Tony Spears v. Officer Andrew Hess et al

Filing 17

MEMORANDUM OPINION & ORDER entered by Judge Joe Billy McDade on 2/21/2017. For the reasons stated above, Defendants' Motion for Summary Judgment 15 is GRANTED for Defendants. The failure to protect claim against Officer Hess fails for Plaintiff 's failure to exhaust administrative remedies. The state law indemnification claim against Peoria County fails as well since the underlying claim against Officer Hess has been summarily decided in his favor.SO ORDERED. CIVIL ACTION TERMINATED. See full written Order.(VH, ilcd) Modified on 2/21/2017 to correct spelling(VH, ilcd).

E-FILED

Tuesday, 21 February, 2017 05:04:00 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
TONY SPEARS,

)
)
Plaintiff,
)
)
v.
)
)
OFFICER ANDREW HESS and PEORIA )
COUNTY,
)
)
Defendants.
)

Case No. 15-cv-1474

MEMORANDUM OPINION & ORDER
This matter is before the Court on the Motion for Summary Judgment (Doc.
15) filed by the Defendants, Officer Andrew Hess and Peoria County. The motion has
been fully briefed and is ready for disposition. For the reasons stated below,
Defendants’ Motion for Summary Judgment is GRANTED.
BACKGROUND
Plaintiff, Tony Spears, was a pre-trial detainee in the Peoria County Jail (the
“Jail”) on or around July of 2015. Plaintiff obtained knowledge of another inmate’s
involvement in a crime and it became known to that inmate, Deon Wells, that
Plaintiff was going to testify against him at his trial. Plaintiff was placed on a keep
away order related to Wells. Officer Hess was a transport officer. He was transporting
Wells and Plaintiff to court one morning. Officer Hess failed to keep Inmate Wells
away from Plaintiff. Inmate Wells attacked and injured Plaintiff.

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The Jail has a documented grievance procedure. The Jail provides detainees
with an Inmate Rules, Regulations, and Information Handbook (the “Handbook”) and
also makes the Handbook available at an electronic kiosk located in Plaintiff’s
housing unit dayroom. The Handbook outlines the procedures for submitting a
grievance. An inmate can submit grievances electronically through the kiosk or on
paper. Plaintiff acknowledged that he was familiar with the grievance process, both
under the paper system and the electronic kiosk system. Plaintiff admits that he
never filed a grievance related to the 07/10/15 incident or Officer Hess. Nor has he
ever forwarded any complaint about the failure to protect him from Inmate Wells to
the Illinois Office of Jail and Detention Standards.
Nevertheless, immediately following his attack, Plaintiff gave a detailed
account of the incident to Officer Hess and other jail officers. Jail staff ensured the
keep-away order was reflected in the electronic records. Furthermore, several days
after the attack, Plaintiff filed a formal grievance in relation to Inmate Well’s cousin,
who was in the same unit as Plaintiff and had threatened him with violence.
Ultimately, Plaintiff filed the Complaint in this action in November 2015
alleging two counts. Count I alleges that Officer Hess violated Plaintiff’s Fourth and
Fourteenth Amendment rights 1 in failing to protect Plaintiff from Inmate Wells.

The Court does not understand how the facts alleged in the Complaint can be
construed to give rise to a Fourth Amendment claim. The Fourth Amendment
pertains to searches and seizures. Plaintiff is claiming Officer Hess failed to protect
him from a known danger. That is usually an Eighth Amendment claim deriving from
the government official’s responsibility to not inflict cruel and inhumane punishment
on prisoners. However, since the Plaintiff was a pretrial detainee at the time of his
allegations, his claims arise under the Fourteenth Amendment rather than the
Eighth Amendment. Smith v. Knox County Jail, 666 F.3d 1037, 1039 (7th Cir. 2012)
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Count II is an indemnification claim under Illinois state law against Peoria County,
Officer Hess’s employer.
LEGAL STANDARDS
Summary judgment shall be granted where “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). In ruling on a motion for summary judgment,
the Court must view the evidence in the light most favorable to the non-moving party.
SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir.
2009). All inferences drawn from the facts must be construed in favor of the nonmovant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the “nonmovant must show through specific
evidence that a triable issue of fact remains on issues on which [it] bears the burden
of proof at trial.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record
could not lead a reasonable jury to find for the non-movant, then no genuine issue of
material fact exists and the movant is entitled to judgment as a matter of law. See
McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the summary
judgment stage, the court may not resolve issues of fact; disputed material facts must
be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).

(“Smith’s claim against the Illinois jail officers arises under the Due Process Clause
of the Fourteenth Amendment, which affords pretrial detainees the same protection
against deliberate indifference as the Eighth Amendment guarantees to the
convicted.”).
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DISCUSSION
The Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”), was enacted in
1996 with the intent to decrease the incidence of frivolous prisoner litigation
burdening the federal courts. Accordingly, the PLRA includes a strict, mandatory
exhaustion requirement that disallows any lawsuit brought by a prisoner confined in
any jail, prison, or other correctional facility that deals with prison conditions under
42 U.S.C. § 1983 or any other federal law, if the prisoner failed to exhaust any
administrative remedies as were available to him. 42 U.S.C. § 1997e(a). Ross v. Blake,
136 S.Ct. 1850 (U.S. 2016). The Seventh Circuit has also taken a strict compliance
approach to exhaustion requiring a prisoner to pursue all available administrative
remedies and comply with a facility’s procedural rules and deadlines. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see also Riccardo v. Rausch, 375
F.3d 521, 523-24 (7th Cir. 2004). If an inmate fails to follow the grievance procedure
rules, his claims will not 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.
Plaintiff was a “prisoner” as that term is defined by the statute at all times
relevant to this case—at the time of the alleged incident, at the time this suit was
brought, and currently. See 42 U.S.C. § 1997e(h) (definition of “prisoner”). Thus, the
PLRA applies and Plaintiff was required to exhaust his available administrative
remedies.

