Daher v. Sevier et al

Filing 237

OPINION AND ORDER: The plaintiff' objection 231 is OVERRULED. The Magistrate Judge's Report and Recommendation 230 is ADOPTED, and this case is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). Signed by Chief Judge Jon E DeGuilio on 7/26/2021. (lhc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES DAHER, JR.,
Plaintiff,
v.

CAUSE NO. 3:13-CV-940-JD-MGG

MARK SEVIER, et al.,
Defendants.
OPINION AND ORDER
James Daher, Jr., a prisoner without a lawyer, objects to Magistrate Judge
Michael G. Gotsch’s Report and Recommendation recommending that this case be
dismissed without prejudice for failure to exhaust administrative remedies in
accordance with 42 U.S.C. § 1997e(a). (ECF 231.) For the reasons stated below, Mr.
Daher’s objections are overruled.
I.

BACKGROUND
The procedural history of this long-running case is fully detailed in the Report

and Recommendation and will not be repeated here, except as is relevant to
understanding Mr. Daher’s objections. In brief, Mr. Daher was granted leave to proceed
against Mark Sevier, Laurie Johnson, and James Csenar (collectively, “Defendants”) on
a claim that they violated his First Amendment rights in September 2011 by changing
his classification and transferring him to the segregation unit at Miami Correctional
Facility (“MCF”) in retaliation for grievances that he had filed. (ECF 12.) He was also
granted leave to proceed on an Eighth Amendment claim related to the conditions of

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confinement in the segregation unit, specifically, that he was denied soap, a toothbrush,
toothpaste, showers, clean bedding, and clean clothing, and was subjected to excessive
noise and cold during the approximately 30 days he was housed there. (Id.) Defendants
moved for summary judgment on the ground that Mr. Daher had not exhausted his
available administrative remedies before filing suit. (ECF 24.) This court determined
that genuine issues of material fact necessitated a hearing under Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008). (ECF 39.) An evidentiary hearing was conducted in October
2015, after which the Magistrate Judge 1 issued a report and recommendation
recommending that the case be dismissed for lack of exhaustion. (ECF 78.) This court
adopted that recommendation and dismissed the case. (ECF 80).
Mr. Daher appealed. (ECF 81.) The Seventh Circuit concluded that proper
procedures had not been followed during the evidentiary hearing, and that Mr. Daher
had been denied the opportunity to conduct discovery and present evidence showing
that he did attempt to exhaust his administrative remedies. Daher v. Sevier, 724 F. App’x
461, 464-65 (7th Cir. 2018). The Circuit therefore reversed and remanded for a new Pavey
hearing. Id. at 465. The court held that before the hearing, Mr. Daher should be
permitted to conduct discovery “relevant to rebut the defendants’ assertions on their
exhaustion defense,” but that this was not intended as “a free pass to conduct openended discovery and litigation.” Id. The Circuit further held that at the new Pavey
hearing, Mr. Daher should be given “a reasonable amount of time” to present evidence

This case was previously assigned to Magistrate Judge Christopher A. Nuechterlein, who has
since retired.
1

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“limited to rebutting the defendants’ evidence that he failed to exhaust the prison
grievance system.” Id.
On remand, the parties engaged in protracted discovery over the course of more
than a year. 2 Among other things, Defendants produced more than 1,300 pages of
documents in response to Mr. Daher’s written discovery requests. (ECF 160; ECF 161;
ECF 162; ECF 163; ECF 164; ECF 165; ECF 166; ECF 167; ECF 168.) The Pavey hearing
was rescheduled several times to permit the parties additional time to complete
discovery. (ECF 118; ECF 158; ECF 177; ECF 185; ECF 201.)
Ultimately, a hearing was held on October 23, 2019. (ECF 208, 232.) By agreement
of the parties, the court took judicial notice of the transcript and exhibits from the 2015
Pavey hearing, with the exception of one exhibit (a later version of the grievance policy)
that the parties agreed was not relevant. (ECF 232 at 4–5; ECF 102.) Mr. Daher was also
permitted to submit additional exhibits. (ECF 232 at 8, 37, 40-41.) Defendants called Mr.
Daher and Clair Barnes Beaver (“Ms. Beaver”), a former litigation supervisor at MCF, as
witnesses. They did not recall two additional witnesses they had presented at the 2015
hearing—Angie Heishman, an administrative assistant, and Amanda Tobin, a counselor
at Miami—but by agreement their prior testimony was admitted via the transcript. (ECF
232 at 28; ECF 102.) Mr. Daher called fellow inmate Michael Troutman as a witness, 3
and also testified on his own behalf. (Id. at 57-95.)

