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BOP Fails to Prove Non-Exhaustion Following Pavey Hearing

On June 7, 2011, an Illinois U.S. District Court held that federal prison officials had failed to satisfy their burden of proving a prisoner did not exhaust administrative remedies before bringing suit.

Chad Alan Hicks was confined at the Chicago Metropolitan Correctional Center (MCC), a federal Bureau of Prisons facility, in October 2005 and April through June of 2006. He was placed in MCC’s Special Housing Unit (SHU) on October 8, 2005, where he remained until October 25, 2005. During that time his cell had restricted water access and was inundated with insects.

On October 25, 2005, Hicks was transferred to the Ogle County Jail to face criminal charges. Following sentencing he was returned to MCC in April 2006. Hicks was again segregated in the SHU on May 18, 2006, where he remained until his June 7, 2006 transfer to another prison.

Hicks filed a Bivens action in federal court on May 2, 2006. He alleged that in October 2005 his SHU cell conditions “deprived him of his ‘basic human needs’” and that in May 2006, MCC guard Dennis Rolke placed him “in administrative detention ... ‘in retaliation for Plaintiff’s actions relating to this law suit.’”

The defendants moved for summary judgment, arguing that Hicks had failed to satisfy the exhaustion requirement of the Prison Litigation Reform Act (PLRA), which “applies to Bivens suits, such as Hicks’s, that are brought directly under the United States Constitution. See, e.g., Dale v. Lappin, 376 F.3d 625, 655 (7th Cir. 2004).”

The district court denied the motion, concluding that if Hicks had properly filed Bureau of Prisons grievance forms, as he claimed, “... and had heard nothing back, he would have been unable to appeal and would have properly exhausted his administrative remedies.”

To formally resolve the exhaustion issue the court held a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). In Pavey, the Seventh Circuit held “that it is the province of the judge – not a jury – to determine whether a plaintiff has complied with the PLRA’s exhaustion requirement.... At the Pavey hearing, a judge is empowered to resolve factual disputes pertaining to exhaustion and to make credibility determinations about the witnesses.”

The court found Hicks’ testimony at the Pavey hearing to be credible, and concluded “that Defendants have not met their burden of proving that Hicks failed to exhaust all available administrative remedies before bringing suit.”

The district court rejected the defendants’ post-hearing argument “that if the Court accepted Hicks’s testimony that he properly filed his grievance forms, ‘every prisoner in the federal system could bypass Congress’ requirement of exhaustion by doing nothing more than providing unsubstantiated testimony stating ‘I timely filed all the necessary forms and the Bureau of Prisons lost all of them.’”

However, the court explained, “To the contrary, if the record consisted solely of the bald assertion quoted above, the result very likely would have been different.” Yet Hicks’ testimony “was supported by a number of pieces of contemporaneous documentary evidence, all of which together support an inference that this case may present an instance in which grievances were lost or misplaced after they left the inmate’s hands....” One of those pieces of evidence was a carbon copy of the grievance form that Hicks said he had handed to an MCC guard.

Thus, the defendants’ summary judgment motion was denied. See: Hicks v. Irvin, U.S.D.C. (N.D. Ill.), Case No. 1:06-CV-00645; 2011 WL 2213721.

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Related legal case

Hicks v. Irvin