IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
February 1, 2012
BOBBY EZELL, PLAINTIFF,
ILLINOIS DEPARTMENT OF CORRECTIONS OFFICER SHAUN BASS; ILLINOIS DEPARTMENT OF CORRECTIONS OFFICER LANCE FRANKLIN; ILLINOIS DEPARTMENT OF CORRECTIONS OFFICER WILLIE JOHNSON; AND ILLINOIS DEPARTMENT OF CORRECTIONS OFFICER TROY MAYES, DEFENDANTS.
The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Bobby Ezell, an inmate incarcerated at Menard Correctional Center, filed a two-count second amended complaint pursuant to 42 U.S.C. § 1983 against defendants Illinois Department of Corrections ("IDOC") officers Shaun Bass, Lance Franklin, Willie Johnson, and Troy Mayes, alleging an Eighth Amendment deliberate indifference claim and an Illinois state law claim for intention infliction of emotional distress. Plaintiff claims that, when he was incarcerated at Stateville Correctional Center in 2008, he shared a cell with Johnnie Henderson, whom plaintiff alleges was violent and mentally unstable and had threatened to attack him. After he had notified defendants of these concerns and unsuccessfully requested that either he or his cellmate be relocated, what plaintiff feared indeed came to pass. A month after the two became cellmates, Henderson attacked plaintiff with a knife. Plaintiff sustained serious injuries and lost two and a half pints of blood and at least one tooth; as a result, he remains unable to eat solid food.
Defendants have moved for summary judgment under Fed. R. Civ. P. 56, claiming that plaintiff failed to exhaust the Illinois Department of Corrections' administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1197(e), and that no evidence supports his deliberate indifference claim against defendant Bass. Because there are disputed issues of material fact precluding summary judgment on both exhaustion and defendant Bass's liability, defendants' motion is denied. Defendants have also moved to strike two of plaintiff's exhibits offered in support of his statement of additional facts that require denial of summary judgment; for reasons discussed herein, that motion is also denied.
In evaluating a summary judgment motion, the court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A moving party must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must support that assertion with record citations. Fed. R. Civ. P. 56(c)(1)(A). Once the movant has met that initial burden, the nonmoving party can defeat summary judgment by "showing that the materials cited do not establish the absence . . . of a genuine dispute" or that the movant "cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . , the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).
A party moving for summary judgment must also comply with Local Rule ("L.R.") 56.1. The court is "entitled to expect strict compliance" with this rule, Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) (quoting Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)), and indeed this court's standing order on motion practice forewarns litigants that "L.R. 56.1 will be strictly enforced." Revised Standing Order of Judge Gettleman Regarding Briefs, Motion Practice, Disclosures, and Protective Orders 2.I (revised Oct. 19, 2011), available at: http://www.ilnd.uscourts.gov/JUDGE/GETTLEMAN/ motionpractice.pdf. Under this rule, a movant must file a statement listing the material facts that it believes to be undisputed and which entitle it to judgment as a matter of law. The rule specifies that this statement "shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1(a). L.R. 56.1 makes clear that "[f]ailure to submit such a statement constitutes grounds for denial of the motion." Id.
The nonmoving party must respond to this list of facts, and if it denies that a fact is undisputed, cite to the portion of the record that supports a contrary finding. L.R. 56.1(b)(3)(B). The nonmoving party must also submit a statement "of any additional facts that require the denial of summary judgment" along with record citations for those facts. L.R. 56.1(b)(3)(C). If the nonmoving party submits a statement pursuant to L.R. 56.1(b)(3)(C), the movant "may submit a concise reply in the form prescribed" under L.R. 56.1(b), and "[a]ll material facts set forth in the statement filed pursuant to section (b)(3)(C) will be deemed admitted unless controverted by the statement of the moving party." L.R. 56.1(a).
