The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' motion for summary judgment. [d/e 15]
The plaintiff, a state prisoner, filed his lawsuit pursuant to 42 U.S.C. §1983 claiming his constitutional rights were violated at the Peoria County Jail. On September 5, 2007, the court conducted a merit review and found that the plaintiff had alleged that Defendant Jailor Doug Toohill violated his Fourteenth Amendment rights when he used excessive force against the plaintiff on August 14, 2006. The claim is against the defendant in his individual capacity.
On October 31, 2007, the defendants filed a motion to dismiss the complaint. [d/e 15]. On November 20, 2007, the court converted the motion into a motion for summary judgment since the defendants asked the court to consider matters outside the pleadings. The court also gave the plaintiff additional time to file a response. SeeNovember 20, 2007 Court Order. The court has also granted additional extensions of time for the plaintiff to file a response. See January 9, 2008 Text Order; September 11, 2008 Text Order. The plaintiff has failed to provided a response, so the court will consider the motion without input from the plaintiff.
Steven Smith is the Peoria County Jail Superintendent. Smith states there was a grievance procedure at the Peoria County Jail that was available to the plaintiff in August of 2006. (Def. Mot, Ex. A, Smith Aff., p. 1). The Superintendent has provided a copy of the procedure for Inmate Complaints. (Def. Mot., Ex A-1) An inmate must write his complaint on an Inmate Request Form and the inmate must sign the form. The jail states that all complaints must be answered by a designated staff member within 5 days. If an inmate is not satisfied with the response, he can use an Inmate Request Form to ask for a review by the Correctional Superintendent. (Def. Mot., Ex A-1).
The Jail Superintendent says he has searched the Peoria County Jail records and has found no Inmate Request Form from the plaintiff complaining about an incident on August 14, 2006 or about he actions of Jail Employee Toohill. (Def. Mot., Ex. A, Smith Aff., p. 1-2). Smith states the plaintiff has filled out previous Inmate Request Forms and he has provided copies of prior Inmate Request Forms from the plaintiff. (Def. Mot., Ex. A-2).
In addition, Smith says the plaintiff was charged with numerous rule violations as a result of the August 15, 2006 incident including: 1) failing to exit/enter his cell; 2) obstructing an officer; 3) attempted murder; 4) battery on staff; 4) malingering in the facility and 5) obscene language. The defendant has provided a copy of the Disciplinary Hearing Record from August 22, 2006. (Def. Memo, Ex. A-3). The plaintiff states that it was a misunderstanding between himself and Officer Toohill and he was just trying to defend himself. The plaintiff was found guilty of the rule violations and "was sentenced to thirty (30) days in lockdown as a result.." (Def. Memo, Ex. A., Smith Aff., p. 2)
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).
The defendants argue that the plaintiff has failed to exhaust his administrative remedies as required. The Prison ...