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McGee v. Lemke

United States District Court, N.D. Illinois

February 9, 2015

JEREMIAH McGEE (#R-50463) Plaintiff,



Plaintiff Jeremiah McGee (hereinafter "Plaintiff" or "McGee"), an Illinois prisoner currently confined at Pontiac Correctional Center, brought this action under 42 U.S.C. § 1983 against former Stateville Correctional Center Warden Michael Lemke. Plaintiff alleges that he was subjected to deliberate indifference to a substantial risk of serious harm from his cellmate, Jamal Taylor. Defendant Lemke has moved for summary judgment [29], arguing that Plaintiff failed to exhaust administrative remedies and cannot establish that Defendant Lemke was deliberately indifferent to a known risk of harm. Plaintiff has failed to respond to the substantive argument, but has submitted correspondence addressing Defendant's argument regarding exhaustion.

For the reasons stated herein, the court concludes that summary judgment is appropriate.


The standards that govern this motion are familiar. Summary judgment is appropriate "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); Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). In considering a motion for summary judgment, this court construes the facts and draws all reasonable inferences in favor of the non-movant, Jajeh, 678 F.3d at 566, but where the moving party demonstrates the absence of a disputed issue of material fact, the non-moving party bears the burden of presenting "evidence of specific facts creating a genuine dispute." Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). A genuine issue of material fact exists only if there is evidence "to permit a jury to return a verdict for" the nonmoving party. Egonmwan v. Cook County Sheriff's Dep't, 602 F.3d 845, 849 (7th Cir. 2010).

Consistent with this court's local rules, in support of his motion, Defendant filed a Local Rule 56.1(a)(3) Statement of Material Facts [33], citing evidentiary material in support of each statement. Defendant also filed and served the appropriate notice to pro se litigants [30], explaining the requirements of Local Rule 56.1. Though notified of the requirements, Plaintiff did not submit a Local Rule 56.1(b)(3)(C) statement of additional facts and did not, in any instance, cite portions of the record in support of his denials of Defendant's statements. He did submit two letters regarding exhaustion. The court construes his submissions, and the record evidence, in the light most favorable to him.

Plaintiff's action, filed under 42 U.S.C. § 1983, names just one Defendant: Former Warden Michael Lemke. McGee alleges Defendant Lemke violated McGee's Eighth Amendment rights by acting with deliberate indifference in regards to his cell assignment and in failing to protect Plaintiff from his cellmate, Jamal Taylor ("Taylor"). (Def. Statement of Facts ¶ 1.) Plaintiff was transferred to the Northern Reception Center at Stateville on January 23, 2013, and was assigned to and placed in Cell No. T-211, where inmate Jamal Taylor was also housed. (Def. Statement of Facts ¶ 3.) Plaintiff remained cellmates with Taylor for approximately forty-five days. Id.

Plaintiff did not want to share a cell with Taylor because he believed Taylor was a murderer, "had some problems, " "was never ever going home, " and was "agitated." (Def. Statement of Facts ¶ 4.) Though Taylor was calm at times, at other times Taylor would eat Plaintiff's food while Plaintiff was sleeping, leading to regular fights between the two inmates. (Def. Statement of Facts ¶ 5.) The two men fought on a daily basis. Id. On two occasions, Plaintiff woke up to find Taylor attempting to touch Plaintiff's groin area. Id. These incidents, too, led to fights in which Plaintiff was forced to defend himself. Id.

Plaintiff never saw, spoke to, or wrote to Defendant Lemke, and he acknowledges that neither Lemke nor anyone else observed the fights with Jamal Taylor. (Def. Statement of Facts ¶ 6; Plaintiff's Deposition, Exhibit A to Def. Statement of Facts, at 34, 35 ("I never seen him. I don't even know how he look."); 53.) He acknowledges, further, that he never advised anyone that he was in fear for his life or that he wanted a cell change. (Plaintiff's Dep., at 68 (Q. "Did you ever tell anyone you were in fear for your life?"... A. "No. There's nobody I could tell.") Plaintiff claims, however, that he did send two grievances to his counselor, requesting a transfer from his cell with Taylor. (Def. Statement of Facts ¶ 7.) Plaintiff recalled that he sent one grievance during his first week in the cell with Taylor and the second grievance during the following week, and that he marked both grievances as emergencies. According to Plaintiff, the grievances explained that he needed to be transferred because he was not getting along with Taylor, that Taylor was a murderer, and that he and Taylor were fighting every day. (Def. Statement of Facts ¶ 8.) Plaintiff further testified that he never received a response to either of the grievances. Id.

In response to this lawsuit, Grievance Officer Anna McBee performed a search of the records maintained by the Grievance Office at the Northern Reception Center; her search uncovered two emergency grievances filed by Plaintiff during his time at the NRC, but she asserts that neither of them relates to the allegations in the complaint before this court. Chairman Thomas Keen performed a search of the records maintained by the Illinois Department of Corrections' Administrative Review Board, which considers appeals from inmate grievances; Keen found no record that Plaintiff had appealed any grievances regarding the allegations before this court. (Def. Statement of Facts ¶ 18.) Defendant therefore asserts that Plaintiff has not filed grievances on either of the following issues: (1) Plaintiff was in fear for his life while in a cell with Jamal Taylor; or (2) Defendant Lemke was deliberately indifferent to his complaints regarding being placed in a cell with Jamal Taylor. (Def. Statement of Facts ¶ 19.)

Plaintiff filed his complaint in this court on April 4, 2013. On June 10, 2013, this court entered an order permitting Plaintiff to proceed, but explaining that "Lemke remains as a Defendant solely for the purpose of discovering the identities of the individuals who were personally involved in the alleged constitutional violations." (Def. Statement of Facts ¶ 2.) During a telephone status with this court on November 19, 2013, defense counsel provided the Plaintiff with the name of the placement officer, Karen Rabideau. Id. The order entered by this court following that telephone conference granted Plaintiff leave to amend his complaint to name Ms. Rabideau as a Defendant within 21 days. Plaintiff declined to do so. In a further telephone conference several months later, Plaintiff acknowledged that Defendant had disclosed Ms. Rabideau's name and advised this court that he would not be filing an amended complaint. Minute Entry in 13cv2568 [36].


A. Exhaustion of Administrative Remedies

Initially, Defendant argues in his motion for summary judgment that Plaintiff failed to exhaust administrative remedies prior to filing suit. The Prison Litigation Reform Act of 1996 contains a comprehensive administrative exhaustion requirement and prohibits a lawsuit challenging prison conditions "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); Booth v. Churner, 531 U.S. 956 (2001). "[I]f a prison has an internal administrative grievance system through which a prisoner can seek to correct a problem, then the prisoner must utilize that ...

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