Span v. Chaves et al
Filing
155
ORDER Adopting Report and Recommendations signed by the Honorable Philip G. Reinhard on 11/19/2018: On October 15, 2018, Magistrate Judge Johnston entered a report and recommendation 151 recommending that plaintiff's claims be dismissed as to defendant Pfister for failure to exhaust administrative remedies, defendants' affirmative defense of failure to exhaust administrative remedies as to the remaining defendants be denied, and plaintiffs case against the remaining defendants be allowed to proceed. On October 29, 2018, Defendants Chess, Stone, Schoenberger, and Vickroy filed objections to Judge Johnston's report and recommendation 152 , and on November 12, 2018, plaintiff filed a response in opposition to defendants 039; objections 154 . The court has reviewed the record and accepts the report and recommendation. Plaintiffs claims as to defendant Pfister are dismissed; plaintiff's claims against the remaining defendants will proceed. [see STATEMENT] Electronic notice (kms)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Samuel Span (R12605),
Plaintiff,
v.
Raphael Chavez, et al.,
Defendants.
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Case No: 15 CV 50063
Judge Philip G. Reinhard
ORDER
On October 15, 2018, Magistrate Judge Johnston entered a report and recommendation
[151] recommending that plaintiff’s claims be dismissed as to defendant Pfister for failure to
exhaust administrative remedies, defendants’ affirmative defense of failure to exhaust
administrative remedies as to the remaining defendants be denied, and plaintiff’s case against the
remaining defendants be allowed to proceed. On October 29, 2018, Defendants Chess, Stone,
Schoenberger, and Vickroy filed objections to Judge Johnston’s report and recommendation
[152], and on November 12, 2018, plaintiff filed a response in opposition to defendants’
objections [154]. The court has reviewed the record and accepts the report and recommendation.
Plaintiff’s claims as to defendant Pfister are dismissed; plaintiff’s claims against the remaining
defendants will proceed.
STATEMENT
On November 5, 2014, while incarcerated at the Dixon Correctional Center (“Dixon”),
plaintiff filed a grievance complaining of events that occurred one and two months prior.
Plaintiff testified at his Pavey hearing that he placed his grievance in “inmate mail” which,
according to procedure, is eventually sent to Dixon’s counselors. When plaintiff met with his
counselor in December he inquired about the status of his grievance. He was told he would be
informed when the grievance was addressed. Plaintiff was transferred to Pontiac Correctional
Center (“Pontiac”) in January of 2015. Once at Pontiac, plaintiff asked a counselor there about
the status of his November 2014 grievance out of Dixon. He was told he would receive a
response when a response was given. Having heard nothing about the status of his grievance,
plaintiff sent a copy of it to the Administrative Review Board (“ARB”) which was denied as
untimely in February of 2015. Plaintiff filed a second grievance in December of 2017, while at
Pontiac, to follow up on his November 2014 grievance. He was informed in January of 2018
that Dixon had no record of his November 2014 grievance and that their logs of grievances do
not go back that far. Plaintiff filed his December 2017 grievance with the ARB which denied it
on the grounds of untimeliness. Plaintiff then brought this lawsuit and a Pavey hearing was held
on July 18, 2018 before Judge Johnston. Judge Johnston filed a report and recommendation
dismissing defendant Pfister. Judge Johnston found plaintiff had exhausted his administrative
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remedies as to the remaining defendants. The defendants’ objections and the plaintiff’s response
followed.
Following any objections filed by a party to a magistrate judge’s report and
recommendation on a dispositive motion, “the district judge must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3). See also 28 U.S.C. §
636(b)(1)(B) (allowing the magistrate judge to conduct an evidentiary hearing). The district
court’s 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.” Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (citations and quotations
omitted).
First, defendants object to Judge Johnston’s determination that plaintiff’s testimony was
credible that he placed his November 2014 grievance in the inmate mail process. Defendant
argues plaintiff’s claim that the staff did not respond to his grievance is a “visible fiction” that
should be ignored by the court. In support of their position, defendants note that out of the 23
grievances plaintiff has filed with the ARB, “only a few of them” contain appropriate responses.
