The opinion of the court was delivered by: James E. Shadid United States District Judge
Wednesday, 17 August, 2011 02:18:50 PM Clerk, U.S. District Court, ILCD
This cause is before the court for consideration of Defendant Smithson and Kochell's motion for summary judgment. [d/e 17]
The Plaintiff, a pro se prisoner, filed this lawsuit pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Pontiac Correctional Center. The court conducted a merit review of the Plaintiff's complaint pursuant to 28 U.S.C. §1915A on October 8, 2010 and found the Plaintiff had alleged the following federal claims:
a) Defendant Correctional Officers Smithson, Watson and Kochell violated the Eighth Amendment when they used excessive force on February 4, 2010;
b) Defendant Correctional Officer Salzman violated the Eighth Amendment when he failed to protect the Plaintiff from the assault; and,
c) the Defendants violated the Eighth Amendment when they placed the Plaintiff in an unsanitary cell without bedding or water on February 4, 2010.
Defendants Smithson and Kochell were the first to return their waiver of service forms and have filed a motion for summary judgment claiming that the Plaintiff has failed to exhaust his administrative remedies. [d/e 17]
The Illinois Department of Corrections has an established grievance process. See 20 Ill. Admin. Code §§ 504.800 et seq. An inmate is first required to speak with a counselor about the contested issue. 20 Ill. Admin. Code § 504.810(a). If the counselor does not resolve the problem, the inmate must file a grievance form directed to the Grievance Officer within 60 days of the incident. Id. The grievance officer submits his recommendation to the Chief Administrative Officer who "shall advise the offender of the final decision in writing within two months after receipt of the written grievance, where reasonably feasible." 20 Ill. Admin. Code § 504.830(d). If the inmate is not satisfied with the Chief Administrative Officer's response, he or she can file an appeal with the Director through the Administrative Review Board (herein ARB)within 30 days after the date of the Chief Administrative Officer's decision. 20 Ill. Admin. Code § 504.850(a). The Director shall then review the findings and recommendations of the board and make a final determination within six month after receipt of the grievance. 20 Ill. Admin. Code § 504.850(f). When an inmate has received a copy of the Director's decision, the grievance procedure is complete.
Sherry Benton says she is an ARB Chairperson and is familiar with the board's record keeping. (Def. Memo, Benton Aff. p. 1). Benton says she has searched the records of the ARB for an grievance filed by the Plaintiff concerning the use of force or placement in an unsanitary cell in February of 2010. Benton says the ARB has no grievance pertaining to an unsanitary cell.
The ARB did receive a grievance on March 3, 2010 which alleged the Plaintiff was assaulted by officers at Pontiac Correctional Center. The Defendants have attached a copy of the grievance which is dated February 27, 2010. The Plaintiff says he fears for his life and has been attacked by staff on two occasions. The Plaintiff then lists staff members including Trainor, Smithson, Torrea, Riggenbaugh, Watson and Gish. (Def. Memo, Ex. 1) The Plaintiff provides no specific dates or incidents in his grievance, but he asks to be moved to protective custody. The Plaintiff apparently sent the grievance directly to the ARB which refused to consider it. The board sent a memo back to the Plaintiff telling him he needed to include more specifics and he needed to include a copy of the Grievance Officer and Chief Administrative Officer's responses. Benton wrote a note at the bottom stating that all grievances must ...