Longoria v. Ventlemen et al

Filing 99

ORDER ADOPTING 93 REPORT AND RECOMMENDATIONS; GRANTING 46 MOTION for Summary Judgment. DENYING 96 to Allow Exhibits. The Clerk is DIRECTED to close this case. All hearings are terminated, and all pending motions are moot. Signed by Judge Michael J. Reagan on 09/26/13. (dkd )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SALVADOR LONGORIA,
Plaintiff,
vs.
RANDY J. DAVIS, C/O PEYTON, C/O
HARBISON, and CHARLES
DINTELMAN,
Defendants.

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Case No. 12–cv–0234–MJR–SCW

MEMORANDUM & ORDER
REAGAN, District Judge:
INTRODUCTION & PROCEDURAL HISTORY
In this § 1983 civil rights lawsuit, pro se Plaintiff Salvador Longoria, currently incarcerated at
Big Muddy River Correctional Center in the Illinois Department of Corrections (“IDOC”), sued
seven IDOC officials in March 2012. Pursuant to 28 U.S.C. § 1915A, the undersigned performed a
threshold review, and Plaintiff’s claims against the four above-named Defendants survived.
Generally, Plaintiff claims Defendants Dintelman and Davis ordered Defendants Peyton and
Harbison to use excessive force on Plaintiff while he was being transferred from one IDOC facility
to another, all in violation of his Eighth Amendment right to be free from cruel and unusual
punishments.

The case comes before the Court on a Report & Recommendation (“R&R”)

submitted by Magistrate Judge Stephen C. Williams, in which he recommends granting summary
judgment to Defendants on the grounds that Plaintiff did not, as required by 42 U.S.C. § 1997e, the
Prison Litigation Reform Act (“PLRA”), exhaust his administrative remedies before filing suit.
In April 2013, Judge Williams recruited counsel for Plaintiff. A month later, Plaintiff
responded to the summary judgment motion. But in June 2013, a dissatisfied Plaintiff moved to
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appoint new counsel. Judge Williams held a hearing on that motion in July 2013, and terminated
counsel’s representation of Plaintiff. As pertinent to this Memorandum & Order, during that
hearing, Plaintiff claimed a non-defendant correctional officer had destroyed his legal materials, thus
thwarting his July 2010 attempt to grieve the excessive force incident.
Three weeks later, pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Judge Williams
held an evidentiary hearing on Defendants’ summary judgment motion. During the Pavey hearing,
testimony and argument revolved around a September 15, 2010 grievance that all parties agree had
been addressed at the institutional level. While Defendants provided evidence the grievance was
never appealed to the state Administrative Review Board (“ARB”) as required, Plaintiff asserted that
he had indeed mailed those grievances to the ARB, but that they must have gotten lost (or
intentionally destroyed) sometime after he mailed them.
Pursuant to 28 U.S.C. § 636, Judge Williams submitted his R&R on August 2, 2013. Judge
Williams found Plaintiff’s testimony not to be credible due to its inconsistent nature, found Plaintiff
never appealed his grievances to the ARB, and (because a prisoner’s failure to timely appeal an
institutional decision to the ARB constitutes a failure to exhaust, s ee Pozo v. McCaughtry , 286
F.3d 1022, 1024 (7th Cir. 2002)) recommended granting summary judgment.
Plaintiff filed an objection to the R&R on September 17, and the matter is ripe for ruling.
Before taking up the objection, the undersigned DENIES (Doc. 96) Longoria’s request to submit
more exhibits in support of his exhaustion argument. The affidavits he wishes to submit appear to
be the sworn statements of other prisoners who claim to have had grievances destroyed, and are
irrelevant to the Court’s analysis here (and cumulative to other, similar statements already on the
record), which focuses only on whether Mr. Longoria—not other prisoners—exhausted
administrative remedies, and does not turn on whether a prison guard destroyed a grievance.

