Garmon v. Roeckeman et al

Filing 65

ORDER denying 31 Motion for Summary Judgment. Signed by Judge Staci M. Yandle on 4/2/2015. (rlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESSE GARMON, B23470,
Plaintiff,
vs.

Case No. 13-cv-00287-SMY-PMF

ZACHARY ROECKEMAN, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion for Summary Judgment (Doc. 31) on
the basis that Plaintiff failed to exhaust his administrative remedies prior to filing suit. This Court
previously rejected the Report and Recommendation (“Report”) (Doc. 54) of Magistrate Judge Philip M.
Frazier recommending this Court grant Defendants’ Motion (Doc. 58) and held an evidentiary hearing on
March 25, 2015. Plaintiff appeared by video and testified as to his grievances and appeals. For the
following reasons, the Court DENIES Defendants’ Motion for Summary Judgment (Doc. 31).
Summary judgment is appropriate 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); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind., Inc., 211 F.3d 392,
396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath,
211 F.3d at 396. Where the moving party fails to meet its strict burden of proof, a court cannot enter
summary judgment for the moving party even if the opposing party fails to present relevant evidence in
response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the
allegations contained in the pleadings but must present specific facts to show that a genuine issue of
material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne,
91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere

existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252. As an initial
matter, the Court will look to the standards for determining exhaustion of administrative remedies.
Lawsuits filed by inmates are governed by the provisions of the Prison Litigation Reform Act
(“PLRA”). 42 U.S.C. §1997e(a). That statute states, in pertinent part, that “no action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” Id. (emphasis added). The Seventh Circuit requires strict adherence to the
PLRA’s exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting that ‘[t]his
circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur before the suit is
filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Plaintiff cannot file suit and then exhaust his
administrative remedies while the suit is pending. Id. Moreover, “[t]o exhaust remedies, a prisoner must
file complaints and appeals in the place, and at the time, the prison administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to properly utilize a
prison’s grievance process, “the prison administrative authority can refuse to hear the case, and the
prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.
Put another way, exhaustion is a condition precedent to filing a claim in federal court, so the
inmate must exhaust before he commences his federal litigation. See Dale v. Lappin, 376 F.3d 652, 655
(7th Cir. 2004); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002); Perez v. Wisconsin Department of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). If the inmate fails to exhaust before filing suit in federal court,
the district court must dismiss the suit (or dismiss any claims not fully exhausted). See Jones v. Bock, 549
U.S. 199, 223 (2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). Although dismissal is
the procedural step the district court takes if a plaintiff failed to exhaust prior to filing suit, the issue of
exhaustion most often is raised via summary judgment motion, so that the Court can consider evidence
2

“outside the pleadings,” such as affidavits, grievances, responses, appeals, and related documentation.
See Fed. R. Civ. P. 12(d); 56.
Exhaustion-based dismissals are made without prejudice. Burrell, 431 F.3d at 285, citing Walker
v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (“Dismissal for failure to exhaust is without
prejudice…”), and Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“all dismissals under § 1997e(a)
should be without prejudice”). Because exhaustion is an affirmative defense, “the burden of proof is on
the prison officials.” Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). Here, Defendants bear the
burden of demonstrating that Plaintiff failed to exhaust all available administrative remedies before he
filed this suit. See Kaba, 458 F.3d at 681, citing Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
As an inmate confined within the Illinois Department of Corrections, Plaintiff was required to
follow the regulations contained in the Illinois Department of Correction’s Grievance Procedures for
Offenders (“grievance procedures”) to properly exhaust his claims, per a three-step administrative
process. 20 ILL. ADMIN. CODE § 504.800 et seq. The grievance procedures first require inmates to
speak with the counselor about their complaint. 20 ILL. ADMIN. CODE § 504.810(a). Then, if the
counselor does not resolve the issue, the inmate must file a grievance form directed to the Grievance
Officer within 60 days of the incident. Id. “The Grievance Officer shall [then] consider the grievance and
report his or her findings and recommendations in writing to the Chief Administrative Officer...[who]shall
advise the offender of the decision in writing within 2 months after receipt of the written grievance, where
reasonably feasible under the circumstances.” 20 ILL. ADMIN. CODE § 504.830(d).
If the inmate is not satisfied with the Chief Administrative Officer’s response, the third and final
step is to file an appeal with the Director through the ARB. The grievance procedures specifically state,
“[i]f after receiving the response of the Chief Administrative Officer, the offender still feels that the
problem, complaint or grievance has not been resolved to his or her satisfaction, he or she may appeal in
writing to the Director within 30 days after the date of the decision. Copies of the Grievance Officer’s
report and the Chief Administrative Officer’s decision should be attached.” 20 ILL. ADMIN. CODE §
504.850(a). “The Administrative Review Board shall submit to the Director a written report of its
findings and recommendations.” 20 ILL. ADMIN. CODE § 504.850(e). “The Director shall review the
3

