Croom v Unknown Party
Filing
38
ORDER granting 28 Motion for Summary Judgment; adopting 36 Report and Recommendations. The Court dismisses without prejudice this case for failure to exhaust administrative remedies. The Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 4/5/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER CROOM,
Plaintiff,
v.
JACQUELINE LASHBROOK,
RODELY and JOHN BALDWIN,
Defendants.
No. 17-cv-0633-DRH
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is a March 7, 2018 Report and Recommendation
(“the Report”) issued by Magistrate Judge Reona J. Daly (Doc. 36). Magistrate
Judge Daly recommends that the Court grant defendants’ motion for summary
judgment on the issue of exhaustion of administrative remedies and dismiss
without prejudice plaintiff’s claims for failure to exhaust. The parties were allowed
time to file objections to the Report.
On March 15, 2018, plaintiff filed an
objection to the Report (Doc. 37). Based on the applicable law, the record and the
following, the Court ADOPTS the Report in its entirety.
On June 9, 2017, plaintiff Christopher Croom brought this pro se action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 at the Menard
Correctional Center (Doc. 1). On June 30, 2017, the Court screened Croom’s
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amended complaint (Doc. 10) and construed it as a claim against defendants
Counselor Rodely and Jacqueline Lashbrook on an Eighth Amendment claim of
deliberate indifference as defendants failed to protect Croom from his enemy,
Marlon Brown, by failing to respond to his emergency grievance (Doc. 13). 1 In
addition to filing the amended complaint, Croom filed a motion for preliminary
injunction (Doc. 11). Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Daly
submitted a Report and Recommendation on October 3, 2017 recommending that
the Court deny Croom’s motion for preliminary injunction (Doc. 26). On October
24, 2017, the Court adopted the Report and Recommendation and denied Croom’s
motion for preliminary injunction (Doc. 27). 2
Thereafter, defendants filed a motion for summary judgment as to the issue
of exhaustion of administrative remedies (Docs. 28 & 29).
Specifically,
defendants maintain that plaintiff failed to exhaust his administrative remedies as
required because he did not forward his grievance to the Administrative Review
Board within the appropriate timeframe as outlined in Department Rule 504.
Further, defendants contend that plaintiff failed to identify any of the defendants in
any hand written “grievance.”
(Doc. 31).
On December 7, 2017, Croom filed his opposition
Magistrate Judge Daly held a Pavey 3 hearing on the motion for
1 The Court also directed the Clerk of the Court to add John Baldwin to the docket in his official
capacity only as the Director of the IDOC for the purposes of injunctive relief (Doc. 13, p. 6).
2 The Report and Recommendation found: “To date, the contact between Plaintiff and Marlon
Brown has been minimal … Plaintiff has not established that he is likely to succeed on the merits
because he has not established a substantial risk of serious harm.” (Doc. 26, pg. 4).
3 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
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summary judgment and to assess the credibility of the conflicting accounts about
Croom’s use of the grievance process on March 1, 2018 (Doc. 34) and on March 7,
2018 issued a Report and Recommendation (“the Report”) recommending that the
Court grant the motion for summary judgment for failure to exhaust and dismiss
without prejudice plaintiff’s claims (Doc. 36).
Croom filed objections to the
Report on March 15, 2018 (Doc. 37).
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 are contained
in the Report (Doc. 36). Croom claims that he is in fear of his safety because an
enemy of his Marlon Brown is also housed at Mendard. 4
He claims that he
submitted a February 23, 2017 grievance to Counselor Rodley on March 14, 207 (1
of 7 grievances submitted on that date) by handing an envelope with the grievances
to C/O Tudor. Defendants maintain that this grievance was not received by prison
staff. The Administrative Review Board received a handwritten note from Croom
on March 23, 2017.
In the note, Croom complained that he sent 7 grievances but
had not received any responses.
Also, the note to the Administrative Review
Board stated that Croom has an enemy at Menard who killed his best friend, that
Croom is in custody for allegedly murdering an associate of that enemy and that he
in doing so).
4 The Court notes that an Illinois inmate offender locator search conducted on April 5, 2018 reveals
that Marlon Brown is now being housed at Hill Correctional Center.
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fears for his life when their paths cross. On April 7, 2017, Sarah Johnson of the
Administrative Review Board responded to Croom stating that he should follow the
proper grievance procedure.
Croom filed a grievance dated August 11, 2017
which was exhausted after this lawsuit was filed on June 9, 2017.
