Gillum v. Watson et al

Filing 61

ORDER ADOPTING REPORT AND RECOMMENDATIONS 57 ; Accordingly, the Court ADOPTS the R & R (Doc. 57) and GRANTS Defendants Motions as follows: Count II against Defendant Trice and Count IV against Defendants Trice, McLaurin, and Robinson-Davis are DISMI SSED without prejudice. Defendants Motions for Summary Judgment (Docs. 50 & 52) are DENIED as moot. Defendant Robinson-Daviss Motion to Substitute Affidavit (Doc. 54) is DENIED as moot. Plaintiffs Motion for Extension of Time to File Response (Doc. 58) and Motion to Appoint Counsel (Doc. 59) are DENIED as moot. As no further claims remain pending, the Clerk of Court is DIRECTED to close this case. Signed by Judge Staci M. Yandle on 6/16/15. (cmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORTEZ D. GILLUM,
Plaintiff,
vs.

Case No. 14-cv-546-SMY-PMF

RICHARD WATSON, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“R & R”) (Doc.
57) of Magistrate Judge Philip M. Frazier recommending this Court grant Defendants’ Motion
for Summary Judgment (Doc. 35) and Motion to Dismiss for Failure to Exhaust Administrative
Remedies (Doc. 36). In his Objection to the R & R, Plaintiff states he followed all procedures for
administrative review of his denied grievances and that there are issues of material fact regarding
his claim under the Eighth Amendment (Doc. 60).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Because Plaintiff filed an
objection to the R & R, the Court will review the record de novo.
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. 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”).
Therefore, 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, 28485 (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 “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).

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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).
(2) If the judge determines that the prisoner did not exhaust his
administrative remedies, the judge will then determine whether (a) the plaintiff
has failed to exhaust his administrative remedies, and so he must go back and
exhaust; (b) or, although he has no unexhausted administrative remedies, the
failure to exhaust was innocent (as where prison officials prevent a prisoner from
exhausting his remedies), and so he must be given another chance to exhaust
(provided that there exist remedies that he will be permitted by the prison
authorities to exhaust, so that he's not just being given a runaround); or (c) the
failure to exhaust was the prisoner's fault, in which event the case is over. (3) If
and when the judge determines that the prisoner has properly exhausted his
administrative remedies, the case will proceed to pretrial discovery, and if
necessary a trial, on the merits.

Pavey, 544 F.3d at 742. 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)).
At the time of the events alleged in his Complaint, Plaintiff was housed at the St. Clair
County Jail. The grievance procedure at the jail is best understood as a 3-step process. Before
initiating the formal grievance process, the detainee must provide the Captain with a “Captain’s
Request.” This is done using a form entitled “St. Clair County Sheriff’s Department Request –
Complaint Form.” If the request is not resolved via action on the Captain’s Request, the detainee
submits a formal grievance to the shift supervisor. This second step is initiated with a form titled
“Detainee Grievance Form.” Those forms have 3 sections: a space for the detainee to describe
the nature of his grievance, a space for a description of the action/response, and a space for

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signatures by the detainee and the shift supervisor. The third and final step is for the detainee to
submit the same grievance form to the assistant jail superintendent through the on-duty shift
supervisor.
On September 17, 2013, Gillum submitted a “Detainee Grievance Form” to the shift
supervisor (Doc. No. 41, pp. 18-20). In the grievance, he complained that he had been deprived
of an opportunity to go to the gym for physical exercise (as described in Count 2) and that he had
not received the special diet he requested (as described in Count 4) from Dr. Larson and others.
On the same day, a shift supervisor signed the grievance and sent a copy to a nurse (Doc. No. 41,
p. 18).
Early in October, 2013, Plaintiff verbally discussed his concerns with Defendant Trice.
At approximately the same time, someone provided Plaintiff with a copy of the September 17,
2013 grievance form and explained that he needed to go back and start at the first step by turning
in a captain’s request. On October 16, 2013, Plaintiff handed one “Request-Complaint” form to
Defendant McClaurin. He handed a duplicate of the form to Defendant Trice (Doc. Nos. 35-2,
pp. 24-26). Neither form describes the events alleged in this litigation.
At the evidentiary hearing, Plaintiff testified that the original forms he handed to Trice
and McClaurin on October 16, 2013 contained second pages. He further testified that the details
regarding the claims in Counts 2 and 4 were outlined on the second pages. However, based upon
a review of the forms on file, which contain closing language (Thank you for your time) and
include comments strongly suggesting that the entire request is contained on the first page, his
testimony was not held to be credible. Plaintiff’s testimony about an original second page also
conflicts with a portion of defendant Trice’s affidavit, which states that Plaintiff did not hand
him a captain’s request for a special diet (Doc. No. 35-2, p. 2).

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Plaintiff did not exhaust his remedies by following the jail’s administrative remedy
procedure. When he submitted his grievance form to the shift supervisor on September 17, 2013,
he bypassed the first step in the process and attempted to begin at the second, formal step.
Because Plaintiff neglected to first submit a captain’s request, the September 17, 2013, grievance
was returned without a decision on the merits. Plaintiff did not cure the procedural error by
completing the first step of submitting a captain’s request presenting the particular concerns
reflected in Counts 2 (insufficient exercise) or Count 4 (a special diet).
Accordingly, the Court ADOPTS the R & R (Doc. 57) and GRANTS Defendants’
Motions as follows: Count II against Defendant Trice and Count IV against Defendants Trice,
McLaurin, and Robinson-Davis are DISMISSED without prejudice. Defendants’ Motions for
Summary Judgment (Docs. 50 & 52) are DENIED as moot. Defendant Robinson-Davis’s
Motion to Substitute Affidavit (Doc. 54) is DENIED as moot. Plaintiff’s Motion for Extension
of Time to File Response (Doc. 58) and Motion to Appoint Counsel (Doc. 59) are DENIED as
moot. As no further claims remain pending, the Clerk of Court is DIRECTED to close this case.
IT IS SO ORDERED.
DATED: 6/16/15
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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