The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Shauntae Robertson claims that five Cook County Department of Corrections ("CCDOC") officers and other unknown officers (Defendants) used excessive force against Plaintiff while he was a pre-trial detainee at the Cook County jail. (Am. Compl.  ¶¶ 16-17.) Plaintiff filed suit under 42 U.S.C. § 1983, alleging that Defendants' conduct violated his Eighth Amendment right to be free from cruel and unusual punishment. (Id. ¶ 21.) Defendants have moved for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies with the CCDOC as required by the Prison Litigation Reform Act, amended at 42 U.S.C. § 1997e. (Mem. of Law in support of Def.s' Mot. for Summary Judgment  (hereinafter "Def.'s Mot.") at 2.) Plaintiff argues that a CCDOC officer effectively prevented him from appealing the grievance (Mem. of Law in Support of Pl.'s Resp. to Def.'s Mot.  (hereinafter "Pl.'s Resp.") at 2), and because the court concludes there is a genuine factual dispute about this issue, the motion for summary judgment is denied.
On January 22, 2006, Plaintiff, a pretrial detainee at a the Cook County jail, had a confrontation with Defendant Trejo, a CCDOC officer. ((Def.'s 56.1 ¶¶ 1-5.) According to Plaintiff, Defendant Trejo spoke on his radio and then began an unprovoked physical attack, punching Plaintiff. (Id. ¶ 6; Robertson Dep. 33:3-8.) Plaintiff testified that he was hit by other officers, as well, and eventually lost consciousness. (Def.s' 56.1 ¶ 7; Robertson Dep. 40:13-16.) Plaintiff was later taken to Mt. Sinai hospital and treated for injuries he received during the altercation. (Def.s' 56.1 ¶ 8.)
Plaintiff filed a detainee grievance concerning the incident on January 22, 2006. (Id. ¶ 9.) Plaintiff testified that as he is illiterate, he asked a fellow inmate, identified only as Mohammad, to complete the grievance form for him, but Plaintiff signed his own name to the form and filed it. (Id. ¶ 10; Robertson Dep. 75:12-17; 80:17; Robertson Aff. ¶¶ 5-7.) Plaintiff received the CCDOC response to his grievance on February 28, 2006. (Def.s' 56.1 ¶ 11.) The response concluded: "Plaintiff was the aggressor & attacked CO. Detainee manipulated cell lock & charged accordingly. No IAD case file warranted." (Id. ¶ 12.) Plaintiff did not agree with the response, but signed it to indicate he had received it. (Id. ¶¶ 13, 14.) The second page of the grievance form includes a section in which the detainee can appeal the response by writing his reasons for appeal in a blank space; Plaintiff did not do so and therefore did not execute an appeal of his grievance according to CCDOC procedures. (Id. ¶¶ 15, 16, 19.) Plaintiff nevertheless believed he had appealed the grievance. (Id. ¶ 17.) He asserts that a CCDOC counselor told him that if he wished to appeal, he need only sign the response form, never informing him that he needed to state grounds for his appeal on the second page. (Robertson Dep. 81:15-17; Robertson Aff. ¶¶ 10,11.)
Defendants now move for summary judgment, arguing that Plaintiff has failed to exhaust his administrative remedies with the CCDOC as required by the Prison Litigation Reform Act, amended at 42 U.S.C. § 1997e. The Act provides:
No 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). An action by a detainee alleging that corrections officers used excessive force is a suit over "prison conditions" subject to the requirements of 42 U.S.C. § 1997e. Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001). Therefore, to comply with the statute, "a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).
In this case, it is undisputed the CCDOC administers a grievance procedure that is available to all inmates. (Def.s' 56.1 ¶ 21; Warren Aff. ¶ 4.) It is also uncontested that Plaintiff filed a grievance and failed to execute an appeal when CCDOC officers told him that no action would be taken in response to his grievance and presented him with the paperwork to appeal that decision. (Def.s' 56.1 ¶ 16.) Defendants note, further, that CCDOC rules allow only 14 days in which a detainee may appeal the decision on a grievance and that exhaustion is now impossible because Plaintiff is no longer housed in the CCDOC. (Def.s' 56.1 ¶ 22; Warren Aff. ¶ 4.) As Plaintiff can no longer exhaust his administrative remedies, Defendants argue, they are entitled to summary judgment.
Exhaustion is an affirmative defense on which prison employees bear the burden of proof.
Schaefer v. Bezy, No. 08-3349, 2009 WL 1931187, at *3 (7th Cir. July 7, 2009) (citations omitted). Additionally, because Defendants seek summary judgment on the issue, the court will draw all reasonable inferences in the light most favorable to Plaintiff. Id. Defendants are entitled to summary judgment on the issue of exhaustion, and the court may dismiss the action with prejudice, only if there is no genuine issue of material fact that Plaintiff failed to exhaust available prison remedies through his own fault and that exhaustion is now impossible. See Glick v. Walker, 06-586-GPM, 2009 WL 1423996, at *4 (S.D. Ill. May 20, 2009) (citing Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)); see also Santiago v. Snyder, 211 Fed. Appx. 478, 480-81 (7th Cir. 2006) (dismissing with prejudice the claims of a prisoner who brought suit instead of appealing CCDOC grievance, because time for appeal had expired).
The fact that a prisoner has failed to exhaust administrative remedies may not by itself be dispositive, however. As the Seventh Circuit has observed, [a]lthough a prisoner must properly exhaust the administrative remedies within the prison before suing over prison conditions . . . he need exhaust only the remedies 'available' to him. A prison employee who prevents access to a remedy can render that remedy unavailable; in such circumstances, a failure to exhaust would not bar filing suit. . . .
Because the prison employees bear the burden on exhaustion, they must do more than point to a lack of evidence in the record; rather they must 'establish affirmatively' that the evidence is so one-sided that no reasonable factfinder could find that [the plaintiff] was prevented from exhausting his administrative remedies. Schaefer, 2009 WL 1423996, at *3 (internal citations omitted). Summary judgment is therefore inappropriate when there is a factual dispute as to whether Plaintiff was able to exhaust the ...