findings and recommendations of the Board and make a final determination of the grievance within 6
months after receipt of the appealed grievance, where reasonably feasible under the circumstances. The
offender shall be sent a copy of the Director’s decision.” 20 ILL. ADMIN. CODE § 504.850(f).
While the Seventh Circuit takes a strict compliance approach to exhaustion, inmates can only be
expected to exhaust the remedies that are available to them. Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006) (“…a remedy becomes ‘unavailable’ if prison employees… use affirmative misconduct to
prevent a prisoner from exhausting.”) (citing Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002); Dale v.
Lappin, 376 F.3d 652 (7th Cir. 2004)). In Dole, the Seventh Circuit found the inmate had exhausted
administrative remedies where he had followed procedure and prison officials were responsible for the
mishandling of his grievance. The Court noted the lack of a receipt system for prisoner mail and
analogized the case to one in which a prisoner did not file an appeal after he had filed several unanswered
grievances and was told “sometimes grievances get torn up.” Id. at 811. The Court, citing Houston v.
Lack, 487 U.S. 266 (1988), also noted the unique circumstances that distinguish the abilities of pro se
prisoner litigants from other litigants who can place their paperwork directly in the hands of the court
clerks or the postal service and to call to determine receipt. The Supreme Court in Houston went a step
further to highlight the pro se prisoner’s position in being forced to entrust grievances and appeals to the
very prison authorities against whom they might be written and whom “may have every incentive to
delay.” 487 U.S. at 270-72.
When exhaustion of administrative remedies is contested in prisoner litigation, a district judge
first conducts a hearing in accordance with Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008). The
Court is permitted to make findings of fact and credibility assessments of witnesses at the evidentiary
hearing, and credibility determinations will not be disturbed on appeal unless they are completely without
foundation and made in clear error. Pavey v. Conley, 663 F.3d 899, 904 (7th Cir. 2011) (citing Anderson
v. City of Bessemer City, N.C., 470 U.S. 564 (1985); United States v. Norris, 640 F.3d 295 (7th Cir.
2011)).
Here, Plaintiff alleged both in his pleadings and by testimony that grievances filed in Big Muddy
River Correctional Center are frequently intercepted and destroyed by correctional officers. He attached
4

to his Response to Defendants’ Motion for Summary Judgment (Doc. 40) two affidavits from other
inmates who claim to have witnessed the interception of grievances and one inmate who filed a grievance
and, after six months, had received no response. Plaintiff claims, and swore in both evidentiary hearings,
that he properly filed a grievance appeal addressed to Springfield, Illinois on or around March 14, 2013
after receiving a denial at the second stage of the grievance process. Expecting that his grievance appeal
might be intercepted and destroyed, he filed his lawsuit. Plaintiff testified that he still had not received a
response to his appeal, and interpreted the lack of response as affirmation that his appeal was, in fact,
intercepted.
This Court, as well as counsel for Defendants, questioned Plaintiff as to his activities in filing his
grievance appeal. The Court listened closely for inconsistencies in Plaintiff’s responses and carefully
observed Plaintiff’s demeanor for signs of deception. There were none, and the Court found Plaintiff’s
testimony to be credible.
Without any evidence to contradict Plaintiff’s testimony, the Court concludes that Plaintiff
followed the Illinois Department of Correction’s Grievance Procedures for Offenders to properly exhaust
his claims to the best of his ability. While no third-step grievance appeal was received by the ARB, Dole
allows the Court to find administrative remedies exhausted when an inmate presents credible testimony
indicating that he followed procedure and prison officials were responsible for the mishandling of his
grievance.
Accordingly, the Court finds that Plaintiff exhausted his administrative remedies and DENIES
Defendants’ Motion for Summary Judgment. A final pre-trial conference remains set for November 4,
2015 at 9:30 AM, and a trial by jury remains set for November 16, 2015 at 9:00 AM.

IT IS SO ORDERED.
DATED: April 2, 2015
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE
5