United States District Court, N.D. Illinois, Eastern Division
June 21, 2005.
Claxton Williams Plaintiff,
Kenneth Briley, et al., Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
The Plaintiff, currently an inmate at Menard Correctional
Center, has brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. He claims that the defendants, three officers
at Stateville Correctional Center ("Stateville"), violated his
constitutional rights by using excessive force against him. All
other defendants and claims were dismissed by the court. This
matter is before the court for consideration of the defendants
Hunter and Banks' motion for summary judgment.*fn1 Plaintiff
was sent the LR 56.2 Warning for pro se plaintiffs regarding
summary judgment. Defendants submitted LR 56.1 statement of
material facts and Plaintiff submitted a "response in affidavit
form" and a cross motion for summary judgment, but no LR 56.1
Facts. For the reasons stated in this order, Defendants' Hunter
and Banks' motion is granted and the Plaintiff's motion is
denied. Standard of Law
Summary judgment will be granted when there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). O'Connor v. DePaul Univ.,
123 F. 3d 665, 669 (7th Cir. 1997). In weighing a motion for
summary judgment, the court must take the facts in the light most
favorable to the party opposing the motion and draw all
reasonable inferences in that party's favor. Bahl v. Royal
Indemnity Co., 115 F. 3d 1283, 1289 (7th Cir. 1997); Condo v.
Sysco Corp., 1 F. 3d 599, 601 (7th Cir. 1993). The party
opposing the motion must present evidence of a triable issue of
material fact. See Vance v. Peters, 97 F. 3d 987, 990 (7th Cir.
1996). The nonmoving party is required to go beyond the pleadings
and designate specific facts showing a genuine issue for trial.
Bank-Leumi Le-Israel, B.M. v. Lee, 928 F. 2d 232, 236 (7th Cir.
1991). A fact is material when it would determine the outcome
under the governing law. Whetstine v. Gate Rubber Co.,
895 F.2d 388, 392 (7th Cir. 1990). A material fact is genuinely in dispute
when "the evidence is such that a reasonable jury could return a
verdict for the non-moving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Plaintiff's remaining claims in his amended complaint after
this court's December 6, 2004 order dismissing all other claims
and defendants are that on August 30, 2002 and on October 17,
2002, officers used excessive force against him: on August 30 he
claims that unnamed tactical officers used excessive force on him
and, Defendant Hunter retaliated against him for filing emergency
letters and ignored his serious medical condition; on October 17,
during a shakedown of Plaintiff's cell, defendant officer Banks
used excessive force by hitting him in the head with a plastic shield while Plaintiff was handcuffed. He
claims that defendant Davis kicked him and rammed an oak stick
into Plaintiff's rectum during this incident. He further alleges
that defendant Hunter was the superintendent in charge of the
segregation unit where Plaintiff was housed at Stateville during
this incident, on October 17, 2002. The original complaint was
filed August 30, 2004 and the amended complaint was filed
November 23, 2004.
For purposes of this motion for summary judgment, the important
allegations relate only to whether or not Plaintiff completed the
administrative remedies provided at Stateville through the
grievance procedure for each of these two incidents. He claims in
his amended complaint that he submitted emergency grievances. He
never alleges that he ever submitted any non-emergency grievances
for either incident.
August 30, 2002 incident
Plaintiff attaches many exhibits interspersed with his amended
complaint, some of which are unrelated to the remaining claims,
some are letters, and one is a grievance dated September 30, and
received by the Administrative Review Board ("ARB") on October
11. In this grievance he fails to name any of the tactical
officers involved in the incident. This five page grievance
discussed medical issues, issues related to receiving food and
closing his "chuck hole" in his cell door, his failure to follow
a direct order, and then the tactical team coming to his cell,
handcuffing him, and then slamming their plastic shield on his
head, jabbing him in his kidneys, and further beating him.
He claims that he followed the procedure for emergency
grievances, and submitted letters to the warden, but then,
because he did not receive a response from the warden, he
submitted a grievance directly to the ARB. He does not claim to
have followed the routine grievance procedure, but he does allege that he followed the
emergency grievance procedure.
On October 29, the ARB instructed Plaintiff that he could not
submit the grievance directly to them, without proof that he had
first discussed the grievance with the counselor, and then
submitted a written grievance to the grievance officer. (Def.
Facts # 7 and Exh. C). They sent the grievance back to Plaintiff.
Since evidence shows that his grievance was determined not to be
an emergency, the issue becomes only whether he followed the
routine non-emergency grievance procedure after being told to do
so on October 29, 2002.
