United States District Court, N.D. Illinois, Eastern Division
MARK H. JOHNSON (A-72077), Plaintiff,
NATHAN PRICE and DEREK VICICH, Defendants.
MEMORANDUM OPINION AND ORDER
Johnson brought this pro se suit under 42 U.S.C.
§ 1983 against correctional officers Nathan Price and
Derek Vicich, claiming excessive force. Doc. 49. (Claims
against several other defendants have been dismissed. Docs.
18, 108.) Price and Vicich have moved for summary judgment on
exhaustion grounds. Doc. 90. The motion is granted.
with the local rules, Defendants filed a Local Rule
56.1(a)(3) statement of undisputed facts along with their
summary judgment motion. Doc. 92. The relevant factual
assertions in the Local Rule 56.1(a)(3) statement cite
evidentiary material in the record and are supported by the
cited material. See N.D. Ill. L.R. 56.1(a)
(“The statement referred to in (3) shall consist of
short numbered paragraphs, including within each paragraph
specific references to the affidavits, parts of the record,
and other supporting materials relied upon to support the
facts set forth in that paragraph.”). Also consistent
with the local rules, Defendants filed and served on Johnson
a Local Rule 56.2 Notice, which explains in detail the
requirements of Local Rule 56.1. Doc. 94. Johnson filed a
response brief, Doc. 99, but not a Local Rule 56.1(b)(3)(B)
response to the Local Rule 56.1(a)(3) statement or a Local
Rule 56.1(b)(3)(C) statement of additional facts.
district court “is entitled to decide [a summary
judgment] motion based on the factual record outlined in the
Local Rule 56.1 statements.” Koszola v. Bd. of
Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir.
2004) (internal quotation marks and brackets omitted);
see also Olivet Baptist Church v. Church Mut. Ins.
Co., __ F. App'x __, 2017 WL 129943 (7th Cir. Jan.
13, 2017) (“The district court treated most of the
[defendant's] factual submissions as unopposed, because
the [plaintiff] failed to contest them in the form required
by Local Rule 56.1(b). We have held that the district court
is entitled to enforce that rule in precisely the way it
enforced the rule in this litigation.”); Stevo v.
Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011)
(“Because of the high volume of summary judgment
motions and the benefits of clear presentation of relevant
evidence and law, we have repeatedly held that district
judges are entitled to insist on strict compliance with local
rules designed to promote the clarity of summary judgment
filings.”); Patterson v. Ind. Newspapers,
Inc., 589 F.3d 357, 360 (7th Cir. 2009) (“We have
repeatedly held that the district court is within its
discretion to strictly enforce compliance with its local
rules regarding summary-judgment motions.”); Cichon
v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir.
2005) (“We have … repeatedly held that a
district court is entitled to expect strict compliance with
Rule 56.1.”) (internal quotation marks and alteration
omitted). Johnson's status as a pro se litigant
does not excuse him from complying with Local Rule 56.1.
See McNeil v. United States, 508 U.S. 106, 113
(1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so
as to excuse mistakes by those who proceed without
counsel.”); Coleman v. Goodwill Indus. of Se. Wis.,
Inc., 423 F. App'x 642, 643 (7th Cir. 2011)
(“Though courts are solicitous of pro se litigants,
they may nonetheless require strict compliance with local
rules.”); Wilson v. Kautex, Inc., 371 F.
App'x 663, 664 (7th Cir. 2010) (“[S]trictly
enforcing Local Rule 56.1 was well within the district
court's discretion, even though Wilson is a pro se
litigant.”) (internal citation omitted); Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006)
(“[E]ven pro se litigants must follow rules of
the court will accept as true the facts set forth in
Defendants' Local Rule 56.1(a)(3) statement, viewing
those facts and the inferences therefrom in the light most
favorable to Johnson. 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.”); Parra v. Neal, 614 F.3d 635, 636
(7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589
F.3d 389, 393 (7th Cir. 2009) (“In accordance with a
local rule, the district court justifiably deemed the factual
assertions in BP's Rule 56.1(a) Statement in support of
its motion for summary judgment admitted because Rao did not
respond to the statement.”); Cady, 467 F.3d at
1061; Raymond v. Ameritech Corp., 442 F.3d 600, 608
(7th Cir. 2006); Schrott v. Bristol-Myers Squibb
Co., 403 F.3d 940, 943 (7th Cir. 2005);
Koszola, 385 F.3d at 1108-09; Smith v.
Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003). That said,
the court is mindful that “a nonmovant's failure to
… comply with Local Rule 56.1 … does not
… automatically result in judgment for the movant. The
ultimate burden of persuasion remains with [the movant] to
show that [the movant] is entitled to judgment as a matter of
law.” Raymond, 442 F.3d at 608 (internal
citations omitted). The court therefore will recite the facts
in Defendants' Local Rule 56.1(a)(3) statement and then
determine whether, on those facts, they are entitled to
remaining defendants, Price and Vicich, are deputies with the
LaSalle County Sheriff's Department. On October 26, 2013,
Johnson was booked into the LaSalle County Jail. Id.
at ¶ 6. During the booking process, he became ill due to
withdrawal from heroin and cocaine. Ibid. On October
27, 2013, he signed a refusal for further medication and
treatment for his withdrawal symptoms. Id. at ¶
7. The following day, October 28, 2013, he was housed in the
B Wing. Id. at ¶ 8.
next morning, on October 29, 2013, Johnson complained to
Vicich of being sick and asked him for medical attention.
Ibid. Also that morning, Johnson spoke with Price,
who said that a nurse was coming to see him. Id. at
¶ 9. Price then buzzed the door to the B Wing, unlocking
it, and Johnson, without any instruction to do so, moved his
property box out the door. Id. at ¶ 10.
According to Johnson, Price then grabbed him, placing one of
his arms at a ninety degree angle with his elbow bent and
behind his back. Id. at ¶ 11. Johnson further
testified that Price pulled the back of his shirt collar,
cutting off his circulation and breathing. Ibid.
was taken to C Wing, which is disciplinary segregation, where
he stayed for three days. Id. at ¶¶ 11,
18. While in segregation, Johnson was given a piece of paper
and a pencil, “wrote something on the paper, ”
and “stuck it in the door.” Id. at
¶ 14. Johnson did not tell anyone at the Jail that he
had written this note, and he did not hand it to anyone.
Ibid. Johnson explained at his deposition that the
“something” he wrote on the paper was that
“they took his mattress, won't let him have a
shower, and that he was sick, ” and that the paper
complained of nothing else and listed no names. Id.
at ¶ 15.
testified that he was familiar with how to file a grievance.
Id. at ¶ 13. He testified that he had received
a copy of the inmate handbook during his booking.
Ibid. In addition, a document entitled “Policy
and Procedure Number 119: Inmate Grievances” specifies
the procedural requirements detainees are to follow when
submitting a grievance and is consistent with the information
provided for in the Inmate Handbook. Id. at ¶
20. A grievance must be given to a Pod Officer. Id.
at ¶ 21. Leaving a grievance on the floor of a cell or
sticking a grievance in a door jam is not acceptable and
would not be considered a bona fide grievance.
than the paper he left in the door while in disciplinary
segregation, Johnson submitted no grievance regarding
anything that happened on or around October 29, 2013.
Id. at ¶ 18. Johnson's inmate file
contained two grievances that he submitted during his stay at
the Jail, both about unrelated matters: one on January 27,
2014, regarding the removal of property by another police
agency, and a second on April 12, 2014, regarding a request
for medication. Id. at ¶¶ 16, 25. Johnson
also wrote directly to the State of Illinois in Springfield
complaining of Price's alleged conduct. Id. at
seek summary judgment on the ground that Johnson failed to
exhaust his administrative remedies prior to filing this
lawsuit. The Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e et
seq., requires an inmate to properly exhaust available
administrative remedies by following to completion the
procedural rules for grievances within a penal institution.
See 42 U.S.C. § 1997e(a); Woodford v.
Ngo, 548 U.S. 81, 83 (2006); Pyles v. Nwaobasi,
829 F.3d 860, 864 (7th Cir. 2016); Ford v. Johnson,
362 F.3d 395, 398 (7th Cir. 2004). 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, 548 U.S. at 90 (quoting Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Proper
use of the prison grievance system requires a prisoner to
“file complaints and appeals in the place, and at the
time [as] the prison's administrative rules
require.” Pozo, 286 F.3d at 1025; see also
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
Because “the primary purpose of a grievance is to alert
prison officials to a problem, ” Maddox v.
Love, 655 F.3d 709, 722 (7th Cir. 2011), the
prisoner's grievance must include enough information to
alert the prison officials of the wrong for which the
prisoner seeks redress. See Strong v. David, 297
F.3d 646, 650 (7th Cir. 2002). The burden of proof is on the
defendant to demonstrate that the prisoner failed to exhaust
his administrative remedies. See Turley v. Rednour,
729 F.3d 645, 650 (7th Cir. 2013).
record indisputably establishes that Johnson did not exhaust
his administrative remedies as to his excessive force claim
against Vicich and Price. The record shows that the LaSalle
County Jail had an established grievance system, with the
procedures set out in the Inmate Handbook. According to
Johnson's own testimony and his inmate file, he filed no
grievances about Vicich and Price using force against him in
October 2013. The only two grievances in his file are both
dated several months after the incident and are unrelated.
Because Johnson failed to file a ...