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Michael Glenn Michalski v. John E. Zaruba

December 1, 2010

MICHAEL GLENN MICHALSKI, PLAINTIFF,
v.
JOHN E. ZARUBA, IN HIS CAPACITY AS SHERIFF ) OF DUPAGE COUNTY, ILLINOIS; AND ) CESAR DELVALLE, DEFENDANT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Michalski sued defendants John Zaruba and Cesar DelValle in a two-count second amended complaint, pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth and Fourteenth Amendment rights stemming from a physical altercation with other inmates while he was in custody at the DuPage County Jail. Defendants have filed the instant motion for summary judgment. Because plaintiff has failed to exhaust his administrative remedies, the court grants defendants' motion for summary judgment.

BACKGROUND*fn1

On the evening of September 18, 2008, defendant DelValle was on duty guarding the communal dormitory-style pod of the DuPage County Jail in which plaintiff, a pretrial detainee, was housed. Plaintiff was trying to sleep and asked a group of noisy inmates to quiet down. They refused. Plaintiff explained the situation to defendant DelValle and asked for his help. Defendant DelValle asked the other inmates to be quiet, and the inmates acknowledged his request without saying anything negative. Later that night, he was pulled from his bunk and beaten. He sustained injuries requiring stitches in his face and head.

On September 22, 2008, plaintiff submitted a grievance addressed to "Marty Manion [the designated grievance officer], Chief [of Corrections] Wulff, [and defendant] Sheriff Zaruba." In this grievance, plaintiff complained that, despite his requests, the jail staff and bookkeeper had not helped him complete an in forma pauperis application and financial affidavit, nor had they provided him with an audit of his commissary account.*fn2 This grievance, which does not mention plaintiff's altercation or resulting injuries, is not even arguably addressed to the issues raised in the instant lawsuit.

Plaintiff submitted another grievance on September 27, 2008, addressed to the same three individuals, in which he requested "a copy of all my medical records & incident reports plus a jail release for being beat-up." The grievance provides this description of the incident:

On 9-18-2008 in 1-F-38 pod assigned location I was jumped by ('3') black males because I asked them to be quiet as I had been asleep some words were exchanged and I went back to sleep -- next thing I know I was being stomped punched & kicked by these three black guys.

It does not refer to defendant DelValle or any DuPage County Jail guard, nor does it refer to inadequate staffing or training of guards or to any other policy.

Also on September 27, 2008, plaintiff filed an "appeal." This document is identical to the September 27 grievance, except that the word "appeal" has been substituted for "grievance," and "TO: CHIEF WULFF*" has been added.

On October 6, 2008-six business days after plaintiff submitted the September 27 grievance and appeal-plaintiff brought the instant lawsuit by mailing a pro se complaint to the Clerk of Court for this district.*fn3 Plaintiff alleges that defendant Zaruba, acting in his official capacity as Sheriff of DuPage County, instituted policies that resulted in inadequate staffing and inadequately trained guards at the DuPage County Jail. Plaintiff further alleges that defendant DelValle exhibited deliberate indifference to plaintiff's safety when he allegedly ignored plaintiff's complaints about the other prisoners and failed to sufficiently monitor the pod in which plaintiff was housed.

DISCUSSION

The Prison Litigation Reform Act requires prisoners to exhaust any available administrative remedies before challenging prison conditions in federal court. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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."); Woodford v. Ngo, 548 U.S. 81, 84 (2006). "To exhaust all administrative remedies, a prisoner must take all steps prescribed by the prison's grievance system." Ford v. Johnson, 362 F.3d 395, 397, citing Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002), and Strong v. David, 297 F.3d 646 (7th Cir. 2002). At the time plaintiff filed his grievances, the DuPage County Jail's Inmate Rules and Regulations, which established the applicable grievance procedures, provided for a three-step grievance process.

Plaintiff failed to comply with any of these three steps. Nothing in the record indicates that plaintiff followed the first step, which requires that, before invoking the formal grievance procedures, an inmate must attempt to resolve the problem "by contacting in person or in writing, the appropriate jail staff member whose area of responsibility is related to the grievance." Plaintiff did not file a written complaint with a responsible staff member, or speak with a staff member about his grievance. Instead, plaintiff proceeded directly to filing a grievance with the Chief of Corrections, which was improper given that he had not first attempted to resolve his grievance with the appropriate staff member. Because a prisoner may move on to the next step of the grievance procedures only if he complies with the first step, the inquiry could end here.

But plaintiff also failed to follow the second step, which requires a prisoner who is unsatisfied with the resolution at step one to file a written grievance with the Chief of Corrections and wait ten business days for a response.*fn4 Ten business days from the filing of plaintiff's grievance is October 10, 2008-four days after plaintiff brought the instant lawsuit by mailing his complaint to the Clerk of Court. See Ford, 362 F.3d at 400 ("[A]n action is 'brought' for purposes of ยง 1997e(a) when the complaint is tendered to the district clerk."). ...


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