Brown v. Korte et al
Filing
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ORDER and OPINION entered by Judge Joe Billy McDade on 6/23/2016. For the foregoing reasons, the Court concludes that Plaintiff has properlyexhausted all available administrative remedies. Defendants Motion for SummaryJudgment 19 is DENIED and the Pavey Hearing scheduled for June 29, 2016is cancelled as unnecessary. IT IS SO ORDERED. See full written Order.(VH, ilcd) Modified on 6/24/2016 to add language(VH, ilcd).
E-FILED
Friday, 24 June, 2016 09:48:34 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JOVONTE BROWN,
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Plaintiff,
v.
JEFFREY KORTE, et al.,
Defendants.
Case No. 15-cv-3288
ORDER & OPINION
Plaintiff Jovonte Brown was a prisoner at Western Illinois Correctional Center
(“Western”) on April 14, 2014, and claims that his constitutional rights were violated
during a shakedown that occurred on that day. (Doc. 1). This matter is now before
the Court on Defendants’ Motion for Summary Judgment. (Doc. 19). In their motion
and the accompanying memorandum, Defendants argue that the case must be
dismissed without prejudice because Plaintiff failed to exhaust the necessary
administrative remedies. As the undisputed material facts show, however, the
administrative remedies that Defendants expected Plaintiff to exhaust were
unavailable. The motion must be denied.
FACTUAL BACKGROUND1
At the time that he filed this Complaint, Plaintiff was incarcerated at Western.
He alleges in his Complaint that members of the Illinois Department of Corrections’
Unless otherwise noted, the following facts are taken from the parties’ submissions.
(Docs. 20 and 21). Plaintiff included additional material facts in his response to
Defendants’ motion (see Doc. 21 at 3-4) to which Defendants did not respond. These
additional material facts are therefore admitted. See C.D. Ill. L. R. 7.1(D)(3)(a)(5).
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Orange Crush tactical unit conducted a shakedown of his cellhouse on April 14, 2014,
and that during the shakedown those members violated his Eighth Amendment
rights by using excessive force and subjecting him to sexual humiliation and abuse.
He further alleges that Defendants Brooks, Korte, Law, Meginson, and Zimmerman
failed to intervene and prevent the Orange Crush team members from violating his
rights.
Plaintiff initially complained of the abuse that he experienced during the April
14, 2014 shakedown by completing a grievance form between April 14 and April 22,
2014. He made a copy of the grievance at Western’s law library on April 22, 2014 (Pl.
Aff., Doc. 21-1, at ¶ 8), and then placed the original into the grievance box in his
housing unit. This is the procedure for submitting grievances to prison staff that he
had been instructed to follow.
Plaintiff does not know what happened with his grievance after he placed it
into the grievance box. He never received a response to his grievance, and he never
received any instructions for what to do in the absence of a response. He filed this
lawsuit approximately 18 months later.
LEGAL STANDARDS
Summary judgment shall be granted where “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). In ruling on a motion for summary judgment,
the Court must view the evidence in the light most favorable to the non-moving party.
SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.
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2009). All inferences drawn from the facts must be construed in favor of the nonmovant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
At the summary judgment stage, the Court may not resolve issues of fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). To survive summary
judgment, the “nonmovant must show through specific evidence that a triable issue
of fact remains. . . .” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir.
2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on
record could not lead a reasonable factfinder to find for the non-movant, then no
genuine issue of material fact exists and the movant is entitled to judgment as a
matter of law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997).
“[D]ebatable factual issues relating to the defense of failure to exhaust
administrative remedies” in inmate lawsuits governed by the Prison Litigation
Reform Act (“PLRA”) are issues to be decided by the judge rather than a jury. Pavey
v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). When there are factual disputes,
district courts should hold a hearing to determine whether a plaintiff has exhausted
his remedies. Id. at 742. However, there is “no reason to conduct an evidentiary
hearing” when “there are no disputed facts regarding exhaustion, only a legal
question.” Doss v. Gilkey, 649 F. Supp. 2d 905, 912 (S.D. Ill. 2009).
DISCUSSION
The PLRA provides that, “No action shall be brought with respect to prison
conditions under section 1983 by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “Failure to exhaust is an affirmative defense, and
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Defendants have the burden of proof.” Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir.
2016) (internal quotation marks and citations omitted).
To exhaust administrative remedies, a prisoner must “adher[e] to the specific
procedures and deadlines established by the prison’s policy.” Id. at 842 (internal
quotation marks omitted). But, “[a] prisoner need not exhaust remedies if they are
not available.” Ross v. Blake, No. 15-339 Slip Op. at 1 (U.S. June 6, 2016). “A remedy
becomes unavailable if prison employees do not respond to a properly filed grievance
. . . “ Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (internal quotation marks
omitted).
The Illinois Department of Corrections Grievance Procedures for Offenders
establish the procedures that prisoners must follow to properly exhaust their
grievances. See 20 Ill. Adm. Code § 504.810, et seq. Ordinarily, prisoners must first
attempt to informally resolve their complaints with their counselor. Id. at §
504.810(a). Prisoners who cannot informally resolve grievances may, within sixty
days of discovery of the issue addressed in their grievance, “file a written grievance
on a grievance form that shall be made available in all living units.” Id. Prisoners
must address grievances to their grievance officer and deposit them “in the living unit
mailbox or other designated repository.” Id. at § 504.810(b). Grievance officers
receiving grievances must “consider the grievance and report his or her findings and
recommendations in writing” to the prison’s warden. Id. at 504.830(d). The warden
then must advise the grieving prisoner of a decision “within 2 months after receipt of
the written grievance, where reasonably feasible under the circumstances.” Id. If a
prisoner is dissatisfied with the manner in which the warden has resolved his
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grievance, he “may appeal in writing to the Director [of the Department of
Corrections] within 30 days” of the decision. Id. at § 504.850(a). Appeals to the
Director are reviewed and resolved by an Administrative Review Board (“ARB”)
appointed by the Director. Id. at § 504.850(c). Inmates may only appeal decisions
“after receiving the response of the” warden. Id. at § 504.850(a).
Defendants argue that Plaintiff failed to exhaust administrative remedies
because he failed to file an appeal with the ARB. (Doc. 20 at 5). However, the
undisputed facts show that Plaintiff properly complied with the grievance process
that was made available to him. He filed his grievance in the “designated repository”
approximately one week after the shakedown. See id. at §§ 504.810(a)-(b). This action
satisfied his obligations under the regulations until he received a response from
Western’s warden. Such a response did not come within the time contemplated by the
regulations, see id. at § 504.830(d), so Plaintiff filed this lawsuit.
As Plaintiff never received a response from the warden, he could not appeal to
the ARB. See 20 Ill. Admin. Code § 504.850(a). The warden’s failure to respond to
Plaintiff’s properly filed grievance made the grievance system unavailable and
relieved Plaintiff of his need to appeal. See Dole, 438 F.3d at 809; Ross, slip op. at 1.
Plaintiff did all he needed to do by filing a grievance for which no response was
received.
CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff has properly
exhausted all available administrative remedies. Defendants’ Motion for Summary
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Judgment (Doc. 19) is DENIED and the Pavey Hearing scheduled for June 29, 2016
is cancelled as unnecessary. IT IS SO ORDERED.
Entered this 23rd day of June, 2016.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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