The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CONTRELL PLUMMER, B14235, )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-939-DWD
)
CALEB CLOE, )
JUSTIN BRYANT, )
Defendants. )
MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on Defendants Caleb Cloe and Justin Bryant
(“Defendants”) affirmative defense that Plaintiff Contrell Plummer failed to exhaust his
administrative remedies prior to filing this lawsuit as required by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a). The Court held a Pavey hearing on December
19, 2022, to make findings about exhaustion in this case. See Pavey v. Conley, 663 F.3d 899,
904 (7th Cir. 2011); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). At the conclusion of
the hearing, and after careful consideration of the evidence, the Court finds that Plaintiff
failed to exhaust his administrative remedies, so Plaintiff’s claim is dismissed for failure
to exhaust pursuant to § 1997e(a).
BACKGROUND
Plaintiff signed his complaint on September 14, 2020. (Doc. 1) Upon initial review,
the Court allowed one claim to proceed:
Claim 1: Eighth Amendment deliberate indifference claim against
Defendants Cloe and Bryant.
(Doc. 13). The Court denied Defendants’ Motion for Summary Judgment on the Issue of
Exhaustion because it determined that the issue could not be resolved without a hearing.
(Doc. 30).
The Defendants requested a hearing, and the Court issued a schedule for a hearing
on December 19, 2022. (Doc. 32). Per the schedule, Defendants were to file witness and
exhibit lists three weeks prior to the hearing—by November 28, 2022. Defendants missed
the deadline. On November 14, 2022, Plaintiff filed a Motion for Miscellaneous Relief,
wherein he expressed his intent to stand on the arguments and evidence that he already
presented in response to summary judgment. (Doc. 35). On December 8, 2022,
Defendants filed a Motion to Continue the Hearing, and they simultaneously submitted
witness and exhibit information as required by the schedule. (Docs. 37, 29). On
December 9, 2022, the Court denied the requested continuance finding that despite the
late filing of the witness and exhibit information, Plaintiff and the Court still had
adequate time to review the Defendants’ materials in advance of the hearing. (Doc. 38).
On December 19, 2022, the hearing was held via videoconference.
FINDINGS OF FACT
The parties agree that the only grievance relevant to this lawsuit is the January 21,
2020, grievance that Plaintiff filed at Pinckneyville—Grievance No. 256-01-20. (Doc. 27-3
at 1-10). On February 6, 2020, the Chief Administrative Officer (CAO) concurred with
the grievance officer’s recommendation that the grievance be denied. (Id. at 2). The
parties disagree about what happened next.
Plaintiff contended at summary judgment and at the hearing via his own sworn
testimony that on February 8, 2020, he signed and dated the “Offender’s Appeal to the
Director” box on the grievance officer’s report. (Id.). He contends that he transmitted the
grievance to the ARB the same day.
By contrast, at the hearing, Grievance Officer Michelle Lively testified that per
Pinckneyville’s internal grievance log, Plaintiff’s grievance with the CAO’s signature was
not returned to him until February 11, 2022. Lively testified that the internal grievance
log is a document kept in the ordinary course of business that the institution uses to track
offender grievances from initial receipt through the return of the final level of appeal at
the institution—which is the CAO’s review. The internal grievance log was admitted into
evidence as Exhibit D at the hearing.1 The grievance log shows that Grievance No. 256-
01-20 was initially received on January 27, 2020, it was signed by the CAO on February
6, 2020, and it was returned to the inmate on February 11, 2020. When asked if she
personally saw Plaintiff mail his grievance, Lively indicated that she never witnessed that
step of the process. She additionally testified that she is not aware of grievances being
lost during the various stages of review at Pinckneyville.
Ryan Kilduff, a chairperson of the Administrative Review Board (ARB) also
testified at the hearing about the ARB’s receipt of Grievance No. 256-01-20. Kilduff
testified that once an inmate properly lodges an appeal, the grievance travels via internal
mail to the ARB office in Springfield, Illinois. Once received, the ARB opens and stamps
1 Although the exhibit was offered into evidence at the hearing, and was shared on screen during the
hearing, Exhibit D has not been filed on the public docket sheet in the CM/ECF filing system. Defendants
are DIRECTED to file a copy of the exhibits so that the record is complete.
the grievance with a date received stamp. Grievance No. 256-01-20 was received on April
1, 2020. Kilduff testified that he generally believes the mail takes about 8 days to reach
the ARB, and he has not seen a delay more than a few days or a week. During the relevant
period even with the global pandemic, the ARB staff reported to the office in a one-
person-per-day rotation to process incoming mail in a timely fashion. Plaintiff’s
grievance was completed by the ARB on August 5, 2020, and it was returned.
