United States District Court, N.D. Illinois
April 22, 2004.
CLARK TRULY, Plaintiff,
OFFICE OF THE SHERIFF OF COOK COUNTY, DEPUTY SHERIFF MORRIS, DEPUTY SHERIFF SERGEANT MUNDT, DEPUTY SHERIFF SERGEANT BROGAN, and OTHER INDIVIDUALS UNKNOWN, Defendants
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Clark Truly, sued Defendants, Deputy Sheriff Morris,
Deputy Sheriff Sergeant Mundt, and Deputy Sheriff Sergeant Brogan,
Plaintiff, a prisoner, alleged that Defendants placed Plaintiff in danger
while in prison, in violation of 42 U.S.C. § 1983. Presently before
the Court is Defendants' Motion for Summary Judgment. For the following
reasons, that motion is granted.
Summary judgment is appropriate when no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor
Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). "One of the principal
purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses. . . ." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving party
on a motion for summary judgment is responsible for demonstrating to the
court why there is no genuine issue of material fact, the non-moving
party must go beyond the face of the pleadings, affidavits, depositions,
answers to interrogatories, and admissions on file to demonstrate,
through specific evidence, that a genuine issue of material fact exists
and to show that a rational jury could return a verdict in the non-moving
party's favor. Celotex, 477 U.S. at 322-27; Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.
Disputed facts are material when they might affect the outcome of the
suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir.
1992). When reviewing a motion for summary judgment, a court must view
all inferences to be drawn from the facts in the light most favorable to
the opposing party, Anderson, 477 U.S. at 247-48; Popovits
v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999).
However, a metaphysical doubt will not suffice. Matsushita, 475
U.S. at 586. If the evidence is merely colorable or is not significantly
probative or is no more than a scintilla, summary judgment may be
granted. Anderson, 477 U.S. at 249-250.
The undisputed facts, for the purposes of this motion, taken from the
parties' Local Rule 56.1(a) & (b) statements of material facts
(referred to herein as "Pl.'s 56.1" and "Def's 56.1") and exhibits, are
In November 1999, Plaintiff became an inmate at the Cook County Jail
(the "Jail"). Pl.'s 56.1 ¶ 1. At the Jail, Plaintiff was assigned to
Division 1, Tier B3. Pl's 56.1 ¶ 2. While at the Jail,
Plaintiff was involved in an altercation with another inmate, who was a
member of a jailhouse gang, Def.'s 56.1 ¶¶ 12-33; Pl.'s 56.1 ¶¶
5-6, 12, 19. Defendant Deputy Sheriff Morris was in charge of observing the area where the altercation
occurred. Def.'s 56.1 ¶ 23; Pl.'s 56.1 ¶ 4. After this
altercation, another altercation involving Plaintiff soon ensued by the
jailhouse showers. Def.'s 56.1 ft 34-43; Pl.'s 56.1 ¶¶ 24, 27. As a
result of this fight, Plaintiff sustained numerous injuries and was
required to go to the hospital. Pl.'s 56.1 ¶¶ 25, 29.
Thereafter, Plaintiff was written up for fighting and taken before the
disciplinary hearing board where he received the same punishment as the
others. Def.'s 56.1 ¶ 46. Plaintiff was then placed into segregation
upon his return to the Jail and was then given a new housing assignment
at the Jail. Def.'s 56.1 ¶¶ 47-48. After Plaintiff was given this
housing assignment, he requested protective custody. Def.'s 56.1 ¶¶
Plaintiff filed grievances relating to these altercations. Def.'s 56.1
¶ 50. Plaintiff received responses to his grievances. Def.'s 56.1
¶ 51; Def.'s Ex. 1, Pl.'s Dep. at 18. Plaintiff never filed any
appeals to the responses he received. Def.'s 56.1 ¶ 52; Def.'s Ex. 1,
Pl.'s Dep. at 18. Instead, after Plaintiff received the responses to his
grievances, he filed more grievances. Pl.'s 56.1 ¶ 30.
