Perez v. Evoldi et al

Filing 103

ORDER: For the reasons stated in the attached memorandum and order, the Court ADOPTS the magistrate judge's January 28, 2016 report and recommendation in full (Doc. 90 ), OVERRULES Perez' objections to the report (Doc. 94 ), and GRANTS De fendants' motions for summary judgment (Docs. 53 & 58 ) on exhaustion grounds. Perez' complaint is DISMISSED without prejudice for failure to exhaust. All pending motions are DENIED as MOOT. The CLERK is DIRECTED to enter judgment in favor of Defendants and against Plaintiff. Signed by Chief Judge Michael J. Reagan on 3/24/2016. (wtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESSE R. PEREZ,
Plaintiff,
vs.
SERGEANT EVOLDI,
SERGEANT EALEY,
C/O SWISHER,
NURSE LANG, and
DR. SHEARING,
Defendants.

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Case No. 15-cv-0042-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Jesse Perez is currently incarcerated at the Menard Correctional Center
in Chester, Illinois. On January 15, 2015, he filed a civil rights complaint pursuant to 42
U.S.C. § 1983, alleging that a number of Menard officials violated his constitutional
rights by attacking him on March 16, 2013 and denying him medical care after the
assault.

The Court screened Perez’ complaint pursuant to 28 U.S.C. § 1915A and

dismissed some of the claims and some of the defendants from the case, but permitted
Perez’ excessive force, failure to protect, deliberate indifference, retaliation, and
conspiracy claims to proceed against three prison officials and two medical staff. Those
remaining defendants have since moved for summary judgment on failure-to-exhaust
grounds, claiming that three of the grievances mentioned in Perez’ complaint were
never filed and that one was never appealed to the Illinois Administrative Review
Board. The magistrate judge held a hearing on the exhaustion issue and then filed a
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report and recommendation, advising the Court to grant the exhaustion-related motions
for summary judgment. Perez has filed an objection to the magistrate judge’s report,
meaning that the report and recommendation is now ripe for review.
Since the passage of the Prisoner Litigation Reform Act, exhaustion of remedies
is not optional—no action “shall be brought with respect to prison conditions under [42
U.S.C. § 1983] 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.” 42 U.S.C. § 1997e(a). The exhaustion requirement is “designed to keep
prisoner grievances in prisons and out of courts, on the theory that the primary
responsibility for prisoner regulation should lie with prison officials rather than with
federal judges.” Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1161 (7th Cir. 2012).
Exhaustion is required in a broad set of circumstances. It is usually triggered in
excessive force cases, like the one Perez brings here. E.g., Pavey v. Conley, 544 F.3d 739,
740 (7th Cir. 2008); Keller v. Rasmussen, 90 F. App’x 949 (7th Cir. 2004); Dixon v. Page,
291 F.3d 485, 488 (7th Cir. 2002). It is necessary even when a prisoner only wants
money damages and even when the prisoner believes that seeking assistance from
officials before suit would be futile. Abdullah v. Bates, 562 F. App’x 526, 527-28 (7th
Cir. 2014). And it applies even when a prisoner claims that he didn’t know about
administrative procedures, so long as he could have become aware of them via
diligence. Hudson v. Corizon Med. Servs., 557 F. App’x 573, 574-75 (7th Cir. 2014). All
that said, there are a few scenarios where exhaustion isn’t necessary: it isn’t required
when officials block a prisoner from starting or completing the administrative remedy
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process, Wagoner v. Lemmon, 778 F.3d 586, 590-92 (7th Cir. 2015); it isn’t needed when
there is no administrative process available, White v. Bukowski, 800 F.3d 392, 396 (7th
Cir. 2015); and it isn’t required when prison officials could provide no relief
whatsoever, Thornton v. Snyder, 428 F.3d 690, 696 (7th Cir. 2005).
A prisoner isn’t entitled to a jury trial on the exhaustion issue, but he usually gets
an evidentiary hearing to determine whether the prisoner exhausted his available
remedies and, if he didn’t, whether the failure to exhaust was the prisoner’s fault or if
officials caused it and it should be excused. Wagoner, 778 F.3d at 590-92; Pavey, 544
F.3d at 742. The magistrate judge held just such a hearing in this case. Perez’ response
to the defendants’ motions for summary judgment focused on whether he actually filed
two March 18, 2013 grievances concerning the assault and whether he appealed to the
Review Board another grievance filed on March 29, 2013 that mentioned his medical
care related to the attack, so the hearing narrowed on those points. Perez said that he
appealed all of those grievances to the Board but the records didn’t bear that out, and
for that reason (and a few others) the magistrate judge found that Perez’ statements
about writing his March 18th grievances and appealing his March 29th grievance
weren’t credible, meaning that Perez hadn’t exhausted his remedies for the claims here.
The undersigned has reviewed the transcript of the hearing and Perez’ objections
to the magistrate judge’s report and is of the view that the magistrate judge got it right.
As for the March 18th grievances, Perez said that he filed those grievances at the prison
and appealed them to the Administrative Review Board, but the Board’s records don’t
show those appeals. The absence of records casts doubt on Perez’ testimony, and some
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other inconsistencies decisively show that Perez is dissembling about ever writing the
March 18th grievances. For one, Perez didn’t attach the March 18th grievances to his
complaint or his response to Defendants’ motions for summary judgment, but he did
attach other grievances to both submissions. Perez said he didn’t know that he needed
to attach the March 18th grievances to his complaint or to his response, but he knew
enough to attach some of his grievances to both submissions, and the notion that he
didn’t know that he needed to attach the grievances that he purportedly submitted that
had the most to do with his case defies common sense. Once more, Perez shifted his
story as to why he didn’t attach the March 18th grievances to his summary judgment
response—he first said that he didn’t know he could or should attach them, but later
said that he tried to attach them to his response but that the law library didn’t file them
as instructed. Finally, Perez made no effort to file the March 18th grievances prior to
the exhaustion hearing, with or without leave of court. All of these inconsistencies led
the magistrate judge to conclude that Perez was lying about writing the March 18th
grievances, and the undersigned agrees with that view of the evidence and the
testimony at the hearing. Based on that credibility finding, the Court rules that Perez
did not exhaust his administrative remedies as to the claims of excessive force. See
Cottman v. Richardson, 600 F. App’x 473, 474-75 (7th Cir. 2015).
As for the March 29th medical grievance, the evidence shows that Perez filed the
grievance but didn’t appeal it.