2 During this period, Mr. Daher also moved for summary judgment in his favor, but his motion
was denied after briefing. (ECF 115, 120, 123, 124, 126.)

Mr. Troutman did not arrive at MCF until 2015, and so his testimony was limited to his
experience with the grievance system four years after the events underlying this case. (ECF 232 at 60.)
3

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The key issues at the hearing were: (1) whether Mr. Daher submitted a formal
grievance on September 12, 2011, about the issues raised in his complaint; (2) whether
this grievance was returned to him unfiled on November 7, 2011, as procedurally
defective; (3) whether Mr. Daher resubmitted the grievance on November 9, 2011; and
(4) if so, how the resubmitted grievance was handled by prison staff.
After hearing testimony and allowing the parties several months to submit posttrial briefs, the Magistrate Judge issued a Report and Recommendation addressing
those issues. (ECF 230.) In doing so, the court made detailed finds of fact. Specifically,
the court found that at all relevant times, MCF had a grievance policy in place, through
which inmates could grieve a broad range of issues, including their living conditions,
retaliation for use of the grievance process, and other actions of prison staff. (Id. at 5.)
Copies of the policy were posted throughout the facility, including in the law library.
(Id.) That policy required the completion of three steps: an attempt at informal
resolution of the problem; the submission of a formal grievance; and the submission of
an appeal. (Id.) A formal grievance had to be filed no later than 20 working days from
the incident giving rise to the inmate’s complaint. (Id. at 6.) Within two working days,
the facility’s Executive Assistant was required to either accept the grievance and log it
into the system—called the offender grievance management or “OGRE” system— or
return it to the inmate unfiled. (Id.) An accepted grievance had to be answered within 15
working days. If dissatisfied with the answer, the inmate was required to submit a
formal appeal to the grievance manager within 10 days of receiving the grievance
response. (Id. at 7.)
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If the grievance was returned to the inmate unfiled, it had to be accompanied by
a “Return of Grievance” form explaining why the grievance was rejected and what
could be done to correct it. 4 (Id. at 6.) Under the grievance policy, it was the inmate’s
responsibility to make any necessary revisions and resubmit the grievance within five
working days. (Id.) If the inmate did not receive either a receipt showing that his
grievance had been accepted or a Return of Grievance form within seven working days
of submitting the grievance, the policy required him to “immediately” notify the
Executive Assistant so that the matter could be investigated. (Id.) If he received no
response to his grievance within 25 working days, the policy permitted him to proceed
with an appeal as if his grievance had been denied. (Id. at 7.) In such case, the time to
appeal began on the 26th day and ended 10 working days later. (Id.)
Grievance records reflect that Mr. Daher used the grievance policy several times
during his incarceration at MCF, both before and after the events giving rise to this
lawsuit. (Id.) Specifically, those records show that between March 2006 and July 2017, he
filed 13 formal grievances and six formal appeals about a variety of matters. (ECF 167-3
at 9-10.) Official grievance records also reflect that Mr. Daher did not file any formal
grievance or appeal related to retaliation occurring in September 2011, or to
substandard conditions in the segregation unit during September and October 2011.
(ECF 230 at 7-9.)

At that time, rejected grievances were not logged into the OGRE system and instead were
maintained in hard copy form in Ms. Beaver’s office. (ECF 230 at 7 n.7.)
4

