Middleton v. Berkley

Filing 78

ORDER denying 60 Motion for Summary Judgment and adopting 74 Report and Recommendations.. Signed by Judge David R. Herndon on 5/22/2018. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAYNE J. MIDDLETON,
Plaintiff,
v.
C/O BERKLEY and
STEVEN MEEKS,
Defendants.

No. 17-cv-0547-DRH
MEMORANDUM and ORDER

HERNDON, District Judge:
Introduction and Background
Pending before the Court is an April 30, 2018 Report and Recommendation
(“the Report”) issued by Magistrate Judge Stephan C. Williams (Doc. 74).
Magistrate Judge Williams recommends that the Court deny defendant Berkley’s
motion for summary judgment on the issue of exhaustion of administrative
remedies. The parties were allowed time to file objections to the Report. On May
17, 2018, Berkley filed an objection to the Report (Doc. 77).

Based on the

applicable law, the record and the following, the Court ADOPTS the Report in its
entirety.
Plaintiff Dwayne J. Middleton brought this pro se action for deprivations of
his constitutional rights pursuant to 42 U.S.C. § 1983.

According to the

complaint, defendants have been deliberately indifferent to plaintiff’s serious
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medical condition. Specifically, plaintiff contends he suffers from Tourette’s
syndrome, a neurological disease which interferes with his ability to control his
body. Plaintiff contends he has been denied medication for his condition and, as a
result, has suffered several injuries because he is unable to control his body.
On May 25, 2017, the Court screened Middleton’s complaint, found that it
survived review and construed the complaint as containing a request for
preliminary injunction (Doc. 4). Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate
Judge

Williams,

after

conducting

a

hearing,

submitted

a

Report

and

Recommendation recommending that the Court deny the request for preliminary
injunction (Doc. 23).

On July 5, 2017, the Court adopted the Report and

Recommendation and denied the motion for preliminary injunction (Doc. 29).
Thereafter, defendant Berkley filed a motion for summary judgment as to the
issue of exhaustion of administrative remedies (Docs. 60 & 61). Berkley contends
that on July 11, 2017, after this lawsuit was filed, Middleton sent a grievance to the
Administrative Review Board that had not been previously reviewed at the
institution.

Middleton opposed the motion (Doc. 65).

On April 26, 2018,

Magistrate Judge Williams held a Pavey 1 hearing on the motion for summary
judgment and to assess the credibility of the conflicting accounts about Middleton’s
use of the grievance process (Doc. 73).

Subsequently, on April 30, 2018,

1 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 procedures to be followed
in doing so).

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Magistrate Judge Williams, pursuant to 28 U.S.C. § 636(b)(1)(B), submitted the
Report recommending that the Court deny defendant Berkley’s motion for
summary judgment on the issue of exhaustion of administrative remedies.
Specifically, Judge Williams found that “[D]efendant has failed to carry his burden
and demonstrate that he is entitled to summary judgment.” (Doc. 74, pg. 8). The
Report was sent to the parties with a notice informing them of their right to appeal
by way of filing “objections” on or before May 17, 2018.

Berkley did file an

objection to the Report (Doc. 77). Based on the record and the following, the
Court adopts the Report in its entirety and denies defendant Berkley’s motion for
summary judgment on the issue of exhaustion.
Facts
The facts set forth in this section are limited to those necessary for this Court
to review the Report. A more comprehensive recitation of the facts is contained in
the Report.

Middleton filed this lawsuit on May 23, 2017.

