Oliver v. Baldwin et al

Filing 75

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth in the attached Memorandum and Order, the undersigned ADOPTS Judge Williams' Report and Recommendation in its entirety, and GRANTS the motions for summary judgmen t filed by Defendants Baldwin, Hunter, and Shicker (Doc. 51 ), and Defendants Garcia and Ritz (Doc. 48 ). No claims remain in this case, so the Clerk is DIRECTED to enter final judgment against Plaintiff and in favor of all Defendants. Signed by Chief Judge Michael J. Reagan on 2/23/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRONE OLIVER, No. B31327
Plaintiff,
v.
JOHN BALDWIN,
KURTIS HUNTER,
LOUIS SHICKER,
DR. GARCIA, and
DR. RITZ,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-1268-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.

Introduction

This matter is now before the Court on a Report and Recommendation (R&R)
from Magistrate Judge Stephen C. Williams (Doc. 73). The Plaintiff filed his Objections
to the R&R at the institution on February 3, 2017, though the document did not reach
the Court until February 14, 2017 (Doc. 74).1 Plaintiff’s underlying complaint alleges
that the Defendants acted in deliberate indifference by failing to provide timely or
sufficient treatment for his chronic hip pain and the stomach pain that resulted from
Plaintiff’s objections to the R&R were technically untimely. The R&R set a response deadline of
February 10, 2017. Even adding the 3 days after action is due, pursuant to FED. R. CIV. P. 6(d), the
objections would have been due by February 13, 2017. The Court received the objections on February 14,
2017. However, out of an abundance of caution, the Court will consider the objections because the
notarized proof of service attached to the objections indicates that the document was deposited in the
prison mail system on February 3, 2017 (See Doc. 74 at 13).
1

1|Page

prescription pain medications (Doc. 1). The Defendants moved for summary judgment
on the premise that Plaintiff failed to exhaust the appropriate administrative channels
to grieve his concerns (Docs. 48, 49, 51, 52). Plaintiff responded to the motions (Doc. 59).
On January 17, 2017, an evidentiary Pavey2 hearing was held before Magistrate Judge
Williams to assess the credibility of conflicting accounts about the Plaintiff’s use of the
grievance process. The R&R recommends granting summary judgment in favor of all
named Defendants because Plaintiff failed to exhaust administrative remedies (Doc. 73).
Plaintiff opposes this recommendation (Doc. 74).

The matter is now before the

undersigned.
II.

Facts

The facts set forth in this section will be limited to those necessary for this Court
to review the R&R. A more comprehensive recitation of the facts can be found in
Magistrate Judge Williams’ R&R (Doc. 73).
Plaintiff filed his first grievance—filed as an emergency—on April 2, 2015, while
incarcerated at Shawnee Correctional Center. The grievance was returned to him after
it was deemed a non-emergency. Kendra Seip (a former grievance officer) testified at
the Pavey hearing that emergency grievances did not appear on the log form she had
unless the grievances were officially deemed an emergency and were forwarded to the
grievance officer.
2

Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) (indicating that a judge, not a jury should resolve initial
disputes about exhaustion in prisoner cases, and setting forth the procedure to be followed in doing so).

2|Page

Plaintiff contends that once his grievance was deemed a non-emergency, he
submitted it to his counselor.

His counselor responded on April 16, 2015.

Upon

receiving the response from his counselor, Plaintiff testified both that he immediately
submitted it to the grievance officer and that it took him a few days to submit it because
he needed access to the law library and to copying facilities.

It is unclear from

Plaintiff’s testimony and written filings the precise date upon which he allegedly
submitted his grievance to the institutional grievance officer—but he appears to claim
that he did so sometime between April 16 and April 29, 2015.
Plaintiff’s testimony and assertions that he submitted a grievance to the
institutional grievance officer are directly contradicted by Seip’s testimony that the 2015
grievance log at Shawnee did not reflect any grievances filed by Plaintiff.

