Hall v. Spiller

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT HALL, )

)

Plaintiff, )

)

vs. ) Case No. 18-CV-2009-SMY-RJD

)

WILLIAM SPILLER, JACQUELINE )

LASHBROOK, MCCARTHY, SHAUN )

GEE, KENT BROOKMAN, and JASON )

HART, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge

This matter is before the Court on the Report and Recommendation (“Report”) of United

States Magistrate Judge Reona J. Daly (Doc. 36), recommending that Defendants’ Motion for

Summary Judgment for Failure to Exhaust Administrative Remedies be granted (Doc. 29).

Plaintiff Robert Hall filed timely an objection (Doc. 39). For the following reasons, Judge Daly’s

Report and Recommendation is ADOPTED.

Background

Plaintiff Robert Hall, an inmate who is currently incarcerated at Pontiac Correctional

Center, brings the instant civil rights action pursuant to 42 U.S.C. § 1983 for events that occurred

at Menard Correctional Center from April 2017 to his transfer in November 2018 (Doc. 1).

Plaintiff alleges he was retaliated against for answering questions related to a staff assault in a

manner that Defendant Spiller and others did not want to hear. As a result, he was placed in

administrative segregation for 15 days without necessary clothing and other items and

subsequently issued a disciplinary ticket that resulted in 15 months of segregation. He further

alleges that Defendants Gee, Lashbrook, McCarthy, Bookman, and Hart either were complicit with

the discipline, failed to intervene, and/or subjected him to unconstitutional conditions of

confinement. Following threshold review (Doc. 7), Plaintiff is proceeding on the following claims:

Count 1: First Amendment claim against Spiller for retaliating against Plaintiff for

refusing to implicate other prisoners in a staff assault by placing him in

administrative segregation for fifteen days, depriving him of certain items while he

was in administrative segregation, issuing false disciplinary tickets (resulting in

Plaintiff being punished with fifteen months in segregation), and labeling him an

informant; against Gee for issuing a false disciplinary ticket; and against Lashbrook

and McCarthy for failing to intervene on his behalf.

Count 2: Fourteenth Amendment claim against Bookman and Hart for finding him

guilty of the false disciplinary tickets and sentencing him to fifteen months in

segregation.

Count 3: Eighth Amendment claim against Spiller for exposing Plaintiff to a

substantial risk of serious harm by falsely labeling him an informant, and against

Lashbrook, and McCarthy for ignoring the subsequent threat to his safety.

Count 4: Eighth Amendment claim against Spiller for subjecting Plaintiff to

unconstitutional conditions of confinement when he was in administrative

segregation for fifteen days (from April 24, 2017 through May 8, 2017).

Defendants moved for summary judgment, claiming Plaintiff failed to exhaust his

administrative remedies prior to filing suit as to his claims against Lashbrook and McCarthy in

Count 1 and Counts 3 and 4 (Doc. 29). After Plaintiff’s response was filed (Doc. 32), Judge Daly

held an evidentiary hearing on June 17, 2019 pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir.

2008).

Judge Daly issued the Report currently before the Court, setting forth the evidence

presented by the parties, the applicable law, the requirements of the administrative process, and

her conclusions. She found that there was no grievance that exhausted the claims in Counts 1

against Lashbrook and McCarthy and Count 3, and that Plaintiff did not fully exhaust his claim in

Count 4 because he failed to timely submit a June 13, 2017 grievance to the Administrative Review

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Board (“ARB”). As a result, she recommends that Plaintiff’s claims that Lashbrook and McCarthy

failed to intervene (Count 1) and that they ignored a threat to his safety (Count 3) be dismissed

without prejudice. She further recommends that Plaintiff’s claim that Spiller exposed him to a

substantial risk of harm (Count 3) and subjected him to unconstitutional conditions of confinement

(Count 4) also be dismissed without prejudice.

Discussion

Because timely objections were filed, the undersigned must undertake a de novo review of

the Report. 28 U.S.C. § 636(b)(1)(B), (C); FED.R.CIV.P. 72(b); SDIL-LR 73.1(b); see also Govas

v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the Court to “give fresh

consideration to those issues to which specific objections have been made” and to make a decision

“based on an independent review of the evidence and arguments without giving any presumptive

weight to the magistrate judge’s conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th

Cir. 2013). The Court “may accept, reject or modify the magistrate judge’s recommended

decision.” Id.

For his objection, Plaintiff argues his testimony that he submitted a grievance in September

2017 regarding Counts 1 and 3 should have been credited. He further argues that he timely

appealed the June 13, 2017 grievance by placing it in institutional mail prior to the deadline.

Finally, Plaintiff generally argues that additional discovery is required to resolve exhaustion issues.