This argument is misplaced. The court agrees with the magistrate and plaintiff that this case is
analogous to Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006). In Dole, plaintiff filed a grievance
with the ARB but received no response. Id. at 805. After receiving no response to his grievance,
plaintiff sent another letter inquiring about his grievance. The ARB eventually told plaintiff they
had no record of plaintiff’s original grievance. Id. The court found that plaintiff followed proper
procedures and that the “misstep” in his case was “entirely that of the prison system.” Id. at 810.
Therefore, the Seventh Circuit stated it could not be found that plaintiff had failed to exhaust his
administrative remedies. Id. at 811. Here, in the court’s review of the record, the guidance of
Dole, and the reliance on Judge Johnston’s credibility determination of plaintiff during the
evidentiary hearing, the court accepts the findings of the report and recommendation that
defendants have failed to meet their burden of proof regarding any procedural deficiencies of
plaintiff’s November 2014 grievance.
Second, defendants object to Judge Johnston’s finding that plaintiff provided sufficient
information in his November 2014 grievance to put Dixon prison officials on notice of plaintiff’s
concerns. Defendants contend plaintiff did not satisfy the requirements of 20 Ill. Admin. Code §
504.810(c).1 This provision of the Illinois Administrative Code states:
“The original grievance form shall be deposited in the living unit mailbox or other
designated repository. The grievance shall contain factual details regarding each
aspect of the offender's complaint, including what happened, when, where and the
name of each person who is the subject of or who is otherwise involved in the
complaint. This provision does not preclude an offender from filing a grievance
when the names of individuals are not known, but the offender must include as
much descriptive information about the individual as possible.”
Defendants’ brief cites to 20 Ill. Admin. Code § 504.810(b). The court finds this to be a typographical
error.
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20 Ill. Admin. Code. 504.810(c).
The report and recommendation finds that plaintiff’s November 2014 grievance provided
detailed dates, times, and places relevant to plaintiff’s concerns. Plaintiff also detailed in his
grievance actions of “different mental health staff workers” and officials. The court agrees with
the magistrate that the information included in the grievance was sufficient to put Dixon officials
on notice of the grieved-of issues and with that information would have allowed them to readily
identify the specific employees that interacted with plaintiff in relation to his concerns. See
Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011) (“That [plaintiff] didn’t specifically name the
defendants in the grievance was a mere technical defect that had no effect on the process and
didn’t limit the usefulness of the exhaustion requirement.”).2 Again, defendants have not met
their burden.
Finally, while not a subject of defendants’ objections, the court agrees with Judge
Johnston that the claims against defendant Pfister have not been exhausted. As noted in the
report and recommendation, defendant Pfister was an employee of Pontiac at the time of
plaintiff’s grievance with Dixon. Nothing in plaintiff’s November 2014 grievance would have
put Pontiac officials on notice of issues at their facility. Therefore, claims against defendant
Pfister have not been exhausted.
For the above reasons, the court accepts Magistrate Judge Johnston’s report and
recommendation. Defendant Pfister is dismissed from this action without prejudice. Defendants
have not met their burden to prove plaintiff failed to exhaust his administrative remedies
regarding all other defendants and, therefore, the case will proceed as against them.
Date: 11/19/2018
ENTER:
United States District Court Judge
Electronic Notices. (LC)
The court is unpersuaded by defendants’ reliance on Seventh Circuit law in support of its position. In
Santiago v. Snyder, the appellate court affirmed the district court’s decision granting summary judgment
for defendants based on plaintiff’s failure to exhaust administrative remedies because plaintiff attempted
to follow administrative remedies informally and filed his lawsuit outside the statute of limitations.
Santiago, 211 Fed. Appx. 478 (7th Cir. 2006). In Cannon v. Washington, the ARB acknowledged that
plaintiff filed a grievance but found that it was untimely filed. Cannon, 418 F.3d 714, 718 (7th Cir.
2005). Neither case addresses 20 Ill. Admin. Code § 504.810(c).
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