Smith v. Godinez et al

Filing 17

SUMMARY JUDGMENT OPINION entered by Judge Joe Billy McDade on 2/5/14. IT IS ORDERED: 1) Defendants Millsap's and Lovrant's Motion for Summary Judgment is GRANTED 14 . The Clerk of the Court is directed to enter judgment in favor of Defen dants and against Plaintiff. This case is terminated, with the parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated. 2) If Plaintiff wishes to appeal this judgment, he must file a notice of appeal wi th this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(4). 3) If Plaintiff wishes to proceed in forma pauperis on appeal, his motion for leave to appeal in forma pauperis must identify the issues Plaintiff will present on app eal to assist the Court in determining whether the appeal is taken in good faith. See Fed. R. App. P. 24(a)(1)(c); see also Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (an appellant should be given an opportunity to submit a statement of h is grounds for appealing so that the district judge "can make a responsible assessment of the issue of good faith."); Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000) (providing that a good faith appeal is an appeal that "a reasonable person could suppose... has some merit" from a legal perspective). If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee regardless of the outcome of the appeal. SEE FULL ORDER. (FDT, ilcd)

E-FILED

Thursday, 06 February, 2014 08:11:57 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
REGINALD SMITH,
Plaintiff,
vs.
S.A. GODINEZ, et al.,
Defendants.

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No. 12-1498

SUMMARY JUDGMENT OPINION
Defendants Millsap and Lovrant move for summary judgment on the issue of exhaustion
[d/e 14]. Plaintiff, a state prisoner, filed his lawsuit pursuant to 42 U.S.C. § 1983 on December
4, 2012 claiming that his constitutional rights were violated at Pontiac Correctional Center on
November 11th and 12th, 2012. The Court conducted a merit review of the Plaintiff’s Complaint
and found that Plaintiff stated an excessive force claim against Defendant Lovrant, a failure to
intervene claim against Defendant Milsap, and a conditions of confinement claim. Plaintiff did
not file a response to Defendants’ Motion for Summary Judgment though he was given the
opportunity to do so. Therefore, the Court will take Defendants’ Undisputed Material Facts as
true.
A. LEGAL STANDARD
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). All facts must be construed in the light most favorable to the non-moving party,
and all reasonable inferences must be drawn in his favor. Ogden v. Atterholt, 606 F.3d 355, 358
(7th Cir. 2010). The party moving for summary judgment must show the lack of a genuine issue

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of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to be a “genuine”
issue, there must be more than “some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. ANALYSIS
Defendants argue that there is no record of any grievances, emergency or otherwise, that
Plaintiff filed regarding the claims in his Complaint. The Prison Litigation Reform Act (PLRA)
provides:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
The Seventh Circuit has taken a strict compliance approach to exhaustion requiring a
prisoner to pursue all available administrative remedies and comply with the prison’s procedural
rules and deadlines. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Therefore, if an
inmate fails to follow the grievance procedure rules, his claims will not be considered to be
exhausted, but instead forfeited, and he will be barred from filing suit in federal court even if
administrative remedies are for practical purposes no longer available to him due to his
procedural default. Pozo, 286 F.3d at 1025.
The Illinois Department of Corrections has an established grievance process. See 20 ILL.
ADMIN. CODE §§ 504.800 et seq. An inmate is first required to speak with a counselor about the
contested issue. 20 ILL. ADMIN. CODE § 504.810(a). If the counselor does not resolve the
problem, the inmate must file a grievance form directed to the Grievance Officer within 60 days
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of the incident. Id.

The Grievance Officer submits his recommendation to the Chief

Administrative Officer who "shall advise the offender of the final decision in writing within two
months after receipt of the written grievance, where reasonably feasible." 20 ILL. ADMIN. CODE
§ 504.830(d). If the inmate is not satisfied with the Chief Administrative Officer's response, he
or she can file an appeal with the Director through the Administrative Review Board within 30
days after the date of the Chief Administrative Officer's decision. 20 ILL. ADMIN. CODE §
504.850(a). The Director shall then review the findings and recommendations of the board and
make a final determination within six months after receipt of the grievance. 20 ILL. ADMIN.
CODE § 504.850(f).

When an inmate has received a copy of the Director's decision, the

grievance procedure is complete.
Here, Defendants attached the Affidavit of Sherry Benton, an Administrative Review
Board (ARB) Chairperson with the Office of Inmate Issues for the Illinois Department of
Corrections (IDOC), which provides that Benton searched Plaintiff’s ARB records for grievances
concerning the use of excessive force against him on November 11th and 12th, 2012. ARB
records indicated that the ARB received no grievances from Plaintiff related to the use of
excessive force on those dates. Because Plaintiff stated in his Complaint that he filed an
Emergency Grievance to the Warden, his Grievance Counselor, and his Grievance Officer on
“the same day this took,” Defendants also attached the Affidavit of Sharon Simpson, the Primary
Grievance Officer at Pontiac who maintains a record of Emergency Grievances filed by inmates
with the Warden of Pontiac. Simpson’s Affidavit provides that she looked specifically in the
Emergency Grievance Log at Pontiac for a grievance in which Plaintiff grieved about the use of
excessive force on the relevant dates in November 2012 and found no such grievance. She also
attached the Emergency Grievance Log from Pontiac for the dates November 7, 2012 through

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November 21, 2012 which also does not show that Plaintiff filed any Emergency Grievances
during that time period.
Thus, Defendants say that Plaintiff failed to exhaust his administrative remedies
regarding his excessive force and failure to intervene claims, so they are entitled to summary
judgment.
The Court finds that Plaintiff did not properly and fully exhaust his administrative
remedies as to the claims in his Complaint. The question then becomes whether administrative
remedies were truly “available” to Plaintiff. 42 U.S.C. § 1997e(a). The Court finds that they
were. The PLRA, does not define “availability” for purposes of the exhaustion requirement.
However, the Seventh Circuit has held that the “availability of a remedy is not a matter of what
appears on paper, but, rather, whether the paper process was in reality open for the prisoner to
pursue.” Wilder v. Sutton, 310 F. App’x 10, 13 (7th Cir. 2009) (quoting Kaba v. Stepp, 458 F.3d
678, 684 (7th Cir. 2006)).