The written record does not contain any grievance related to Plaintiff’s claims against

Lashbrook and McCarthy. However, at the Pavey hearing, Plaintiff testified that because he was

in administrative segregation, he could not copy the grievance, nor did he have any control over

the grievance when it was picked up from his cell by members of the Intelligence Unit – either

Defendant McCarthy or Correctional Officer Gate (who is not a party to this litigation). Judge

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Daly found that Plaintiff was not credible in his claim that he submitted a grievance in mid-

September 2017 because there is no record of it and no mention of it in Plaintiff’s Cumulative

Counseling Summary even though Plaintiff had spoken to Counselor Susan Hill about the

grievance. Thus, she found that the grievance process was not made unavailable and that Plaintiff

simply failed to avail himself of the process.

The Prison Litigation Reform Act requires prisoners to exhaust all available administrative

remedies before filing suit. 42 U.S.C. § 1997e(a). Proper exhaustion requires that inmates file

complaints and appeals in the place, at the time, and in the manner the prison’s administrative rules

require. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). An inmate is required to

exhaust only those administrative remedies available to him. See 42 U.S.C. § 1997e(a).

Administrative remedies become “unavailable” when prison officials fail to respond to inmate

grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423

F.3d 674, 682 (7th Cir. 2005). The availability of a remedy does not depend on the rules and

regulations as they appear on paper, but on “whether the paper process was in reality open for the

prisoner to pursue.” Wilder v. Sutton, 310 Fed.Appx. 10, 13 (7th Cir. 2009). If further remedies

are unavailable to the prisoner, he is deemed to have exhausted. Id.

During a Pavey hearing, Magistrate Judges are in the best position to assess a witness’

credibility. Kraushaar v. Flanigan, 45 F.3d 1040, 1052 (7th Cir. 1995). Judge Daly assessed

Plaintiff’s credibility and determined that he was not credible in his assertion that he submitted a

September 2017 grievance. Plaintiff’s Cumulative Counseling Summary, notwithstanding

Plaintiff’s unsupported assertion that it is “not complete,” does not contain a reference to any

grievance submitted in September 2017. Moreover, Plaintiff’s Complaint affirmatively states that

he submitted and exhausted grievances in accordance with the administrative rules. There is no

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mention in Plaintiff’s detailed Complaint that a grievance was submitted and not responded to.

For these reasons, this Court likewise finds that Plaintiff did not file a September 2017 grievance

and therefore did not exhaust his administrative remedies as to Lashbrook and McCarthy in Counts

1 and 3. See Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (finding that the district court is

not required to conduct an additional evidentiary hearing to review a magistrate judge’s credibility

findings).

As to Count 4, it is undisputed that Plaintiff submitted a June 13, 2017 grievance in which

he complained about his placement in administrative segregation (Doc. 1-1, p. 25-29). He received

a response from the Warden on June 23, 2017 and signed the Appeal to the Director on June 28,

2017 (Id. p. 30). It is further undisputed that the ARB did not received the appeal until August 7,

2017. Illinois’ Administrative Code states that appeals “must be received” by the ARB within 30

days of the Warden’s decision. 20 Ill. Admin. Code § 504.850(a). An inmate forfeits the grievance

process when he causes the unavailability of a remedy by not filing or appealing a grievance in a

timely manner. See Kaba,v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

Plaintiff argues that he submitted the grievance for mailing on “approximately” July 20,

2017 and that additional discovery would show when it was actually mailed to the ARB and

support his position that it was appealed in a timely manner. Plaintiff’s request for discovery

comes too late as arguments not raised before the Magistrate Judge are waived. United States v.

Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000). If Plaintiff believed that additional discovery would

have supported his position, he should have made the request prior to his objection to the Report.

Because the undisputed evidence reveals that the ARB did not receive the appeal until after the

30- day period, the June 13, 2017 grievance was not fully exhausted and Count 4 must be dismissed

without prejudice.

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Conclusion

For the foregoing reasons, Judge Daly’s Report (Doc. 36) is ADOPTED in its entirety.

Accordingly, Defendants’ Motion for Summary Judgment for Failure to Exhaust Administrative

Remedies is GRANTED (Doc. 29) and Defendants Lashbrook and McCarthy, Count 3, and Count

4 are DISMISSED from this action without prejudice. Plaintiff shall proceed on the following

claims:

Count 1: First Amendment claim against Spiller for retaliating against Plaintiff for

refusing to implicate other prisoners in a staff assault by placing him in

administrative segregation for fifteen days, depriving him of certain items while he

was in administrative segregation, issuing false disciplinary tickets (resulting in

Plaintiff being punished with fifteen months in segregation), and labeling him an

informant, and against Gee for issuing a false disciplinary ticket.

Count 2: Fourteenth Amendment claim against Bookman and Hart for finding him

guilty of the false disciplinary tickets and sentencing him to fifteen months in

segregation.

IT IS SO ORDERED.

DATED: November 4, 2019 . Goll

STACI M. YANDLE

United States District Judge

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