The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, currently an inmate at Stateville Correctional
Center ("Stateville"), brings a pro se civil rights action
pursuant to 42 U.S.C. § 1983. He claims that the defendants, two
correctional officers at Stateville, violated his constitutional
rights by using excessive force against him. Defendants filed a
Motion for Summary Judgment and a submitted LR 56.1 statement of
material facts. The court provided Plaintiff with the LR 56.2
Warning for pro se plaintiffs regarding summary judgment.
Plaintiff responded with an Amended Motion to Deny Summary
Judgment to which Defendants replied. For the reasons stated in
this order, the Defendants' motion for summary judgment is
granted; Plaintiff's motion to deny summary judgment is denied.
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 non-moving 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, 477 U.S. 242, 248 (1986).
The narrative which follows is based on facts submitted by
Defendants with which Plaintiff either specifically agrees or did
Plaintiff is incarcerated at the Stateville Correctional
Center, the same location in which Defendants are employed as
Correctional Officers. Comp. at 2. In this action, Plaintiff
alleges that an incident which violated his Eighth Amendment
rights occurred on July 23, 2004.
The Illinois Department of Corrections ("IDOC") has a formal,
multi-step administrative grievance procedure. See Defendants'
Exhibit B, Affidavit of Terri Anderson, ¶¶ 2-6. On January 26,
2005, Plaintiff received a letter from the IDOC indicating that
there was an on-going investigation into his allegations. See
Defendants' Exhibit A, Letter from IDOC. By that time, however,
Plaintiff had filed this lawsuit in December, 2004. There is no
indication from a search of Administrative Review Board records
the Plaintiff filed a grievance, according to the rules set up by the IDOC related to excessive force by members of the
Stateville staff. See Defendants' Exhibit B, at ¶ 7.
The Prison Litigation Reform Act ("PLRA") provides that: "[n]o
action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a). If a prison facility has an
internal administrative grievance system through which a prisoner
can seek to correct a problem, then the prisoner must utilize
that administrative system before filing a claim. Massey v.
Helman, 196 F.3d 727, 733 (7th Cir. 1999). The PLRA does not
condition the applicability of the exhaustion requirement on the
effectiveness of the administrative remedy available in a given
Although the IDOC has implemented a multi-step administrative
process, see 20 Ill.Admin. Code § 504.800, Grievance Procedures
for Offenders, Plaintiff argues that it was unnecessary for him
to pursue administrative remedies. He offers many cases, some
without precedential value and some which do not help his
argument, to support his theory that "excessive force" is not a
"prison condition" for purposes of the PLRA.
In Porter v. Nussle, 534 U.S. 516
(2002), the Supreme Court
resolved the argument raised by Plaintiff. The Seventh Circuit
explained the Supreme Court's decision as follows:
In defining the term "prison conditions" as employed
in the PLRA, the judicial focus up to now has been,
understandably, on other interpretative problems. For
instance, there was a great deal of litigation on
whether an action based on a single occurrence of
violence or excessive force could be classified as an
action with respect to "prison conditions." The
Supreme Court eventually resolved this issue in
Porter v. Nussle, 534 U.S. 516 ? (2002), by
holding that "the PLRA's 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." Id. at 532 ?.
Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004) (footnote
omitted) (footnote listing cases). Further, exhaustion of
administrative remedies requires that the offender complete the
administrative process which has been established by the state
before filed his action in federal court. Pozo v. McCaughtry,
286 F.3d 1022
, 1025 (7th Cir. 2002). Plaintiff also may not avoid
the exhaustion requirement by claiming futility of the existing
grievance process. Dixon v. Page, 291 F.3d 485
(7th Cir. 2002).
Accordingly, Plaintiff's argument is without merit.
42 U.S.C. § 1997e(a) makes complete exhaustion a "precondition to suit" and
requires dismissal if a prisoner fails to satisfy that condition.
Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir.
1999). Plaintiff has not fulfilled the preconditions to suit.
Thus, Defendants' motion for summary judgment is granted, and
Plaintiff's motion to deny ...