN OVERALL and JOHN BALDWIN, Defendants.
REPORT AND RECOMMENDATION
WILKERSON, Magistrate Judge :
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel 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. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment filed by Defendant Lillian Overall be DENIED (Doc. 48), that the Motion to Strike filed by Defendant Overall be DENIED (Doc. 64), and that the Court adopt the following findings of fact and conclusions of law.
MOTION TO STRIKE
Plaintiff did not file a response to the motion for summary judgment by the March 19, 2018 deadline. On April 26, 2018, he was sua sponte granted until May 10, 2018 to file a response (Doc. 61). His response, filed on May 14, 2018 (Doc. 63) is identical to his objection (Doc. 57) to this Court's Report and Recommendation on his request for preliminary injunctive relief (Doc. 47). While the response itself does not mention exhaustion and instead discusses the merits of Plaintiff's claim, he has attached an affidavit regarding administrative remedies (Doc. 63, pp. 6-7) and has attached grievances he submitted to the institution (Id. 8-12). One of the grievances, dated April 16, 2017 is referred to in Defendant's motion as Exhibit A but has not been provided by Defendant.
Defendant argues that the response is untimely, having been filed 4 days late. The Court notes, however, that Plaintiff mailed the document on what appears to be May 9, 2018 (Id. 13). Therefore, the document is not untimely. See Taylor v. Brown, 787 F.3d 851, 858-9 (7th Cir. 2015) (discussing prison mailbox rule). To the extent that Defendant objects to this Court's April 26, 2018 Order, a pro se plaintiff is granted some leeway in filing documents with the Court. Defendant has shown no prejudice to the extension of time in responding to the motion for summary judgment. Accordingly, Defendant's motion to strike should be DENIED.
MOTION FOR SUMMARY JUDGMENT
FINDINGS OF FACT
The undisputed evidence reveals that Plaintiff submitted an emergency grievance on April 16, 2017 regarding the dental care provided by Dr. Overall that forms the basis of the claims in the Complaint (filed on May 3, 2017) (Doc. 63, pp. 9-10). On April 17, 2017, the Warden determined that the grievance was an emergency matter and directed that it be expedited (Id.). On April 21, 2017, the counselor responded to the grievance, stating that it had no merit (Id.). Plaintiff then mailed the grievance, along with a grievance dated December 28, 2017, to the Administrative Review Board which rejected it as untimely and noted that there was "no final facility response either" (Id. 8).
No hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), is required because there are no facts in dispute.
CONCLUSIONS OF LAW
Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
It is worth repeating that the Defendant bears the burden of showing that Plaintiff failed to exhaust his administrative remedies. Defendant's only argument is that Plaintiff failed to appeal the April 16, 2017 grievance in a manner consistent with Illinois' Administrative Code. As such, the Court finds that the content of the grievance was in compliance with the regulations and sufficient to place Defendant on notice. See Wilder v. Sutton, 310 Fed.Appx. 10, 15 (citing Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)) (Prisoners are required only to provide notice to "responsible persons" about the complained-of conditions).
Defendant argues that the "denial of emergency grievances must be appealed through the same process as non-emergency grievances" (Doc. 49, p. 3). Defendant is correct in noting that the Code provides that once the Warden provides a response to a grievance, and "the offender still believes that the problem, complaint or grievance has not been resolved to his or her satisfaction," he must appeal to the Director with 30 days of receipt of the Warden's response. 20 ILL.ADMIN.CODE § 504.850(a). Plaintiff's emergency grievance, however, was not "denied" by the Warden. Rather, the emergency nature of the grievance was granted and the Warden directed that it be expedited. Therefore, Plaintiff got what he wanted: an expedited treatment of his grievance. There was nothing adverse to appeal. See Thornton v. Snyder, 428 F.3d 690, 695-6 (7th Cir. 2005). In any event the Code directs that if the Warden determines that the matter is an emergency he shall "expedite processing of the grievance and respond to the offender, indicating what action shall be or has been taken." 20 Ill.Admin.Code § 504.840(b) (emphasis added). An implication is that the grievance would then be investigated by the grievance officer who would make a recommendation to the Warden who would then provide a response to the merits of the grievance. That is, an expedited grievance would not be required to go through the time-consuming and informal process of being evaluated by a counselor, the antithesis of expediency. There is no evidence that after expediting the grievance the Warden sent the grievance to the grievance officer or told Plaintiff what action shall be or has been taken. Indeed, Defendant does not address this part of the Code or this process at all.
Next, Defendant argues that "when the institutional grievance procedure was completed on April 21, 2017, Plaintiff never sent an appeal to the ARB as required by . . . § 504.850" (Doc. 49, p. 4). It is unclear what Defendant means to argue. First, it is not altogether clear that Plaintiff was required to do anything after receiving the Warden's response to his emergency grievance. See e.g. Bentz v. Ghosh, 718 Fed.Appx. 413, 418 (7th Cir. 2017). Second, when Illinois' Administrative Code was amended on April 1, 2017, it did not contain a mechanism for an inmate to appeal a grievance that was submitted to the counselor. Section 504.810 directs an inmate to submit a grievance to his counselor (which is what occurred in this matter) except in certain circumstances not relevant here. The Code is silent on whether an inmate must then submit the grievance to the grievance officer (and hence the Warden) after receiving a response from a counselor. Defendant does not discuss this part of the Code nor does she elaborate on her argument that Plaintiff was nonetheless required to appeal the counselor's response to the Administrative Review Board. Defendant having failed to meet her burden on summary judgment, the motion should be DENIED.
On April 21, 2017, Plaintiff's counselor stated that the grievance had no merit. --------
RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED the Motion for Summary Judgment filed by Defendant Lillian Overall be DENIED (Doc. 48), that the Motion to Strike filed by Defendant Overall be DENIED (Doc. 64), and that the Court adopt the foregoing findings of fact and conclusions of law.
NOTICE REGARDING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service.
You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is appropriate to file OBJECTIONS, if any, to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.
Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986). DATED: July 13, 2018
/s/
DONALD G. WILKERSON
United States Magistrate Judge