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Nevertheless, during the course of this litigation, Mr. Daher claimed that he had
submitted a grievance regarding these matters on September 12, 2011. (Id. at 8.) He
further claimed the grievance was returned to him unfiled on November 7, 2011, as
procedurally defective. (Id. at 8.) He produced what he purported to be documentation
supporting this claim, specifically, a Return of Grievance form dated November 7, 2011.
Defendants argued that the Return of Grievance form he was relying on actually
corresponded to a different grievance he filed during this period related to the poor
quality of the toilet paper at the prison. Mr. Daher denied this allegation, going so far as
to accuse Defendants of “egregious perjury and misrepresentation.” (ECF 230 at 11
n.11.)
During the course of the second Pavey hearing, however, Mr. Daher
acknowledged that the Return of Grievance form he had produced related to the toilet
paper grievance rather than to a grievance about retaliation and substandard conditions
in the segregation unit. (Id. at 9-10.) He surmised that he must have made “a mistake.”
(Id. at 10.) He nevertheless claimed that he did file a grievance in September 2011 that
was somehow lost or destroyed by prison staff, and that when he received the Return of
Grievance form, mistakenly believing that it corresponded to his grievance about
retaliation and substandard conditions in the segregation unit, he resubmitted it on
November 9, 2011, but never heard anything further. (Id. at 11.)
Based on the record evidence, as well as Mr. Daher’s demeanor on the stand, the
Magistrate Judge determined that his account was not credible. (Id. at 13.) Specifically,
the court did not believe that he had filed a grievance in September 2011 regarding the
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issues raised in this lawsuit, or that he had resubmitted the grievance in November
2011. (Id. at 13-14.) Instead, the Magistrate Judge found it “likely he created the
mistreatment/retaliation grievance and its resubmission after-the-fact for use in this
lawsuit in an attempt to avoid dismissal.” (Id. at 15.) Furthermore, the Magistrate Judge
concluded that even if one believed Mr. Daher’s account, it was undisputed that he did
not pursue an appeal after he allegedly received no response to his resubmitted
grievance. (Id.) After hearing nothing for 25 days, the grievance policy permitted him to
proceed with an appeal as if his grievance had been denied, but he admitted at the
hearing that did not take this step. (Id. at 15-16.) Therefore, the Magistrate Judge
concluded that dismissal under 42 U.S.C. § 1997e(a) was warranted.
II.

ANALYSIS
A Magistrate Judge’s order is reviewed under Rule 72(a) of the Federal Rules of

Civil Procedure. That Rule provides that within 14 days of a Report and
Recommendation addressing a dispositive matter, “a party may serve and file specific
written objections to the proposed findings and recommendations.” FED. R. CIV. P. 72(b).
The court must “determine de novo any part of the magistrate judge’s disposition that
has been properly objected to,” and “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id. The de novo determination required under Rule 72(b) “is not the same
as a de novo hearing.” Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). In other words,
“[t]he district court is not required to conduct another hearing to review the magistrate
judge’s findings or credibility determinations.” Id. “[I]f following a review of the record
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the district court is satisfied with the magistrate judge’s findings and recommendations
it may in its discretion treat those findings and recommendations as its own.” Id.; see
also McIntosh v. Wexford Health Sources, Inc., 987 F.3d 662, 665 (7th Cir. 2021) (observing
that “a district court adopting a magistrate judge’s findings is not required to hold a
new hearing”).
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner. . .
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Failure to exhaust is an affirmative defense that the defendant has the burden of
proving. Jones v. Bock, 549 U.S. 199, 216 (2007). The purpose of the exhaustion
requirement is “to give the prison an opportunity to address the problem before
burdensome litigation is filed.” Chambers v. Sood, 956 F.3d 979, 983 (7th Cir. 2020) (citing
Woodford v. Ngo, 548 U.S. 81 (2006)). The Seventh Circuit has taken a “strict compliance
approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus, “[t]o
exhaust remedies, 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). “[A] prisoner who does not properly take each step within the
administrative process has failed to exhaust state remedies.” Id. at 1024.
At the same time, inmates are only required to exhaust administrative remedies
that are actually available. Woodford, 548 U.S. at 102. The availability of a remedy is not a
matter of what appears on paper, but rather, whether the process was in actuality
available for the prisoner to pursue. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Thus,
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when prison staff hinder an inmate’s ability to use the administrative process, such as
by failing to provide him with the necessary forms, administrative remedies are not
considered “available.” Id. In essence, “[p]rison officials may not take unfair advantage
of the exhaustion requirement . . . and a remedy becomes ‘unavailable’ if prison
employees do not respond to a properly filed grievance or otherwise use affirmative
misconduct to prevent a prisoner from exhausting.” Dole, 438 F.3d at 809.
This court has carefully reviewed the Pavey hearing transcript, the hearing
exhibits and other record evidence, and Mr. Daher’s objections, and finds no error in the
Magistrate Judge’s order. To the contrary, the order is well-reasoned and wellsupported by the record. The record amply supports the Magistrate Judge’s conclusion
that there was a grievance policy in place that Mr. Daher could have utilized to grieve
the issues he complains about in this lawsuit, but that he did not file a grievance or
appeal related to those issues before filing suit. (Defs.’ Hearing Ex. A; ECF 102 at 35, 39.)
The court adopts the Magistrate Judge’s detailed factual findings as its own.
Although Mr. Daher claimed that he did file a grievance in September 2011
pertaining to the matters raised in this case, and then submitted it a second time in early
November 2011, the Magistrate Judge did not find his account credible. There were
valid reasons for making this credibility determination. As is fully outlined in the
Report and Recommendation, during the course of the evidentiary hearing, Mr. Daher
abandoned his claim that he had documentation showing his September 2011 grievance
had been returned to him unfiled. He now acknowledges that the documentation he
was relying on instead pertained to a grievance about an unrelated issue. The record
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reflects that Mr. Daher is intelligent and has a nuanced understanding of the exhaustion
requirement gained from his litigation history. The record also reflects that he kept
detailed, organized records of other prison grievances and correspondence with prison
staff, and yet he had little documentation to back up his arguments in this case. The
court agrees with the Magistrate Judge that it appears likely he simply used the Return
of Grievance form from the other grievance to bolster his arguments in this lawsuit.
Notably, the Magistrate Judge found Mr. Daher’s testimony lacking in credibility
due in part to his demeanor on the stand. (ECF 230 at 13.) The court must consider that
the Magistrate Judge had an opportunity to personally observe Mr. Daher’s facial
expressions and body language as he testified, whereas this court did not. See
Krishnapillai v. Holder, 563 F.3d 606, 617 (7th Cir. 2009) (observing that trier-of-fact “is far
better situated to assess the credibility of a witness” than a reviewing court); see also
Jackson v. United States, 859 F.3d 495, 499 (7th Cir. 2017) (expressing “severe doubts
about the constitutionality of the district judge’s reassessment of credibility without
seeing and hearing the witnesses himself”). The court has reviewed the complete
hearing transcript and finds nothing erroneous about the Magistrate Judge’s credibility
determination.
In his objection, Mr. Daher argues that the Magistrate Judge was required to give
“equal weight” to his evidence and failed to do so. (ECF 231 at 2.) It is not entirely clear
what he means by this statement, other than that he finds it unfair that the Magistrate

