Godfrey v. Harrington et al

Filing 91

ORDER ADOPTING 78 Report and Recommendations and DENYING 63 Motion for Summary Judgment. Signed by Judge Nancy J. Rosenstengel on 3/16/15. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOBY GODFREY,
Plaintiff,
vs.
RICHARD HARRINGTON,
TRACY HEIMAN, FRANK EOVALDI,
and MICHAEL MOLDENHAUER,
Defendants.

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Case No. 13-CV-280-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge Donald G. Wilkerson (Doc. 78), recommending that the Motion
for Summary Judgment on the issue of exhaustion filed by Defendants Richard
Harrington, Tracy Heiman, and Frank Eovaldi (Doc. 63) be denied. The Report and
Recommendation was entered on August 27, 2014, and Defendants filed a timely
objection (Doc. 80).
Because timely objections were filed, the undersigned 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). De novo review requires
the district judge to “give fresh consideration to those issues to which specific objections
have been made” and make a decision “based on an independent review of the evidence

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and arguments without giving any presumptive weight to the magistrate judge's
conclusion.” Harper, 824 F.Supp. at 788 (citing 12 Charles Alan Wright et al., Federal
Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part)); Mendez v.
Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). The Court “may accept, reject or modify
the magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788. For the
reasons stated below, the Court overrules Defendants’ objections and adopts the Report
and Recommendation of Magistrate Judge Wilkerson.
BACKGROUND
Plaintiff Toby Godfrey, an inmate in the Illinois Department of Corrections, is
currently incarcerated at Lawrence Correctional Center. He filed this action on March 20,
2013, alleging that his constitutional rights were violated during his incarceration at
Menard Correctional Center. In particular, he alleges that he was attacked by his
cellmate on March 4, 2013. He claims that Defendants Traci Heiman and Frank Eovaldi,
who are correctional officers at Menard, failed to protect him from the attack (Doc. 13).
He further alleges that Defendant Michael Moldenhauer, a medical doctor, failed to
provide adequate medical care after he was attacked (Doc. 13; Doc. 86). Godfrey did not
state any viable claim against Richard Harrington, the warden at Menard, but
Harrington remained in the action as a defendant in his official capacity for the purpose
of injunctive relief (Doc. 13)
On February 20, 2014, Defendants Harrington, Heiman, and Eovaldi filed a
Motion for Summary Judgment on the issue of exhaustion (Doc. 63). They assert that
there is one relevant grievance dated March 28, 2013, which Godfrey submitted directly

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to the ARB. They argue that Godfrey failed to exhaust that grievance because he
submitted it after he had already filed suit.
As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge
Wilkerson held an evidentiary hearing on the issue of exhaustion on April 17, 2014 (Doc.
73). At the hearing, Godfrey testified that the March 28th grievance was not the only
relevant grievance (Doc. 78). He claimed that he submitted an emergency grievance on
March 4, 2013, to Warden Harrington but never received a response (Doc. 78). Following
the hearing, Godfrey submitted to the Court a copy of the March 4th grievance (Doc. 75).
Magistrate Judge Wilkerson then issued the Report and Recommendation currently
before the Court (Doc. 78).
THE REPORT AND RECOMMENDATION AND OBJECTIONS
Magistrate Judge Wilkerson found that the March 28th grievance that Godfrey
submitted directly to the ARB was not relevant to the issue of exhaustion because it was
filed eight days after Godfrey filed this lawsuit (Doc. 78). Accordingly, the question of
whether Godfrey exhausted his administrative remedies came down to the March 4th
grievance. Magistrate Judge Wilkerson found Godfrey credible in his assertion that he
filed this grievance. It was marked as an emergency and stated that Godfrey told
Defendants Heiman and Eovaldi that he was being threatened by his cellmate and
needed to be moved. Both Defendants, however, refused to move Godfrey, and he was
attacked by his cellmate. The grievance further states that Godfrey suffered significant
injuries and was not given proper medical care.
Magistrate Judge Wilkerson noted that there was no indication on the March 4th

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emergency grievance that the warden responded. Godfrey waited in vain for sixteen
days for a response from the warden and then filed suit. Magistrate Judge Wilkerson
concluded that sixteen days was a sufficient period of time to wait for a response, and
the failure to provide a response within that time rendered the grievance process
unavailable to Godfrey. Therefore, Godfrey should be deemed to have exhausted his
administrative remedies.
Defendants had no objections to Magistrate Judge Wilkerson’s factual findings,
but they objected to his conclusion of law that Godfrey waited long enough before filing
suit (Doc. 80). Defendants point out that resource and staffing limitations in the IDOC, in
combination with increasingly larger quantities of grievances, has created a backlog and
more time is required to respond to each grievance. They argue that “sixteen days is still
within a reasonable time period to respond to an emergency grievance, and prisoners
should be required to wait longer than that before filing their federal lawsuits” (Doc. 80).
DISCUSSION
Based on Defendants’ objection to the Report and Recommendation, the Court
must determine whether the warden’s failure to respond to Godfrey’s emergency
grievance within sixteen days rendered the grievance process unavailable, which in turn
permitted him to file suit.
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their
administrative

remedies

before

bringing

a

civil

rights lawsuit.

42

U.S.C.

