Petty v. Kemp et al

Filing 66

ORDER: For the reasons stated in the attached memorandum and order, the Court ADOPTS the magistrate judge's December 22, 2015 report and recommendation in full (Doc. 60 ), OVERRULES Petty's objections (Doc. 62 ), and GRANTS Defendants 9; motion for summary judgment (Doc. 42 ) on exhaustion grounds. Petty's complaint is DISMISSED without prejudice. Petty's motion for counsel (Doc. 64 ) and motion to respond (Doc. 63 ) are both DENIED. The CLERK is DIRECTED to enter judgment in favor of Defendants and against Plaintiff. Signed by Chief Judge Michael J. Reagan on 3/29/2016. (wtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARSHALL PETTY,
Plaintiff,
vs.
C/O KEMP,
C/O PATTERSON,
C/O WELSH,
C/O REID, and
STEPHEN DUNCAN,
Defendants.

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Case No. 15-cv-0111-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Marshall Petty was previously incarcerated at the Lawrence
Correctional Center in Sumner, Illinois, but is currently incarcerated at the Dixon
Correctional Center in Dixon, Illinois. On February 3, 2015, Petty filed a civil rights
complaint pursuant to 42 U.S.C. § 1983, alleging that he fell on January 19, 2015 and that
guards at Lawrence didn’t provide quick enough medical attention for the fall. The
Court screened Petty’s complaint pursuant to 28 U.S.C. § 1915A and dismissed some of
the claims and some of the defendants from the case, but permitted Petty’s medical
claim to proceed against four guards and his request for injunctive relief to proceed
against the prison’s warden.

Those remaining defendants have since moved for

summary judgment on failure-to-exhaust grounds, claiming that the grievance dealing
with the fall that was attached to the complaint was never appealed to the Illinois
Review Board. The magistrate judge held a hearing on the exhaustion issue and then
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filed a report and recommendation, advising the Court to grant the exhaustion-related
motion for summary judgment. Petty 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).
To serve those goals and give the prison remedy process a chance of success, a prisoner
“must file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
Exhaustion is required in a number of circumstances. It is usually triggered in
medical treatment cases, like the one Petty brings here. E.g., Hopkins v. Milwaukee
Secure Detention Facility, 575 F. App’x 667, 668 (7th Cir. 2014); Jackson v. Shepherd,
552 F. App’x 591, 592 (7th Cir. 2014); Palmer v. Fenoglio, 510 F. App’x 476, 477-78 (7th
Cir. 2013). It is necessary even when a prisoner only wants money damages and even
when the prisoner believes that his internal grievances will ultimately be denied.
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 remedies, so long as he could
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have become aware of them via reasonable 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 prison officials block an inmate from
the administrative process, Wagoner v. Lemmon, 778 F.3d 586, 590-92 (7th Cir. 2015); it
isn’t needed when no administrative process is 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. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.
2008). The magistrate judge held just such a hearing in this case. Petty filed two
responses to the exhaustion motion and some inconsistencies between the two left
things confused—his first response suggested that he had tried to start the complaint
process but had received no response, and the other stated that he filed an emergency
grievance about the January 19th fall on the day it happened and received a response
from the warden. The hearing cleared things up. Petty testified that he filed a standard
grievance concerning another matter, one that predated the January 19th fall, on
January 15th; he received no response to that grievance. He then fell on January 19th,
filed an emergency grievance about that fall that same day, and received a response
from the warden six days later telling him that his grievance wasn’t an emergency. He
took no further action on that grievance, instead opting to file suit in early February
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2015.

Petty conceded that he didn’t appeal the January 19th grievance to the Review

Board, and for that reason the magistrate was of the view that the administrative
remedies for this case—which concerns only the January 19th fall—weren’t exhausted.
The undersigned has reviewed the transcript of the hearing and Petty’s
objections to the magistrate judge’s report and is of the view that the magistrate judge
got it right.

Petty makes a few objections to the magistrate judge’s report and

recommendation. He first maintains that he didn’t need to appeal the warden’s denial
of his emergency grievance because his past grievances were summarily denied or
delayed, but anticipated futility doesn’t excuse a prisoner from trying to exhaust the
administrative process. E.g., Steiskal v. Lewitzke, 553 F. App’x 611, 616 (7th Cir. 2014);
Edmondson v. McCaughtry, 157 F. App’x 908, 910 (7th Cir. 2005). Petty also argues that
that he didn’t have to engage in the standard three-step grievance process if he filed his
grievance as an emergency.

That’s true enough but beside the point—in typical

circumstances, a prisoner must still exhaust the administrative process for grievances he
dubs an emergency, meaning that he must at least appeal the denial of the emergency
grievance to the Administrative Review Board. See ILL. ADMIN. CODE § 504.850; see
also Glick v. Walker, 385 F. App’x 579, 583 (7th Cir. 2010) (holding, in the context of an
emergency grievance, that “one pass to the ARB [is] enough”); Flournoy v. Schomig,
152 F. App’x 535, 538 (7th Cir. 2005) (prisoner who filed an emergency grievance that
was denied as a non-emergency had to “follow through” and appeal to the Review
Board, even if he thought the effort would be “futile”). Petty didn’t appeal to the

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Administrative Review Board here, and given the slow pace of civil litigation, he had to
at least try an appeal before making a beeline to federal court.
At the end of the day, the testimony and the record show that Petty didn’t appeal
his January 19th 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 Petty’s 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 December 22, 2015 report and recommendation in full (Doc. 60), OVERRULES
Petty’s objections (Doc. 62), and GRANTS Defendants’ motion for summary judgment
(Doc. 42) on exhaustion grounds. Petty’s complaint is DISMISSED without prejudice
for failure to exhaust.

As for the motions Petty made after the report and

recommendation was issued, his pending motion for counsel (Doc. 64) is DENIED
because Petty has not laid out his efforts to recruit counsel, as he was instructed to do
by the magistrate judge, and because counsel would have made no difference to the
outcome of exhaustion. Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010). His
motion to respond (Doc. 63) doesn’t ask for any relief, so it is DENIED as well. The
CLERK is DIRECTED to enter judgment in favor of Defendants and against Plaintiff.
IT IS SO ORDERED.
DATED: March 29, 2016
/s/ Michael J. Reagan
Chief Judge Michael J. Reagan
United States District Court

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