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.,
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
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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
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
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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
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
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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
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. The
grievance procedures first require inmates to speak with the counselor about their
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complaint. 20 Ill. Admin. Code §504.810(a). Then, if the counselor does not resolve
the issue, the inmate must file a grievance form directed to the Grievance Officer
within 60 days of the incident. Id. 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.
20 Ill. Admin. Code §504.810(a)(b). “The Grievance Officer shall [then] 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 2 months after receipt of the written grievance, where reasonably
feasible under the circumstances.” 20 Ill. Admin. Code §504.830(d). 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 (“ARB”). 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 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(e). “The Director shall review the findings and
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recommendations of the Board and make a final determination of the grievance
within 6 months after receipt of the appealed grievance, where reasonably feasible
under the circumstances. The offender shall be sent a copy of the Director’s
decision.” 20 Ill. Admin. Code §504.850(f).
The grievance procedures do allow for an inmate to file an emergency
grievance. In order to file an emergency grievance, the inmate must forward the
grievance directly to the Chief Administrative Officer (“CAO”) who may “[determine]
that there is a substantial risk of imminent personal injury or other serious or
irreparable harm to the offender” and thus the grievance should be handled on an
emergency basis. 20 Ill. Admin. Code §504.840(a). If an inmate forwards the
grievance to the CAO as an emergency grievance, then the CAO “shall expedite
processing of the grievance and respond to the offender” indicating to him which
course he has decided is necessary after reading the grievance. 20 Ill. Admin. Code
§504.840(b). Once the CAO has informed the inmate of his decision, the inmate
may then appeal that decision to the ARB on an expedited basis. 20 Ill. Admin. Code
§504.850(g).
Analysis
Here, Croom’s objections to the Report largely reiterate things he already
argued in his response to summary judgment (See Docs. 31 & 37). He merely takes
umbrage with the Report’s findings and conclusions of law. In addition to his
previous arguments, Croom also takes issue with the Report’s characterization of
his testimony as inconsistent. The Court finds no error or deficiency in Judge
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Daly’s credibility determination.
Judge Daly provided a sound analysis of the
testimony and bolstered her reasoning by reference to the record. Specifically,
Judge Daly concluded:
“In his Response to the motion for summary judgment, Croom argued
he exhausted his administrative remedies through a grievance filed on
August 11, 2017. At the hearing, Croom abandoned this argument
and argued that the grievance filed on February 23, 2017 fully
exhausted his administrative remedies. Plaintiff testified that he did
in fact mail the grievance form dated February 23, 2017 to Counselor
Rodley on March 14, 2017, and that when he did not receive a
response by March 20, 2017, he forwarded the copies directly to the
ARB. The ARB responded to Croom’s submissions and told him he
needed to follow proper procedure. Croom testified that he took no
further action regarding his February 23, 2017 grievance after he
received the ARB’s response. Plaintiff filed the present lawsuit on
June 14, 2017 and then filed a new grievance dated August 11, 2017,
which re-states the exact content that was allegedly included in the
February 23, 2017 grievance. The August 11, 2017 grievance was
then fully exhausted with the ARB. The August 11, 2017 grievance
was filed after the initiation of this case and is not evidence that and is
not evidence that Plaintiff exhausted his administrative remedies prior
to filing suit. Based on the inconsistencies of Plaintiff’s arguments,
the Court does not find credible Croom’s testimony that he attempted
to file the grievance dated February 23, 2017 on March 2017. The
fact that Plaintiff thought it necessary to file the August 11, 2017
grievance weighs against his argument that he already exhausted his
administrative remedies in March. There is no credible evidence the
February 23, 2017 grievance was filed with staff at Menard prior to
this suit being filed.”
(Doc. 36, pgs. 5-7).
Judge Daly found Croom to be not credible and his testimony inconsistent.
The record before the Court provides no reason for the Court to doubt Judge Daly’s
determination. Based on the record, it is clear to the Court that Croom did not
exhaust his administrative remedies prior to filing this lawsuit. In addition, as the
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Judge Daly noted, the February 23, 2017 grievance concerned Croom’s fear of his
enemy Marlon Brown and that he wanted to be transferred; it did not address
defendants’ failure to respond.
Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 36) and
GRANTS defendants’ motion for summary judgment on the issue of exhaustion of
administrative remedies (Doc. 28).
The Court DISMISSES without prejudice
Croom’s claims against defendant for failure to exhaust administrative remedies.
Further, the Court DIRECTS the Clerk of the Court to enter judgment reflecting the
same.
IT IS SO ORDERED.
Judge Herndon
2018.04.05
15:25:13 -05'00'
United States District Judge
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