Coleman v. Hilgendorf et al

Filing 22

ORDER Entered by Judge Sara Darrow on 10/26/2017. See written Order. Defendants Motion for Summary Judgment 18 is GRANTED. Plaintiffs claims against Defendants Gans, Sheppard, Jones, Bryant, Carrothers, Millard, and King are dismissed without pre judice. Clerk is directed to terminate these defendants. Defendants Motion to Stay Discovery 21 is DENIED as moot. As of the date of this Order, Defendant Pucecell has not returned an executed request for waiver of service. Therefore, the Clerk is directed to attempt service a second time on Defendant Pucecell via the standard procedures. (ED, ilcd)

E-FILED

Thursday, 26 October, 2017 10:37:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
DWAINE COLEMAN,
Plaintiff,
v.
LYNN HILGENDORF, et al.
Defendants.

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16-4257

ORDER GRANTING SUMMARY JUDGMENT ON THE ISSUE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Plaintiff filed this lawsuit on December 5, 2016. Pursuant to 28 U.S.C. §1915A, the
Court found that Plaintiff stated claims for deliberate indifference to a serious medical need
against Defendants Hilgendorf and Purcell, retaliation claims against Defendants Gans, Jones,
Bryant, and Carrothers, and a procedural due process claim against Defendants Millard and
King. 1 Defendants Gans, Sheppard, Jones, Bryant, Carrothers, Millard, and King now move for
summary judgment on the grounds that Plaintiff failed to exhaust administrative remedies. (Doc.
18). Plaintiff did not respond to Defendants’ motion, and, therefore, the Court accepts
Defendants’ assertion of fact in their motion as undisputed. See Fed. R. Civ. P. 56(e)(2).
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,
1

The Court’s Merit Review and Case Management Order does not specify the claims Plaintiff states against
Defendant Sheppard. (Doc. 7). Plaintiff alleges in his Complaint that Defendant Sheppard denied Plaintiff’s
requests for medical treatment following the alleged incident of excessive force. (Doc. 1). To clarify the record, the
Court finds that Plaintiff states a claim against Defendant Sheppard for deliberate indifference to a serious medical
need. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (prison guards can be held liable for denying access to
medical care); Fed. R. Civ. P. 60(a) (court may correct omission on its own when one is found in the record).

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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
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).
ANALYSIS
Failure to exhaust is an affirmative defense, and therefore the burden of proof lies with
the defendants. Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). The Court must hold an
evidentiary hearing if a disputed issue of material fact exists, see Pavey v. Conley, 544 F.3d 739,
742 (7th Cir. 2008), but where none is present, an evidentiary hearing is unnecessary and the
issue of exhaustion may be decided as a matter of law. Doss v. Gilkey, 649 F. Supp. 2d 905, 912
(S.D. Ill. 2009).
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) (2013). The purpose of this requirement is to “alert the state to the
problem and invite corrective action.” Turley, 729 F.3d at 649 (internal citations omitted). The
Seventh Circuit has adopted a strict compliance standard to exhaustion, and to exhaust remedies
“a prisoner must properly use the prison’s grievance process.” Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006). In other words, “a prisoner must file complaints and appeals in the place,
and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022,
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1025 (7th Cir. 2002). If the prisoner fails to follow the grievance procedures, “the prison
administrative authority can refuse to hear the case, and the prisoner's claim can be indefinitely
unexhausted.” Id.; see Dole, 438 F.3d at 809 (quoting same). “The ‘applicable procedural rules’
that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance
process itself.” Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (citing Jones v. Bock, 549
U.S. 199, 218 (2007)).
The Illinois Administrative Code establishes the grievance procedures for Illinois
Department of Corrections inmates. Inmates unable to resolve their issues informally with
prison staff may file a written grievance on a form provided by the prison. 20 Ill. Admin. Code §
504.810(a). The grievance must be filed “within 60 days after the discovery of the incident,
occurrence, or problem that gives rise to the grievance.” Id. § 504.810(a). A grievance officer,
however, shall consider a grievance filed outside of the 60-day time period if the inmate “can
demonstrate that a grievance was not timely filed for good cause….” Id. A grievance officer
considers each grievance and submits a recommendation to the Chief Administrative Officer,
who notifies the inmate of his decision. Id. § 504.830(d). An inmate may appeal the CAO’s
decision to the Director, but must do so within 30 days of the decision. Id. § 504.850(a). Once
an appeal is received, the Administrative Review Board reviews the appeal and provides the
Director with a written report of its findings and recommendations. Id. § 504.850(e).
An inmate may also submit a request for a grievance to be handled on an emergency basis by
forwarding it directly to the Chief Administrative Officer (“CAO”). Id. § 504.840. If
determined to be a non-emergency, the CAO must notify the inmate that he or she may resubmit
the grievance via the normal procedures. Id. 504.840(c).

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Plaintiff filed seven (7) grievances relevant to his claims in this lawsuit. Of those
grievances, Plaintiff fully exhausted only one prior to filing suit: a grievance dated October 19,
2016, addressing claims that Defendant Hilgendorf used excessive force and subsequently denied
medical treatment. (Doc. 19-3 at 33-34). The grievance mentions other prison officials, but
Plaintiff did not identify them by name or description as required by Illinois Administrative Rule
504.810(c), or the prison official is no longer a defendant in this case.
The rest of the grievances were still pending review at the time Plaintiff filed suit, or filed
after the date Plaintiff filed his complaint. See (Doc. 19-3 at 1-32). A prisoner may not exhaust
grievances while a lawsuit is pending. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (“To
prevent [the] subversion of efforts to resolve matters outside of court, it is essential to keep
courthouse doors closed until those efforts have run their course.”). In addition, no evidence
exists in the record suggesting that the process was unavailable to Plaintiff. Therefore, the Court
finds that Plaintiff failed to exhaust all available administrative remedies prior to filing suit as
required by the PLRA. Defendants’ motion for summary judgment is granted.
IT IS THEREFORE ORDERED:
1) Defendants’ Motion for Summary Judgment [18] is GRANTED. Plaintiff’s claims
against Defendants Gans, Sheppard, Jones, Bryant, Carrothers, Millard, and King
are dismissed without prejudice. Clerk is directed to terminate these defendants.
2) Defendants’ Motion to Stay Discovery [21] is DENIED as moot.
3) As of the date of this Order, Defendant Pucecell has not returned an executed
request for waiver of service. Therefore, the Clerk is directed to attempt service a
second time on Defendant Pucecell via the standard procedures.
Entered this 26th day of October, 2017.
s/Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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