Opinion
3:19-cv-01331-SMY-GCS
07-07-2022
MANSOUR MOHAMMAD, #Y15873 Plaintiff, v. JACQUELINE LASHBROOK, et al., Defendants.
REPORT & RECOMMENDATION
GILBERT C. SISON United States Magistrate Judge
The matter is before the Court on the Motion for Summary Judgment on Exhaustion filed by Defendants Jacqueline Lashbrook, Alex Jones, Frank Lawrence, James Claycomb, Samuel Sterrett, and Henry Wilson. (Doc. 66). The motion has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation. (Doc. 74). It is RECOMMENDED that the District Court ADOPT the following findings of fact and conclusions of law and DENY the motion as detailed below.
Background
Plaintiff Mansour Mohammad, an inmate of the Illinois Department of Corrections (“IDOC”), filed this pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights at Menard Correctional Center (“Menard”). Mohammad makes the following allegations in the Second Amended Complaint (Doc. 30): Mohammad is a practicing Muslim who entered Menard in 2016. Assistant Warden of Programs Frank Lawrence, Senior Chaplain James Claycomb, Chaplain Samuel Sterrett, and Warden Lashbrook only allow Muslim prisoners to attend Jumu'ah services once per month, despite the religious obligation to do so every Friday. Lawrence, Claycomb, Sterrett, and Lashbrook also stop congregational services for Muslim inmates during the month of Ramadan, requiring them to observe it from their cells and prohibiting them from observing the group Eid al-Fitr feast and prayer at the conclusion of the month. Mohammad filed multiple requests and grievances asking to be put on the list for monthly Jumu'ah services, but was ignored by Claycomb, Sterrett, and Henry Wilson for a year.
Lashbrook and Lawrence provide a Christian Chaplain to assist Christians in their faith but do not provide an Imam to assist Muslims practicing the Islamic faith. Claycomb and Sterrett provide tables full of Christian literature, but the chapel lacks any Islamic materials other than the Quran. Additionally, Lashbrook, Lawrence, Claycomb, and Sterrett repeatedly cancelled Islamic services but allowed Christian services to go forward on the same day. Lashbrook, Lawrence, Claycomb, Sterrett, and Wilson had knowledge that no Chaplain was available on the majority of Sundays and Mondays but failed to act to provide religious services to Muslims. Lashbrook, Lawrence, Claycomb, Sterrett, and Wilson provide special meals for Christian holidays but not for Eid al-Fitr.
Claycomb removed Mohammad and other Muslims from the list to attend weekly Taleem services in retaliation for filing grievances. Mohammad submitted a request to the chaplain on February 25, 2019 asking why he had been taken off the list to attend services. Sterrett responded that he was “removed for non-compliance on 2/1/19” (despite the fact that Mohammad had been allowed to attend subsequent services on February 4 and 11, 2019). Sterrett also stapled a Christian pamphlet to the response. A similar incident took place in March 2019, and Mohammad submitted another request to the chaplain. Sterrett responded that Mohammad could “not resubmit until May 1, 2019.” That response also had a Christian pamphlet attached to it. Sterrett's actions were in retaliation for the grievances Mohammad had filed.
Following screening of the Second Amended Complaint under 28 U.S.C. § 1915A, Mohammad proceeds on the following claims (Doc. 28):
Count 1: First Amendment claim against Lashbrook, Lawrence, Claycomb, Sterrett, and Wilson for substantially burdening Mohammad's exercise of religion.
Count 3: Fourteenth Amendment Equal Protection claim regarding superior treatment of Christian inmates over Muslim inmates against Lashbrook, Lawrence, Claycomb, Sterrett, and Wilson.
Count 4: First Amendment retaliation claim against Claycomb and Sterrett for denying Mohammad access to religious services in retaliation for the grievances he filed.
Defendants filed a motion for summary judgment arguing that Mohammad failed to properly exhaust his administrative remedies prior to filing this lawsuit. (Doc. 66). Defendants raise three issues regarding the relevant grievances. First, the grievances were submitted to the Administrative Review Board (“ARB”) without responses from the grievance officer and chief administrative officer (“CAO”). (Doc. 67). Second, the grievances did not mention Lawrence, Lashbrook, Jones, Claycomb, Sterrett, and Wilson by name. Id. Third, the grievances did not specifically state Mohammad was denied attendance at Islamic services out of retaliation for filing grievances. Id.
In response, Mohammad asserts he submitted the grievances to the grievance officer, but they were returned without a response. (Doc. 70). As such, he contends the grievance process was not available to him. He also asserts the grievances were sufficient to put the prison on notice of his issues regardless of whether he specifically named the Defendants.
Pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the Court held an evidentiary hearing on the issue of exhaustion on May 10, 2022. (Doc. 81). Mohammad and Counsel for Defendants appeared by video conference. Mohammad and Margaret Madole, the current ARB Chair, testified during the hearing.