In his

objections to the R&R Plaintiff claims that Seip testified that Shawnee did not keep a
grievance log (Doc. 74). However, what Seip actually testified was that Shawnee did
not keep a log of emergency grievances that were deemed non-emergencies.3 By contrast,
Seip testified that Shawnee did keep a log of grievances submitted through the normal
channels and that the log did not reflect any grievances in 2015 by the Plaintiff.
Plaintiff also alleges that he submitted the April 2, 2015 grievance and the April
24, 2015 grievance to the Administrative Review Board (ARB). ARB Manager, Leslie
McCarty, testified that the ARB received a grievance from Plaintiff on April 29, 2015.
The Court verified Seip’s testimony by reviewing the transcript of the January 17, 2017 hearing before
Magistrate Judge Williams.
3

3|Page

The grievance included copies of Plaintiff’s April 2 and April 24 institutional
grievances. McCarty testified that the grievances were returned to Plaintiff because he
failed to include proof that he had exhausted the grievances to the grievance officers or
chief administrative officers at his institution. Plaintiff agreed that the ARB responded
to his grievance, and he testified that on June 3, 2015, he provided copies of his
grievances and the denials, but never heard back from the ARB. Plaintiff alleges that he
followed up with the ARB via letter in July 2015, received no response, and
subsequently filed the complaint in the underlying matter in November 2015.
To date, Plaintiff maintains the position that he has not received any response to
grievances he submitted at the institutional level.
Upon review of the motions for summary judgment, the Plaintiff’s response, and
the testimony at the Pavey hearing, Magistrate Judge Williams found that Plaintiff’s
testimony lacked credibility, and that the record evidence supported granting the
motions for summary judgment (Doc. 73 at 15). As a part of this finding, Magistrate
Judge Williams specifically found that Plaintiff likely circumvented the institutional
grievance procedure on April 24, 2015, and instead went straight to the ARB (Doc. 73 at
15-18).

Judge Williams based this finding on the evidence that the institutional

grievance logs did not reflect any grievances in 2015 by Plaintiff, and on the fact that it
would have been impossible for Plaintiff to have filed and fully exhausted the
institutional process between April 16, 2015, and the date the ARB received his
4|Page

grievance on April 29, 2015 (Id.). Accordingly, Judge Williams concluded that Plaintiff
did not exhaust the institutional grievance procedure.
III.

Legal Analysis

When a party timely objects to a magistrate judge's R & R, the district court–
giving deference to the magistrate judge's findings of fact and credibility
determinations as noted below—must undertake de novo review of the portions to
which an objection has been made. 28 U.S.C. § 636(b)(1)(C). Here, Plaintiff’s objections
to the R&R largely reiterate things he already argued in his response to summary
judgment (Compare Docs. 59 and 74). In addition to his previous arguments, Plaintiff
also takes issue with the R&R’s characterization of certain testimony at the Pavey
hearing and alleges that the Defendants have failed to prove that there is still a remedy
available to him (Doc. 74 at 5, 8-9).
As an inmate, Plaintiff's lawsuit is governed by the Prison Litigation Reform Act
(“PLRA”), which requires a prisoner to exhaust his administrative remedies before
filing suit. 42 U.S.C. § 1997e. In Illinois, the grievance process requires a prisoner to
speak with his counselor, file a written grievance, and then appeal that grievance
through the institutional and state / ARB levels. 20 ILL. ADMIN. CODE §§ 504.810–850. A
prisoner may also request a grievance be handled “on an emergency basis” by
forwarding it straight to the warden, who must expedite processing of the grievance;
the inmate may directly appeal the warden's decision to the ARB. 20 ILL. ADMIN. CODE
5|Page

§§ 504.840, 850(g). Though the Seventh Circuit requires strict adherence to the PLRA's
exhaustion requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), the PLRA's
plain language is clear: an inmate must exhaust only those administrative remedies that
are available to him, 42 U.S.C. § 1997e(a).

Administrative remedies become

“unavailable” when prison officials fail to respond to a properly filed inmate
grievance—as Plaintiff claims they did here—or, Lewis v. Washington, 300 F.3d 829,
833 (7th Cir. 2002), when prison employees thwart a prisoner from exhausting, Dole,
438 F.3d at 809.
In Pavey v. Conley (Pavey I), the Seventh Circuit set forth the procedures for
tackling the exhaustion issue. The first step is for the judge to conduct “a hearing on
exhaustion and [permit] whatever discovery relating to exhaustion he deems
appropriate.” Pavey I, 544 F.3d at 742. And in holding that hearing, a court may credit
the testimony of one witness over another. See Pavey v. Conley (Pavey II), 663 F.3d
899, 904 (7th Cir. 2011) (affirming the factual findings of a magistrate judge, whose R
& R included factual findings the plaintiff was not credible). In other words, and
unlike other summary judgment motions, the very purpose of Pavey I is to allow a
judge to resolve swearing contests between litigants.
So while the Court typically undertakes de novo review of portions of R & Rs to
which a party objects, the Court will give great deference to Judge Williams' factual
findings and credibility determinations. Pavey II, 663 F.3d at 904. See also Towns v.
6|Page

Holton, 346 F.App'x 97, 100 (7th Cir. 2009) (great deference to credibility findings
based on demeanor); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“[D]e novo
determination is not the same as a de novo hearing. The district court is not required
to conduct another hearing to review the magistrate judge's findings or credibility
determinations.”) (emphasis added).
Here, the Court finds no error or deficiency in Judge Williams’ credibility
determination.