At this time,

Middleton was housed on the receiving wing of Menard Correctional Center.
During this time, Berkley was a correctional officer assigned to the receiving wing.
Middleton testified that he asked Berkley for a grievance on May 5, 2017, on
May 6, 2017 and on May 16, 2017 and that Berkley never provided him a grievance.
Berkley testified that he does not recall Middleton asking him for grievances and
that if Middleton would have asked for a grievance he would have tried to resolve
the problem informally as he believed that was what the grievance code required
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and if an issue still remained, he would have provided a grievance. Berkley also
testified that if Middleton did not have a grievance form, he would have told
Middleton to write the grievance on a piece of paper, also known as a “kite,” and
that Berkley would have placed it in a the grievance box.
Middleton admitted that he did not ask anyone in the law library for a
grievance and Middleton also admitted to indicating in his complaint that he did
not complete the grievance process. Middleton was transferred from Menard to
Sheridan Correctional Center on May 25, 2017.
On July 11, 2017, the Administrative Review Board (“ARB”) received a
written grievance from Middleton. Prior to this time, the ARB did not receive a
written grievance from Middleton.
Legal Standards
The Court’s review of the Report is governed by 28 U.S.C. § 636(b)(1), which
provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate
judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de
novo determination of those portions of the report and recommendation to
which specific written objection has been made. Johnson v. Zema Sys. Corp.,
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170 F.3d 734, 739 (7th Cir. 1999). If no objection or only a partial objection is
made, the Court reviews those unobjected portions for clear error.

Id.

In

addition, failure to file objections with the district court “waives appellate review
of both factual and legal questions.” Id. Under the clear error standard, the Court
can only overturn a Magistrate Judge's ruling if the Court is left with “the definite
and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
“The court shall grant summary judgment if 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). Whether a fact is material depends on the
underlying substantive law that governs the dispute. Carroll v. Lynch, 698 F.3d
561, 564 (7th Cir. 2012) (citation omitted).
Lawsuits filed by inmates are governed by the provisions of the Prison
Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a). The PLRA provides:
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.
42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a
precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See
also Perez v. Wis. Dept. of Corr., 182 F.3d 532, 534-535 (7th Cir. 1999) (stating
that § 1997e(a) of the PLRA “makes exhaustion a precondition to bringing suit”
under § 1983).

Failure to exhaust administrative remedies is an affirmative
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defense; defendants bear the burden of proving a failure to exhaust. See Jones v.
Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir.
2006). 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. The Supreme Court has
interpreted

the

PLRA

to

require

“proper exhaustion”

prior

to

filing

suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means “using all steps
that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits).” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the
Supreme Court agreed with the Seventh Circuit's interpretation of the statute as
stated in Pozo, which required an inmate to “file complaints and appeals in the
place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d
at 1025. “[A] prisoner who does not properly take each step within the
administrative process has failed to exhaust state remedies, and thus is foreclosed
by § 1997e(a) from litigating.” Id.
In Pavey, the Seventh Circuit instructed district courts to conduct a hearing
where

“exhaustion is

contested”

to

determine

whether

a

plaintiff

has exhausted his administrative remedies. Pavey, 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 factual
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findings of a magistrate judge, whose Report included factual findings that the
plaintiff was not credible). In other words, and unlike other summary judgment
motions, the very purpose of Pavey is to allow a judge to resolve swearing contests
between litigants.

So while courts typically undertakes de novo review of the

portions of the Report to which a party objects, the courts will give great deference
to factual findings and credibility determinations made in the Report. Pavey II,
663 F.3d at 904. See also Towns v. Holton, 346 Fed.Appx 97, 100 (7th Cir.
2009)(great deference to credibility findings based on demeanor); Goffman v.
Gross, 59 F.3d 668, 671 (7th Cir. 1995)(“De 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).
Thus, where failure to exhaust administrative remedies is raised as an
affirmative defense, Pavey set forth the following recommendations:
The sequence to be followed in a case in which exhaustion is contested
is therefore as follows: (1) The district judge conducts a hearing on
exhaustion and permits whatever discovery relating to exhaustion he
deems appropriate. (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 of 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 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; and if there
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is a jury trial, the jury will make all necessary findings of fact without
being bound by (or even informed of) any findings made by the district
judge in determining that the prisoner exhausted his administrative
remedies.
Id. at 742.
A. Illinois Exhaustion Requirements
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. 20 Ill. Administrative Code §504.800 et seq. Under the
current grievance procedures, which went into effect April 1, 2017, the inmate must
file a grievance form directed to the Grievance Officer within 60 days of the incident.
20 Ill. Adm. Code §504.10.2 The grievance form must:
contain factual details regarding each aspect of the offender’s
complaint, including what happened, when, where, and the name of
each person who is subject of or who is otherwise involved in the
complaint. The provision does not preclude an offender from filing a
grievance when the names of individuals are not known, but the
offender must include as much descriptive information about the
individual as possible.
Id. “The Grievance Officer shall 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 two months after receipt of
the written grievance, when reasonably feasible under the circumstances.” 20 Ill.
2 The relevant portion of the current code states: “An offender may file a written grievance on a
grievance form that shall be made available in all living units.” Ill. Adm. Code 504.810(a) (2017).
504.810(a) no longer makes reference to informal resolution.