October 17, 2002 incident
In the amended complaint, Plaintiff attaches a grievance form
dated November 17, 2002, that does not have any "received" stamp
on it, but does have his own lengthy affidavit attached to it,
dated November 12, 2002, outlining once again, his refusal to
accept a meal, and the tactical team coming to his cell to beat
him with the plastic shield and oak stick. For this grievance, he
names the defendants Davis and Banks as part of the tactical
In Plaintiff's response to the motion for summary judgment, he
fails to provide any evidence of his having submitted this
November 2002 grievance. Instead he states that he submitted
letters dated December 27 and December 29, 2002, to the warden
and assistant warden inquiring about his November grievance. He
further states that his personal encounter with the assistant
warden wherein he told him of the incident "should in and of
itself, be exhaustion of my administration [sic] remedies." (Res.
p. 4). He claims again that defendants impeded his efforts to use
the grievance system by refusing to respond to his emergency
grievance in a timely manner. He reiterates that he followed the
emergency grievance procedure. He fails to address the issue of
whether he followed the proper grievance procedure, but appears
to be claiming that his own determination that his claim was an emergency was
sufficient to validate his choice of procedures, and that
defendants failed to follow that procedure.
Defendants' 56.1 Facts
Defendants' statement of facts illustrate that Plaintiff failed
to follow the proper grievance procedures or complete the
grievance process for his claims. In defendants' LR 56.1
Statement of Material Facts, with supporting evidence, they show
that Plaintiff did the following: According to prison records,
Plaintiff did not file a grievance on either September 30, 2002,
or November 17, 2002. (Facts #5). On October 11, 2002, Plaintiff
submitted his September 30 dated grievance directly to the
Administrative Review Board (ARB) and did not first discuss the
problem with the counselor, nor submit the written grievance to
the grievance officer, as required for non-emergency grievances.
(Facts #6). Thus, it was sent without the necessary responses
from the counselor or the grievance officer. On October 29, the
ARB told Plaintiff in writing that he needed to provide these two
responses with his appeal. (Def. Exh. C and Facts #7).
But Plaintiff did not submit his grievance to the counselor, as
instructed, until December 2, 2002, more than 3 months after the
alleged excessive force occurred and past the deadline for filing
a grievance. (Facts #8). Plaintiff did actually have time to
comply with the prison grievance rules after receiving the
October 29, 2002 ARB notice, if he had submitted his grievance
correctly any time before November 30, and still be within the
time period required by the rules. He did not do so, until three
days past the deadline.
The grievance procedure followed at Stateville is set forth in
20 Ill. Admin. Code § 504.800 et seq., and in defendants' memorandum (p. 7). First,
within sixty days of an incident,*fn2 a prisoner is required
to begin the grievance procedure by attempting to resolve the
complaint with the counselor. If unsuccessful, he may file a
written grievance on a grievance form and leave it in the box for
the grievance officer. The grievances are then reviewed weekly,
and written findings are made to the warden or his designee. The
inmate is informed of this decision. If the inmate is not
satisfied with this response, he may appeal in writing to the
Director of the Department of Corrections, who then determines if
a hearing is warranted before the ARB. If so, then the ARB holds
a hearing and submits its findings to the Director. The Director
then makes his own final determination. The process is completed
when the ARB issues a final decision. See Dixon v. Page,
291 F.3d 485, 489 (7th Cir. 2002); Sanders v. Elyea, 1998 WL
67615 *3 (N.D.Ill. February.10, 1998). These rules must be
followed to comply with the exhaustion of administrative remedies
requirement. Pozo v. McCaughtry, 286 F. 3d 1022 (7th Cir.
Stateville has a different system for its emergency grievance
procedure, 20 Ill. Admin. Code § 510.840:
"A committed person may request a grievance be handled on an
emergency basis by forwarding the grievance directly to the Chief
a) If the Chief Administrative Officer determines that there is
a substantial risk of imminent personal injury or other serious
or irreparable harm to the committed person, the grievance shall be handled on an emergency basis.
b) The Chief Administrative Officer shall expedite processing
of the grievance and respond to the committed person, indicating
what action shall be or has been taken."
Further, Defendants attach as Exhibit D, the affidavit of
Sandra Hawkins who is the keeper of grievance records at
Stateville at the time in question. She explains that if a
grievance that an inmate characterizes as an emergency is
determined not to be so, the grievance is returned to the
grievance officer and then to the inmate. In her affidavit she
states that Plaintiff's September 30, 2002 grievance, (originally
received on October 11, and returned to Plaintiff on October 29
as previously discussed) was received again on December 2, 2002
and was determined not to be an emergency and on December 9 it
was sent back to the Plaintiff. (See attachment to Exh. D).
The system is further explained in Exhibit E, affidavit of Gary
Drawve who reviews grievance appeals. He explains those issues
which are considered emergencies and can be grieved directly to
the warden and then to the ARB, and Plaintiff's grievance does
not fit any of those categories.*fn3 Further, if an inmate
claims a grievance is an emergency, he must forward it to a Chief
Operating Officer ("COO") and if only if the COO determines that
there is a substantial risk of imminent personal injury or
serious or irreparable harm to the inmate, he will handle on an
emergency basis. Only after that review, can an inmate appeal the
emergency grievance to the ARB. Plaintiff determined that he had
an emergency grievance, but when the ARB instructed him to proceed with a non-emergency grievance, by following the
procedure of first talking to his counselor, and then filing a
written grievance to the grievance officer, he ignored that
instruction, until after the deadline for doing so had passed.
