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George Calhoun (#2009-0012388 v. Officer Myatt

August 24, 2011

GEORGE CALHOUN (#2009-0012388), PLAINTIFF,
v.
OFFICER MYATT, DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM OPINION AND ORDER

Cook County Correctional Officer Myatt is the sole remaining defendant in this pro se § 1983 excessive force suit filed by plaintiff George Calhoun. Calhoun alleges that on June 16, 2009, he was incarcerated at the Cook County Jail and was passing out dinner trays in the Christian Wing. According to the complaint, Calhoun told Myatt that he resembled comedian Robin Harris. Apparently, Myatt was not a fan because he allegedly responded by attacking Calhoun and inflicting lower back injuries.

Before the court are the parties' cross-motions for summary judgment (Docs. 63 & 79). Myatt contends that he is entitled to summary judgment because Calhoun failed to exhaust his administrative remedies prior to filing suit as required under the Prisoner Litigation Reform Act. See 42 U.S.C. § 1997e(a). Calhoun's motion for summary judgment focuses on the merits of his excessive force claim. For the reasons stated herein, Myatt's motion for summary judgment is granted, and Calhoun's motion for summary judgment is denied.

LEGAL STANDARD

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All of the evidence and the reasonable inferences that may be drawn from the evidence are viewed in the light most favorable to the non-movant. Miller v. American Family Mutual Ins., 203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party cannot defeat summary judgment by relying on unsubstantiated facts or by merely resting on its pleadings. See Hemsworth, II v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001). Instead, the party that bears the burden of proof on an issue must affirmatively demonstrate, with admissible evidence, that a genuine issue of material fact exists that requires a trial. See Hemsworth, 476 F.3d at 490.

When Myatt filed his motion for summary judgment, he included a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992), Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982), and Local Rule 56.2. This notice clearly set out the requirements of this Court's Local Rule 56.1. In particular, the notice explains that Calhoun's response must comply with Federal Rule of Civil Procedure 56(e) and Local Rule 56.1.

Local Rule 56.1(b)(3) requires a party opposing a motion for summary judgment to file:

(A) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and

(B) a statement, consisting of short numbered paragraphs, of any additional facts that require denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

L.R. 56.1(b). The district court may require strict compliance with Local Rule 56.1. See Ammons v. Aramark Uniform Serv., Inc., 368 F.3d 809, 817 (7th Cir. 2004); Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527 (7th Cir 2000) (strict compliance with the local rules governing summary judgment is upheld given the importance of local rules that structure the summary judgment process); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs").

FACTS

The following facts are taken from Defendants' Rule 56.1 statement, from the record attached to Defendants Rule 56.1 statement, from Calhoun's complaint, and from Calhoun's response to Defendants' motion for summary judgment. George Ellis Calhoun, Jr. entered Cook County Jail on February 23, 2009. (Defendant's Exhibit 1, Plaintiff's Deposition, pp. 31-32). Calhoun was a pretrial detainee housed in Division Six, Tier 1A on June 16, 2009. (Id., p. 10.) Calhoun alleges in his complaint that on June 16, 2009, he was involved in an altercation with Myatt in Division Six, Tier 1. (Plaintiff's Complaint, ECF Doc. #1.)

The Cook County Jail had an established grievance procedure that was available to all detainees in 2009. (Defendant's Exhibit 3, Affidavit of John Mueller, ¶ 4.) According to the Cook County Department of Corrections "detainee grievance policies," a detainee is required to properly exhaust all administrative remedies before filing a related lawsuit. (Defendant's Exhibit 3, ¶ 5.) Calhoun understands the grievance procedure at the Cook County Jail and, indeed, had completed grievance forms prior to the alleged altercation on June 16, 2009. (Defendant's Exhibit 1, pp. 32-34.)

Elvis Slaughter was the superintendent of Division Six on June 16, 2009. (Plaintiff's Complaint, ECF Doc. #1 and Defendant's Exhibit 4, ΒΆ 3.) Calhoun attached to his proposed amended complaint a copy of the grievance regarding the alleged altercation with Myatt on June 16, 2009, with an affidavit stating that he gave the grievance to Slaughter. (Plaintiff's proposed amended complaint, ECF Doc. #82, Attachment A, Affidavit 1 and 1(b).) Myatt disputes that Calhoun gave Slaughter a grievance on that date, contending that Slaughter was not present at the Cook County Jail at 6:00 p.m. on June 16, 2009. ...


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