Minerly v. Nalley

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT MINERLY, )

)

Plaintiff, )

)

vs. ) No. 3:19-CV-0467-GCS

)

NICK NALLEY, )

PAUL YATES, )

ALLEN APARCICIO, )

and )

RANDY VALDEZ, )

)

Defendants.1 )

MEMORANDUM and ORDER

SISON, Magistrate Judge:

INTRODUCTION

Before the Court is a motion for summary judgment on the issue of exhaustion of

administrative remedies filed by Defendants Nick Nalley, Allen Aparicio, Randy Valdez

and Paul Yates (Doc. 25). Specifically, Defendants argue that Plaintiff Robert Minerly

failed to exhaust his administrative remedies because he did not properly complete the

grievance process before filing the lawsuit. Minerly opposes the motion arguing that

Defendants have impeded his ability to exhaust his administrative remedies (Doc. 27).

1 The Court DIRECTS the Clerk of the Court to change the docket to reflect Defendants’ correct

names as contained in their answer (Doc. 18).

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On February 26, 2020, the Court held a hearing on the summary judgment motion

and heard testimony from Sarah Johnson, a chairperson with the Administrative Review

Board (“ARB”).2 The Court also heard from Minerly and took the matter under

advisement. Based on the following reasons, the undersigned GRANTS the motion for

summary judgment on the issue of exhaustion of administrative remedies.

Pursuant to 42 U.S.C. § 1983, Minerly, filed a complaint for deprivations of his

constitutional rights that occurred while he was housed at Big Muddy River Correctional

Center (“Big Muddy”) (Doc. 1). Minerly seeks relief for restrictions on his ability to

access the courts or utilize the grievance procedures while at Big Muddy. The Court, after

conducting the preliminary review pursuant to 28 U.S.C. § 1915A, allowed Minerly to

proceed on the following claims:

Count 1: Defendant Nalley seized Minerly’s legal materials, issued a

disciplinary ticket, and engaged in a course of harassing conduct against

him as retaliation for Minerly’s grievances about Nalley’s behavior.

Count 2: Defendants Nalley, Yates and Aparicio entered into a conspiracy

to prevent Minerly from bringing any claims against them.

Count 3: Defendant Valdez violated Minerly’s due process rights when

Valdez confronted him in the shower area of the prison about a disciplinary

ticket and gave him a short disciplinary hearing.

(Doc. 9).

2 Johnson testified about the grievance process in the IDOC. She also testified as to why she

returned Minerly’s 5 grievances to him on June 22, 2017. She further testified that on July 18, 2017 the

ARB denied one grievance that contained the 5 other grievances and noted that the ARB did not review

the prior 5 grievances because they were not addressed by the facility.

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FACTS

Minerly is an inmate within the Illinois Department of Corrections (“IDOC”) and

currently housed at Robison Correctional Center (“Robinson”). At the time of the

allegations in the complaint, Minerly was housed at Big Muddy.

According to the ARB records, Minerly sent five grievances dated April 26, 2017,

May 18, 2017, May 18, 2017, May 23, 2017 and May 30, 2017 to the ARB. Those grievances

were received by the ARB on June 2, 2017 and related to alleged actions by Nalley,

Aparicio, Valdez and Yates. (Doc. 26-1, p. 27-43; ARB Report Bates 000041-00057). The

April 26, 2017 and the May 23, 2017 grievances involve alleged actions by Nalley. The

two May 18, 2017 grievances involve alleged actions by Nalley, Valdez and Aparicio. The

May 30, 2017 grievance involves alleged actions by Yates.

On May 25, 2017, Paul Yates, a grievance counselor, returned the April 26, 2017

grievance finding “grievance submitted is a photocopy, not original” and in another

Memorandum returned the May 23, 2017 grievance finding “grievance is incomplete, no

relief requested” (Doc. 26-1, p. 24-40; ARB Report Bates 000048-54). The grievances dated

May 18, 2017 (2 grievances) and the May 30, 2017 grievance do not contain any responses

from anyone at the facility.3

3 In the April 26, 2017 grievance Counselor’s Response section, there is a handwritten date of May

8, 2017 and nothing more except the June 2, 2017 Received Stamp from the ARB. Similarly, in the May 23,

2017 grievance Counselor’s Response section, there is a handwritten date of May 24, 2017 and nothing

more except the June 2, 2017 Received Stamp from the ARB. (Doc. 26-1, p. 35, 39; ARB Report Bates

000049, 000053).

