Woods v. Forehand

KEVIN FRANK WOODS, Plaintiff, v. JOSEPH FOREHAND, ADAM DULLES, and SCOTT HOWELL, Defendants.

Case No. 13-CV-1130-NJR-DGW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

March 12, 2015

MEMORANDUM AND ORDER

ROSENSTENGEL, District Judge:

This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Donald G. Wilkerson (Doc. 43), recommending that Defendants' Motion for Summary Judgment on the issue of exhaustion (Doc. 23) be granted, and that this matter be dismissed without prejudice for failure to exhaust administrative remedies. The Report and Recommendation was entered on July 28, 2014. Plaintiff Kevin Woods filed timely objections (Doc. 44), and Defendants Joseph Forehand, Adam Dulles, and Scott Howell filed a timely response (Doc. 45).

Because timely objections were filed, the undersigned must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). De novo review requires the district judge to "give fresh consideration to those issues to which specific objections have been made" and make a decision "based on an independent review of the evidenceand arguments without giving any presumptive weight to the magistrate judge's conclusion." Harper, 824 F.Supp. at 788 (citing 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part)); 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." Harper, 824 F. Supp. at 788. For the reasons stated below, the Court sustains Woods's objections and denies the Report and Recommendation of Magistrate Judge Wilkerson.

BACKGROUND

Plaintiff Kevin Woods, an inmate in the Illinois Department of Corrections, is currently incarcerated at Dixon Correctional Center. He filed this action on November 4, 2013, alleging that during his incarceration at Centralia Correctional Center ("Centralia"), he was subjected to unsafe working conditions in the kitchen and denied adequate medical treatment for his resulting injuries (Doc. 1). Specifically, he alleges that he was working in the kitchen at Centralia when a valve on the stove shot off and hit him in the head, and hot water and steam exploded in his face. He claims that he suffered second degree burns on his face as well as constant headaches, eye pain, and changes in his vision. Defendants Forehand, Dulles, and Howell were employees of the Illinois Department of Corrections and food supervisors at Centralia. Woods worked under their supervision, and he alleges that none of them told him that the equipment was in disrepair and he should not use it. The Court conducted a threshold review of the complaint pursuant to 28 U.S.C. § 1915A, and the only claim that survived was Woods's Eighth Amendment claim for unconstitutional conditions of confinement againstDefendants Forehand, Dulles, and Howell (Doc. 9).

On May 16, 2014, Defendants Forehand, Dulles, and Howell filed a Motion for Summary Judgment on the issue of exhaustion (Doc. 23). They assert that there is one relevant grievance, and Woods failed to exhaust that grievance because he filed suit before he received a response from the Administrative Review Board ("ARB"). Defendants further assert that Woods failed to sufficiently identify them by name or describe them in the grievance.

As required by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Wilkerson held an evidentiary hearing on the issue of exhaustion on June 26, 2014 (Doc. 38). Following the Pavey hearing, Magistrate Judge Wilkerson issued the Report and Recommendation currently before the Court (Doc. 43).

THE REPORT AND RECOMMENDATION AND OBJECTIONS

Based upon the evidence before the Court, Magistrate Judge Wilkerson found that the only grievance at issue was the one submitted by Woods on November 13, 2012 (Doc. 43, p. 4). Woods's counselor responded to the grievance over three weeks later on December 7, 2012 (Id. at p. 3). Woods then submitted the grievance to a grievance officer, who recommended denying it, and the Warden concurred on February 27, 2013 (Id.). Woods appealed to the ARB, and his appeal was received on March 6, 2013 (Id.). After eight months went by without a response from the ARB, Woods filed suit on November 4, 2013. The ARB finally responded and denied Woods's appeal on February 21, 2014, almost a year (353 days to be exact) after it was received and three and a half months after he filed suit (Id.).

Magistrate Judge Wilkerson concluded that the grievance procedure was not made unavailable by the ARB's failure to provide a response within eight months of its receipt of Woods's appeal, and Woods should have waited for the ARB's response before filing suit (Id. at p. 9). Accordingly, Woods failed to exhaust his administrative remedies. In light of that conclusion, Magistrate Judge Wilkerson declined to address Defendants' second argument that the grievance did not name them or describe them.