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Admin. Code §504.830(e). If the inmate is not satisfied with the Chief
Administrative Officer’s response, he or she can file an appeal with the Director
through the Administrative Review Board. 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. The appeal
must be received by the Administrative Review Board 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(d). “The Director shall review the findings and recommendations of the
Board and make a final determination of the grievance within six months after
receipt of the appealed grievance, when reasonably feasible under the
circumstances. The offender shall be sent a copy of the Director’s decision.” 20 Ill.
Admin. Code §504.850(e).
Analysis
Here, Berkley’s objection to the Report largely reiterates things already
argued in the motion for summary judgment. The Court finds that his objection
merely takes umbrage with the Report in that Berkley argues that the fault lies with
Middleton in failing to exhaust and not him.
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After reviewing the motion for

summary judgment, the Report and the objection, the Court finds no error or
deficiency in Judge Williams’ credibility determinations. Judge Williams provided
a sound analysis of the testimony. Specifically, Judge Williams found:
“The undersigned finds that Defendant has failed to carry his burden
and demonstrate that he is entitled to summary judgment. The
testimony given by both Plaintiff and Defendant are clearly in
contradiction with one another. The undersigned, however, is not
able to say that he finds either party not credible. Plaintiff was able to
provide details and specifics in his testimony that he requested
grievances, and the undersigned cannot point to any part of Plaintiff’s
testimony or demeanor that would demonstrate Plaintiff was lying. If
Plaintiff did in fact ask for grievances, but was denied them, then he is
deemed to have exhausted. When prison officials deny an inmate a
grievance, the inmate’s attempt at exhaustion are thwarted, his
administrative remedies are no longer available to him, and he may
proceed with a lawsuit. See Dole, 438 F.3d at 809 (a remedy can be
unavailable to a prisoner if the prison does not respond to the
grievance or uses misconduct to prevent a prisoner from exhausting
his resources). The undersigned also notes that though Plaintiff
admitted that he did not ask the law library or nursing staff for
grievances, the grievance code does not require him to do so. The
code mandates that grievance forms “shall be made available in all
living units.” 20 Ill. Adm. Code § 504.810(a). If a correctional officer
in Plaintiff’s wing denied him access to grievance forms, then such
conduct ran afoul of the grievance code.
Though Defendant Berkley testified that he does not recall Plaintiff
ever asking him for a grievance, and though the undersigned finds
Berkley to be a credible witness, the fact remains that the summary
judgment burden is placed on the defendant. Though Defendant was
credible, Plaintiff was also credible, and the undersigned simply
cannot say that Defendant’s testimony is sufficient to overcome his
burden.
In addition, Defendant’s testimony also raises concerns regarding his
knowledge of the proper grievance process. For instance, Defendant
Berkley testified that even if no grievance forms were available to
Plaintiff, he would have told Plaintiff to write a grievance on a kite and
then would have made sure the kite was placed in the grievance box.
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In the undersigned’s experience, however, he does not recall ever
encountering a situation where prison officials have accepted a
grievance written on anything other than a grievance form. Moreover,
as already mentioned, the administrative code makes clear that
grievance forms are to be available in all living units. Id.”
(Doc. 74, pgs. 8-10).
While Judge Williams found both Middleton and Berkley to be credible
witnesses, he specifically found that “Berkley’s testimony and other evidence
provided are insufficient to meet his burden on summary judgment.” (Doc. 74, pg.
10). The record before the Court provides no reason for the Court to doubt Judge
Williams’ determination. Furthermore, based on the record, it is clear to the Court
that defendant Berkley did not carry his burden with regard to the exhaustion
issue.
Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 74) and
DENIES defendant Berkley’s motion for summary judgment as to the exhaustion
issue (Doc. 60).
IT IS SO ORDERED.

Judge Herndon
2018.05.22
09:02:43 -05'00'
United States District Judge
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