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Alvaro Aleman v. Thomas Dart

February 14, 2012

ALVARO ALEMAN, PLAINTIFF,
v.
THOMAS DART, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.,

MEMORANDUM OPINION AND ORDER

Plaintiff Alvaro Aleman sued multiple defendants under 42 U.S.C. § 1983, alleging violations of federal law occurring during Plaintiff's pre-trial detention at Cook County Jail ("CCJ") in Chicago. Only Defendants David Fagus and Avery Hart remain in the case. Specifically, Plaintiff contends that, during his time at CCJ, jail officials failed to protect him from an assault by other inmates and failed to provide adequate medical care following the assault. Defendants Fagus and Hart have moved for summary judgment [99] on the basis that Plaintiff failed to exhaust his administrative remedies prior to filing suit. For the reasons set forth below, the Court grants Defendants' motion for summary judgment [99].

I. Factual Background

Alvaro Aleman currently is an inmate at the Centralia Correctional Facility in Centralia, Illinois. Between December 6, 2006 and August 8, 2008, Aleman was an inmate in the Cook County Department of Corrections (the "CCDOC") and was housed at CCJ. According to Aleman, he was assaulted by two other inmates on December 31, 2006 at CCJ, and three of his teeth were knocked out. Aleman was taken to the infirmary, where he was treated by a member of the medical staff at the CCDOC. The nurse cleaned Aleman's mouth and inserted cotton balls to stop the bleeding. Aleman, who speaks and understands only Spanish, was unable to describe his pain to the nurse or to answer her questions. The nurse did not ask a Spanish speaking guard to translate. Aleman was taken to Cermak Health Services for an x-ray and was given 14 pain pills and two icepacks.

On January 1 and 2, 2007, Aleman requested additional medical attention in the form of pain pills because he did not believe that the 14 pills he was given the day before were working. According to his deposition testimony, he filled out two yellow medical request forms ("Detainee Health Request Forms") asking for additional medical attention. He did not request medical attention on January 3 because he had a court date. On January 4, 2007, Aleman was taken to Cermak Hospital for treatment of the infection. He described the pain as "more than ten" on a scale from one to ten. Aleman remained at Cermak on intravenous medications for eight days, during which time he was on a liquid diet because his pain prevented him from eating solid foods. A Cermak dentist removed two of Aleman's teeth as a result of the infections in Aleman's teeth and gums. Thus, in total, he lost five teeth following his altercation with two inmates.

At the time of Plaintiff's incarceration, CCJ had a grievance procedure available to detainees. General Order 14.5, entitled Inmate Rights and Welfare, sets forth the policy and procedure for detainees to follow when filing grievances. General Order Number 14.7, entitled Rules and Regulations for Inmates, sets forth information pertaining to inmates' rights and welfare at CCJ. Defendants have introduced evidence that upon arrival at CCJ, a copy of the Rules and Regulations for Detainees is given to each detainee. The document, which is available in both English and Spanish, also is posted in detainee areas throughout CCJ. Additionally, each morning a video is played on the television in each living unit with all of the rules and regulations in both English and Spanish. The Rules and Regulations detail the "Grievances Guidelines," including instructions on how to process a grievance using grievance forms.

If an inmate feels that he has been wronged, he may fill out a grievance form. The Correctional Rehabilitation Worker ("CRW") collects completed grievances in the respective division. When a detainee requires assistance in completing the grievance form because of language deficiency, the CRW will provide the necessary assistance. Some grievances may be processed as a "request," rather than as a grievance, as a way to resolve the issue. If the detainee is not satisfied with the attempt to resolve the issue, the detainee may resubmit the concern and it will be processed as a grievance. If, after a determination of the detainee's grievance, the inmate wishes to appeal the decision, he or she may seek review from the appeal panel within 14 days of his receipt of the decision.

During his deposition, Plaintiff testified that he had used the grievance procedure in the past. During his time at CCJ, Plaintiff filled out a grievance form on January 1, 2008, for an injury to his hand that he received on October 18, 2007. He requested an orthopedic specialist to assess the injury to his finger. His grievance was referred to the "division physician" and he received a response on January 15, 2008, which he signed. He did not file an appeal of his grievance. In answering questions posed by his attorney during his deposition, Aleman made clear that he was only complaining about his hand in the January 2008 grievance. Furthermore, a review of Aleman's January 2008 grievance clearly shows that it does not relate to the issues being addressed in this lawsuit. Rather, it relates to the facts presented in another case in this district. See Aleman v. Cook County Dept. of Corrections, Civil No. 09-C-6049.

Plaintiff testified that he did not file a grievance about the injuries that he sustained as a result of the fight on December 31, 2006. He did not testify that he believed the procedures were unavailable to him or that he did not understand the procedures.*fn1 Rather, he testified that he only filed yellow medical request forms for his mouth injury, but then filed a grievance related to his hand injury at a later date.

On November 4, 2008, Aleman filed a pro se complaint and a motion for appointment of counsel. The Court appointed Holly M. Spurlock to represent Plaintiff on November 10, 2008. Upon receipt of the appointment, DLA Piper conducted a conflicts search of its clients to determine whether there was a conflict with the firm's representation of Mr. Aleman. As a result of that search, Cook County appeared as a current client. Accordingly, DLA Piper prepared English and Spanish versions of its standard conflicts letter and provided the letters to Aleman. The letter informed Aleman that DLA Piper represents, and in the past has represented, Cook County in various corporate matters, not § 1983 claims. The letter further explained the means by which the firm maintains the integrity of its representation of one client when the opposing party is also a client of the firm. DLA Piper creates an ethical wall and keeps attorneys who work for each of the clients separate relative to the matter in which the two clients are adverse.

This is a standard practice at DLA Piper, as well as other law firms. Aleman signed and returned the Spanish version of the conflicts letter to DLA Piper. DLA Piper also provided this information to Aleman over the phone and began to work on his case immediately. Plaintiff, through appointed counsel working under considerable pressure on account of the looming statute of limitations, filed a first amended complaint on December 30, 2008. On August 14, 2009, Plaintiff filed a second amended complaint.

Defendants moved to dismiss several of Plaintiff's claims against Cook County and certain individual defendants. The Court granted Defendants' motion in large part on timeliness grounds,*fn2 but denied the motion as to Plaintiffs' § 1983 individual capacity claims against Defendants Hart and Fagus. After the Court granted in part the motion to dismiss, Plaintiff moved for the appointment of new counsel, citing the conflict described above. Plaintiff's motion, submitted pro se, was written in English and went into great detail on the conflicts issue, including citations to case law as well as a reference to the letter that he signed consenting to the representation. After Plaintiff filed his pro se motion, his appointed counsel moved to withdraw. After an in-court hearing on October 26, 2010, the Court granted the motion to withdraw after expressing its gratitude to counsel for her diligent and thorough representation of Plaintiff over 20 months.

On November 17, 2010, the Court appointed new counsel for Plaintiff. Defendants sought leave to depose Plaintiff on the issue of exhaustion of administrative remedies (among other things), which the Court granted. On April 27, 2011, the Court held a status conference with the parties, at which time the parties indicated that they wished to file a proposed agreed briefing schedule on a motion for summary judgment, primarily to address the issue of exhaustion. The parties filed their proposed schedule, which the Court adopted, and Defendants moved for summary judgment on the remaining ...


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