Briseno v. Perkins et al

Filing 35

OPINION entered by Judge Joe Billy McDade on 12/08/2015. IT IS THEREFORE ORDERED: (1) Defendants' motion for summary judgment is granted (22). (2) This case is dismissed, without prejudice, for Plaintiff's failure to exhaust his administrat ive remedies. (3) Plaintiff must still pay the full filing fee even though his case has been dismissed. The agency having custody of Plaintiffshall continue to make monthly payments to the Clerk of Court, as directed in the Court's prior order. (4) If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30 days of the entry ofjudgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal.(5) The clerk is directed to enter a judgment and to close this case. See full written Opinion.(JS, ilcd)

E-FILED

Tuesday, 08 December, 2015 03:35:59 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JUAN BRISENO,
Plaintiff,
v.
SHERIFF BUKOWSKI,
C/O ROBERTS, and
C/O PAQUETTE,
Defendants.1

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14-CV-2263

OPINION
JOE BILLY MCDADE, U.S. District Judge.
Plaintiff, proceeding pro se from his incarceration in a federal
prison in Colorado, pursues claims arising from an incident which
occurred in the Jerome Combs Detention Center in August of 2014.
Plaintiff alleges that officers failed to promptly intervene to protect
him from an attack by other inmates, and, when the officers did
finally intervene, they allegedly tased Plaintiff without warning or
justification. The Court identified the following claims pursuant to
a merit review of the complaint under 28 U.S.C. §1915A: (1) an
excessive force claim against Defendant Roberts; (2) a failure-to                                                            
1

 Defendants Perkins, O’Neil, and Tobeck were dismissed in the merit review order.  (d/e 10). 

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protect claim against Defendants Roberts and Paquette; and, (3) an
unconstitutional policy or practice claim against Sheriff Bukowski
in his official capacity regarding the use of tasers.
Defendants move for summary judgment, arguing that Plaintiff
failed to exhaust his available administrative remedies because he
never filed a grievance. (Defs.’ Mot. Summ. J., d/e 22.) Their
evidence consists primarily of an affidavit by the Chief of
Corrections for the facility, Chad Kolitwenzew, and the facility’s
inmate handbook which explains the grievance procedure. If the
Court determines that a material, disputed fact exists, the Court
must hold an evidentiary hearing to resolve the dispute. Roberts v.
Neal, 745 F.3d 232, 234 (7th Cir. 2014).
Mr. Kolitwenzew avers that Plaintiff filed several grievances
while at the facility but that none of the grievances filed were about
the alleged incident at issue in this case. (Kolitwenzew Aff. para.
11.) Mr. Kolitwenzew also avers that Plaintiff filed no grievance
naming Defendants Roberts, Paquette, or about the detention
facility’s policies, nor did Plaintiff file an “appeal letter” to the
Illinois Department of Corrections Jail and Detention Standards.
(Kolitwenzew Aff. para. 11.)
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Plaintiff responded to the motion for summary judgment with
a declaration stating that he filed a grievance about the incident
and “placed it in the locked box labeled ‘Inmate Request/Grievance’
on August 27, 2014 and September 2, 2014, respectively. Neither
one was answered by jail staff.” (Pl.’s Dec., para. 5, d/e 31, p. 6.)
Plaintiff does not say whether the second grievance he filed was a
duplicate of the first or a new grievance.
Defendants point out in their reply that, according to the
facility’s grievance procedure, the inmate keeps the pink copy of the
grievance before submitting the grievance. (Defs.’ Reply, p. 1.) The
grievance procedure section of the inmate handbook states:
Grievance forms are in triplicate. Before placing the
completed inmate request/grievance form in the box, tear
off the pink copy from the back of the form and retain it
for your records. Jail Administration is not responsible
for retaining copies of the grievance you submitted.
(Defs.’ Mot. Summ. J., Exhibit C, p. 23.) Mr. Kolitwenzew
avers in his supplemental affidavit that:
Grievance forms are in triplicate. Before placing the
completed inmate Request/Grievance form in the box,
inmates are to tear off the pink copy from the back of the
form and retain it for their records. White and yellow
copies are then dropped in the request/grievance box by
the inmate. The yellow copy is then provided to the
inmate after the JCDC administration answers the
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grievance. The white copy is retained in the inmate’s file.
The JCDC Inmate Grievance Form provides these
instructions to the inmate.
(Kolitwenzew Supplemental Aff. para. 5.)
On October 30, 2015, the Court directed Plaintiff “to respond
to Defendants' assertion that Plaintiff did not mention the
Defendants in his purported grievance and that Plaintiff would have
retained the pink copy of the triplicate grievance form if he had filed
a grievance.” (10/30/2015 text order.) Plaintiff filed nothing in
response.
The Court concludes that Defendants have met their burden
of proof. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir.
2013)(Defendants bear the burden of proving lack of exhaustion).
Plaintiff has not responded to the Court’s order, which the Court
construes as a concession that inmates keep a pink copy of the
grievance before submitting the grievance. While an evidentiary
hearing is often required to determine whether or not an inmate
filed a grievance, see Roberts v. Neal, 745 F.3d 232 (7th Cir. 2014),
in this case Plaintiff’s silence is at odds with his prior declaration
and has not been explained.