§ 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). But prisoners “must exhaust only
those administrative remedies that are available.” Lewis v. Washington, 300 F.3d 829, 833

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(7th Cir. 2002). Administrative remedies become “unavailable” if prison officials fail to
respond to an inmate’s grievances. Id.; Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir.
2005). “Exhaustion is ‘an affirmative defense that the defendants have the burden of
pleading and proving.’” Brengettcy, 423 F.3d at 682 (quoting Dale v. Lappin, 376 F.3d 652,
655 (7th Cir. 2004)).
As an inmate confined in the Illinois Department of Corrections, Woods was
required to follow the grievance process outlined in the Illinois Administrative Code
(“the Code”) to properly exhaust his claims. Pertinent to this case is the regulation
regarding emergency procedures. ILL. ADMIN. CODE, tit. 20, § 504.840. Under § 504.840, a
prisoner can request a grievance be handled on an emergency basis by forwarding the
grievance directly to the warden. Id. The warden then reviews the grievance to
determine if it is truly an emergency. See Id. If the warden determines there is “a
substantial risk of imminent personal injury or other serious or irreparable harm,” the
warden “shall expedite processing of the grievance and respond to the offender,
indicating what action shall be or has been taken.” Id. If the warden determines that the
grievance is not based on an emergency, the inmate may appeal to the ARB. Id. at §
504.850(a), (g).
The Code previously required the warden to respond within three days after
receipt of the emergency grievance whenever possible. See 22 Ill. Reg. 1206 (January 9,
1988) (amending § 504.840 and adding three-day response deadline). That requirement
was removed from the regulation in 2001, however, and now there is no prescribed
deadline for the warden to respond to an emergency grievance. See 25 Ill. Reg. 10775

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(Aug. 24, 2001) (amending § 504.840 and deleting the three-day response deadline
effective September 1, 2001); ILL. ADMIN. CODE, tit. 20, § 504.840. Accordingly, based on
the Code, it is not clear how long inmates must wait to receive a response when using
the emergency grievance process.
Relevant case law is extremely limited and only marginally helpful. Case law
makes clear that inmates do not have to wait indefinitely for a response to an emergency
grievance. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (holding the PLRA
does not allow prison officials to “exploit the exhaustion requirement through indefinite
delay in responding to grievances”). But it is far less clear just exactly how long an
inmate does have to wait. As Magistrate Judge Wilkerson noted, the Seventh Circuit has
implied that inmates must wait more than two days for a response to their emergency
grievance but less than fifty-one before they can file suit. See Fletcher v. Menard Corr. Ctr.,
623 F.3d 1171, 1174–75 (7th Cir. 2010) (concluding inmate had to wait more than two
days to file suit after submitting emergency grievance, particularly because “the danger
[was] not of the greatest urgency.”); Muhammad v. McAdory, 214 Fed. App’x. 610, 611, 613
(7th Cir. 2007) (concluding that a genuine issue of material fact existed regarding
whether prison officials thwarted the inmate’s efforts to exhaust when they did not
respond to his emergency grievance within fifty-one days).
Defendants agree with this general parameter, but they argue—without any
citation to supporting authority—that Godfrey should have waited longer than sixteen
days. The Court disagrees. Godfrey submitted his emergency grievance on March 4,
2013. Sixteen days ticked by without a response, leaving Godfrey to wonder when, if

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ever, he might receive a response. Considering the emergency grievance process is
designed to remedy imminent dangers, Godfrey was completely justified in expecting
some sort of response within sixteen days. And when he did not receive one, he was
likewise justified in assuming his emergency grievance was lost or ignored and that the
grievance

process

had

become

unavailable.

See

Merritte

v.

Godinez,

Case

3:12-cv-263-JPG-PMF (S. D. Ill.) (Doc. 72) (finding that defendants did not show inmate
failed to exhaust when he feared for his life and he waited thirteen days for a response to
his emergency grievance before filing suit); 28 C.F.R. § 542.18 (federal regulation
requiring BOP to respond to emergency grievances within three days).
Simply put, Defendants cannot expect to kick Godfrey out of court because he
failed to follow an unwritten, nebulous rule, especially when they cannot even articulate
the boundaries of the rule. The grievance process is not intended to be a game of
“gotcha” or “a test of the prisoner’s fortitude or ability to outsmart the system.” Shaw v.
Jahnke, 607 F. Supp. 2d 1005, 1010 (W.D. Wis. 2009) (citation omitted) See also LaFauci v.
New Hampshire Dep’t of Corr., No. CIV.99-597-PB, 2005 WL 419691, at *14 (D.N.H. Feb. 23,
2005) (“While proper compliance with the grievance system makes sound administrative
sense, the procedures themselves, and the directions given to inmates seeking to follow
those procedures, should not be traps designed to hamstring legitimate grievances.”)
Rather, the grievance process is meant to provide notice to prison administrators of a
problem so that they have an opportunity to address it without litigation. Porter v.
Nussle, 534 U.S. 516, 524–25 (2002).
Godfrey did just that—he gave the prison a chance to address his emergency

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grievance. But the warden dawdled in doing so, and Godfrey was left in the dark and
forced to make a blind guess as to whether he had waited long enough to file suit. It was
the warden’s silence rather than any negligence or manipulation on Godfrey’s part that
prevented him from completing the grievance process. Thus, it cannot be said that he
failed to exhaust his administrative remedies, and Defendants are not entitled to
summary judgment. To hold otherwise would penalize Godfrey for the inaction of the
warden and allow the warden to exploit the exhaustion requirement by delaying his
response to emergency grievances.
CONCLUSION
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation
(Doc. 78). Defendants’ Motion for Summary Judgment on the issue of exhaustion (Doc.
63) is DENIED.
IT IS SO ORDERED.
DATED: March 16, 2015

s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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