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.
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 ...