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Further, Plaintiff’s declaration does not explain what he wrote
in his purported grievances, leaving no way to determine whether
Plaintiff gave notice of his concerns to the detention facility, a
primary purpose of the exhaustion requirement. See Smith v.
Zachary, 255 F.3d 446, 450 (7th Cir. 2001)(The purpose of the
exhaustion requirement is to provide the prison system with notice
and an "opportunity to address the situation internally, . . . .");
Turley, 729 F.3d at 649 (7th Cir. 2013). For all the Court knows,
Plaintiff’s purported grievances could have been about keeping him
separate from his alleged attackers rather than about any fault of
the officers on the scene. Plaintiff has personal knowledge of what
he wrote in the purported grievances, yet he fails to offer any
specifics.
For example, Plaintiff appears to concede that he did not name
Officer Roberts or Paquette in his grievances. The facility’s
grievance procedures require the “[n]ame of the person(s) for whom
the grievance is filed against.” (Defs.’ Mot. Summ. J., Exhibit C. p.
23.) Plaintiff does not contend that he did not know the names of
the officers when he wrote the grievances, nor does he explain how
the grievances otherwise put the facility on notice of wrongful
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conduct by any officers. See Roberts, 745 F.3d at 236 (grievance
failed to exhaust against a particular defendant where that
defendant was not named in the grievance and not enough facts
were provided in grievance to suggest that defendant was involved
in the incident).
Plaintiff also avers that he was not given the inmate
handbook. However, he does not dispute that he knew how to file
grievances, that the grievance procedures were available to him,
and that he did file grievances. Cf. Thomas v. Reese, 787 F.3d 845,
845 (7th Cir. 2015)(handbook did not allow grievance about
discipline to be filed). For example, on September 4, 2014, nine
days after the incident, Plaintiff filed a grievance about his
eyeglasses which he maintained were “misplaced on 8/26/14
during a [sic] incident in Max D.” (9/4/14 grievance attached to
Kolitwenzew Supplemental Aff., d/e 33-1). Notably, in this
grievance Plaintiff stated that this was his fourth grievance about
his eyeglasses, but Plaintiff mentioned nothing about a lack of
response to any grievance about excessive force or failure to protect.
Conclusion

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In sum, Defendants’ motion and reply satisfies their burden of
showing that Plaintiff did not exhaust his administrative remedies
as required by 42 U.S.C. § 1997e(a).

Plaintiff’s vague and

conclusory response is insufficient to counter that conclusion or to
create any disputed question of material fact which might require
an evidentiary hearing, particularly in light of Plaintiff’s failure to
respond to the Court’s order. On this record, summary judgment
for Defendants is warranted.
IT IS THEREFORE ORDERED:
(1) Defendants’ motion for summary judgment is granted (22).
(2) This case is dismissed, without prejudice, for Plaintiff’s
failure to exhaust his administrative remedies.
(3) Plaintiff must still pay the full filing fee even though his
case has been dismissed. The agency having custody of Plaintiff
shall continue to make monthly payments to the Clerk of Court, as
directed in the Court's prior order.
(4) If Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in
forma pauperis should set forth the issues Plaintiff plans to present
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on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose
to appeal, he will be liable for the $505 appellate filing fee
irrespective of the outcome of the appeal.
(5)

The clerk is directed to enter a judgment and to close

this case.
ENTERED: 12/08/2015
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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