Woods objected to Magistrate Judge Wilkerson's conclusion that he failed to exhaust his administrative remedies (Doc. 44). He points out that there is no "concrete time limitation" in which the ARB must respond to inmate grievances (Id. at p. 1). The Illinois Administrative Code suggests the ARB should respond to inmate appeals within six months, but when the ARB does not answer within that timeframe, the result is a "confusing situation that trips up inmate litigants" (Id. at p. 2). He argues that Magistrate Wilkerson's recommendation should be denied because the ARB's "prolonged response" amounts to a failure to respond, and he followed the grievance process to the best of his ability, but the procedures that inmates are supposed to follow are ambiguous (Id. at p. 6).

Defendants filed a response to Woods's objection (Doc. 45). They rely exclusively on Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004). They argue that the Ford Court addressed the ARB's "grievance response expectations which contained qualifiers," and found that the procedures were not "too confusing to be enforced against inmates who file suit too soon upon not receiving a response" (Doc. 45, p. 2). They point out that the Ford Court held that the response from the ARB, which took six months even thoughregulations set a sixty-day deadline "whenever possible," could still be considered "prompt" (Id.). Accordingly, they argue that the ARB's eleven-month response time in this case could also be considered reasonable (Id.).

DISCUSSION

Based on Woods's objection to the Report and Recommendation, the Court must determine whether the ARB's failure to respond to Woods's appeal within eight months rendered the grievance process unavailable, which in turn permitted him to file suit.

The Prison Litigation Reform Act ("PLRA") requires prisoners to exhaust their administrative remedies before bringing a civil rights lawsuit. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). But prisoners "must exhaust only those administrative remedies that are available." Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). Administrative remedies become "unavailable" if prison officials fail to respond to an inmate's grievances. Id.; Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). "Exhaustion is 'an affirmative defense that the defendants have the burden of pleading and proving.'" Brengettcy, 423 F.3d at 682 (quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)).

As an inmate confined in the Illinois Department of Corrections, Woods was required to follow the three-step grievance process outlined in the Illinois Administrative Code ("the Code") to properly exhaust his claims. ILL. ADMIN. CODE, tit. 20, §§ 504.810, 504.850. An inmate must first attempt an informal resolution though a prison counselor. Id. at § 504.810. If the complaint remains unresolved, the inmate must submit a formal complaint to the prison's grievance officer who makes arecommendation to the warden. Id. The warden then issues a final decision at the institutional level. Id. If the inmate is still unsatisfied, he can appeal to the Director of the IDOC through the Administrative Review Board. Id. at § 504.850.¹

The issue in this case concerns the third and final step of the IDOC's grievance process: the appeal to the ARB. According to the Code, the ARB is to make a decision within six months after receipt of the appealed grievance "where reasonably feasible under the circumstances. ILL. ADMIN. CODE, tit.20, § 504.850(f). Here, the ARB received Woods's appeal on March 6, 2014. It is undisputed that the ARB did not reach a decision within six months. After another two months passed without a response, Woods filed suit.

As the Administrative Code clearly indicates, the recommended six-month timeframe for the ARB to respond should be adhered to "where reasonably feasible under the circumstances." ILL. ADMIN. CODE, tit.20, § 504.850(f). But as Magistrate Judge Wilkerson noted, the six-month timeframe is not a strict deadline for the ARB to respond to an inmate's appeal. See Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004). See also Gregory v. Santos, No. 07-CV-669-JPG-CJP, 2010 WL 750047, at *6 (S.D. Ill. Jan. 19, 2010), report and recommendation adopted as modified, 2010 WL 750040 (S.D. Ill. Mar. 3, 2010) ("Section 504.850(f) does not strictly require the Director to respond to an appeal within sixmonths."); Beahringer v. Page, 789 N.E.2d 1216, 1226 (Ill. 2003) ("The time frames for the consideration of grievances were directory and not mandatory.") Accordingly, it appears to be widely accepted that the grievance process does not become unavailable simply because a response is tardy. See, e.g., Ford, 362 F.3d at 400 (rejecting inmate's argument that the...