MARK A. BEATTY, Magistrate Judge.
This matter is before the Court on the motion for summary judgment on the issue of exhaustion filed by Defendant Nolan Thompson (Doc. 101). For the reasons set forth below, the motion is denied.
Plaintiff Ricky Edward Cruz brought this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights while incarcerated at Lawrence Correctional Center. More specifically, he claims that he cut his right shin open when he fell from a top bunk but received inadequate medical treatment for the injury and developed Methicillin-Resistant Staphylococcus Aureus (MRSA).
Following a threshold review of the second amended complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on the following claim:
(Doc. 29). Plaintiff later identified the John Doe Defendant as Nolan Thompson (see Docs. 81, 84).
On November 5, 2019, Defendant Thompson filed a motion for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies prior to filing suit (Doc. 101). Defendant Thompson submitted grievance records from the ARB with his motion for summary judgment, as well as, Plaintiff's cumulative counseling summary (Doc. 102-1; Doc. 102-3). He did not, however, submit the grievance records from Lawrence (see Doc. 102). Defendant Thompson discussed five grievances in his summary judgment brief, which are dated July 3, 2017; July 30, 2017; August 15, 2017; "a grievance regarding medical care [filed] in late 2017 or early 2018";
It was clear from the records submitted by Defendant—namely the cumulative counseling summary—that there was more to the story than just the five grievances he discussed. For example, the cumulative counseling summary referenced a number of additional grievances that were not discussed by Defendant or contained within the grievance records that he initially submitted (compare Doc. 102 with Doc. 102-3, p. 5).
Defendant filed a reply brief, to which he attached the grievance records from Lawrence Correctional Center (Docs. 108, 108-1, 108-2). Defendant addressed each of the nine grievances that Plaintiff submitted with his response brief, and argued that none of these grievances was fully exhausted (Doc. 108).
An evidentiary hearing, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was held on March 4, 2020 (Doc. 126). Plaintiff was the only witness who testified at the hearing.
Summary judgment is proper only if the movant shows that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In making that determination, the court must view the evidence in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted). Courts generally cannot resolve factual disputes on a motion for summary judgment. E.g., Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 1866, 188 L. Ed. 2d 895 (2014) ("[A] judge's function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.") (internal quotation marks and citation omitted). However, when the motion for summary judgment pertains to a prisoner's failure to exhaust, the Seventh Circuit has instructed courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a prisoner's efforts to exhaust. Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015) (citing Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008)). Accord Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014).
The Prison Litigation Reform Act provides that a prisoner may not bring a lawsuit about prison conditions unless and until he has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011)). In order for a prisoner to properly exhaust his or her administrative remedies, the prisoner must "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Exhaustion is an affirmative defense, which the defendants bear the burden of proving. Pavey, 663 F.3d at 903 (citations omitted).
As an inmate in the IDOC, Plaintiff was required to follow the grievance process outlined in the Illinois Administrative Code. ILL. ADMIN. CODE, tit. 20, §504.800, et seq. (2017). First, he had to file a grievance with his counselor within 60 days "after the discovery of the incident, occurrence, or problem that gave rise to the grievance." Id. at § 504.810(a). Then, if unsatisfied with the counselor's response, the grievance must be sent to the grievance officer, who submits a written report of their findings and recommendations to the warden within two months, "when reasonably feasible under the circumstances." Id. at § 504.830(e). The warden then provides the inmate with a written decision on the grievance. Id.
An inmate may also request that a grievance be handled as an emergency by forwarding the grievance directly to the warden. ILL. ADMIN. CODE, tit. 20, §504.840. If the warden determines that "there is a substantial risk of imminent personal injury or other serious or irreparable harm to the [inmate]," then the grievance is processed on an expedited basis. Id.
Regardless of whether the grievance was processed in the normal manner or as an emergency, if the inmate is unsatisfied with the warden's decision, he or she has thirty days from the date of the warden's decision to appeal to the Administrative Review Board ("ARB"). ILL. ADMIN. CODE, tit. 20, § 504.850(a). The ARB submits a written report of its findings and recommendations to the Director of the IDOC, who then makes a final determination of the grievance. Id. at § 504.850(d), (e).