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On June 22, 2017, the ARB returned all five of the grievances to Minerly because

they were not fully reviewed by the facility. Specifically, the ARB informed Minerly that

he should provide the “original written Offender’s Grievance, DOC 0046, including the

counselor’s response, if applicable. . . . a copy of the Response to Offender’s Grievance,

DOC 0047, including the Grievance Officer’s and the Chief Administrative Officer’s

response, to appeal; if timely.” Id. (emphasis in original)

Thereafter, Minerly filed another grievance # 49-7-17 on July 18, 2017 regarding

the grievance process and attached the 5 prior grievances that were returned to him from

the ARB (Doc. 26-1, p. 2-12; ARB Report Bates 000016-000026). On September 8, 2017, the

ARB received the grievance, and on October 31, 2017, the ARB, through Ann Lahr, denied

his grievance finding the issue was appropriately addressed by the facility. The ARB

further noted that it did not review the five prior grievances attached because no

grievance officer reviewed the grievances. The ARB also found: “[p]er Grievance Officer,

all grievances have been handled properly. Per DR504.810.c)[], (revised 4/1/17) ‘The

original grievance form shall be deposited in the living unit mailbox or other designated

repository.’ Narratives on what previous grievances contained will not be addressed in

this grievance response.” John Baldwin, the Acting Director of the IDOC, concurred on

November 1, 2017. Id.

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LEGAL STANDARDS

Summary Judgment is proper if the pleadings, discovery materials, disclosures

and affidavits demonstrate no genuine issue of material fact such that [Defendants are]

entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467

(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). That statute states, in pertinent

part, that “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.”

Id. (emphasis added).

The Seventh Circuit requires strict adherence to the PLRA’s exhaustion

requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)(noting that “[t]his

circuit has taken a strict compliance approach to exhaustion”). Exhaustion must occur

before the suit is filed. See 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.

Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in

the place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry,

286 F.3d 1022, 1025 (7th Cir. 2005). Consequently, if a prisoner fails to use a prison’s

grievance process, “the prison administrative authority can refuse to hear the case, and

the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809. The purpose

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of exhaustion is to give prison officials an opportunity to address the inmate’s claims

internally, prior to federal litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)

Under Pavey, the Seventh Circuit held that “debatable factual issues relating to the

defense of failure to exhaust administrative remedies” are not required to be decided by

a jury but are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-741 (7th

Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an

affirmative defense, the Court set forth the following sequence and procedures to be

followed:

(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 a 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 the 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 of the findings made by the district judge in determining

that the prisoner had exhausted his administrative remedies.

Id. at 742.

As an inmate confined within the IDOC, Minerly was required to follow the

regulations contained in the IDOC’s Grievance Procedures for Offenders (“grievance

procedures”) to exhaust his claims. See 20 ILL. ADMIN. CODE § 504.800, et seq. The

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grievance procedures first require inmates to file their grievance with the counselor

within 60 days of the discovery of an incident. See 20 ILL. ADMIN. CODE § 504.810(a). 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

the subject of or who is otherwise involved in the complaint. This 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(c). Grievances that are unable to be resolved through

routine channels are then sent to the grievance officer. The Grievance Officer will review

the grievance and provide a written response to the inmate. See 20 ILL. ADMIN. CODE §

504.830(a). “The Grievance Officer shall consider the grievance and report his or her

findings and recommendations in writing to the Chief Administrative Officer within two

months after receipt of the grievance, when reasonably feasible under the circumstances.”

20 ILL. ADMIN. CODE § 504.830(e). “The Chief Administrative Officer shall review the

findings and recommendation and advise the offender of his or her decision in writing.

Id.

If the inmate is not satisfied with the Chief Administrative Officer’s response, the

inmate can file an appeal with the Director through the ARB. The grievance procedures

specifically state, “[i]f, after receiving the response of the Chief Administrative Officer,

the offender still believes 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

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be received by the Administrative Review Board within 30 days after the date of the

decision.” 20 ILL. ADMIN. CODE § 504.850(a). The inmate shall attach copies of the

Grievance Officer’s report and the Chief Administrative Officer’s decision to his appeal.

Id. “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 6 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).

The grievance procedures further allow some grievances to be submitted directly

to the ARB for consideration. See 20 ILL. ADMIN. CODE § 504.870(a). Those grievances

include:

1) Decisions regarding protective custody placement, including continued

placement in or release from protective custody.

2) Decisions regarding the involuntary administration of psychotropic

medication.

3) Decisions regarding disciplinary proceedings that were made at a facility other

than the facility where the offender is currently assigned.

4) Other issues that pertain to a facility other than the facility where the offender

is currently assigned, excluding personal property and medical issues.

