DAVID R. HERNDON, District Judge.
Pending before the Court is a March 7, 2018 Report and Recommendation ("the Report") issued by Magistrate Judge Reona J. Daly (Doc. 36). Magistrate Judge Daly recommends that the Court grant defendants' motion for summary judgment on the issue of exhaustion of administrative remedies and dismiss without prejudice plaintiff's claims for failure to exhaust. The parties were allowed time to file objections to the Report. On March 15, 2018, plaintiff filed an objection to the Report (Doc. 37). Based on the applicable law, the record and the following, the Court
On June 9, 2017, plaintiff Christopher Croom brought this pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 at the Menard Correctional Center (Doc. 1). On June 30, 2017, the Court screened Croom's amended complaint (Doc. 10) and construed it as a claim against defendants Counselor Rodely and Jacqueline Lashbrook on an Eighth Amendment claim of deliberate indifference as defendants failed to protect Croom from his enemy, Marlon Brown, by failing to respond to his emergency grievance (Doc. 13).
Thereafter, defendants filed a motion for summary judgment as to the issue of exhaustion of administrative remedies (Docs. 28 & 29). Specifically, defendants maintain that plaintiff failed to exhaust his administrative remedies as required because he did not forward his grievance to the Administrative Review Board within the appropriate timeframe as outlined in Department Rule 504. Further, defendants contend that plaintiff failed to identify any of the defendants in any hand written "grievance." On December 7, 2017, Croom filed his opposition (Doc. 31). Magistrate Judge Daly held a Pavey
The facts set forth in this section are limited to those necessary for this Court to review the Report. A more comprehensive recitation of the facts are contained in the Report (Doc. 36). Croom claims that he is in fear of his safety because an enemy of his Marlon Brown is also housed at Mendard.
The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1), which provides in part:
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de novo determination of those portions of the report and recommendation to which specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the Court reviews those unobjected portions for clear error. Id. In addition, failure to file objections with the district court "waives appellate review of both factual and legal questions." Id. Under the clear error standard, the Court can only overturn a Magistrate Judge's ruling if the Court is left with "the definite and firm conviction that a mistake has been made." Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Whether a fact is material depends on the underlying substantive law that governs the dispute. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citation omitted).
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act ("PLRA"). 42 U.S.C. § 1997e(a). The PLRA 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). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending. Id. 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 that 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. "[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." Id.
In Pavey, the Seventh Circuit instructed district courts to conduct a hearing where "exhaustion is contested" to determine whether a plaintiff has exhausted his administrative remedies. Pavey, 544 F.3d at 742. And in holding that hearing, a court may credit the testimony of one witness over another. See Pavey v. Conley (Pavey II), 663 F.3d 899, 904 (7th Cir. 2011)(affirming factual findings of a magistrate judge, whose Report included factual findings that the plaintiff was not credible). In other words, and unlike other summary judgment motions, the very purpose of Pavey is to allow a judge to resolve swearing contests between litigants. So while courts typically undertakes de novo review of the portions of the Report to which a party objects, the courts will give great deference to factual findings and credibility determinations made in the Report. Pavey II, 663 F.3d at 904. See also Towns v. Holton, 346 Fed.Appx 97, 100 (7th Cir. 2009)(great deference to credibility findings based on demeanor); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)("De novo determination is not the same as a de novo hearing. The district court is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations).
Thus, where failure to exhaust administrative remedies is raised as an affirmative defense, Pavey set forth the following recommendations:
Id. at 742.
As an inmate confined within the Illinois Department of Corrections, Plaintiff was required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures for Offenders ("grievance procedures") to properly exhaust his claims. 20 Ill. Administrative Code §504.800 et seq. The grievance procedures first require inmates to speak with the counselor about their complaint. 20 Ill. Admin. Code §504.810(a). Then, if the counselor does not resolve the issue, the inmate must file a grievance form directed to the Grievance Officer within 60 days of the incident. Id. The grievance form must:
20 Ill. Admin. Code §504.810(a)(b). "The Grievance Officer shall [then] consider the grievance and report his or her findings and recommendations in writing to the Chief Administrative Officer. . .[who]shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, where reasonably feasible under the circumstances." 20 Ill. Admin. Code §504.830(d). If the inmate is not satisfied with the Chief Administrative Officer's response, he or she can file an appeal with the Director through the Administrative Review Board ("ARB"). The grievance procedures specifically state, "[i]f after receiving the response of the Chief Administrative Officer, the offender still feels that the problem, complaint or grievance has not been resolved to his or her satisfaction, he or she may appeal in writing to the Director within 30 days after the date of the decision. Copies of the Grievance Officer's report and the Chief Administrative Officer's decision should be attached." 20 Ill. Admin. Code §504.850(a). "The Administrative Review Board shall submit to the Director a written report of its findings and recommendations." 20 Ill. Admin. Code §504.850(e). "The Director shall review the findings and recommendations of the Board and make a final determination of the grievance within 6 months after receipt of the appealed grievance, where reasonably feasible under the circumstances. The offender shall be sent a copy of the Director's decision." 20 Ill. Admin. Code §504.850(f).
The grievance procedures do allow for an inmate to file an emergency grievance. In order to file an emergency grievance, the inmate must forward the grievance directly to the Chief Administrative Officer ("CAO") who may "[determine] that there is a substantial risk of imminent personal injury or other serious or irreparable harm to the offender" and thus the grievance should be handled on an emergency basis. 20 Ill. Admin. Code §504.840(a). If an inmate forwards the grievance to the CAO as an emergency grievance, then the CAO "shall expedite processing of the grievance and respond to the offender" indicating to him which course he has decided is necessary after reading the grievance. 20 Ill. Admin. Code §504.840(b). Once the CAO has informed the inmate of his decision, the inmate may then appeal that decision to the ARB on an expedited basis. 20 Ill. Admin. Code §504.850(g).
Here, Croom's objections to the Report largely reiterate things he already argued in his response to summary judgment (See Docs. 31 & 37). He merely takes umbrage with the Report's findings and conclusions of law. In addition to his previous arguments, Croom also takes issue with the Report's characterization of his testimony as inconsistent. The Court finds no error or deficiency in Judge Daly's credibility determination. Judge Daly provided a sound analysis of the testimony and bolstered her reasoning by reference to the record. Specifically, Judge Daly concluded:
(Doc. 36, pgs. 5-7).
Judge Daly found Croom to be not credible and his testimony inconsistent. The record before the Court provides no reason for the Court to doubt Judge Daly's determination. Based on the record, it is clear to the Court that Croom did not exhaust his administrative remedies prior to filing this lawsuit. In addition, as the Judge Daly noted, the February 23, 2017 grievance concerned Croom's fear of his enemy Marlon Brown and that he wanted to be transferred; it did not address defendants' failure to respond.
Accordingly, the Court