Findings of Fact
A. Grievance Records
The four grievances at issue are set forth below:
Grievance 12-5-18, dated April 30, 2018: Mohammad grieves that Muslims at Menard are only allowed to attend Jumu'ah services once a month instead of every Friday according to the Quran; the chapel has no Islamic materials; an Imam is not provided to assist Muslims in the practice of the Islamic faith; and Muslims are not allowed to gather for an Id. Al Fahr feast at the closing of Ramadan. A counselor responded on May 9, 2018 with information from the Chaplain. The ARB received the grievance on May 29, 2018, but returned it because there were no responses from the grievance officer and CAO.
Grievance 104-7-18, dated July 7, 2018: Mohammad grieves for the past few months he had been submitting requests to attend Jumu'ah services and has not been allowed to attend. He believes officers are failing to come get him for services and/or the chaplain is ignoring/failing to grant his request. A counselor responded on July 18, 2018 with information from the Chaplain. The ARB received the grievance on August 13, 2018, but returned it because there were no responses from the grievance officer and CAO.
Grievance 58-1-19, dated December 27, 2018: Mohammad grieves that for almost a year he has been trying to be put on the list to attend Jumu'ah services once a month but has not been able to attend; Taleem services are “constantly being cancelled;” no religious services were provided in November due to lockdown; on November 26 and December 3, 10, and 23, 2018 Muslim/Islamic services were cancelled but Christian services were held. Sometime on or after January 4, 2019, a Counselor responded stating religious services are an administrative decision. The ARB received the grievance on January 31, 2019, but returned it because there were no responses from the grievance officer and CAO.
The grievance shows it was received by the counselor on January 4, 2019 but the date of the response is not legible.
Grievance 423-4-49, dated April 21, 2019: Mohammad grieves he was taken off the list to attend Islamic services dating back to February 2019 and after sending several requests to attend services he was denied. Despite numerous requests, the chaplain will not put him on the list to observe and fast for the month of Ramadan. A counselor responded on April 25, 2019 with information from the Chaplain. The ARB received the grievance on May 1, 2019, but returned it because there were no responses from the grievance officer and CAO.
B. Pavey hearing testimony
Defendants offered the testimony of Margaret Madole, the current ARB Chair. She testified that each of the four grievances at issue was received by the ARB without grievance officer or CAO responses, and therefore, the grievances were returned. Two of the grievances were later re-submitted, but still did not have grievance officer or CAO responses.
Mohammad testified that he submitted each grievance at issue for grievance officer review after he received the counselor's response. He did so by placing the grievances in the grievance box. However, each grievance was returned to him without a response from the grievance officer. He then submitted the grievances to the ARB.
Conclusions of Law
Legal Standards
A. Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. PROC. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. See Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party. See Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013).
When a motion for summary judgment pertains to a prisoner's failure to exhaust administrative remedies, the Seventh Circuit has instructed courts to conduct an evidentiary hearing and resolve contested issues of fact regarding a prisoner's efforts to exhaust. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). After hearing evidence, finding facts, and determining credibility, the court must decide whether to allow the claim to proceed or to dismiss it for failure to exhaust. See Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018).
B. The PLRA and Illinois Exhaustion Requirements
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all available administrative remedies prior to filing lawsuits in federal courts with regard to prison conditions. See 42 U.S.C. § 1997e(a); Pavey, 544 F.3d at 740. “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). Administrative exhaustion “means using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). This is a mandatory rule that a court does not have discretion to waive. Id. at 93. “[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed.” Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999).
The Seventh Circuit requires strict adherence to the exhaustion requirement. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). However, an inmate is required to exhaust only those administrative remedies that are available to him. See 42 U.S.C. § 1997e(a). Administrative remedies become “unavailable” when prison officials fail to respond to a properly filed inmate grievance or when prison employees thwart a prisoner from exhausting. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 809.
As an inmate in the Illinois Department of Corrections, Mohammad was required to follow the grievance process outlined in the Illinois Administrative Code, 20 ILL. ADMIN. CODE § 504.800, et seq. (2017). The regulations require an inmate to file his grievance with his counselor within 60 days of the discovery of an incident, occurrence, or problem that gave rise to the grievance. See 20 ILL. ADMIN. CODE § 504.810(a). The grievance must set forth the following:
[F]actual 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). The Seventh Circuit has held that an inmate is required to provide enough information to serve a grievance's function of giving “prison officials a fair opportunity to address [an inmate's] complaints.” Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011).
If the complaint is not resolved through the counselor, the grievance may be submitted to a grievance officer, who reports his or her findings and recommendations in writing to the CAO. See 20 ILL. ADMIN. CODE § 504.830(e). The CAO then provides the inmate with a written decision on the grievance. Id. If the inmate is not satisfied with the CAO's response, he can file an appeal with the IDOC Director through the ARB. See 20 ILL. ADMIN. CODE § 504.850(a). The ARB must receive the appeal within thirty days of the date of the CAO's decision. Id. The inmate must attach copies of the responses from the grievance officer and CAO to his appeal. Id. The ARB submits a written report of its findings and recommendations to the Director, who then makes a final determination. See 20 ILL. ADMIN. CODE § 504.850(d), (e).
