DONALD G. 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
Plaintiff Johnnie Bankston, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), filed this lawsuit pursuant to 42 U.S.C. §1983 alleging his constitutional rights were violated while he was incarcerated at Shawnee Correctional Center ("Shawnee"). Plaintiff's complaint was screened and he was allowed to proceed on a First Amendment and RLUIPA claim against Defendant Michael Williams, the Chaplain at Shawnee, for his refusal to hold services for the Nation of Gods and Earth (the religion to which Plaintiff prescribes). Plaintiff was granted leave to file an amended complaint on May 5, 2017. His amended complaint included additional claims against Defendants Lt. Christopher and Jeffery Dennison; however, Plaintiff's claims against Defendant Williams remained the same.
Defendant Williams filed a motion for summary judgment on the issue of exhaustion on February 24, 2017 (Doc. 49) that is now before the Court. In his motion for summary judgment, Defendant Williams asserts Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit. In support of his motion, Defendant Williams argues that the only relevant grievance in the record that could be produced by Plaintiff, dated October 14, 2015, was returned to Plaintiff by the Administrative Review Board ("ARB") without a response on the merits due to his failure to include the grievance officer and warden's responses. Defendant Williams also argues that Plaintiff's claim that he submitted grievances on May 16, 2015 and June 17, 2015 is unbelievable as it conflicts with the declaration of Henry Allard, the Shawnee grievance officer, who attests that he did not receive any such grievances during this timeframe related to Plaintiff's claims against Defendant Williams. Defendant also points out that in his interrogatory responses Plaintiff indicated he submitted his May and June grievances to the grievance officer on the date they were written and submitted to his counselor.
In his response to Defendant's motion, Plaintiff explains that he submitted a grievance complaining of Defendant Williams' actions on May 16, 2015. Plaintiff asserts he placed this grievance in the institutional mail, but never received a response. Plaintiff also contends that his October 14, 2015 grievance was appropriately submitted directly to the ARB because he was transferred to Pontiac CC the day after receiving his counselor's response.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held a hearing on the issue of exhaustion on July 5, 2017. At the hearing, Plaintiff explained that he submitted three grievances complaining about Defendant Williams' handling of his requests for religious services. Plaintiff clarified that these grievances were submitted on May 16, 2015, June 17, 2015 and October 14, 2015. With respect to his May and June grievances, Plaintiff asserted that he placed these grievances in the grievance box in dietary, but never received a response. Plaintiff asked his counselor about the missing grievances, but was told they were not received.
With regard to the October 14, 2015 grievance, Plaintiff explained he received his counselor's response on October 27, 2015, but he was transferred out on a writ to a different institution on October 28, 2015. Because he was not able to submit his grievance to the grievance officer for review, he submitted it directly to the ARB.
Plaintiff also explained the inconsistent statements in his interrogatory responses regarding the dates he submitted his grievances to the counselor and grievance officer, indicating he was confused and believed he needed to provide a response to Defendant's question. Plaintiff clarified that he never submitted his May or June grievances to his grievance officer because he never received a response to these grievances from his counselor.
The Court also heard testimony from Henry Allard on behalf of Defendants. Allard explained that if an offender is on temporary residence status, as was Plaintiff when he was transferred to Pontiac from Shawnee on a temporary writ, he is not relieved of his duty to exhaust. Allard explained that in this circumstance Plaintiff should have appealed the counselor's response by mailing it back to Shawnee or he could have held onto the grievance until he returned to Shawnee and submitted it upon his return. Allard indicated that the grievance officer may have still accepted the grievance despite it being out-of-time, but such a decision would be subjective.
Summary judgment is proper only if the moving party can demonstrate "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 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 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)).
The Prison Litigation Reform Act provides:
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535 (7th Cir. 1999) (stating that § 1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit instructed District Courts to conduct a hearing to determine whether a Plaintiff has exhausted his remedies. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). If a Plaintiff has exhausted his remedies, the case will proceed on the merits. If, however, a Plaintiff has not exhausted, the Court may either allow Plaintiff to exhaust or terminate the matter.
Under the procedures set forth in the Illinois Administrative Code, an inmate must first attempt to resolve a complaint informally with his Counselor. ILL. ADMIN. CODE TIT. 20, § 504.810(a). If the complaint is not resolved, the inmate may file a grievance within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance. Id. § 504.810(b). The grievance officer is required to advise the CAO at the facility in writing of the findings on the grievance. Id. § 504.830(d). The CAO shall advise the inmate of the decision on the grievance within two months of it having been filed. Id. § 504.830(d). An inmate may appeal the decision of the CAO in writing within 30 days to the ARB for a final decision. Id. § 504.850(a). See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006). An inmate's administrative remedies are not exhausted until the appeal is ruled on by the ARB. See Id. The ARB shall make a final determination of the grievance within six months after receipt of the appealed grievance, where reasonably feasible under the circumstances. Id. § 504.850(f).
An inmate may request a grievance be handled as an emergency by forwarding it directly to the CAO. If the CAO determines there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance shall be handled on an emergency basis, which allows for expedited processing of the grievance by responding directly to the offender indicating what action shall be taken. Id. § 504.840. If, after receiving a response from the CAO, an offender feels the grievance has not been resolved, he may appeal in writing to the ARB within 30 days after the date of the CAO's decision. Id. § 504.850(a).
An inmate is required to exhaust only those administrative remedies available to him. See 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative remedies become "unavailable" when prison officials fail to respond to inmate grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). The availability of a remedy does not depend on the rules and regulations as they appear on paper, but on "whether the paper process was in reality open for the prisoner to pursue." Wilder v. Sutton, 310 Fed.Appx. 10, 13 (7th Cir. 2009). If further remedies are unavailable to the prisoner, he is deemed to have exhausted. Id. Prisoners are required only to provide notice to "responsible persons" about the complained of conditions. See Wilder, 310 Fed.Appx. at 15 (citing Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). An inmate forfeits the grievance process, however, when he causes the unavailability of a remedy by not filing or appealing a grievance. See Kaba, 458 F.3d at 684.
Based on the evidence in the record and arguments made at the evidentiary hearing, the Court finds Plaintiff exhausted his claims against Defendant Williams.
First, the Court finds Plaintiff's assertions regarding his attempts to exhaust his May 16, 2015 and June 17, 2015 grievances, credible. Significantly, Plaintiff's testimony concerning these grievances is corroborated not only by allegations included in his first amended complaint that was filed January 28, 2016, prior to the filing of Defendant Williams' motion for summary judgment, but is also corroborated by statements made in his October 14, 2015 grievance. Hence, the Court finds Plaintiff attempted to submit grievances related to Defendant Williams' actions at issue in this lawsuit on May 16, 2015 and June 17, 2015. As Plaintiff never received any response to these grievances, he was thwarted in his efforts to complete the administrative review process. Accordingly, Plaintiff's administrative remedies were "unavailable" and he was not required to do anything further to exhaust the grievance process prior to filing this lawsuit. See Lewis, 300 F.3d at 833. Based on the foregoing, the Court need not consider the arguments concerning Plaintiff's October 14, 2015 grievance.
For the above mentioned reasons, it is hereby
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003).