Though the Seventh Circuit requires strict adherence to the exhaustion requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), an inmate is required to exhaust only those administrative remedies that are available to him. 42 U.S.C. § 1997e(a). Administrative remedies become "unavailable" to prisoners primarily when prison officials fail to respond to a properly filed grievance or when prison officials' "affirmative misconduct" thwarts a prisoner from exhausting. E.g., Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 809.
To recap, Plaintiff alleges in the second amended complaint that after he fell and injured his leg on June 16, 2017, he repeatedly pressed the call button in his cell to summon help, but correctional officer Thompson did not respond (Doc. 29; Doc. 27, pp. 11-14).
The records from both parties contain the following grievances regarding Plaintiff's leg injury and subsequent medical treatment:
The Court also notes that the records submitted by the parties contain or reference three other grievances that may be relevant to the exhaustion issues at hand, but the Court is unable to conclusively say.
Finally, the records contain at least four complaints from Plaintiff about his grievances going unanswered. While the substantive part of these complaints may not pertain to the incident at hand, they are still useful because they shed light on issues with the grievance process at Lawrence during the relevant time period.
The Court has extensively reviewed the grievance records submitted by both parties. This review shows that there are only two grievances that potentially cover Plaintiff's claim against Defendant Thompson: the grievance dated June 24th and the grievance dated July 30th.
In the
In the grievance dated
As previously noted, only two grievances in the record include a complaint about a correctional officer ignoring Plaintiff's requests for medical attention on June 16, 2017: the June 24, 2017 grievance and July 30, 2017 grievance. Plaintiff claimed in his response brief that he submitted both the June 24th and July 30th grievances but never received responses. His story remained consistent at the evidentiary hearing. He was composed and candid. There were no apparent internal inconsistencies in his story, nor was his story inherently implausible. In fact, his story was bolstered by numerous other grievances that he submitted during the relevant time period in which he complained that his grievances were not being responded to. In short, his testimony was presumptively credible.
Defendant argued in his brief and at the hearing that there is no proof these grievances were submitted. They are not listed on the grievance log, contained in the grievance records, or mentioned in the cumulative counseling summary (Doc. 108). However, there a careful review of the records produced by Defendant casts doubt on their reliability at this stage of the litigation. For example, Plaintiff submitted a copy of the July 30th grievance that contained a response from his counselor (Doc. 104, pp. 25-26). Despite the counselor's response, this grievance is not reflected in the cumulative counseling summary (see Doc. 102-3, p. 5). As another example, the cumulative counseling summary contains a note on June 30, 2017, indicating that the counselor received an emergency grievance dated June 29th and forwarded it to the warden (Doc. 102-3, p. 5). However, the prison had no record of that grievance in its own file (see Doc. 108-1). These internal inconsistencies are conspicuous and important when, as is the case here, the Court must resolve a swearing contest. Given the holes in the prison's records, the fact that the prison has no documented record of the June 24th or July 30th grievances does little, if anything, to undermine Plaintiff's story that he filed the grievances but never received any responses.
The Court finds that Plaintiff's testimony, which was largely uncontroverted and bolstered by the record, to be credible. The Court therefore concludes the grievance process was rendered unavailable to Plaintiff with respect to the June 24th and July 30th grievances and he is deemed to have exhausted these two grievances. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) ("Prison officials may not take unfair advantage of the exhaustion requirement, however, and a remedy becomes `unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.").
Defendant Thompson argues that even if the grievances are deemed exhausted, they are still insufficient to cover Plaintiff's claims against him (Doc. 102; Doc. 108). Specifically, he argues that neither grievance clearly describe him, request any relief against him, or contain any allegations of wrongdoing on his part (Doc. 102, Doc. 108). Defendant Thompson claims Plaintiff was not actually complaining about the officer's (in)actions, and Plaintiff only provided the information about the officer for context; his complaint, and the relief he wants, is actually aimed at the medical care received after the fall (Doc. 102, p. 3; Doc. 108, p. 5).
The Court is unpersuaded by Defendant's argument. Plaintiff did describe the officer at he alleges to be at fault in his grievances as a correctional officer whose name Plaintiff did not know who "worked the core on R8-AL-15
The motion for summary judgment on the issue of exhaustion filed by Nolan Thompson (Doc. 102) is
The discovery deadline remains set for August 7, 2020, and dispositive motions are due September 8, 2020 (Doc. 98).