The late-March grievance was submitted to Perez’

counselor on May 17, 2013 and returned to him that same day; it was then received by
the grievance office on June 11th, denied by the grievance officer on July 29th, and then
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denied by the prison’s chief administrative officer on August 7th. Perez said that he
submitted the grievance to the Administrative Review Board on August 27th, but the
Board has no record of the appeal. That point alone casts doubt on whether Perez ever
appealed, and his dissembling about the March 18th grievances doesn’t help his
credibility. The nail in the coffin is the fact that the appeal date on the form (Doc. 67 at
12) has been altered—it looks as if Perez marked over the date on the form with white
out and rewrote the August 27th submission date. Perez blames the mark-out on a
smudge or a tear, but that’s ridiculous; if a smudge or rip was to blame the word “date”
would still be legible, rather than completely obfuscated, and the mark-out wouldn’t be
so perfect. Given the alteration and the Board’s records, the Court finds that Perez
didn’t appeal the late-March grievance, and thus didn’t exhaust his medical claim. See
Powers v. Chandler, 561 F. App’x 533, 534 (7th Cir. 2014).
Perez makes a number of objections to the magistrate judge’s report and
recommendation, many of which are difficult to follow. He first claims that he didn’t
have to exhaust his remedies or appeal his March 18th grievances if the prison never
responded to those grievances in the first instance. That’s true enough but beside the
point—the Court is not viewing the lack of a Board appeal of the March 18th grievances
as a failure by Perez to exhaust the entire process rather than just a part of it, but instead
as one piece of proof among many others that Perez never drafted his March 18th
grievances at all. See Moore v. Feinerman, 515 F. App’x 596, 598-99 (7th Cir. 2013).
Perez said that he appealed his March 18th grievances to the Board, and the absence of

