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Ross v. Hardy

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

May 22, 2014

EUGENE ROSS (K-73977), Plaintiff,
MARCUS HARDY, et al., Defendants.


THOMAS M. DURKIN, District Judge.

Eugene Ross ("Plaintiff"), an Illinois prisoner confined at the Stateville Correctional Center, filed this 42 U.S.C. § 1983 action about the conditions of his confinement and inadequate medical care at the prison. Named as Defendants are: Stateville former wardens Marcus Hardy and Michael Lemke, Illinois Department of Corrections Executive Director Salvador Godinez, and Wexford Health Sources ("Wexford"), a Pennsylvania company that contracts with the state of Illinois to provide medical services to its prisoners. Currently pending before the Court is Wexford's motion for summary judgment, in which it contends that Plaintiff failed to exhaust administrative remedies for his claims against Wexford-that Wexford deliberately understaffs the prison's medical department for cost cutting reasons, resulting in too few medical persons for the number of inmates and thus inadequate medical care. For the following reasons, the Court grants Wexford's motion and dismisses it as a Defendant. The dismissal is without prejudice. Plaintiff may resubmit his claims, if and when he exhausts administrative remedies.


Rule 56 of the Federal Rules of Civil Procedure:

"The 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). In determining whether factual issues exist, a court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Weber v. Universities Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). A court does not "judge the credibility of the witnesses, evaluate the weight of the evidence, or determine the truth of the matter. The only question is whether there is a genuine issue of [material] fact." Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009), citing Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).

Rule 56(a), however, "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. If the moving party meets its burden of showing that there are no issues of material fact and that it 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 arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010) (citation omitted); see also Carrroll v. Merrill Lynch, 698 F.3d 561, 564-65 (7th Cir. 2012) (a nonmovant cannot rely upon "some metaphysical doubt" about validity of evidence, and "inferences supported by only speculation or conjecture do not create a genuine issues of fact") (citation omitted).

Rule 56.1 of the Local Rules of the Northern District of Illinois:

When addressing a summary judgment motion, this 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, 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. (R. 86.) The notice explains the consequences of failing to properly respond to a motion for summary judgment and to the undisputed facts stated in movant's Local Rule 56.1 Statement. ( Id. ) A litigant's failure to respond to a statement of fact in a Local Rule 56.1 Statement results in the statement being considered admitted. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006).

Although pro se plaintiffs are entitled to more lenient standards, compliance with procedural rules is required. Members v. Paige, 140 F.3d 699, 702 (7th Cir.1998) ("[R]ules apply to uncounseled litigants and must be enforced"); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994); see also Wilson v. Kautex, Inc., 371 F.Appx. 663, 664 (7th Cir. 2010) ("strictly enforcing Local Rule 56.1 was well within the district court's discretion, even though [the plaintiff] is a pro se litigant") (citations omitted); Barrow v. Herniaz, No. 09 C 2347, 2010 WL 3307073, *2 (N.D. Ill. Aug. 19, 2010) (Kendall, J.).

In the present case, Defendant filed a Rule 56.1 Statement, (R. 83.), and forwarded a Rule 56.2 Notice to Plaintiff. (R. 86.) Plaintiff filed a response to the summary judgment motion (he titled his pleading as an "Answer") and a memorandum in support of his response, (R. 87, 88); however, he did not respond to Defendant's Rule 56.1 statements of fact. Several of the statements in Plaintiff's Answer cite to the record and, liberally construed, this pleading could be considered Plaintiff's Rule 56.1 response. (R. 87.) However, Plaintiff's Answer does not specifically address the statements in Wexford's Rule 56.1 Statement. See Local Rule 56.1(b)(3)(B) (an opposing party's response to a Rule 56.1 statement must include "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon"). Accordingly, the Court will consider Defendant's Rule 56.1 statements, to the extent they are supported by the record, admitted. See N.D.Ill. L.R. 56. 1 (b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."); see also Raymond, 442 F.3d at 608. The Court notes that, even if it considered Plaintiff's Answer as a proper response in accordance with Rule 56.1(b)(3)(B), the record still establishes that Plaintiff did not exhaust his claim against Wexford and that it is thus entitled to summary judgment.


Plaintiff is an Illinois prisoner confined at Stateville Correctional Center. (R. 83, Def. SOF ¶ 1.) Plaintiff's second amended complaint alleges that he has endured unconstitutional conditions of confinement at Stateville. The majority of his allegations concern living conditions (overcrowded units and cells; unclean cells; inadequate access to cleaning supplies; and exposure to a pest infestation, mold, peeling paint, clogged vents, and contaminated water that smells foul and made him sick). (R. 56, Sec. Amended Compl. at 4-13.) One claim alleges that he has received inadequate medical care while at Stateville. Specifically, that there are inordinate delays with seeing a medical person after submitting a request for medical attention, which he attributes to Wexford deliberately understaffing medical personnel at the prison. (R. 83, Def. SOF ¶¶ 2-3; see also R. 56, Sec. Amended Compl. at 5, 12-13). The Illinois Department of Corrections has a grievance process, wherein, after submitting a grievance to a grievance officer and then the prison's warden, an inmate may appeal the warden's decision to the Illinois Administrative Review Board ("ARB"). (R. 83, Def. SOF ¶¶ 4-5) Although Plaintiff filed several grievances, no grievances submitted to the ARB concerned inadequate medical services at Stateville. ( Id. at ¶ 6.) Plaintiff states that an emergency grievance initially submitted to and denied by Warden Hardy, was then appealed to the ARB. (R. 87 at 2-3.) While that grievance addressed living conditions at Stateville, ( see R. 83-3 at 19-25, Plaintiff's 8/23/12 grievance), the grievance does not address allegedly inadequate medical services at Stateville. ( Id. )


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(a). 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 v. Ngo, 548 U.S. 81, 90 (2006), quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). Proper use of a prison grievance system requires a prisoner "to file complaints and appeals in the place, and at the time 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. "The benefits of exhaustion can be realized only if the prison grievance ...

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