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Judge credited the Defendants’ version of events over his. 5 However, there was nothing
improper about the Magistrate Judge weighing the evidence and deciding whose
account was more credible. In fact, that was the entire purpose of the Pavey hearing.
Pavey, 544 F.3d at 740–41; see also Palmer v. Fenoglio, 510 F. App’x 476, 478 (7th Cir. 2013)
(observing that “under Pavey district courts may resolve factual disputes relating to
exhaustion” at evidentiary hearing).
Moreover, as the Magistrate Judge concluded, even if one were to accept Mr.
Daher’s testimony that he filed grievances in September 2011 and November 2011 that
were somehow lost or mishandled by prison staff, it remains undisputed that he did not
exhaust his available administrative remedies. After 25 days passed without any
response, the grievance policy permitted him to proceed with an appeal as if his
grievance had been denied. (Defs.’ Hearing Ex. A at 24 (“If the offender receives no
grievance response within 25 working days of the day he or she submitted the
grievance, he or she may appeal as though the grievance had been denied.”).) Mr.
Daher fully admitted at the Pavey hearing that despite this provision, he never pursued
an appeal. (ECF 232 at 88-89.)
In his objection, Mr. Daher cites to Towns v. Holton, 346 F. App’x 97 (7th Cir.
2009), and Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006), which in his view stand for the
proposition that “1997(e) does NOT require inmates to appeal from unresolved

5 He complains that the Magistrate Judge used the word “purported” when referring to his
September 2011 grievance, but the court finds nothing improper about the wording of the order. (ECF 231
at 8.) As this court reads the order, the Magistrate Judge merely meant to indicate that it was disputed
whether Mr. Daher had filed this grievance, and that there was no official record of the grievance in
prison records. (See ECF 230 at 8.)