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records on that point and his other inconsistencies constitute clear and convincing proof
that he’s lying and that those March 18th grievances never existed.
Perez also attaches two hand-written, unstamped grievances dated March 18,
2013 to his objections, claiming that these are the missing grievances in question and
that he had them all along. Perez offered to provide those to the Court after the
magistrate judge’s hearing, but the magistrate judge rejected the offer, finding that any
unstamped grievances presented after Perez’ inconsistencies had been unmasked
would be forgeries. The undersigned agrees with that determination and gives no
weight to Perez’ midnight-hour submissions. Not only is Perez’ timing suspect, his
explanation for why he still has copies of those grievances is incredulous. Perez says
that those grievances were submitted to the law library to be filed with his response to
the exhaustion motions for summary judgment, but as the Court already said, that’s
inconsistent with some of his testimony at the hearing that he didn’t file those
grievances with his response because he didn’t know he could. That inconsistency
aside, it’s also unlikely that Perez knew to keep copies of the all-important grievances in
case they would be “lost” by the law library but at the same time didn’t grasp the need
to submit them with his complaint, bring them to the exhaustion hearing, or submit
them to the Court prior to the hearing when he realized they weren’t included by the
law library in his summary judgment response. Perez says that he didn’t seek leave of
Court to supplement before the hearing because the Court had already denied a
number of his other unrelated filings, but the Court doesn’t buy that explanation. Perez

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had no problem filing many other motions despite the Court’s rulings against him, so
the notion that he just gave up on any effort to supplement is quite dubious.
Perez goes on to attach another unstamped, hand-written grievance to his
objections, this one dated March 20, 2013 and related to Nurse Lang. Like the March
18th grievances, the Court doesn’t believe that this grievance was submitted to the
prison for a number of reasons.

Perez’ credibility is already in doubt given his

testimony about the other grievances; there’s no record of the March 20th grievance
ever being appealed to the Board despite Perez’ claim that he sent it to the Board; and
Perez mentioned the March 20th grievance in his complaint but didn’t file it with the
complaint, instead submitting other grievances that looked more genuine. If those
points weren’t enough, the defendants mentioned that the March 20th grievance was
missing from the record in their exhaustion motions, but Perez made no reference to it
and failed to submit it in his response, as a supplement after he filed his response, and
at the exhaustion hearing.

Its mysterious arrival now suggests that it was never

submitted at all. The timing of the filing and the other circumstances mentioned above
lead the Court to conclude that the March 20th grievance is a fiction.
At the end of the day, the testimony and the record show that Perez didn’t ever
file March 18th or March 20th grievances and didn’t appeal his March 29th grievance to
the Board, so he hasn’t satisfied the exhaustion requirement of the Prison Litigation
Reform Act. These failures weren’t caused by prison obfuscation but were Perez’ own
fault, so his failure to exhaust his remedies shuts down this suit. Wagoner, 778 F.3d at
590-92.

The Court ADOPTS the magistrate judge’s January 28, 2016 report and
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recommendation in full (Doc. 90), OVERRULES Perez’ objections to the report (Doc.
94), and GRANTS Defendants’ motions for summary judgment (Docs. 53 & 58) on
exhaustion grounds. Perez’ complaint is DISMISSED without prejudice for failure to
exhaust. All pending motions are DENIED as MOOT. The CLERK is DIRECTED to
enter judgment in favor of Defendants and against Plaintiff.
IT IS SO ORDERED.
DATED: March 24, 2016
/s/ Michael J. Reagan
Chief Judge Michael J. Reagan
United States District Court

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