United States District Court, S.D. Illinois
WILLIAM H. SUBER, IV, #S14989 Plaintiff,
CHRIS BOLYARD, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL Chief U.S. District Judge
William H. Suber, IV, an inmate of the Illinois Department of
Corrections, filed this action for alleged deprivations of
his constitutional rights pursuant to 42 U.S.C. § 1983.
He asserts he was subjected to excessive force by Defendant
Chris Bolyard while he was incarcerated at Vandalia
Correctional Center. The matter is now before the Court for
consideration of Defendant's motion for summary judgment
for Suber's failure to exhaust his administrative
remedies prior to filing suit.
Complaint alleges the following: On February 14, 2019, Suber
was housed in segregation at Vandalia. (Doc. 1, p. 6).
Sergeant Bolyard walked along the gallery spraying pepper
spray. (Id.). Sergeant Bolyard stopped in front of
Suber's cell and started “say[ing] things.”
(Id.). Suber responded that “he was not a
kid” and “to talk to him like a man or stop
talking.” (Id.). Sergeant Bolyard left the
area and then returned with two other officers, opened
Suber's cell door, got in his face calling him names, and
then choked him. (Id.).
Complaint is dated February 21, 2019; it was received by the
Court on March 18, 2019. (Doc. 1, p. 7). Following review
pursuant to 28 U.S.C. § 1915A, a single claim proceeded
against Sergeant. Bolyard for excessive force. (Doc. 6).
Motion for Summary Judgment
filed the pending motion for summary judgment on August 12,
2019, arguing that Suber failed to exhaust his administrative
remedies prior to filing suit. (Docs. 14 and 15). Suber has
not filed a response to the motion. The Court considers
Suber's failure to respond an admission of the facts of
Defendant's motion. SDIL Local Rule 7.1(c) (failure to
timely file a response to a motion may be considered an
admission of the merits of the motion); Fed.R.Civ.P.
56(e)(facts may be considered undisputed if a party fails to
respond as required by Rule 56(c)); Smith v. Lamz,
321 F.3d 680, 683 (7th Cir. 2003) (failure to respond by the
nonmovant as mandated by the local rules results in an
admission); Flynn v. Sandahl, 58 F.3d 283, 288 (7th
Cir. 1995) (non-movant's failure to respond to a motion
for summary judgment constitutes an admission that there are
no disputed issues of material facts).
following facts are taken from Defendant's memorandum in
support of summary judgment and are undisputed. An inmate may
grieve prison conditions with the Illinois Department of
Corrections by following the grievance procedures set forth
in 20 Ill. Admin. Code 504.800 et seq. (Doc. 15, p.
2). Suber filed a grievance on February 15, 2019, alleging
that Defendant Bolyard sprayed pepper spray on his gallery on
February 14, 2019. (Doc. 15, p. 2; Doc. 15-2, pp. 1-2). This
grievance was responded to by a counselor on February 27,
2019 but was not appealed to the grievance officer. (Doc. 15,
p. 2; Doc. 15-2, pp. 1, 3; Doc. 15-3, p. 3). Further, Suber
did not file any appeals or direct grievances to the
Administrative Review Board (“ARB”). (Doc. 15, p.
2; Doc. 15-1, p. 4).
“Summary judgment is proper if the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine
issue of material fact such that [Defendant] is entitled to
judgment as a matter of law.” Wragg v. Village of
Thornton, 604 F.3d 464, 467 (7th Cir. 2010);
Fed.R.Civ.P. 56(c). All facts and reasonable inferences must
be construed in favor of the non-moving party. Blow v.
Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017) (citing
Calumet River Fleeting, Inc. v. Int'l Union of
Operating Eng'rs, Local 150, AFL-CIO, 824 F.3d 645,
647-48 (7th Cir. 2016)).
Prison Litigation Reform Act (“PLRA”) requires
prisoners to exhaust all administrative remedies before
bringing suit under 42 U.S.C. § 1983. 42 U.S.C. §
1997e(a); Dole v. Chandler, 438 F.3d 804, 808 (7th
Cir. 2006). The Seventh Circuit requires strict adherence to
the PLRA's exhaustion requirement. Dole, 438
F.3d at 809. “To exhaust remedies, a prisoner must file
complaints and appeals in the place, and at the time, the
prison administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005).
Exhaustion must occur before the suit is filed. Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A plaintiff
cannot file suit and then exhaust his administrative remedies
while the suit is pending. Id.
the procedures set forth in the Illinois Administrative Code,
an inmate is required to file a written grievance within 60
days of the “incident, occurrence or problem that gives
rise to the grievance.” 20 Ill. Admin. Code §
504.810(a). The grievance must be filed with the inmate's
counselor, unless certain discrete issues are being grieved.
Id. If the complaint is not resolved through a
counselor, the grievance is considered by a grievance officer
who must render a written recommendation to the Chief
Administrative Officer (CAO) within two months of receipt,
“when reasonably feasible under the
circumstances.” Id. at § 504.830(e). The
CAO then advises the inmate of a decision on the grievance.
Id. After receiving the response of the CAO, the
inmate may appeal in writing to the IDOC Director.
Id. at §5 04.850(a). The appeal must be
received by the Administrative Review Board within 30 days
after the date of the decision. Id.
inmate may file an emergency grievance if “there is a
substantial risk of imminent personal injury or other serious
or irreparable harm to the offender.” Id. at
§ 504.840(a). The grievance is forwarded directly to the
CAO and, if the CAO determines the grievance should be
handled as an emergency, he or she must expedite the
grievance process. Id. at § 504.840(b). If the
CAO determined the grievance is not an emergency, the inmate
is notified in ...