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The Jail utilizes specific grievance procedures of which the Plaintiff was aware
and had used in other incidents. Plaintiff admitted in his deposition that he did not
file a grievance with respect to being assaulted by Inmate Wells or against Officer
Hess for allegedly failing to protect him. He thus admitted that he failed to exhaust
his administrative remedies by filing an appropriate grievance. He argued at his
deposition that he did not think he had to do it. The following exchange from the
deposition illuminates Plaintiff’s thinking:
Q: Did you ever file complaints -- a complaint or a grievance about the
July 10, 2015 incident?
A: About him attacking me then? Well, no, cause everybody knew about
it. I mean, it was the biggest gossip in the entire county jail amongst
everybody. I mean, how can I file a grievance on it when at that point in
time I knew something should have tooken place.
***
Q: Let me just clarify this cause it kind of sounded to me like you were
talking about filing a grievance against inmate Wells. But I guess I'm
looking for more.
A: Against staff?
Q. Against staff. Specifically Officer Hess.
A. No. Because, see, if there were -- well, how I felt about the ordeal is it
fell into so many different people's hands that so many people did not do
what should have been done from the get-go.
***
Q. So we've established that you didn’t file a complaint or grievance
about the July 10, 2015 incident itself. But did you ever file a complaint
against Officer Hess at any point during your time at the Peoria County
Jail?
A: No. Because, like I said again, it fell on so many different people's
hands, who am I going to file it against.
(Doc. 15-7 at 23-25).
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The PLRA contains an exception to the exhaustion requirement, which is a
prisoner need not bring a grievance if such grievances are unavailable. Ross, 136 S.
Ct. at 1858 (“An inmate, that is, must exhaust available remedies, but need not
exhaust unavailable ones.”). Availability is a nuanced concept, but Plaintiff does not
argue that grievance procedures were unavailable to him. Instead, the Court
interprets Plaintiff to contend that his failure to exhaust should be excused because
he believed a grievance would have been useless in this situation.
The Seventh Circuit has rejected subjective beliefs of the prisoner as a viable
excuse for failure to exhaust jail grievance procedures. Twitty v. McCoskey, 226 F.
App’x 594, 596 (7th Cir. 2007). (“As the Eighth Circuit has observed, 42 U.S.C. §
1997e(a) ‘says nothing about a prisoner’s subjective beliefs, logical or otherwise, about
administrative remedies that might be available to him. The statute’s requirements
are clear: If administrative remedies are available, the prisoner must exhaust them.’
Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).”). In short, Plaintiff admits he
never filed a grievance related to his assault or against Hess for his alleged failure to
protect. His subjective belief that a grievance was futile is no excuse for his failure to
pursue the grievance procedures available to him.
Plaintiff offers an alternative response for his failure to exhaust the grievance
process. Immediately following the incident, Plaintiff informed Officer Hess and
others in person that he was attacked due to testifying against Wells. Officials then
made sure that the electronic records reflected that Plaintiff had a no-contact order
with Inmate Wells. Moreover, fourteen days later Plaintiff filed a grievance
complaining that Inmate Wells’s cousin was in the same unit as Plaintiff and
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threatening him. According to Plaintiff, these two events—the immediate verbal
report to officials that was recorded and the fourteen day later grievance related to
Inmate Wells’s cousin—sufficed to alert the state to the problem and invite corrective
action, which is the purpose of a grievance.
This argument cannot prevail. As one of the cases Plaintiff cites makes clear,
only when there is no established grievance procedure in place will a plaintiff’s
communication that otherwise serves the purpose of a grievance be taken to satisfy
the exhaustion requirement. Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). This
is a variation of the afore-mentioned exception that a prisoner need not bring a
grievance if such grievances are unavailable. Ross, 136 S. Ct. at 1858. Another of the
cases Plaintiff cited makes the point succinctly—“[t]o exhaust remedies a prisoner
must properly use the prison’s grievance process.” Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006). Here, an established grievance procedure was in place. Plaintiff
knew about it and failed to utilize it. Thus, Plaintiff is not like the prisoner in Maddox
v. Love, who had followed the prison’s three-step grievance process, only failed to
adequately identify the particular defendants in the grievance. 655 F.3d 709, 721 (7th
Cir. 2011). Again, Plaintiff here did not avail himself of the grievance process at all
in relation to the July 10 incident or Officer Hess, so no exception to the exhaustion
requirement exists under the facts presented.
Therefore, the Court finds that this lawsuit is barred by 42 U.S.C. § 1997e(a)
and must be dismissed. The Court need not address Defendants’ other grounds for
summary judgment. (See Doc. 15 at 9-18 (Plaintiff has no evidence that satisfies the

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elements of a failure to protect claim; Defendant Hess is entitled to qualified
immunity)).
CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment
(Doc. 15) is GRANTED for Defendants. The failure to protect claim against Officer
Hess fails for Plaintiff’s failure to exhaust administrative remedies. The state law
indemnification claim against Peoria County fails as well since the underlying claim
against Officer Hess has been summarily decided in his favor.
SO ORDERED.
CIVIL ACTION TERMINATED.
Entered this 21st day of February, 2017.
s/ Joe B. McDade

JOE BILLY McDADE
United States Senior District Judge

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