United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
Jeffrey Rodriguez, 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.
Rodriguez asserts he was subjected to excessive force by
Defendants while he was incarcerated at Menard Correctional
matter is now before the Court for consideration of
Defendants' motion for summary judgment for failure to
exhaust administrative remedies prior to filing suit. For the
reasons set forth below, the motion is granted in part and
denied in part.
alleges the following in his Complaint: On May 3, 2016,
Rodriguez was involved in a verbal altercation with
Lieutenant Scott while walking to commissary. During the
incident, Lieutenant Scott yelled racial insults and told
Rodriguez he looked familiar “while holding a sinister
smile on his face.” Rodriguez attacked Lieutenant Scott
“out of paranoia.” In response to Rodriguez's
action, Officer Ferranto and other correctional officers
restrained and assaulted Rodriguez (“Assault
#1”). After Assault #1, Rodriguez was taken to the
Health Care Unit (“HCU”) and, upon arrival, he
was assaulted while restrained by Major Children, Sergeant
Bebout, and Major Hasemeyer (“Assault #2”).
Rodriguez was eventually examined by a nurse, his injuries
were documented, and he was cleared to leave HCU. After
leaving HCU, Rodriguez was taken to the Internal Affairs
office and then to the North 2 segregation building. He was
placed in the segregation visiting room and assaulted while
restrained by Sergeant Bebout and other correctional officers
(“Assault #3”). After Assault #3, Rodriguez was
placed in a cell in the 2 gallery in North 2 segregation.
Later that day, Rodriguez was transferred to Pontiac
review pursuant to 28 U.S.C. § 1915A, Rodriguez was
allowed to proceed on the following claims at issue in this
Count 1: Eighth Amendment excessive force claim against
Ferranto for assaulting Rodriguez while he was restrained
during Assault #1 on May 3, 2016.
Count 2: Eighth Amendment excessive force claim against
Children, Bebout, and Hasemeyer for assaulting Rodriguez
while he was restrained during Assault #2 on May 3, 2016.
Count 3: Eighth Amendment excessive force claim against
Bebout for assaulting Rodriguez while he was restrained
during Assault #3 on May 3, 2016.
Motion for Summary Judgment
filed the pending motion for summary judgment arguing that
Rodriguez failed to exhaust his administrative remedies prior
to filing suit. (Docs. 21 and 22). Rodriguez has not filed a
response to the motion, and the time for doing so has
expired. The Court considers Rodriguez's failure to
respond an admission of the facts of Defendants' 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 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. 22, p. 2).
Rodriguez received a disciplinary ticket for an incident that
occurred on May 3, 2016. (Id.). Rodriguez filed a
grievance regarding the May 3, 2016 incident on June 27, 2016
directly to the Administrative Review Board (ARB) because
Rodriguez was no longer at the facility from which the
allegations in his grievance arose. (Id.; Doc. 22-2,
p. 4). In the grievance, Rodriguez alleges that excessive
force was used to restrain him after he assaulted an officer
and that he was “brutally beaten” by an unknown
amount of officers on May 3, 2016. (Id.). Rodriguez
filed a second grievance related to the May 3, 2016 incident
on July 24, 2016. (Id.). Rodriguez's grievances
were reviewed and ruled on by the ARB on February 1, 2017.
judgment is proper if the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue of
material fact such that [the movant] 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