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Jones v. Trunzo

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

November 21, 2019

BRIAN JONES, Plaintiff,
v.
TRUNZO, et. al. Defendants.

          Kimberly M. Foxx State's Attorney of Cook County

          Cory J. Cassis Assistant State's Attorney Richard J. Daley Center

          DEFENDANT'S MOTION PURSUANT TO PAVEY V. CONLEY FOR JUDGMENT ON THE ISSUE OF EXHAUSTION

          Honorable Sharon Johnson Coleman Judge

         NOW COME Defendants, Deputy D. Trunzo, A. Scafidi and D. Rodriguez, (“Defendants”) by their attorney, KIMBERLY M. FOXX, State's Attorney of Cook County, and through one of her assistants, Cory J. Cassis, submits this Motion pursuant to Pavey v. Conley for Judgment on the issue of exhaustion of administrative remedies, or alternatively, for dismissal due to fraud committed upon the Court. In support of this Motion, Defendants state as follows:

         INTRODUCTION

         Plaintiff's lawsuit was filed pursuant to §1983 on January 31, 2018, alleging that that the Defendant officers failed to protect him, an inmate at the Cook County Jail (“CCJ”), from injury while he was cuffed to another inmate during an altercation that occurred on January 27, 2016 while aboard a transportation vehicle. (Dkt. 1). On January 29, 2019, Plaintiff filed his Second Amended Complaint, for the first time naming the officers who he alleges failed to protect him. (Dkt. 30). CCJ maintains a formal inmate grievance procedure which is available to detainees to seek review of a problem. (See Affidavit of John Mueller, attached hereto as Exhibit A, at ¶ 4). The rules and regulations, including inmate grievance procedure, is outlined in the Inmate Information Handbook, which Plaintiff received upon his booking into CCJ. (See Inmate Information Handbook, Exhibit B pgs. 22-25; see also Plaintiff's signature page indicating he received a copy of the “rules and regulations.” Exhibit C).

         Under the Prison Litigation Reform Act[1] (42 U.S.C. § 1997(e)) (“PLRA”), a plaintiff must exhaust his or her administrative remedies prior to filing a Section 1983 lawsuit. 42 U.S.C. § 1997(e). Further, pursuant to the CCJ inmate grievance procedure, in order to exhaust administrative remedies, a detainee must file a grievance within fifteen days of the issue complained of, and, if he is dissatisfied with CCJ's response, appeal that response within fourteen days of its receipt. (Exhibit A ¶ 8; Exhibit B at pg. 24-25). This requirement is part of the CCJ grievance procedure and is expressly stated on the grievance forms themselves. (Exhibit A ¶ 8; also see Plaintiff's February 16, 2016 Grievance, Exhibit D).

         In order to properly exhaust his administrative remedies, Plaintiff was required to timely file a grievance indicating the constitutional violation he is complaining of within 15 days of the occurrence, or by February 11, 2016, and then timely appeal the CCJ's response to the same. (Exhibit A ¶ 8; Exhibit D). Although Plaintiff did file one grievance regarding the event that occurred on January 26, 2016, his claims of exhaustion are deficient for the following reasons:

         First, Plaintiff's grievance was not timely filed, as he did not file the grievance until February 16, 2016, 19 days after the occurrence. (Exhibit D). Second, although the purpose and content of Plaintiff's grievance was to request medical attention for alleged injuries, Plaintiff's Second Amended Complaint does not allege a denial of, or indifference to, the desire for medical attention, but rather, it complains of a failure to protect- something he declined to grieve about.

         Further, on April 11, 2019, Defendants filed their Motion to Dismiss pursuant to 12(b)6. (Dkt.42). In his hand written and signed Response brief, Plaintiff stated the reason why his complaint should not barred by the Statute of limitations is “[b]ecause Plaintiff did not exhaust administrative remedies until a year after the incident which is the subject of his Complaint.” (Dkt. 43, ¶6). However, it is abundantly clear that Plaintiff only filed one grievance during his time at the Cook County Jail, on February 16, 2016, which was characterized as a “non-grievance” since it was not filed timely, and accordingly was not appealed. (Exhibit A ¶¶ 15-18; Exhibit D; see also the attached spreadsheet of Plaintiff's grievances, Exhibit E, and spreadsheet of Plaintiff's non-grievances, Exhibit F). Because the grievance untimely, it was therefore considered a non-grievance and could not be appealed. Therefore, it must follow that Plaintiff has committed fraud upon the Court when he argued that it took him a year to exhaust administrative remedies, thereby allowing him to toll the statute of limitations, when he in fact that was absolutely not true.

         Accordingly, this Honorable Court should find that Plaintiff failed to exhaust his administrative remedies and enter judgment on the issue of exhaustion of administrative remedies, pursuant to the Seventh Circuit's decision in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), or in the alternative, dismiss this lawsuit due to Plaintiff's fraud upon the Court, which is intertwined with his failure to exhaust, and further confirms this matter is time-barred.

         STANDARD OF REVIEW

         The purpose of the PLRA is “[to] afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 525 (2002). The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires proper exhaustion; that is, before filing a civil rights lawsuit, the inmate must file a grievance utilizing the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006). The applicable procedural rules are defined not by the PLRA, but by the prison grievance process itself. Jones v. Bock, 549 U.S. 199, 218 (2007).

         The Seventh Circuit has taken a “strict compliance” approach to exhaustion. See Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006) (“A prisoner must properly use the prison's grievance process. If he or she fails to do so, the prison administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely unexhausted.”); see also Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require.”). An inmate's ignorance of the proper grievance procedure does not excuse non-compliance with that procedure. McSwain v. Schrubbe, 382 Fed.Appx. 500, 503 (7th Cir. 2010); see also Twitty v. McCoskey, ...


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