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Banks v. Dart

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

November 18, 2014

Larry Banks (#B-42423), Plaintiff,
v.
Tom Dart, et al., Defendants.

MEMORANDUM OPINION AND ORDER

RONALD A. GUZMAN, District Judge.

Plaintiff, currently an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He claims that the defendants, officials at the Cook County Jail, violated his constitutional rights by failing to intervene when other officers used excessive force against him. This matter is before the Court for ruling on defendants' motion for summary judgment. For the reasons stated in this order, the motion is granted. The third amended complaint is dismissed for failure to finalize the administrative exhaustion process prior to filing suit. In the alternative, the Court grants summary judgment in favor of defendants on the merits. The case is terminated.

Local Rule 56.1

Together with their motion for summary judgment, defendants included a "Local Rule 56.2 Notice to Pro Se Litigant Opposing Motion for Summary Judgment" [Dkt. 63], as required by circuit precedent. That notice explained in detail the requirements of the Local Rules governing summary judgment and warned plaintiff that a party's failure to controvert the facts as set forth in the moving party's statement results in those facts being deemed admitted. Id .; see, e.g., Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Moreover, this Court has admonished plaintiff twice in the last year about summary judgment requirements in connection with two other cases. ( See 2/18/14 Mem. Opinion & Order at 2, Banks v. Dart, No. 12 C 4333 (N.D. Ill.); 10/1/13 Mem. Opinion & Order at 1, Banks v. Dart, No. 12 C 4334 (N.D. Ill.)). Given plaintiff's failure to respond to defendants' statement of facts, the Court deems the facts asserted in it, all of which are supported by the record, to be undisputed.

Background

Plaintiff, currently an Illinois state prisoner, was a pretrial detainee at the Cook County Jail at the time of the events giving rise to this lawsuit. (Defs.' Stmt. Facts ¶ 2.) Defendants, Commander Katie Harris, Lieutenant Robert Dartt (sued as "Daitt"), and Sergeant Steve Nanos, were correctional officers at the jail at all times relevant to this action. ( Id. ¶ 9.)

In March 2012, plaintiff filed a lawsuit, Banks v. Dart, No. 12 C 1636 (N.D. Ill.), alleging that correctional officers had used excessive force against him on December 13, 2011. This Court ultimately granted defendants' motion for summary judgment because plaintiff had failed to exhaust administrative remedies before filing suit. ( See 3/18/14 Order, Banks, No. 12 C 1636.) The Seventh Circuit dismissed plaintiff's ensuing appeal for failure to pay the required docketing fees. ( See PLRA C.R. 3(b) Final Order, Banks v. Dart, No. 14-1778 (7th Cir. Jun. 9, 2014).) None of the defendants named in this suit was present during the December 13, 2011 incident. (Defs.' Stmt. Facts ¶¶ 28-30.)

In June 2012, plaintiff filed another lawsuit, Banks v. Dart, 12 C 4334 (N.D. Ill.), alleging that, on December 15, 2011, another group of correctional officers had used excessive force against him and denied him access to medical care for his injuries. The Court granted summary judgment in favor of defendants in that suit as well because plaintiff had not exhausted administrative remedies, and even if he had, the case would fail on the merits. ( See 10/1/13 Mem. Opinion & Order, Banks, No. 12 C 4334.) Again, the Court of Appeals dismissed plaintiff's appeal for failure to pay the required docketing fees. ( See PLRA C.R. 3(b) Final Order, Banks v. Dart, No. 13-3404 (7th Cir. Feb. 11, 2014).)

In October 2012, plaintiff filed this suit, alleging that the defendants failed to intervene in the purported uses of excessive force alleged in Case Nos. 12 C 1636 and 12 C 4334.[1]

The events giving rise to this civil rights action took place on December 13, 2011, and December 15, 2011.[2] The parties do not dispute that plaintiff and correctional officers had confrontations on both of these dates, and that the conflicts resulted in the release of pepper spray and/or some degree of physical violence. ( See 3/18/14 Order at 2, Banks, No. 12 C 1636; 10/1/13 Mem. Opinion & Order 3-4, Banks, No. 12 C 4334, at 3-4.)

Plaintiff submitted three grievances alleging staff misconduct with respect to the December 13, 2011 incident, and all three grievances were denied on the grounds that the use of force was justified. ( See Defs.' Grp. Ex. D; Defs.' Stmt. Facts, ¶¶ 20, 21, 22.) Plaintiff never appealed the denials of those grievances. (Defs.' Stmt. Facts, ¶ 9; see 3/18/14 Order at 2-3, Banks, No. 12 C 1636.)

In January 2012, plaintiff submitted additional documents to the Jail administration concerning the events of December 13, 2011. (Defs.' Stmt. Facts, ¶ 24; see 3/18/14 Order at 3, Banks, No. 12 C 1636.) Correctional officials declined to process these materials as grievances because plaintiff had failed to submit them within the fifteen-day time period required by jail rules. ( Id. )

About a month after the December 15, 2011 incident, plaintiff filed a grievance about it, but did not file an appeal after receiving an unfavorable response to it. ( See 10/1/13 Mem. Opinion & Order at 7, Banks, No. 12 C 4334.) Plaintiff submitted a second grievance later ...


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