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grievances.” (ECF 231 at 13.) However, those cases were applying the Illinois
Administrative Code, not the grievance policy in place at MCF. In Towns, the court
observed that defendants failed to establish that the Code permitted an appeal where
there was no response to a grievance. Towns, 346 F. App’x at 99-100. Likewise, in Dole,
the court expressly stated that the applicable grievance regulations “were not clear
about how to proceed once a timely grievance was lost.” Dole, 428 F.3d at 811. Unlike in
these cases, the grievance policy in place at MCF clearly permitted an appeal under the
circumstances described by Mr. Daher. (See Defs.’ Hearing Ex. A at 24.)
Mr. Daher also asserts that he did not know about the “deemed denied”
provision in the grievance policy. (ECF 231 at 11.) However, an inmate’s ignorance of
the requirements of the grievance policy will not excuse his failure to comply, “so long
as the prison has taken reasonable steps to inform the inmates about the required
procedures.” Ramirez v. Young, 906 F.3d 530, 538 (7th Cir. 2018). It is clear from the
record that Mr. Daher was quite familiar with the grievance policy as a general matter,
given his use of it prior to the events underlying this case. (ECF 167-3 at 9-10.) It is also
clear that he could have obtained a complete copy of the policy in a number of ways if
he had any questions about its provisions. (ECF 102 at 16.) In fact, he admitted at the
second Pavey hearing that the policy was available to him but he just never read the
deemed-denied provision. 6 (ECF 232 at 27 (Question: “So you had access to the offender

6 Among other places, copies of the policy were available in the prison law library, and the record
reflects that Mr. Daher previously worked in the MCF law library as a clerk. (ECF 10 at 24, 25; ECF 102 at
58.)

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grievance policy; you could have ready through it. You’re just saying you were not
familiar with that particular paragraph?” Answer: “That’s correct.”).)
Mr. Daher also surmises that he could not have obtained an appeal form even if
he had requested one. (See ECF 231 at 11.) In other words, he believes there was no
point in trying to obtain the form. However, there is no “futility” exception to the
exhaustion requirement. See Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 536 (7th Cir.
1999). “No one can know whether administrative requests will be futile; the only way to
find out is to try.” Id. Mr. Daher does not argue that he actually tried to obtain an appeal
form; indeed, such an assertion would conflict with his sworn testimony at the hearing.
(See ECF 232 at 26 (Question: “You made no attempt to appeal?” Answer: “I did not.”).)
His account was that he did not appeal because he was unaware of the “deemed
denied” provision, which, as discussed above, did not excuse him exhausting.
He also points out that he was transferred to Wabash Valley Correctional
Facility, although it is not clear that this occurred during the appeal period. One of his
own exhibits reflects that he was transferred from MCF to Wabash Valley on February
9, 2012, which was months after he allegedly got no response to his September 2011 and
November 2011 grievances. 7 (Pl.’s Hearing Ex. 9.) Moreover, even if he was transferred
during the appeal period, there is nothing to suggest that he could not have requested
an appeal form or submitted an appeal to prison staff at his new facility. Appeals were
decided by a state-wide officer, so which facility the appeal came from would appear to

The appeal period for an unanswered grievance would have started running 26 days after the
grievance was filed and ended 10 working days thereafter. (See ECF 230 at 6.)
7

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have little significance. (Defs.’ Hearing Ex. A at 2, 13 (defining the “Department
Offender Grievance Manager” as a staff person in Indiana Department of Correction’s
“Central Office” designated by the IDOC Commissioner to resolve grievance appeals).
Mr. Daher admitted at the Pavey hearing that no one prevented him from reaching out
to the grievance specialist at Wabash Valley to inquire about appealing a grievance filed
at another facility—he just did not do so. (EF 232 at 91.) After his arrival at Wabash
Valley, Mr. Daher used the grievance system to complain about other matters, including
filing a grievance appeal. (See ECF 168-1 at 13-19; ECF 167-3 at 10; Pl.’s Hearing Ex. 9.)
Indeed, even several years later he still remembered the name of the grievance specialist
at that facility. (ECF 232 at 34.)
Mr. Daher also argues at length that the OGRE system is generally unreliable,
presumably in an effort to bolster his own account of what occurred. 8 (ECF 231 at 5-14.)
As already outlined, there were sufficient reasons for rejecting Mr. Daher’s account as
lacking in credibility. Furthermore, even if he is correct that the OGRE system was less
than perfect, the fact that errors were made as to other inmates does not mean that Mr.
Daher was prevented from exhausting his administrative remedies. Despite the
voluminous discovery that was conducted following remand, he has not presented the

8 He vigorously attacks the integrity of Ms. Beaver (ECF 231 at 5-6), but in addition to her
testimony, the Defendants provided testimony from Ms. Heishman that there was no record of Mr. Daher
having filed a grievance related to the matters raised in this lawsuit. (See ECF 102 at 35, 39.) Furthermore,
there is no credibility determination required on the issue of whether Mr. Daher filed an appeal, as it is
undisputed that he did not do so. (ECF 232 at 88-89.)