Rather than follow these rules, which are not mere formalities but are
designed to assist the court in determining whether genuine material
factual disputes exist, defendants'
submissions are replete with inappropriate material: a legal
conclusion,*fn1 propositions of law,*fn2
a quibble over an obvious typographical error,*fn3
responses that pile on additional information,*fn4
inconsistent denials,*fn5 equivocal responses
that leave the court uncertain as to whether or not the
statements are truly disputed,*fn6 and statements and
denials without record citations.*fn7 The court need
not wade through all of this clutter, parsing and cross-referencing
defendants' L.R. 56.1 submissions to determine which disputes are
genuine and material. Ammons v. Aramark Uniform Serv., Inc., 368 F.3d
809, 818 (7th Cir. 2004) ("A court should not be expected to review a
lengthy record for facts that a party could have easily identified
with greater particularity.") (citing Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 922 (7th Cir. 1994) ("[D]istrict courts are not obliged
in our adversary system to scour the record looking for factual
disputes and may adopt local rules reasonably designed to streamline
the resolution of summary judgment motions.")). Nor must the court
excuse the fact that defendants "push the limits of
L.R. 56.1 with lengthy and compound factual statements," concluding
with one string citation, which makes it difficult to ascertain which
of the statements are in fact supported by the record. Degeer v.
Gillis, 09 C 6947, 2012 WL 162186, at *2 n.1 (N.D. Ill. Jan. 19,
The court notes that many of defendants' citations are inaccurate.*fn9 This casts substantial doubt upon the veracity of all of defendants' citations and statements. The court will not perform defendants' work by scouring the record to see if accurate citations might be found. Instead, the court strikes all of defendants' statements.
Similarly, defendants' attempts to dispute plaintiff's statement of additional facts are often, in the court's review, disingenuous.*fn10 The court therefore deems all of plaintiff's statements of additional facts admitted. See Ammons, 368 F.3d at 817 (holding that it is within district court's discretion to strike L.R. 56.1 submissions that fail to strictly comply with the rule).
Defendants' departures from the requirements of L.R. 56.1 are particularly surprising in light of their criticisms of plaintiff's failure to adhere to the rule. Defendants' reply brief asks the court to "deem the facts in paragraphs 15, 17 through 21, and 27 through 35 [of their L.R. 56.1(a) SOF] admitted" because "[p]laintiff provides argumentative responses to . . . paragraphs 15, 34, and 35, and . . . fails to make citations to the record that support Plaintiff's denials in paragraphs 17 through 21, and 27 through 35 in violation of Fed. R. Civ. P. 56(c)(1)." Although ¶¶ 15, 34, and 35 do include additional facts, these additional facts are at least pertinent to the issue raised in the original statement; that is more than can be said for many of defendants' responses. Compared to defendants' submissions, these paragraphs are far from argumentative. As for the responses defendants claim lack citations, defendants are incorrect. Some citations are simply to an exhibit without an internal citation thereto-but those exhibits are brief grievance forms that do not necessitate more precise citations. Nor would such citations be practical, because the grievance forms are handwritten documents that do not include line or paragraph numbering. The court therefore declines to deem these paragraphs as admitted.
Defendants also move to strike plaintiff's exhibits H (a purported affidavit of Henderson) and U (a grievance form) because they are not relevant to any issue raised in defendants' motion for summary judgment. Exhibit H, which plaintiff cites in support of his L.R. 56.1(b)(3)(C) statement ¶ 17 ("Johnson responded when Henderson attempted to commit suicide in cell 108.") is, however, relevant to the question of whether defendant Johnson was aware of Henderson's suicidal tendencies. Defendants appear not to disagree that this is a material issue, because they have not moved to strike the portion of plaintiff's deposition discussing this topic (which plaintiff also cites in support of his 56.1(b)(3)(C) statement ¶ 17). Defendants ostensibly oppose exhibit U because it is, in one place, dated December 7, 2010, but it is otherwise relevant (stating that an officer urged Henderson to "stab/kill your cellie")-and another part of the document is dated December 5, 2008, raising a factual question as to when the document was created. The court therefore denies defendants' motion to strike plaintiff's exhibits H and U.