CONCLUSIONS OF LAW
A. Legal Standards
The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring
a lawsuit about prison conditions unless and until he has exhausted all available
administrative remedies. 42 U.S.C. § 1997e(a); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir.
2008). “The exhaustion requirement is an affirmative defense, which the defendants bear
the burden of proving.” Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). “At Pavey
hearings, judges may hear evidence, find facts, and determine credibility. After finding
facts, the district court may allow a claim to proceed or dismiss it for failure to exhaust.”
Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018) (internal citations omitted).
For a prisoner to properly exhaust his administrative remedies, the 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. As an inmate in the Illinois Department of Corrections
(IDOC), Plaintiff must follow the grievance process outlined in the Illinois Administrative
Code. 20 ILL. ADMIN. CODE § 504.800, et seq. (2017). Under IDOC’s procedure, an inmate
initiates a grievance with his counselor, and he may then submit his grievance to a
grievance officer at his facility, and to the CAO at his facility. If an inmate is unsatisfied
with the outcome at the facility he must appeal to the ARB within 30 days. 20 ILL. ADMIN.
CODE § 504.850(a). However, “if prison employees do not respond to a properly filed
grievance or otherwise use affirmative misconduct to prevent a prisoner from
exhausting,” then the grievance procedure becomes unavailable. Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006) (finding that an inmate who placed a timely ARB appeal in
his chuckhole for mailing, but whose grievance was apparently lost, did all that he could
to follow exhaustion procedures).
B. Analysis
The Court held a Pavey hearing in this matter to find facts and to review the
credibility of the witnesses. At the hearing, Plaintiff opposed Defendants’ witnesses and
evidence on the basis that Defendants did not follow the Court’s scheduling order2 which
required disclosure of the witnesses and exhibits three weeks prior to the hearing.
2 The scheduling order in question is a schedule that the Court set to facilitate the Pavey hearing. (Doc. 32).
It is not the initial scheduling order (Doc. 24) in this case which governed early discovery, nor is it the
merits discovery schedule which has not yet been issued. While the latter two scheduling orders fall within
the purview of Federal Rule of Civil Procedure 16(b), and may also implicate the Federal Rules of Civil
Procedure that apply to discovery, the specific schedule at issue in this case was set for convenience and
does not fall within those parameters. The scheduling order at issue is best considered under Federal Rule
of Civil Procedure 6(b), which allows for the modification of a schedule upon a showing of good cause and
excusable neglect. See e.g. McCann v. Cullinan, 2015 WL 4254226 at *6-10 (N.D. Ill. 2015) (describing the
differences between requests for extension under different rules). Defendants’ counsel explained that she
inadvertently missed the deadline for witness and exhibit lists because it was set less than a month from
the date the schedule issued, and she was occupied with many pending matters. (Doc. 37). As soon as
counsel realized her error (within 10 days of the lapsed deadline), she immediately moved to remedy the
problem.
Plaintiff argued that because the Defendants were untimely in tendering this information,
he was unduly prejudiced. Plaintiff cited case law in support of his argument. The Court
allowed the witness testimony and admitted the Defendants’ exhibits over Plaintiff’s
objection because it concluded that Plaintiff’s argument relied on legalese and lacked a
substantive basis. In large part, the witnesses testified to evidence already presented in
support of summary judgment. The only exception was the grievance log that Lively
testified about, but counsel averred that the grievance log had been tendered to Plaintiff
with the initial disclosures for this case, per the Court’s initial scheduling order. Plaintiff
did not identify any witnesses or exhibits that he would have presented if given greater
advance notice about the Defendants witnesses or exhibits. The Court noted that in
preparation for the hearing, Plaintiff filed a motion indicating that he wished to stand on
his previously filed response to summary judgment (Doc. 35). Given the foregoing
analysis, the Court finds that Plaintiff was not significantly prejudiced by the late filing
of the witness and exhibit lists, and counsel established good cause and excusable neglect
such that it was proper to allow the evidence at the hearing.
Turning to the merits of the exhaustion defense, the Defendants had the burden to
show that Plaintiff failed to exhaust his administrative remedies in a timely fashion.