Finally, Defendants claim that no grievance at all was filed on
November 17, and Plaintiff does not supply any evidence to
contradict this statement. (Def. Facts #9&10, Exh. E).
Bank-Leumi Le-Israel, B.M. v. Lee, 928 F. 2d 232, 236 (7th Cir.
The PLRA provides that a prisoner cannot bring suit under §
1983 concerning prison conditions unless he first exhausts his
administrative remedies. 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). To properly exhaust his
administrative remedies, a prisoner must take all the steps
required by the prison's grievance system. Ford v. Johnson,
362 F.3d 395, 397 (7th Cir. 2004); Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). Further, exhaustion is a precondition
to filing suit, so a prisoner's attempt to exhaust available
administrative remedies in the midst of litigation is
insufficient. See Ford, 362 F.3d at 398; Perez v. Wis. Dep't
of Corr., 182 F.3d 532, 536-37 (7th Cir. 1999).
To properly exhaust remedies under § 1997e(a) a prisoner "must
file complaints and appeals in the place, and at the time, the
prison's administrative rules require." Pozo,
286 F.3d at 1025 (emphasis added); see also Freeman v. Francis,
196 F.3d 641, 644 (6th Cir. 1999) ("[T]he exhaustion requirement in §
1997e(a) is directed at exhausting the prisoner's administrative
remedies in the corrections system, and investigation by another
agency does not satisfy the requirement of the statute.").
Indeed, the purpose behind the exhaustion requirement is to give
corrections officials the opportunity to address complaints
internally before a federal suit is initiated. See Porter, 534 U.S. at 524-25.
"Failure to exhaust is an affirmative defense that the
defendants have the burden of pleading and proving, Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Massey v. Helman
(Massey I), 196 F.3d 727, 735 (7th Cir. 1999)." Dale v.
Lappin, 376 F.3d 652, 655 (7th Cir. 2004). (Defendants
assert that exhaustion is a prerequisite to bringing the lawsuit.
This is incorrect.)But now that they have raised this defense,
the court addresses the central question, did Plaintiff comply
with the administrative rules or not, and if not, did Plaintiff's
failure to comply with the letter of the rules of the grievance
procedure at Stateville mean that he failed to exhaust, or would
substantial compliance, such that defendants were on notice of
his grievance, be sufficient?
In Lewis v. Washington, 300 F.3d 829, 834 (7th Cir.
2002), because plaintiff's cause of action accrued after the
PLRA's "invigorat[ion] [of] the exhaustion prescription," Porter
v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988 (2002), the
substantial compliance doctrine was not available. See also,
Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001) (suggesting
in dicta that the substantial compliance doctrine applies only to
pre-PLRA causes of action, but declining to decide the issue
because prisoner failed to raise substantial compliance in the
With these exhaustion requirements now outlined, the court
applies them to the undisputed material facts in Plaintiff's
case. He submitted an emergency grievance to the ARB. He was told
that he didn't have the appropriate proof that he had gone
through the grievance procedure, i.e., he needed responses from
the counselor and grievance officer to show that he had properly
proceeded through the grievance process. Although given
sufficient time within the prison rules to do that, he failed to
do so. Only after the time had passed for him to comply, did he begin the grievance process again, and once again submitted an
emergency grievance, not following the normal grievance
While the court does not condone the behavior about which
Plaintiff complains, Plaintiff failed to follow the institution's
procedures to exhaust administrative remedies, even after being
told what to do and given time to do so. Apparently, he continues
to believe that he can submit anything as an emergency grievance,
and then complain afterward that defendants have obstructed his
attempt to follow the grievance procedure. He must now realize
that the grievance procedure must be followed in order to comply
with the requirement of exhaustion of administrative remedies.
Such compliance does not include self determined emergency
status. For this reason, he cannot proceed in this case.
Plaintiff's cross motion for summary judgment
Plaintiff filed a cross motion for summary judgment, claiming
that the case should be dismissed because defendants failed to
answer his claims, and instead only filed a motion for summary
judgment and only about the exhaustion issue. Therefore, he
argues that there is no genuine issue of material facts.
Plaintiff failed to follow any of the rules required regarding a
motion for summary judgment and his argument is groundless.
Defendants are not required to address any of the merits of
Plaintiff's claims if they assert the affirmative defense of
failure to exhaust administrative remedies. See discussion
supra, page 5. Therefore, Plaintiff's motion is denied.
It is therefore ordered that the defendants' Hunter and Banks'
motion for summary judgment is granted. This case is dismissed without prejudice for
failure to exhaust administrative remedies. Any pending motions
are denied as moot.