Judge Williams provided a sound analysis of the testimony and

bolstered his reasoning by reference to the record. Judge Williams identified a number
of weaknesses in Plaintiff’s testimony—such as the inconsistencies about when he sent
his grievances to the ARB or his institutional grievance officer. At varying points
during his deposition testimony, Plaintiff said he immediately sent the grievances to the
ARB when he got the April 2 grievance back on April 16, but Plaintiff also said it took
him a few days, and that he did not send the grievances to the ARB until April 24, 2017.
No one disputes that the ARB received the grievances on April 29, 2017. Plaintiff
further exacerbates this inconsistency in his objection to the R&R by indicating that he
sent grievances quickly because his cell mate was a law clerk and could assist him. If
the grievance process was so readily accessible to him, the delay from April 16 to April
29, and his inconsistent testimony about that timeline are cast into even greater doubt
than they were when Judge Williams heard about them at the Pavey hearing.

7|Page

Plaintiff’s objection to the R&R raises an issue about whether or not Shawnee
grievance officers kept a grievance log.

However, this issue does not defeat the

soundness of Judge Williams’ R&R, because, even assuming for a moment that the
institution did not keep a grievance log, the undisputed dates in the record that
grievances were allegedly sent demonstrate that, at the time Plaintiff communicated
with the ARB, he could not have properly exhausted institutional grievance procedures.
Pursuant to the ILLINOIS ADMINISTRATIVE CODE, 20 ILL. ADMIN. CODE §
504.830(a)-(d), once a grievance officer receives a grievance, he or she must assess the
situation and make a recommendation to the Chief Administrative Officer who has 2
months after receipt of the grievance to respond. Here, Plaintiff alleges that he began
the emergency grievance and normal grievance process thru his counselor on April 2,
2015. By April 16, 2015, he alleges that his counselor had denied his grievance. Then on
April 24, 2015, he alleges that he sent the issue to the Grievance Officer, and sent a
duplicate to the ARB as a safety measure. The ARB confirmed receipt of the April 2 and
24 grievances on April 29, 2015.
April 29 was less than 10 days after the Grievance Officer allegedly received his
grievance—so Plaintiff could not have supplied the ARB at that time with proof of
exhaustion. The ARB called this to Plaintiff’s attention by confirming receipt of his
grievance on April 29, 2015, and requesting proof of institutional exhaustion. Plaintiff
contends that he sent such proof on June 3, 2015, or, alternatively that he could not send
8|Page

it because no one responded. Plaintiff’s prevailing claim seems to be that he has not
received a response at the institutional level. However, if he only communicated with
the ARB on June 3, 2015, that was before the time under the Administrative Code would
have run up for an institutional response (June 3 is less than 2 months from April 24,
2015). Plaintiff does allege that he sent follow-up letters to the ARB, but he does not
allege that he included the proof of institutional level denials in this correspondence—
probably because, as he contends, he never received a response. Thus, at least some of
Plaintiff’s communications with the ARB were premature and necessarily came before
institutional exhaustion.
Judge Williams heard Plaintiff’s testimony that he sent grievances to his
institutional grievance officer some time between April 16 and April 29. He also heard
Seip’s testimony that the Shawnee grievance log for 2015 did not reflect any grievances
from the Plaintiff. Faced with this contradiction, Judge Williams found Plaintiff not
credible. The record before the Court provides no reason for the Court to doubt this
determination.
Plaintiff also argues that the Defendants’ motions for summary judgment cannot
be granted because the Defendants have failed to explain what remedies are still
available to him to be exhausted. However, in light of Magistrate Judge Williams’
finding that Plaintiff did not ever submit a grievance to the institutional grievance

9|Page

officer in the first instance, there is no need for the Defendants to explain what
mechanisms are still available to Plaintiff.
IV.

Conclusion

For the reasons articulated above, the undersigned ADOPTS Judge Williams’
Report and Recommendation its entirety, and GRANTS the motions for summary
judgment filed by Defendants Baldwin, Hunter, and Shicker (Doc. 51), and Defendants
Garcia and Ritz (Doc. 48).
No claims remain in this case, so the Clerk is DIRECTED to enter final judgment
against Plaintiff and in favor of all Defendants.
IT IS SO ORDERED.
DATED: February 23, 2017

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

10 | P a g e