Daniek v. Hubert et al

Filing 22

OPINION entered by Chief Judge James E. Shadid on 9/29/2015. The Motion for Summary Judgment on Exhaustion 17 is GRANTED as to Defendant Moorhouse and remains pendings as to Officer Hubert. Evidentiary Hearing set for 11/4/2015 at 01:00 PM in by video conference from Peoria (court to initiate conference) before Chief Judge James E. Shadid. By October 16, 2015, the parties shall separately file a motion for witnesses, setting forth the names of any witnesses they seek to call and what each witness's expected testimony will be. Plaintiff's motion for a restraining order is denied 21 . John Doe and Jane Doe are dismissed as Defendants. See full Opinion attached.. Entered by Chief Judge James E. Shadid on 9/29/2015. (RK, ilcd)

E-FILED

Tuesday, 29 September, 2015 09:02:46 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DARRIAN DANIELS,
Plaintiff,
v.
CORRECTIONAL OFFICER M.
HUBERT,
CMT AMY MOORHOUSE,
JOHN AND JANE DOES,
Defendants.

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15-CV-1085

OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff, proceeding pro se from his incarceration in the
Pontiac Correctional Center, claims that Officer Hubert intentionally
put glass shards in Plaintiff’s hair removal cream, causing deep
cuts on Plaintiff’s scalp. Plaintiff also claims that Amy Moorhouse,
a medical technician, denied Plaintiff’s requests for medical care
after the incident.
Defendants move for summary judgment, arguing lack of
exhaustion. Their evidence shows that Plaintiff’s prison grievance
about the glass shards was denied by the Warden and mailed to
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Plaintiff through institutional mail, and that Plaintiff never appealed
that decision as required by 20 Ill. Admin. Code 504.850.
Plaintiff counters that he never received a response to his
grievance after he sent the grievance to the grievance officer, despite
repeatedly asking the grievance officer to respond.
The Court cannot entirely resolve Defendants’ motion on
paper. That is because whether Plaintiff received the Warden’s
decision depends on Plaintiff’s credibility. If Plaintiff did not receive
the Warden’s decision, then Plaintiff did all he could to exhaust his
administrative remedies. 20 Ill. Admin. Code 850(a)(appeal is filed
after decision received). However, if Plaintiff did receive the
Warden’s decision, then Plaintiff did not exhaust his available
administrative remedies, and this case must be dismissed. Because
credibility determinations are necessary, an evidentiary hearing,
commonly called a Pavey hearing, must be held. Roberts v. Neal,
745 F.3d 232, 234 (7th Cir. 2014)(a swearing contest regarding
exhaustion requires an evidentiary hearing). The motion for
summary judgment will, therefore, remain pending as to Officer
Hubert.

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However, summary judgment will be granted to Defendant
Moorhouse, the medical technician. The purpose of the exhaustion
requirement is to provide notice of a problem to prison officials so
that they have an opportunity to correct the problem before
involving the courts. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir.
2013). The Illinois Administrative Code requires that grievances
“contain factual details regarding each aspect of the offender's
complaint, including what happened, when, where, and the name of
each person who is the subject of or who is otherwise involved in
the complaint.” 20 Ill. Admin. Code 504.810(b).
Plaintiff did not mention Defendant Moorhouse in his
grievance, nor did he mention anything about a lack of medical care
in his grievance. Plaintiff’s grievance focuses solely on Officer
Hubert intentionally inserting glass shards in the hair removal
cream. The response to the grievance also focuses solely on that
issue. Even the most liberal reading of the grievance does not give
notice of any problem with Moorhouse or medical care. Summary
judgment must, therefore, be granted to Defendant Moorhouse.
IT IS THEREFORE ORDERED:

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1)

The motion for summary judgment on exhaustion is

granted as to Defendant Moorhouse and remains pending as to
Officer Hubert (17).
2)

An evidentiary hearing is set for November 4, 2015 at

1:00 p.m. Plaintiff and all other witnesses shall appear by video
conference from the Pontiac Correctional Center.
3)

By October 16, 2015, the parties shall separately file a

motion for witnesses, setting forth the names of any witnesses they
seek to call and what each witness’s expected testimony will be.
4)

Plaintiff’s motion for a restraining order is denied (21).

Plaintiff claims that Defendant Moorhouse is verbally harassing him
and spit in his face, in retaliation for this lawsuit. Ms. Moorhouse
is no longer a Defendant in this case because Plaintiff did not
exhaust his administrative remedies as to her. Plaintiff’s other
allegations in his motion are not claims in this case. This case is
limited to the claim that Officer Hubert intentionally put glass
shards in Plaintiff’s hair removal cream for the purpose of harming
Plaintiff.

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5)

“John Doe” and “Jane Doe” are dismissed as Defendants

because Plaintiff has not timely identified them as required by the
Court’s Scheduling Order.
6)

The clerk is directed to terminate Defendants

Moorhouse, John Doe, and Jane Doe.
ENTERED:

9/29/2015

FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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