United States District Court, N.D. Illinois, Western Division
Gary L. Schaefer (Y24505), Plaintiff,
C/O Spates, Defendant.
REPORT AND RECOMMENDATION
D. JOHNSTON, U.S. MAGISTRATE JUDGE.
the Court's Report and Recommendation that
Defendant's request for dismissal of the complaint be
granted and that Plaintiff's claims be dismissed without
prejudice for failure to exhaust administrative remedies. Any
objection to this Report and Recommendation must be filed by
April 2, 2018. Failure to object may constitute a waiver of
objection on appeal. See Provident Bank v. Manor Steel
Corp., 882 F.2d 258, 260 (7th Cir. 1989).
Gary L. Schaefer, an Illinois prisoner, initiated this action
under 42 U.S.C. § 1983 concerning events that occurred
at the Winnebago County Jail. He initially brought his claims
against the Winnebago County Sheriff's Department,
Superintendent Redmond, and three correctional officers
alleging “I feel unsafe in this jail and don't
think the officer was or is doing his job correctly. I am in
fear for my life being in Winnebago County Jail[.]”
Dkt. 1 at 5. He went on to explain that he had been attacked
without warning by inmate Jacob Paul Vereecken and sustained
a broken jaw and damage to his teeth as a result of the
attack. Id. He concluded by stating the following:
“I feel that the jail was not doing their job the day
my jaw was broken and lets a lot of stuff slide daily.”
Id. at 6 (cleaned up). The Court dismissed the
complaint for failure to state a claim, explaining that the
mere fact Plaintiff was attacked by another inmate was
insufficient to establish a constitutional violation and also
explaining that the only allegations against Defendant
Spates-which concerned Spates' response to the
attack-showed no misconduct. Dkt. 4, Jan. 13, 2017 screening
subsequently submitted an amended complaint alleging that on
October 19, 2016, he was attacked after he refused to give
inmate Vereecken his lunch tray. Dkt. 5 at p. 4. The events
precipitating the attack began earlier that day when
Vereecken “threatened” Plaintiff and demanded
Plaintiff's breakfast. Id. Instead of giving
Vereecken the meal, Plaintiff quickly ate his breakfast and
told Defendant Spates about the incident. Id. Spates
told Plaintiff “not to worry he would take care of
it.” Id. At lunch, Vereecken again demanded
Plaintiff's meal and Plaintiff again refused to give it
to him. Id. at 4-5. Vereecken then followed
Plaintiff back to his cell and punched Plaintiff in the face
hard enough to knock his “teeth . . . out of
place.” Id. at 5. Plaintiff pushed the
emergency button, Officer Spates arrived, and the two walked
to the medical unit. Id. According to Plaintiff,
“Spates did not protect me!” Id. Given
the liberal construction due pro se pleadings, the
Court allowed a failure-to-protect claim to proceed against
Spates, but dismissed all other claims and defendants. Dkt.
6, Mar. 7, 2017 screening order.
Spates answered Plaintiff's amended complaint and
asserted, as an affirmative defense, that Plaintiff failed to
exhaust administrative remedies as required by 42 U.S.C.
§ 1997e. Dkt. 11. On January 31, 2018, the Court held a
Pavey hearing on the exhaustion issue. See Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); see
also Wagoner v. Lemmon, 778 F.3d 586, 591-92 (7th Cir.
2015) (finding that courts should hold a Pavey
hearing before deciding the action on the merits).
Egler, who works at the Winnebago County Jail, testified at
the hearing that he was an Administrative Lieutenant at the
jail during the time period at issue in this litigation. He
was responsible for the classification process, the
disciplinary process, and commissary. He also was familiar
with the jail's grievance procedures.
explained that inmates were made aware of the grievance
process through an orientation video that ran multiple times
a day in all the pods in booking. Grievance procedures also
were set out in the inmate handbook, which was given to
inmates during the classification interview. The handbook
provides the following, in pertinent part:
An inmate grievance procedure is made available to all
inmates and includes at least one level of appeal . . . .
Grievances must be submitted using the inmate kiosk Cobra GT.
Corrections Officer will provide assistance if needed.
Detainees must enter grievance with a thorough explanation of
the problem. Inmates will receive a response via Cobra GT
within seven (7) business days of filing the grievance.
Inmates may appeal the grievance decision by submitting an
appeal via Cobra GT to the Jail Superintendent. The decision
of the Jail Superintendent or their designee is final.
See Dkt. 35, pg. 10 (Def.'s Ex. 1, Winnebago
County Sheriff's Corrections Bureau, Inmate Handbook,
Grievance Procedures). Inmate kiosks were located in every
referring to photographs of the computer screens inmates
encounter at the kiosks, see Dkt. 35-1, pg. 2-15
(Def.'s Exs. 2-15, kiosk screen shots), Egler explained
that an inmate starts the grievance process by choosing his
preferred language-he could select from several- and then
logging in with his inmate identification number and
fingerprint. A touch screen then appears with four choices:
facility information, view balances and history, order
commissary, or GT. GT stands for Grievance Tracker and allows
the inmate to see his pending requests and grievances, review
his closed requests and grievances, and submit a new request
submit a new grievance, an inmate selects “GT”
and then “create a request.” The next screens
provide options such as commissary account questions,
discipline/appeals, general requests, grievance-general,
grievance-food service, medical grievance, or medical
requests. The inmate must select one of the options, and then
a screen with a keypad and a dialog box appears. If the
inmate chooses “grievance-general, ” a prompt
appears above the dialog box: “enter your request for -
GRIEVANCE - GENERAL[.]” See Dkt. 35-1, pg. 13.
The inmate can then type in his complaint. When he is
finished, he must touch “submit message” at the
right-hand side of the screen to submit the grievance.
Inmates receive responses to their requests and grievances
via the kiosks. The process for appealing a grievance
response is similar to the process for submitting a
grievance, except that the inmate would chose
“discipline/appeals” before typing his complaint
into the dialog box.
also authenticated a 58-page “Resident Request
Report” showing Plaintiff's entries into the
kiosks. See Dkt. 35-1, pg. 16 through Dkt. 35-2, pg.
37 (Def.'s Ex. C, Resident Request Report for Gary Lee
Schaefer). Egler testified that all entries made into the
COBRA GT kiosks are automatically saved on the jail's
computer system. The entries are never deleted. The Report
shows that Plaintiff made 311 entries on the COBRA GT kiosk
system from July 5, 2016 to May 17, 2017. (That is almost one
grievance per day.) The Report also shows that Plaintiff
submitted requests under the categories of tender request,
general request, medical request, phone issue request,
library request, grievance - general, haircut/shave request,
medical grievance, grievance - food services, programming
request, meals/kitchen request, “bivens act request,
” visit request, and discipline/appeals.
argued at the hearing that none of the requests submitted by
Plaintiff constitute a grievance about the issues raised in
this lawsuit, i.e., that Officer Spates was aware of
a significant risk of harm to Plaintiff and failed to protect
Plaintiff from that harm. To that end, Defendant identified
five entries that, he says, “even tangentially can be
said to have been a grievance” relating to the events
that form ...