Murphy v. Smith et al

Filing 71

ORDER ADOPTING 69 REPORT AND RECOMMENDATIONS. MOTION for Summary Judgment 38 is DENIED, and Plaintiff's case will proceed on the merits. The undersigned District Judge also OVERRULES Plaintiff's objections to exhibits 2A and 2B and GRANTS Defendants' objections to exhibits A, D-G.. Signed by Judge Michael J. Reagan on 09/20/13. (dkd )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES MURPHY,
Plaintiff,
vs.
ROBERT SMITH, SHAWN RITCHEY,
GREGORY FULK, and RUSSELL
STEWART,
Defendants.

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Case No. 12-CV-841 –MJR- SCW

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Stephen C. Williams (Doc. 69), recommending that the motion
for summary judgment (Doc. 38) for failure to exhaust administrative remedies filed by
Defendants Smith, Ritchey and Fulk be denied. The Report and Recommendation was
entered on July 31, 2013. Defendants filed an objection on August 19, 2013 (Doc. 70).
Plaintiff Charles Murphy filed this § 1983 suit against four defendants, Smith,
Ritchey, Fulk and Stewart, alleging he was subjected to excessive force by these officers
based on a July 25, 2011 incident in which the officers at Vandalia Correctional Center
allegedly handcuffed and beat him, causing damage to his right eye.

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Defendants Smith, Ritchey and Fulk filed a motion for summary judgment on the
basis that Plaintiff had failed to exhaust his administrative remedies before bringing suit
(Doc. 38). Specifically, they assert that Plaintiff did not complete the grievance process
within the allotted period of time. Plaintiff filed a response to this motion, arguing that
the grievance process was unavailable to him (Doc. 51).
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Williams held an evidentiary hearing on Defendants’ motion on June 14, 2013.
Following the Pavey hearing, Magistrate Judge Williams issued the Report and
Recommendation currently

before

the

Court

(Doc.

69).

The

Report

and

Recommendation accurately states the nature of the evidence presented by both sides on
the issue of exhaustion, as well as the applicable law and the requirements of the
administrative process.
Where timely objections are filed, this Court must undertake a de novo review of
the Report and Recommendation. 28 U.S.C. ' 636(b)(1)(B), (C); FED. R. CIV. P. 72(b);
SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill.
1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court Amay
accept, reject or modify the magistrate judge=s recommended decision.@ Harper, 824 F.
Supp. at 788. In making this determination, the Court must look at all of the evidence
contained in the record and Agive >fresh consideration to those issues to which specific
objections have been made.=@

Id., quoting 12 Charles Alan Wright et al., Federal

Practice and Procedure ' 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part). However,
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where neither timely nor specific objections to the Report and Recommendation are
made, pursuant to 28 U.S.C. ' 636(b), this Court need not conduct a de novo review of the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).
At the Pavey hearing, Plaintiff objected to Defense Exhibits 2A and 2B on the basis
of hearsay and Defendants objected to Plaintiff’s exhibits A, D, E, F, and G on the basis of
relevancy. Judge Williams recommends overruling Plaintiff’s objections to exhibits 2A
and 2B, as these exhibits fall within the business record exception of the hearsay rule.
Judge Williams also recommends granting Defendants’ objections to exhibits A, D-G, as
they are not relevant to the issue of exhaustion. These recommendations have not been
objected to. While a de novo review is not required here, the Court has considered the
objections and fully agrees with the findings, analysis of Judge Williams.

The

undersigned District Judge OVERRULES Plaintiff’s objection to exhibits 2A and 2B and
GRANTS Defendants’ objection to exhibits A, D-G.
Defendants have objected to Judge Williams’ recommendation that the motion for
summary judgment be denied. In the objection, Defendants argue that excusing the
exhaustion requirement here is not warranted because: “(a) no one prevented Plaintiff
from properly exhausting his administrative remedies and (b) Plaintiff failed to properly
file his grievance with the ARB after he was transferred to Logan.” (Doc. 70, p. 4). At
the hearing, the parties conceded that they had no factual disputes on the issue of
exhaustion (Doc. 69, p. 18). The main issue here is whether the grievance process is
considered to have been unavailable to Plaintiff following the July 25, 2011 incident.
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The plain language of the Prison Litigation Reform Act makes clear that 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 when prison employees otherwise use affirmative
misconduct to prevent a prisoner from exhausting, Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006); Ducey v. Flagg, No. 08-cv-0691-MJR, 2009 WL 3065045, at *4 (S.D. Ill.
Sept. 21, 2009) (“[P]rison officials can easily thwart an inmate’s attempt to exhaust
administrative remedies simply by failing to respond to his or her grievances.”). An
inmate cannot rely on an argument that an administrative remedy is “unavailable” when
the reason why he failed to exhaust is his own fault. Schaefer v. Bezy, 336 Fed.Appx.
558, 560 (7th Cir. 2009); see also Pavey, 544 F.3d at 742.
Viewing all facts and reasonable inferences in favor of Plaintiff, the Court finds
that the facts suggest that Plaintiff’s administrative remedies were unavailable to him.
Specifically, Plaintiff alleges that he submitted a grievance on July 29, 2011, three days
after the alleged incident and two days after receiving surgery on his right eye (Doc.
51-3).

On July 29, 2011, IDOC transferred Plaintiff to Logan Correctional Center’s

health care unit (Doc. 51-3). Plaintiff’s grievance was then returned to him on August 3,
2011, because he had forgotten to sign it (Doc. 51-3). Plaintiff was advised of this by
Nurse Michelle Millard, who watched Plaintiff sign the grievance and then asked him if
he wanted it to be filed (Doc. 51-3). Plaintiff replied that he would like the grievance
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filed and Nurse Millard took the form from him and stated that she would do so (Doc.
51-3).
The Court finds that this evidence suggests that Plaintiff was prevented from
filing administrative remedies with respect to his excessive force claim. It is obvious to
the Court that Plaintiff took reasonable steps to avail himself of the administrative
remedies available to him while he was in the health care unit. Given the fact that he
was recovering from surgery, as well as the fact that Nurse Millard asked him if he
wanted the document filed, it was reasonable for Plaintiff to rely on Nurse Millard’s
statement that she would do so. The undersigned District Judge agrees with Judge
Williams’ analysis that staff plays a role in assisting inmates in filing grievances when
they are otherwise unable to file themselves. Further, there is nothing to suggest that
Plaintiff’s account of what happened with Nurse Millard is not credible. Thus, the
Court finds that Defendants have failed to show that they are entitled to judgment as a
matter of law.
For these reasons, the Court ADOPTS Magistrate Judge William’s Report and
Recommendation (Doc. 69).

Defendants’ motion for summary judgment based on

failure to exhaust administrative remedies (Doc. 38) is DENIED, and Plaintiff’s case will
proceed on the merits.

As previously stated, the undersigned District Judge also

OVERRULES Plaintiff’s objections to exhibits 2A and 2B and GRANTS Defendants’
objections to exhibits A, D-G.
IT IS SO ORDERED.
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DATED: September 20, 2013
s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

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