Regardless, plaintiff has established that genuine disputes of material fact preclude summary judgment against him. Defendants argue that plaintiff failed to grieve the issues underlying the claims in the instant lawsuit, but plaintiff's deposition testimony and the grievance forms attached to his L.R. 56.1 submissions tell a different story. Specifically, defendants assert that plaintiff failed to notify his counselor of any issues relating to his claims, but plaintiff has testified to the contrary. Defendants also argue that plaintiff failed to file any grievances addressing those claims, but their summary judgment motion and L.R. 56.1(a) statement do not attach copies of the eight grievances they agree plaintiff filed but claim are irrelevant-they offer such documentation only in response to plaintiff's statement of additional facts, thus depriving plaintiff of an opportunity to view these documents and respond to them.*fn11
Nonetheless, plaintiff's response points to his deposition testimony and to a number of grievance forms evincing his efforts to comply with IDOC's grievance procedures. Plaintiff further contends, again citing to his deposition, that he timely lodged other verbal complaints and written grievances, to which he received no response.
Finally, plaintiff points to evidence that defendants actively encouraged his noncompliance, rendering his administrative remedies effectively unavailable and thus excusing any failure to comply strictly with IDOC's administrative grievance procedures. See Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (citations omitted) ("An administrative remedy is not 'available,' and therefore need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it."); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (citations omitted) ("Prison officials may not take unfair advantage of the exhaustion requirement . . . and a remedy becomes 'unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting.").
Defendants additionally argue that defendant Bass had no notice that plaintiff was concerned about being attacked by his cellmate, thus warranting summary judgment in favor of at least that defendant. There is a contested issue of material fact, however, as to whether defendant Bass was aware of a risk that Henderson would attack plaintiff. Plaintiff points to his testimony that he sent Bass correspondence indicating that he "fear[ed] for [his] life being around" his cellmate. Defendants argue that "[p]laintiff provides no evidence that Bass received or reviewed any correspondence from Plaintiff," but in deciding a motion for summary judgment all reasonable inferences must be drawn in favor of the nonmoving party, and it is certainly reasonable to infer that internal jail correspondence reaches its intended recipient. Defendants' SOF ¶ 35 states that "Bass did not receive any correspondence" from plaintiff, but as discussed above these statements will be disregarded. The wisdom of doing so is further evidenced by examining the citations (from Bass's deposition) with which defendants attempt to support this statement. The cited portion of Bass's deposition states not that Bass did not receive correspondence; instead, Bass repeatedly testified that he "do[es] not recall getting such a letter." Thus, defendants have failed to establish that it is uncontested that defendant Bass was unaware of plaintiff's concerns.
Because summary judgment for defendants is not warranted, the question now is how to resolve the factual dispute regarding plaintiff's exhaustion of administrative remedies. The Seventh Circuit instructs that exhaustion should typically be decided before the merits, and that exhaustion is determined by the trial judge. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
The sequence outlined in Pavey, however, assumes that everyone is aware at the outset that the defendant is raising failure to exhaust as an affirmative defense, so that judicial economy will be served by litigating exhaustion before the merits. Here, however, defendants did not list failure to exhaust as an affirmative defense in their answer, instead waiting until merits discovery had been completed before raising exhaustion-as well as a merits argument-in their summary judgment motion. Defendants have not argued that plaintiff was not prejudiced by defendants' failure to raise exhaustion in their answer, but neither has plaintiff claimed that he was prejudiced. So long as no prejudice results, the court need not find that defendants waived this affirmative defense. See Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (holding that "a delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed as a result"). Absent any argument to the contrary, the court concludes that defendants have not waived this defense. The next step is an evidentiary hearing pursuant to Pavey.
Thus, for the foregoing reasons, defendants' motion for summary judgment is denied, as is their motion to strike plaintiff's exhibits H and U. The parties are directed to meet and confer as to what steps are necessary to conduct an evidentiary hearing on exhaustion pursuant to Pavey. This matter is set for a report on status February 16, 2012, at 9:30 a.m.
Robert W. Gettleman United States District Judge