The Cook County Department of Corrections has a detainee grievance
procedure. Def.'s Ex. 2. After a detainee receives a grievance decision,
he may then appeal this decision. Def.'s Ex. 2 at 3-4.
Plaintiff's deposition was taken on September 18, 2003. Def.'s Ex. 1,
Pl.'s Dep. Subsequently, Plaintiff, without the assistance of his
attorney, on November 21, 2003, filed an affidavit stating that he did
not receive responses to his grievances.
On December 4, 2003, Plaintiff filled out errata sheets for his
deposition testimony, which stated that he did not receive responses to
his grievances. Specifically, Plaintiff changed three statements in his deposition testimony. First, Plaintiff was
asked, "Did you receive a response to any of your grievances?" Def.'s Ex.
1, Pl.'s Dep. at 17. On line 23 of page 17, Plaintiff changed his
previous answer from "Yes" to "No." Second, Plaintiff was asked, "How
many responses did you receive?" Def.'s Ex. 1, Pl.'s Dep. at 17. On line
2 of page 18, Plaintiff changed his previous answer from "responses were
nothing was ever " to "responses were from request to
internal investigations and superintendent nothing was ever written."
Third, Plaintiff was asked "Yes, did you appeal the response you were
given?" Def.'s Ex. 1, Pl.'s Dep. at 18. On line 9 of page 18, Plaintiff
changed his previous answer from "I never appealed the response" to "I
was never given the response."*fn1
Defendants contend that Plaintiff failed to exhaust his administrative
remedies, as required by the Prison Litigation Reform Act of 1995. In
response, Plaintiff argues he essentially appealed the unfavorable
responses he received to his grievances by filing more grievances.
Plaintiff further asserts that his original deposition testimony was in
error and that he never received any responses to his grievances.
Section 1997e(a) of Title 42 of the United States Code provides that
"[n]o action shall be brought with respect to prison conditions . . . by
a prisoner confined in jail, prison, or other correctional facility until
such available administrative remedies as available are exhausted." The exhaustion "requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong." Porter
v. Nussle, 534 U.S. 516, 532 (2002) (Porter).
Plaintiff, though, essentially claims he appealed the unfavorable
responses he received to his grievances by filing more grievances.
Plaintiff has provided no support for this proposition, and nothing in
the Cook County Department of Corrections grievance and appeal procedure
or the Prison Litigation Reform Act of 1995 permits this type of process.
Plaintiff further argues, as discussed above, that his original
deposition testimony was in error and that he never received any
responses to his grievances. In support of this argument, Plaintiff
submitted his own affidavit, pro se, after his deposition was
taken. Plaintiff also, on December 4, 2003, filled out errata sheets for
his deposition testimony, which was taken on September 18, 2003.
"[A] subsequent affidavit may not be used to contradict the witness's
deposition. . . ." Thorn v. Sundstrand Aerospace Corp.,
207 F.3d 383, 389 (7th Cir. 2000) (Thorn). Furthermore, "a change of
substance which actually contradicts the transcript is impermissible
unless it can plausibly be represented as the corrections of an error in
transcription, such as dropping a `not.'" Thorn, 207 F.3d at
389. Here, Plaintiff's changes are not merely correcting an error in
transcription; but, rather, they change the substance of his deposition
testimony. These deposition changes were made over seventy-five days
after Plaintiff's deposition was taken, and after this motion for summary
judgment was fully briefed. These deposition changes were also made after
Plaintiff admitted Defendants' Statement of Material Fact ¶ 51,
stating Plaintiff received responses to his grievances, was true. Therefore,
Plaintiff's affidavit and deposition changes, which contradict his
original deposition testimony, may not be considered.
Here, it is undisputed that the Cook County Department of Corrections
has a grievance and appeal procedure in place. It is also undisputed that
Plaintiff filed grievances and received responses to those grievances. It
is farther undisputed that Plaintiff failed to appeal those grievances
and only filed additional grievances. Accordingly, there is no genuine
issue of material fact that Plaintiff failed to exhaust his
administrative remedies, as required by 42 U.S.C. § 1997(e).
For the foregoing reasons, Defendants' Motion for Summary Judgment is