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Russell v. Cuellar

United States District Court, N.D. Illinois, Eastern Division

May 5, 2014

LARRY RUSSELL, Plaintiff,
v.
CUELLAR, BROADWAY, and BRYCE, Defendants.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

Plaintiff Larry Russell ("Russell") has claims pending against defendants Cuellar (corrections officer number 8318), Broadway (corrections officer number 1066) and Bryce (a corrections officer). Plaintiff seeks relief under ยง 1983 and alleges that defendants used excessive force against him. Defendants move for summary judgment. For the reasons set forth below, the Court grants the motion.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. The Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party putting forth the fact of its duty to support the fact with admissible evidence. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

The following facts are undisputed.

In September 2009, plaintiff Russell was a pre-trial detainee at the Cook County Jail. The Cook County Jail did not provide Russell a copy of the relevant grievance procedures.

Nonetheless, on September 3, 2009, Russell filed a grievance. In the grievance, Russell described events that occurred two days earlier, on September 1, 2009. On that day, Russell believed he had been unfairly denied an hour outside of his cell. In his grievance, Russell wrote:

So about a hour later my cellie came back from court maybe around 1:30 or maybe 1:45. that when the [correctional officer] came back to my cell to let my cellie in the cell. So, I ask him about my hour and where are a Sgt. That's when he told me to get from in front of the door. So, I ask him one more time could he call me a Sgt or a Lt. That when he hit me in my face and then ran in the cell on me [and] continued hitting me in my face and head.

Russell Grievance at 2. In his grievance, Russell also stated that he had to be taken to an outside hospital in order to get stitches.

One month later, on October 8, 2009, Russell received a response to his grievance. The top half of the response form contained space for the response of the Cook County Department of Corrections to Russell's grievance. In the top half of the response form, the investigator stated that the "officer acted in self defense. Inmate was charged by Sheriff Police Aggravated Battery to Staff." (Russell Grievance Response.) The bottom half of the response form was labeled "Request for Appeal" and contained space in which a detainee could request an appeal. The response form stated, "APPEALS MUST BE MADE WITHIN 14 DAYS OF THE DATE THE DETAINEE RECEIVED THE RESPONSE." The same form also includes space for the Appeal Board's response to an appeal.

On the same day (October 8, 2009) that he received the response to his grievance, Russell requested an appeal. As the basis for his appeal, Russell stated, "I'm not satisfied with my response. I need to talk with OPR, because they beat me and send me to the hospital."

Less than three weeks later, on October 26, 2009, Russell brought suit in this court, by filing with the court a proposed complaint and a petition to proceed in forma pauperis. Before he filed suit, Russell asked people at the jail about the status of his grievance. A lady told him it could not be located. He asked a captain what he should do, but the captain did not know. Russell, thinking he was getting the "run around, " filed suit.

Russell filed his suit before he received a response from the Appeal Board. On December 8, 2009, the Appeal Board provided Russell its response to his appeal. The response stated, "Original response to stand. ...


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