Grievance Officer Lively testified credibly that per the internal grievance log, Plaintiff did
not receive the CAO’s response until February 11, 2020. Taking Lively’s testimony as
true, it would have been impossible for Plaintiff to sign and date his appeal on February
8, 2020. Additionally, ARB chairperson Kilduff credibly testified that the ARB receives
and stamps mail in a timely and expeditious fashion, and that mail is generally received
within 8 days. Regardless of whether Plaintiff received his grievance on February 8 or 11
of 2020, and immediately signed and transmitted it to the ARB, there is no apparent
reason that the grievance would have taken until April 1, 2020, to arrive. Kilduff testified
that the ARB continued to receive and process mail and to date stamp things during the
relevant period.
When compared with the credible testimony by Lively and Kilduff about the
grievance processing during the relevant period, the Court finds that Plaintiff’s own
testimony about his February 8, 2020, submission of the appeal is not credible. Plaintiff
does not have any evidence to support his assertion that he signed and transmitted his
appeal on February 8. By contrast, the Defendants have tangible evidence in the form of
the grievance log, which is kept in the ordinary course of business. Plaintiff did not
substantively attack the grievance log either via his own testimony, via cross-examination
of Lively, or via argument at the hearing.
The Court previously noted during consideration of the summary judgment
motion that Plaintiff’s situation appeared to be similar to the scenario considered in Dole,
where the Seventh Circuit found that an inmate had done all he could to exhaust
administrative remedies by placing a timely appeal to the ARB in his chuckhole to be
mailed. In Dole, the inmate’s mail to the ARB was apparently lost, but the Court found
that the error was a misstep by the prison system, not the inmate, so the inmate could not
be faulted for a failure to exhaust. Dole, 438 F.3d at 809. After hearing the testimony, the
Court does not find that Plaintiff’s situation is analogous to Dole. Plaintiff has never
directly contended that his grievance was lost and did not offer testimony that it was lost.
Although he attempted to elicit testimony about the possibility of a lost grievance at the
hearing, any such testimony would have been irrelevant because Plaintiff’s own
grievance was not lost.
Instead, Plaintiff simply contends that his grievance somehow took nearly two
months to reach the ARB. Plaintiff has not tendered any evidence to support his
contention that he sent his grievance on February 8, but it somehow took nearly two
months to arrive at the ARB. The alleged February 8 appeal mailing date is contradicted
by the prison grievance log, and the alleged two-month delay in ARB’s receipt is
contradicted by Kilduff’s testimony that grievances usually take about 8 days to arrive,
and they were continuously being received and logged during the relevant period.
Plaintiff demonstrated a good command of the grievance process at the hearing, so any
error does not appear to be the result of a misunderstanding. Plaintiff’s testimony that
he signed his grievance on February 8 is simply not realistic or credible in the view of the
Court, particularly when compared to other tangible evidence. In light of the evidence
presented at the hearing, the Court finds that the Defendants have met the burden to
establish failure to exhaust, so Plaintiff’s case must be dismissed.
DISPOSITION
The Defendants are DIRECTED to file a copy of the exhibits from the December
19, 2022, Pavey hearing so that the record is complete.
Plaintiff Contrell Plummer’s Eighth Amendment deliberate indifference claim
against Defendants Cloe and Bryant is DISMISSED for his failure to exhaust
administrative remedies as is required by 42 U.S.C. § 1997e(a). The Clerk of Court is
DIRECTED to CLOSE this case and to enter judgment accordingly.
IT IS SO ORDERED.
Dated: December 22, 2022 Dre i □
DAVID W. DUGAN
United States District Judge
NOTICE
If Plaintiff wishes to contest this Order, he can either file a motion under Federal
Rules of Civil Procedure 59(e) or 60(b), or he can appeal to the Seventh Circuit Court of
Appeals within 30 days of the judgment or order appealed from, FED. R. App. P. 4(a)(1)(A).
The grounds under Rules 59(e) and 60(b) are quite narrow. For example, newly
discovered evidence that was not previously available is a basis for relief under either
rule, as is a manifest error of law. These rules are not intended as a forum to rehash
previously considered arguments. If Plaintiff chooses to appeal to the Seventh Circuit
Court of Appeals, he must file a notice of appeal in this Court, and he must pay a filing
fee of $505, or apply for in forma pauperis (IFP) status. FED. R. App. P. 3(a), 3(e). An IFP
application must be accompanied by a prison trust fund account statement, as well as an
outline of the issues to be presented on appeal. FED. R. App. P. 24(a)(1)(C). If IFP status
is granted, Plaintiff will be assessed a partial filing fee, with the balance due and owing
over time regardless of the outcome of his appeal.