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Timothy Agnew (M-04442 v. Marcus Hardy

November 5, 2012

TIMOTHY AGNEW (M-04442), PLAINTIFF,
v.
MARCUS HARDY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiff, Timothy Agnew, an Illinois prisoner currently incarcerated at the Vandalia Correctional Center, filed this 42 U.S.C. § 1983 action against Stateville Correctional Center Warden Marcus Hardy and Northern Reception Center Officers Sanders and Abernathy ("Defendants"). The Northern Reception Center ("NRC") is an area of Stateville where Illinois prisoners are housed following their convictions while being assigned to an Illinois correctional facility. Plaintiff contends that the conditions of his confinement at NRC, where he was housed from April 27 to July 2, 2010, were unconstitutional (infestation of insects and rodents, stained toilet, no cleaning supplies, stained bed linens, and a damp mattress). Defendants have filed a motion for summary judgment, in which they argue: (1) Plaintiff failed to exhaust administrative remedies and (2) the conditions he allegedly experienced did not rise to the level of a constitutional violation. Plaintiff has not responded to the motion for summary judgment, despite the Court granting his motion for extension of time to respond. Considering the summary judgment motion without the benefit of a response, the Court grants the motion.

I. STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine issue of material fact, a court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

If the moving party meets its burden of showing that there are no issues of material fact and that he or she is entitled to a judgment as a mater of law, the non-moving party must "go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if a reasonable finder of fact could return a decision for the nonmoving party based upon the record. See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596 (7th Cir. 2000).

When addressing a summary judgment motion, a court derives the background facts from the parties' Local Rule 56.1 Statements, which assist the court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Because Plaintiff is proceeding pro se, the Defendants served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by N.D. Ill. Local Rule 56.2. (R. 53.) The notice explains that a litigant's failure to respond to the movant's Local Rule 56.1 Statement results in this Court considering uncontroverted statements admitted. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Although Plaintiff requested and received additional time to respond (R. 55, 56), he has not done so. This Court may thus consider the facts stated in Defendants' Rule 56.1 Statement admitted, to the extent they are supported by the record. Raymond, 442 F.3d at 608.

II. FACTS

Plaintiff was incarcerated at Stateville Correctional Center, in its Northern Reception Center ("NRC") from April 27, 2010, to July 2, 2010. (R. 52, Defs.' Rule 56.1 Statement ¶ 7.) According to Plaintiff's complaint and deposition, his mattress was damp, the sheet did not cover the entire mattress, and Defendant Officer Abernathy never responded to Plaintiff's complaint about the mattress. (Id. at ¶ 8.) Plaintiff states that he noticed fruit flies around his cell, that the flies would land of him, but that he was not bitten by them. (Id. at ¶¶ 9-10.) Plaintiff further alleges that the toilet in his cell was metal, had a brown and green film inside it, flies would fly aound the toilet, and the toilet would flush every five to ten minutes. (Id. at ¶11.) The sink allegedly had soap scum in its drain and around its basin. The sink had running water, including hot water, though sometimes only cold water came out when the hot water button was pushed. Nevertheless, Plaintiff was able to wash his clothes and wash off some of the soap scum. (Id. at ¶ 12.) Plaintiff stated that he noticed rats and mice around his cell, but that he was never bitten or touched by them. (Id. at ¶ 13.) Critter Ridder was the exterminator for Stateville and used sign-in sheets when it sprayed an area of the prison. The sign-in sheets indicate that Critter Ridder sprayed his area of the prison once a month (April 8, May 10, and June 10, 2010) during the time Plaintiff was housed at NRC. (Id. at ¶¶ 14-15.) Plaintiff alleges that he was not given cleaning supplies, he used food trays as shower shoes, and he developed a rash while he was at NRC. (Id. at ¶¶ 16-17, 19.) Sometime after leaving NRC, Plaintiff was treated for jock itch at Pickneyville Correctional Center, where he was transferred. (Id. at ¶ 18.)

Plaintiff filed one grievance while at Stateville, complaining that he cell neeeded cleaning, that his requests for cleaning supplies were ignored, and that he developed several rashes. Plaintiff sought "urgent medical attention." (Id. at ¶ 20; R. 52-6, Exh. F, Copy of 6/14/10 Grievance.) The grievance was filed as an emergency one on June 14, 2010. (R. 52, Defs' Rule 56.1 Statement ¶ 20.) On June 24, 2010, the grievance was returned to Plaintiff with an explanation that the grievance was not an emergency and that he should sumbit the grievance in the normal manner. (Id. at ¶ 22.) Plaintiff neither appealed this response, nor did he re-submit his grievance as a non-emergency one. (Id. at ¶ 23.) Plaintiff explained in his deposition that he took no further action with a grievance because, at the time he received a response, the process of transferring him to Pinckneyville had begun. He did not pursue a grievance after his arrival at Pinckneyville because he received medical care at that facility. (See R. 52-2, Pl.'s Depo. at 42.)

III. DISCUSSION

Exhaustion:

The Prisoner Litigation Reform Act requires that, "[n]o action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e. The requirement to exhaust provides "that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (citation omitted).

Exhaustion of available administrative remedies "'means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Proper use of the facility's grievance system requires a prisoner "to file complaints and appeals in the place, and at the time [as] the prison's administrative rules require." Pozo, 286 F.3d at 1025; Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); see also Woodford v. Ngo, 548 U.S. at 90. A prison's administrative authority can refuse to hear a complaint, if the inmate fails to use a prison's grievance process properly. Pozo, 286 F.3d at 1025; see also Woodford, 548 U.S. at 89-90. However, prison officials cannot prevent an inmate from exhausting administrative remedies by ignoring properly filed grievances or by impeding the use of the grievance system. Such barriers render administrative remedies unavailable and do not bar an inmate from filing suit for the unexhausted claim. See Kaba v. Stepp, 458 F.3d 678, 684-85 (7th Cir. 2006); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).

Illinois' Administrative Code sets out the procedures for filing a grievance and appealing grievance decisions. The first step is to submit an informal grievance to the prisoner's counselor. See Dole, 438 F.3d at 807 (citing 20 Ill. Admin. Code § 504.810(a)). "If the prisoner is not satisfied with the counselor's resolution of the complaint, he may then submit a formal grievance to the prison's grievance officer." Dole, 438 F.3d at 807; see also Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir. 2011); § 504.810 (a) and (b). The grievance officer has the authority to investigate the grievance, including interviewing the prisoner and witnesses and reviewing the relevant documents. See Dole, 438 F.3d at 807 (citing § 504.810). The grievance officer then submits a recommendation to the facility's Chief Administrative Officer (here, the warden) who makes a final decision at the institution level. Dole, 438 F.3d at 807 (citing § 504.830(d)). Thereafter, within 30 days after the warden's decision, a prisoner may appeal a warden's determination to the Director of the Illinois Department of Corrections, who determines whether the grievance needs to be submitted to and heard by the Administrative Review Board ("ARB"). Dole, 438 F.3d at 807 (citing 20 Ill. Admin. Code § 504.850(a)); see also Burrell v. Powers, 431 F.3d 282, 284 (7th Cir. 2005); Smith v. Hardy, No. 10 C 6436, 2012 WL 2127488 ...


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