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STANDARD OF REVIEW
When a party timely objects to a magistrate judge’s R&R, the district court must undertake de
novo review of the portions to which an objection has been made. 28 U.S.C. § 636(b)(1)(C). The
undersigned will, however, give great deference to Judge Williams’ factual findings and credibility
determinations. S ee Pavey v. Conley (Pavey II) , 663 F.3d 899, 904 (7th Cir. 2011) (affirming
findings of magistrate judge, whose R&R included factual findings that Plaintiff was not
credible); Towns v. Holton , 346 F.App’x 97, 100 (7th Cir. 2009) (great deference to credibility
findings based on demeanor); Goffman v. Gross , 59 F.3d 668, 671 (7th Cir. 1995) (“[D]e 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.”).
PLAINTIFF’S OBJECTIONS
Construing his objection broadly, Plaintiff makes three arguments against summary
judgment. He revives his assertion that a non-defendant correctional officer destroyed a July 2010
grievance, thereby thwarting his ability to exhaust his administrative remedies. He further claims he
was prejudiced during the second July hearing by his lack of counsel (and relatedly, that his counsel,
before withdrawing from the case, was ineffective). And Plaintiff argues that Russo v. Palmer, a
Northern District case from 1998, controls the outcome here.
Plaintiff’s latter two arguments are non-starters. This is a civil case, so Plaintiff has no
constitutional right to effective counsel. Pruitt v. Mote , 503 F.3d 647, 657 (7th Cir. 2007) (citing

Christopher v. Harbury , 536 U.S., 403, 413 (2002), and Lewis v. Casey , 518 U.S. 343, 354
(1996) (expanding the right of access to guarantee prisoners a right to litigate effectively
would essentially demand a permanent provision of counsel). In any event, Judge Williams
specifically found Plaintiff understood the issues relating to exhaustion and was capable of
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representing himself during the exhaustion phase of the case generally, and at the evidentiary hearing
specifically.
And Russo is no longer good law. The case stood for the proposition that, when a prison
administrative scheme does not provide the same relief as the plaintiff seeks (i.e., money damages),
then there was no remedy “available” to exhaust. R usso v. Palmer, 990 F.Supp. 1047, 1050 (N.D.
Ill. 1998). That rule was clearly jettisoned by Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 536 (7th
Cir. 1999), in which the Seventh Circuit expressly rejected the proposition that a futility exception
negates the PLRA’s exhaustion requirement. The Supreme Court has since made clear that “[e]ven
when the prisoner seeks relief not available in grievance proceedings, notably money damages,
exhaustion is a prerequisite to suit.” Porter v. Nussle , 534 U.S. 516, 524 (2002).
That leaves only Plaintiff’s contention that either a correctional officer or some unknowable
ARB official thwarted his ability to grieve about the excessive force incident by destroying Plaintiff’s
grievances.
THE PLRA, PLAINTIFF’S GRIEVANCES, AND JUDGE WILLIAMS’ FINDINGS
As an inmate, Plaintiff’s lawsuit is governed by the PLRA, which requires a prisoner to
exhaust his administrative remedies before filing suit. 42 U.S.C. § 1997e. In Illinois, the grievance
process requires a prisoner to speak with his counselor, then file a written grievance. 20 Ill. Admin.
Code § 504.810(a)–(b). Once that grievance is denied at the institutional level, an inmate must
appeal it to the state Administrative Review Board (“ARB”). Id. at § 504.850(a).
Though the Seventh Circuit requires strict adherence to the PLRA’s exhaustion requirement,

Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), the PLRA’s plain language is clear: an inmate
must exhaust only those administrative remedies that are available to him, 42 U.S.C. § 1997e(a).
Administrative remedies become “unavailable” when prison officials fail to respond to a properly
filed inmate grievance, Lewis v. Washington , 300 F.3d 829, 833 (7th Cir. 2002), or—as Plaintiff
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claims here—when prison employees otherwise use affirmative misconduct to prevent a prisoner
from exhausting, Dole , 438 F.3d at 809. In Pavey v. Conley (Pavey I), the Seventh Circuit set forth the
procedures for tackling the exhaustion issue; the first step is for the judge to conduct a “hearing on
exhaustion and [permit] whatever discovery relating to exhaustion he deems appropriate.” Pavey I ,
544 F.3d 739, 742 (7th Cir. 2008). 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).
It is undisputed that Plaintiff filed grievances at the institutional level in June 2010, July
2010, and September 2010, and that those grievances were denied by his institution’s Chief
Administrative Officer. But the grievance process stopped between the institutional level and the
ARB. If Plaintiff took the necessary steps to appeal to the ARB but was thwarted, his case may
proceed. If, on the other hand—and as Judge Williams found—he simply failed to mail an appeal to
the ARB, Plaintiff’s case is over.
Plaintiff does not challenge Judge Williams’ legal conclusion: that neither the June nor July
grievance could suffice to exhaust Plaintiff’s administrative remedies as they pertain to the instant
excessive force suit. Neither grievance even hints at the amount of force used during the failed
inter-prison transfer. (See Doc. 47-1, 5–8). Plaintiff renews his contention that a correctional officer
destroyed his July grievance. But even if that contention were true, the July grievance had nothing
to do with the allegations in this lawsuit, and cannot, therefore, fulfill the PLRA’s exhaustion
requirement. Though courts construe the contents of an inmate grievance generously, Riccardo v.