Analysis
Based on the evidence in the record and in consideration of the parties' arguments, the Court finds Defendants have not met their burden to show that the grievance process was fully available to Mohammad. Mohammad testified that he submitted the grievances for second level review and received them back without responses. This testimony was not rebutted and there is no evidence before the Court to doubt Mohammad's credibility.
Defendants argue that the rather short period of time between the dates of the counselors' responses and the dates the grievances were received by the ARB indicates Mohammad did not submit the grievances for second level review or appealed too soon. On a motion for summary judgment, the Court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party. As such, any inferences to be drawn are in Mohammad's favor based on his clear, compelling, and unrebutted testimony. The time frames are not so short to make it impossible for Mohammed to submit the grievances for second level review, receive the returned grievances, and forward them to the ARB. Even for the shortest period of time, which was six days, it is not inconceivable.
Next, the Court must consider whether the content of the grievance was sufficient to cover the claims in this lawsuit. As the Ninth Circuit has articulated, “a prisoner must show that he attempted to exhaust his administrative remedies but was thwarted . . . In particular, [he] must establish . . . that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court . . . .” Sapp v. Kimbrell, 623 F.3d 813, 823-824 (9th Cir. 2010). Judges in this district have found the Ninth Circuit's rationale in Sapp to be persuasive and have adopted it. See Cortez v. Wexford Health Source, Inc., No. 3:19-cv-1238-SMY-MAB, 2022 WL 802282, at *6 (S.D. Ill. Feb. 23, 2022); Dixon v. Wexford Medical Source, No. 3:19-cv-0222-SMY-GCS, 2021 WL 5259897, at *5 (S.D. Ill. July 12, 2021); Anderson v. Thole, No. 3:20-cv-00151-SMY, 2021 WL 2554111, at *2 (S.D. Ill. June 22, 2021); Russell v. Lashbrook, No. 19-cv-963-DWD, 2021 WL 1165120, at *3 (S.D. Ill. Mar. 26, 2021); Walker v. Butler, No. 19-cv-0446-SPM, 2021 WL 857355, at *6 (S.D. Ill. Mar. 8, 2021); and Russell v. Wexford Health Sources, Inc., No. 3:19-cv-681-MAB, 2021 WL 793994, at *3 (S.D. Ill. Mar. 2, 2021).
Here, the grievances at issue served the function of giving prison officials a fair opportunity to address Mohammad's complaints. The grievances were not rejected for being procedurally deficient; a counselor responded to each grievance with information from the Chaplain. As the Seventh Circuit has pointed out, “the identification requirement in the first sentence is softened by the second sentence, which clarifies that prisoners need identify names only to the extent practicable.” Glick v. Walker, No. 09-2472, 385 Fed.Appx. 579, 582 (7th Cir. July 13, 2010) (internal citation and quotation marks omitted). “The Code does not require the prisoner to do more than articulate what facts the prison could reasonably expect from a prisoner in his position.” Id. Mohammad complained, for the most part, about administrative decisions “and it belies reason to suggest that prison administrators [ ] were unaware of who was responsible for that decision.” Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011). Further, “[g]rievances are intended to give prison administrators an opportunity to address a shortcoming, not to put individual defendants on notice of a lawsuit.” Glick, 385 Fed.Appx. at 582. “It would be unreasonable to expect that, for every set of facts, an inmate will be able to peel back layers of bureaucracy and match a disputed decision with the prison employee responsible for that decision.” Id.
Finally, although Mohammad did not state he had been the subject of “retaliation” in the April 21, 2019 grievance, he grieves about being removed from the list to attend Islamic services. In the Second Amended Complaint, Mohammad alleges that in February 2019 he was removed from the list to attend weekly Taleem services in retaliation for filing grievances. Retaliation is not a factual detail; rather, it is a legal theory or a conclusion that one might or might not draw from the factual details. A prisoner is not required to state legal theories in a grievance. See Strong v. David, 297 F.3d 646, 649650 (7th Cir. 2002). Again, the grievances served the function of giving prison officials a fair opportunity to address Mohammad's complaint.
Recommendation
For the reasons stated, it is RECOMMENDED that the Court ADOPT the foregoing findings of fact and conclusions of law; DENY the Motion for Summary Judgment on Exhaustion (Doc. 66) filed by Defendants Jacqueline Lashbrook, Alex Jones, Frank Lawrence, James Claycomb, Samuel Sterrett, and Henry Wilson; and ALLOW all claims to proceed.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties may object to any or all of the proposed dispositive findings in this Report and Recommendation within 14 days of service (see attached Notice). The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).