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court with evidence of any misconduct by Defendants specific to this case. 9 An inmate
is excused from complying with the grievance process only if it was made unavailable
to him, such as through affirmative misconduct by prison staff, and there is no evidence
to show that occurred here. Kaba, 458 F.3d at 684. It is also undisputed that Mr. Daher
had a remedy available if his grievance and resubmitted grievance were ignored by
prison staff as he claims: He could have pursued an appeal. (Defs.’ Hearing Ex. A at 24.)
It is clear from his own testimony that he did not take this step, and there is no evidence
that anyone prevented him from doing so. (See ECF 232 at 88-89.)
He points to a document reflecting that Ms. Beaver once told another inmate
“[y]ou may not appeal rejected grievances.” (Pl.’s Hearing Ex. 20.) There is nothing to
suggest this was inaccurate information, or that it was ever conveyed to Mr. Daher. But
more importantly, Mr. Daher’s account at the hearing was not that his grievances were
rejected, but that he simply got no response to them. The grievance policy clearly
allowed for an appeal under these circumstances, and there is nothing in the record to
reflect that Ms. Beaver or anyone else told him otherwise.

9 He points to another case he filed, Daher v. Kasper, 3:06-CV-92-RLM-CAN, wherein the district
court noted problems with the defendants’ evidence regarding exhaustion in an order denying summary
judgment. Id., ECF 41. In Mr. Daher’s view, the court’s order proves that “Defendants are not believable
and truthful, and have a documented history of false and deceptive claims.” (ECF 231 at 5.) The court
finds Mr. Daher’s prior case of limited relevance, as it involved different prison staff, a different grievance
policy, and events occurring years before the events in this case. Additionally, the order he points to only
determined that the matter of exhaustion was disputed; it did not determine that any defense witness had
fabricated evidence or committed fraud, as he suggests. (Id.) Certainly it is not beyond the realm of
possibility that prison staff could mishandle—or even fabricate—exhaustion records. But it was for the
Magistrate Judge to determine in the first instance whether the defense witnesses and evidence were
credible in this case, and he found the evidence credible. This court finds no basis in the record to disturb
that determination.

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He also claims that Ms. Tobin told him that “classification issues” were “not
grievable,” but this was an accurate summarization of the policy. (See Defs.’ Hearing Ex.
A at 6 (providing that “[c]lassification actions or decisions” are not grievable under the
policy).) In fact, the record reflects that Mr. Daher separately pursued classification
appeals regarding the higher security classification he was given as a result of these
events. (ECF 10 at 19-25.) However, there was clear testimony at the second Pavey
hearing that the actions of staff described by Mr. Daher, wherein they allegedly
retaliated against him for filing grievances and lawsuits, was a grievable issue. (ECF 231
at 50, 73.) The grievance policy itself provides that an inmate can grieve “actions of
individual staff,” including, “[a]cts of reprisal for the good-faith use of, or participation
in, the Offender Grievance Process,” as well as “[a]ny other concerns relating to
conditions of care or supervision within the Department[.]” (Defs.’ Hearing Ex. A at 5.)
To the extent Mr. Daher is trying to argue that Ms. Tobin’s statement deterred him from
using the grievance process, this argument is belied by his own testimony, which was
that he submitted a grievance about the retaliatory transfer and substandard conditions
in the segregation unit not once but twice.
For these reasons, Defendants have demonstrated that Mr. Daher did not exhaust
his available administrative remedies before filing suit. Therefore, the case must be
dismissed.
As a final matter, both sides requested sanctions in their post-hearing briefs, but
as the Magistrate Judge observed, their requests do not comport with Federal Rule of
Civil Procedure 11(c)(2), which requires such a request to be made by separate motion.
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Even if proper procedures were followed, the court also agrees with the Magistrate
Judge that sanctions are not warranted in this case. There is no evidence of wrongdoing
by Defendants in this case warranting sanctions. As to Mr. Daher, the circumstances are
somewhat suspicious regarding the Return of Grievance form, but there is no definitive
proof that he fabricated evidence for use in this case. In the court’s view, the interests of
justice are best served simply by bringing this long-running case to a final conclusion.
III.

CONCLUSION
For these reasons, the plaintiff’s objection (ECF 231) is OVERRULED. The

Magistrate Judge’s Report and Recommendation (ECF 230) is ADOPTED, and this case
is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies as
required by 42 U.S.C. § 1997e(a).
SO ORDERED on July 26, 2021
/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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