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Dustin Clay (R-23623 v. Charles Downs

December 27, 2012

DUSTIN CLAY (R-23623), PLAINTIFF,
v.
CHARLES DOWNS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Currently before the Court is a Summary Judgment Motion from Officers Downs, Encarnacion, and Wright (the "Defendants"). They argue that Plaintiff failed to exhaust administrative remedies with respect to his claims of excessive force by Downs and the claims against Encarnacion and Wright. Defendants Dr. Ghosh and Wexford, who entered their appearance around the same time the summary judgment motion was filed, have not joined the motion. Plaintiff has responded to the motion. For the reasons stated herein, the Court denies the Motion.

I. BACKGROUND

Plaintiff, Dustin Clay ("Plaintiff"), an inmate at the Stateville Correctional Center, filed this civil rights complaint pursuant to 42 U.S.C. § 1983 against Stateville Officers Charles Downs ("Downs"), Joe Encarnacion ("Encarnacion"), and Clarence Wright ("Wright"), and against former Stateville Medical Director Dr. Partha Ghosh ("Ghosh") and Wexford Health Sources ("Wexford") (a Pennsylvania company that contracts to provide medical services to Illinois inmates).

Plaintiff alleges that, on December 1, 2010, Officer Downs used excessive force when he placed his forearm against Plaintiff's throat to demonstrate to another officer how to perform a choke hold on a prisoner. According to Plaintiff, Downs then repeatedly harassed him after the incident. Encarnacion and Wright, Downs' supervisors, allegedly condoned Downs' conduct, thus allowing it to continue. Plaintiff also alleges that he received inadequate medical care for his injuries after the physical abuse.

II. STANDARD OF REVIEW

A "court shall grant summary judgment 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); 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 the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When addressing a motion for summary judgment, "[t]he 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, the nonmoving party has the burden "to 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). 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; see also Carrroll v. Merrill Lynch, --- F.3d ---, 2012 WL 4875456 at *3 (7th Cir. Oct. 16, 2012). With respect to whether an inmate exhausted administrative remedies, the court, and not a jury, must resolve factual issues. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).

When addressing summary judgment motions, background facts are derived 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); see also, N.D. Ill. Local Rule 56.1. Because Plaintiff is proceeding pro se, Defendant served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by N.D. Ill. Local Rule 56.2. The notice explains the consequences of failing to properly respond to a motion for summary judgment and to a statement of material facts under FED. R. CIV. P. 56(e) and Local Rule 56.1. (R. 40.)

Plaintiff filed a response to Defendants' Rule 56.1 Statement of Facts. (R. 50.) Although Plaintiff did not file a memorandum in support of his opposition to the summary judgment motion, his response to the Rule 56.1 Statement suffices. Defendants have not filed a reply.

III. FACTS

Plaintiff is an Illinois prisoner, who was and still is confined at Stateville Correctional Center. (R. 39, Defs. Rule 56.1 Statement of Facts ("SOF") ¶ 1; R. 50, Pl. Rule 56.1 Statement of Facts ("SOF") ¶ 1.) Defendants Downs, Wright, and Encarnacion were correctional officers at Stateville. (Defs. SOF ¶ 2; Pl. SOF ¶ 2.) Plaintiff alleges that, on December 1, 2010, Defendant Downs used excessive when put his forearm on Plaintiff's throat purportedly to demonstrate to a new officer how to do a choke hold. (Defs. SOF ¶ 5; Pl. SOF ¶ 5.) According to Plaintiff, Downs harassed Plaintiff daily after this incident. (Pl. SOF ¶ 5.) Plaintiff alleges that he complained to Defendants Wright and Encarnacion about Downs' behavior, but they ignored the complaints. (Defs. SOF ¶ 6; Pl. SOF ¶ 6.)

The Illinois Department of Corrections has a formal grievance procedure for inmates. (Defs. SOF ¶ 7; Pl. SOF ¶7.) Under this procedure, an inmate is supposed to first attempt to resolve an issue with his counselor. If the issue is not resolved, the inmate can then file a grievance with a grievance officer. The grievance officer may interview the inmate and witnesses, as well as gather relevant documents to determine the merits of the grievance. (Defs. SOF ¶ 8.) After the grievance officer determines whether the grievance has merit, the grievance is forwarded to the Chief Administrative Officer (the "CAO") (or designee), who either concurs or does not concur with the grievance officer's determination. The CAO's decision is then submitted to the inmate. (Defs. SOF ¶ 9; Pl. SOF ¶ 9.) If the inmate is not satisfied with the CAO's decision, he may appeal, in writing, to the Director of the Department within 30 days. (Defs. SOF ¶ 10.) The Administrative Review Board ("ARB"), the Director's designee, reviews the appeal, determines whether it can be decided without a hearing, and submits a written report of its findings to the Director, who then reviews the report and makes a final decision. (Defs. SOF ¶ 11; Pl. SOF ¶ 11.) The Director's decision and ARB report are then forwarded to the inmate. (Defs. SOF ¶ 12; Pl. SOF ¶12.)

If a grievance is believed to be an emergency, the inmate may submit the grievance directly to the CAO, without first presenting it to a counselor. (Defs. SOF ¶ 13; Pl. SOF ¶¶ 8, 13.) For such grievances, the CAO determines if the inmate faces imminent danger of personal injury or irreparable harm. An inmate may appeal ...


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