20 ILL. ADMIN. CODE § 504.870(a)(1-4).

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ANALYSIS

Defendants argue they are entitled to summary judgment because none of the five

grievances appealed to the ARB show any evidence that the grievances were received or

reviewed by the grievance officer, or by the Chief Administrative Officer (“CAO”).

Defendants maintain the ARB returned the grievances without review by the ARB

because they lacked the grievance counselor and/or grievance officer’s response.

Defendants further maintain that Minerly knows the grievance process, and in the past

has utilized it correctly and successfully. This time, however, Minerly incorrectly

appealed the grievances to the ARB regarding the allegations in this lawsuit. Minerly

counters that he followed all the grievance procedures and because Yates did not respond

to the grievances, he went outside the procedures and straight to the ARB. The Court

disagrees with Minerly and does not credit his testimony.

First, the record clearly indicates that Minerly was aware of the grievance

procedures at Big Muddy. Minerly testified that he knew of the grievance process, the

appeal times and the steps regarding the exhaustion of administrative remedies. Minerly

likewise understood such steps when he filed his grievances with the prison and when

he filed his complaint. The record reflects that in the past Minerly has successfully and

correctly utilized the grievance procedures in other matters. Minerly even stated he was

a jail house law clerk, which lends credence to the fact that he was well-versed with the

relevant and applicable grievance procedures.

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Next, the Court notes that in some circumstances an inmate’s ability to exhaust the

grievance process may be thwarted. This can occur, for example, if an inmate properly

submits a grievance, but does not receive a response. In such circumstances, an inmate’s

administrative remedies are arguably no longer available to him, and the inmate may

thus proceed with a lawsuit. See, e.g., Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir.

2000)(noting that an inmate is not required to appeal his grievance if he submits the

grievance to the proper authorities but never receives a response); Dole, 438 F.3d at 809

(noting that 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).

However, such a situation does not exist under the circumstances of this case.

IDOC grievance procedure requires an inmate to first attempt to resolve grievances

informally through his grievance counselor, and if the grievance remains unresolved,

inmates shall file a written grievance with the grievance officer. With respect to the

April 26, 2017 grievance, the May 18, 2017 grievances, the May 23, 2017 grievances and

the May 30, 2017, the record is clear that these grievances were not fully exhausted.

Specifically, as to three of the grievances, Minerly did not give the grievance counselor

adequate time to respond or give the grievance counselor the option to resolve his

grievances informally. As to the other two grievances the record reflects that Yates

returned them for not being submitted properly.

Further, and most importantly, Minerly did not send the written grievances to the

grievance officer. Instead, he immediately appealed the five grievances together to the

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ARB on May 30, 2017, thus bypassing the grievance officer. For example, Minerly

concedes he did not wait for a response from the grievance counselor, that he did not

send the grievances to the grievance officer, and that he instead appealed directly to the

ARB. The record reflects the same in that Minerly appealed the April 26, 2017 grievance

34 days after writing the grievance, the May 18, 2017 grievances 12 days after writing the

grievance, the May 23, 2017 grievance 7 days after writing the grievance, and the May 30,

2017 grievance the same day he wrote it. The aforementioned grievances were received

by ARB within days after they were written, which is clearly not enough time to submit

the grievances to the grievance officer for consideration and have them returned before

submitting them to the ARB.

Furthermore, the record reflects that Minerly did not heed the ARB’s guidance

when it returned the grievances on June 22, 2017. The ARB specifically told Minerly

why his grievances were deficient. The ARB further informed Minerly how to

rectify the problems with his grievances and told him to resubmit the grievances if

timely. Had Minerly followed the ARB’s advice, he may have fully exhausted his

administrative remedies.4 Minerly did nothing to rectify the defects in these grievances

until he attached them to grievance 49-7-17 dated July 18, 2017. Given the above facts,

Minerly did not properly exhaust his administrative remedies as to his claim against

Defendants.

4 It appears that Minerly’s grievances would have been timely had he followed the ARB’s

guidance. Under the grievance process, inmates have 60 days from the date of the incident to start the

grievance procedure. See 20 ILL. ADMIN. CODE § 504.810(a). The incidents in the five grievances occurred

from April 24, 2017 through May 23, 2017 and the ARB returned the grievances on June 22, 2017.

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CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motion for summary

judgment on the issue of exhaustion (Doc. 25). The Court DISMISSES without prejudice

Minerly’s complaint for failure to exhaust administrative remedies. The Court DIRECTS

the Clerk of the Court to enter judgment reflecting the same and close the case.

Date: March 6, 2020 Py Seaaisrrate

° ’ ° oe Judge Gilbert C.

wt. Dawe Sison

Date: 2020.03.06

12:50:22 -06'00'

GILBERT C. SISON

United States Magistrate Judge

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