Prison officials who engage in affirmative misconduct, Dole v.

Chandler, 438 F.3d 804, 809 (7th Cir. 2006), or fail to respond to grievances, render the
grievance process unavailable to an inmate. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.
2002).
While Plaintiff stated in his Complaint that he filed an Emergency Grievance with the
Warden, Counselor, and Grievance Officer “the same day this took,” and while he also alleged
that Pontiac played “diabolical games” with grievance forms, those statements were not sworn to
and he has not provided any further evidence or arguments to refute Defendants’ Motion for
Summary Judgment. Even after construing the facts in the light most favorable to Plaintiff, and
drawing all reasonable inferences in his favor, the Court cannot find that that there is a genuine

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issue of material fact.

Defendants Millsap and Lovrant are therefore entitled to summary

judgment.
Defendants address the claims of excessive force and failure to intervene against them in
their summary judgment Motion, but they do not address whether Plaintiff exhausted his
administrative remedies as to his third claim regarding conditions of confinement. Nevertheless,
summary judgment against Plaintiff is warranted on that claim as well. See Goldstein v. Fid. and
Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996) (“[A] district court may enter
summary judgment in favor of a party even if no motion for relief of that sort has been filed.”
(citing Hunger v. Leininger, 15 F.3d 664 (7th Cir. 1994))).
Indeed, Plaintiff had notice in the Merit Review Order that the Court was
considering whether to dismiss his case where it stated that he may not have properly and fully
exhausted his administrative remedies before filing this lawsuit. See 4/16/2013 Merit Review
Order, p. 3; see also Goldstein, 86 F.3d at 750 (“The party against whom summary judgment is
entered must have notice that the court is considering dropping the ax on him before it actually
falls.”); and Fed. R. Civ. P. 56(f)(3) (“After giving notice and a reasonable time to respond, the
court may . . . consider summary judgment on its own after identifying for the parties material
facts that may not be genuinely in dispute.”). As with his excessive force and failure to intervene
claims, Plaintiff’s unsworn statements in his Complaint regarding exhaustion upon which he at
no time has elaborated are insufficient to create a genuine question as to whether he exhausted
his administrative remedies regarding his conditions of confinement claim. Notably, Simpson’s
Affidavit provides that Plaintiff did not file a grievance (about excessive force, failure to
intervene, or otherwise) with the Warden on any dates from November 7, 2012 to November 21,
2012.

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Even assuming that Plaintiff did submit an Emergency Grievance on November 11th or
12th, 2012, he filed his Complaint within 25 days of the alleged events that gave rise to his
Complaint.

The time frames set forth for grievance procedures provided in the Illinois

Administrative Code coupled with the date on which Plaintiff allegedly filed his Emergency
Grievance and filed his Complaint are highly suggestive of the fact that Plaintiff did not allow
IDOC a reasonable time to respond to his Emergency Grievance. See Mlaska v. Shah, 428 F.
App’x 642, 645 (7th Cir. 2011) (noting that prisoner had not allowed the prison a reasonable
time to respond to his grievances at the time he filed suit where prisoner filed suit at most three
months after his earliest grievance and within days of his last grievance); Ford v. Johnson, 362
F.3d 395, 400 (7th Cir. 2004) (“Illinois made a process available to [the plaintiff]; he had to stick
with that process until its conclusion rather than make a beeline for court just because the
administrative officials gave his appeal the time needed to resolve it.”).
IT IS THEREFORE ORDERED:
1) Defendants Millsap’s and Lovrant’s Motion for Summary Judgment is
GRANTED [d/e 14]. The Clerk of the Court is directed to enter judgment in favor of
Defendants and against Plaintiff. This case is terminated, with the parties to bear their
own costs. All deadlines and settings on the Court’s calendar are vacated.
2) If Plaintiff wishes to appeal this judgment, he must file a notice of appeal with
this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(4).
3) If Plaintiff wishes to proceed in forma pauperis on appeal, his motion for leave to
appeal in forma pauperis must identify the issues Plaintiff will present on appeal to assist
the Court in determining whether the appeal is taken in good faith. See Fed. R. App. P.

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24(a)(1)(c); see also Celske v. Edwards, 164 F.3d 396, 398 (7th Cir. 1999) (an appellant
should be given an opportunity to submit a statement of his grounds for appealing so that
the district judge “can make a responsible assessment of the issue of good faith.”); Walker
v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000) (providing that a good faith appeal is an
appeal that “a reasonable person could suppose . . . has some merit” from a legal
perspective). If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate
filing fee regardless of the outcome of the appeal.
ENTERED this 5th day of February, 2014.

s/ Joe B. McDade
____________________________________
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE

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