Rausch , 375 F.3d 521, 524 (7th Cir. 2004), one of the leading purposes of the exhaustion
requirement is to notify those who might later be sued—a purpose not at all served by Plaintiff’s
June or July grievance, Jones v. Bock , 549 U.S. 199, 219 (2007).

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The September grievance, though, contains the following remark, which the Court considers
sufficient to satisfy Illinois’ specificity requirements1: “I am still hurting f[rom] when they violently
[dragged] me out of a [wheel]chair using over [excessive] force, when Lawrence day transfer, into a
[non-handicap] van.” (Doc. 47-1, 13–14). Defendants provide a sworn affidavit that the ARB never
received that grievance. (Doc. 47-1, 1–4).
Plaintiff offers several alternative explanations—none of which Judge Williams found
credible—as to why the ARB never received his September 15 grievance on appeal. During the
hearing regarding his recruited attorney’s withdrawal, Plaintiff firmly argued his grievances were
destroyed by a correctional officer. Admitting that destruction happened in July 2010 (and therefore
could not have thwarted his September attempt to appeal to the ARB), Plaintiff then asserted that he
did indeed mail the September 15 grievance to the ARB, and that it must have been destroyed by
someone there. But (as the magistrate judge noted) that story changed during the evidentiary
hearing. Plaintiff testified that he must have mailed the September 2010 grievance because he sent
all grievances to the ARB “as soon as [he] got them” (Doc. 95, 40), but also that he makes copies of
grievances before he sends them so as to mail several copies of his grievances (Doc. 95, 34), and that
he mailed “three or four” grievances along with the September grievance (Doc. 95, 35).
After questioning Longoria himself, Judge Williams found his testimony “not to be
credible.” (Doc. 93, 10–11) (“Plaintiff cannot have mailed the grievance out as soon as he got it, but
then also waited and sent the grievance in an envelope with other grievances . . . Given Plaintiff’s
multiple, inconsistent versions of what happened to his grievance, the Court finds that Plaintiff is
not credible and his testimony is unreliable.”)).

A grievance must “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. The
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.” 20 Ill. Admin. Code
§ 504.810(b).

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In other words, Judge Williams made a finding that Plaintiff was untrustworthy regarding the
only material fact relating to the exhaustion issue—whether he mailed the September grievance to
the ARB. As Pavey I requires, the exhaustion issue was taken up at an evidentiary hearing, and as
Pavey II allows, the magistrate judge made a credibility determination that sweeps away Plaintiff’s
position. S ee Pavey II , 663 F.3d at 904; United States v. Norris , 640 F.3d 295, 297 n.1 (7th Cir.
2011) (noting credibility findings may be disturbed only when they are “completely without
foundation”). Judge Williams finding rests on the documentary evidence submitted by both parties
and on Plaintiff’s demeanor and testimony. Nothing in Plaintiff’s objection warrants overturning
that credibility determination. Summary judgment will be granted to Defendants.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Allow Exhibits (Doc. 96) is DENIED. The
undersigned ADOPTS in full (Doc. 93) the Report & Recommendation submitted by Magistrate
Judge Stephen C. Williams, and GRANTS (Doc. 46) Defendants’ Motion for Summary Judgment.
Plaintiff’s claims against Defendants Davis, Peyton, Harbison and Dintelman are DISMISSED
without prejudice, and—there being no claims remaining—the Clerk is DIRECTED to close this
case. All hearings are terminated, and all pending motions are moot.

IT IS SO ORDERED.
s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

DATE: September 26, 2013

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