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Schaefer v. Spates

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

March 19, 2018

Gary L. Schaefer (Y24505), Plaintiff,
v.
C/O Spates, Defendant.

          REPORT AND RECOMMENDATION

          IAIN D. JOHNSTON, U.S. MAGISTRATE JUDGE.

         It is 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).

         BACKGROUND

         Plaintiff 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 order.

         Plaintiff 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.

         Defendant 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).

         Justin 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.

         Egler 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 pod.

         While 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 or grievance.

         To 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.

         Egler 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.

         Defendant 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 ...


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