Stevenson v. Stroger et al

Filing 168

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 3/22/2012.Mailed notice(yp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICKEY STEVENSON (#B-36520),

Plaintiff,
v.
THOMAS J. DART et al.,
Defendants.

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No. 09 C 2698

Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
Rickey Stevenson, also known as Ronnie McAtee, presently in state custody
at Pontiac Correctional Center, has filed suit pursuant to 42 U.S.C. § 1983. This
case was originally brought in state court, but on May 4, 2009, Defendants removed
it to federal court. Plaintiff has “struck-out” pursuant to 28 U.S.C. § 1915(g).
Stevenson alleges that Defendants Cook County Sheriff Thomas Dart, Former
Cook County Jail Executive Director, Salvador Godinez, and J. Maverick1,
instituted an official policy at the Cook County Jail of failing to provide
constitutionally adequate medical care to the prisoners, and to him specifically with
respect to injuries he sustained while working in the kitchen at the Cook County
Jail.

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Defendants state, and Stevenson admits, that Defendant J. Maverick was named
as a Defendant, in error. (See Doc. Nos. 142, ¶ 50, and 156.) Consequently, Defendant J.
Maverick is dismissed as a Defendant.

Before the Court are multiple motions, including Stevenson’s motions for
partial summary judgment [Doc. No. 77]; for appointment of counsel [Doc. No. 150];
to strike Defendants Local Rule 56.1 statement of undisputed facts [Doc. No. 154];
and to take judicial notice [Doc. No. 160]; as well as Defendants’ motions for
summary judgment [Doc. No. 140] and to strike Stevenson’s response to Defendants’
Local Rule 56.1 statement of undisputed facts and supporting exhibits [Doc. No.
161]. Defendants argue in their motion for summary judgment that: (1) Stevenson’s
state law claims are time barred under the relevant one-year statute of limitations,
set forth by the Illinois Tort Immunity Act, 745 Ill. Comp. Stat. § 10/8-101; (2)
Stevenson failed to exhaust his administrative remedies prior to filing suit, as
required by the Prisoner Litigation Reform Act, 42 U.S.C. § 1997 e(a); (3) Stevenson
has failed to show that Defendants were deliberately indifferent; and (4) Stevenson
has failed to establish a widespread practice or policy sufficient to establish a claim
under Monell v. Department of Social Services of City of New York, 436 U.S. 658,
694 (1978).
The record before the Court establishes that Plaintiff failed to exhaust his
administrative remedies prior to filing suit. The remaining motions are either
denied in their entirety or are granted in part and denied in part as described in
this opinion.
I.

LEGAL STANDARD
Summary judgment is proper “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
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of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All
of the evidence and the reasonable inferences that may be drawn from the evidence
are viewed in the light most favorable to the nonmovant. Miller v. American Family
Mutual Ins., 203 F.3d 997, 1003 (7th Cir. 2000). Summary judgment may be
granted when no “reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party cannot
defeat summary judgment by relying on unsubstantiated facts or by merely resting
on its pleadings. See Hemsworth, II v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th
Cir. 2007); Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th
Cir. 2001). Instead, the party that bears the burden of proof on an issue must
affirmatively demonstrate, with admissible evidence, that a genuine issue of
material fact exists that requires a trial. See Hemsworth, 476 F.3d at 490.
When Defendants filed their motion for summary judgment, they included a
“Notice to Pro Se Litigant Opposing Motion for Summary Judgment” (Doc. 141) as
required by Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992); Lewis v. Faulkner,
689 F.2d 100, 102 (7th Cir. 1982); and Local Rule 56.2. This notice clearly set out
the requirements of this Court’s Local Rule 56.1. In particular, the notice explains
that Stevenson’s response must comply with Federal Rule of Civil Procedure 56(e)
and Local Rule 56.1.
Local Rule 56.1(b)(3) requires a party opposing a motion for summary
judgment to file:

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(A)

a response to each numbered paragraph in the moving
party’s statement, including, in the case of any
disagreement, specific references to the affidavits, parts of
the record, and other supporting materials relied upon,
and

(B)

a statement, consisting of short numbered paragraphs, of
any additional facts that require denial of summary
judgment, including references to the affidavits, parts of
the record, and other supporting materials relied upon.

L.R. 56.1(b).
The district court may require strict compliance with Local Rule 56.1, even
though the plaintiff is proceeding pro se. See Ammons v. Aramark Uniform Servs.,
Inc., 368 F.3d 809, 817 (7th Cir. 2004); see also Bordelon v. Chi. Sch. Reform Bd. of
Trs., 233 F.3d 524, 527 (7th Cir. 2000) (strict compliance with the local rules
governing summary judgment is upheld given the importance of local rules that
structure the summary judgment process); Members v. Paige, 140 F.3d 699, 702 (7th
Cir. 1998) (“[R]ules apply to uncounseled litigants and must be enforced.”) United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs,
hunting for truffles buried in briefs.”). But despite being given notice, Stevenson
failed to adequately respond to many of Defendants’ Rule 56.1 statement of facts.
(See Pl.’s Resp. to Defs.’ L.R. 56.1 Statement of Material Facts [Doc. No. 156].)
Because Stevenson is proceeding pro se, the Court will consider the factual
assertions he makes in his statement of facts brought to support his motion for
partial summary judgment as well as those he makes in response to Defendants’
Local Rule 56.1 Statement of Material Facts, but only to the extent that they are
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adequately supported by reference to the record as required, or to the extent that
Stevenson could properly testify about the matters at trial – that is, only with
respect to those facts within his personal knowledge. See Fed. R. Evid. 602.
II.

FACTS
The following facts are taken from Defendants’ Rule 56.1 statement, from the

record attached to Defendants Rule 56.1 statement, from Stevenson’s response to
Defendant’s motion for summary judgment to the extent that the facts are within
his personal knowledge, and from the statement of facts Stevenson submitted with
his own Motion for partial summary judgment. In this suit, Stevenson alleges that
on June 25, 2007, he suffered an injury to his back when he was working in the
kitchen in the Cook County Jail in Division 11. (Defs.’ L.R. 56.1 ¶ 6, Plaintiff’s Dep.
at 7-8, 13, 15-17.)2 Stevenson claims that he injured his back after the Aramark

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Plaintiff’s deposition transcript is attached to Defendants’ Local Rule 56.1
statement [Doc. No. 127] submitted with their prior motion for summary judgment [Doc.
No. 126]. Additionally, Plaintiff has filed a motion to strike, attempting to discount any of
Defendants’ statements of fact relying on Plaintiff’s deposition testimony, noting that he
“reserved signature” and wanted to review the accuracy of the transcript of the deposition.
Plaintiff suggests that the Court should not rely on the transcript in deciding the subject
motion; however, he has not specified any inaccuracy in the transcript and the Court has
no other cause to doubt its accuracy. Plaintiff's testimony was sworn, and the court
reporter attested to the accuracy of the transcript. Therefore, the transcript appears to
comport with Federal Rule of Civil Procedure 30. In any event, a party cannot create
questions of fact and/or credibility by belatedly issuing contradictory statements that
ameliorate or contradict prior sworn statements, at least not without further support in the
record. See Jones v. Moore, No. 03-56-CJP, 2006 U.S. Dist. LEXIS 19611, at *9 n.2, (S.D.
Ill. March 25, 2006) (citing Darnell v. Target, 16 F.3d 174, 176-77 (7th Cir. 1994)). Further,
Plaintiff cites to his deposition testimony himself, seemingly waiving any argument he
might have with respect to its accuracy.

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Food Service supervisor requested him to pick up deep dish pans and stack the
serving lines. (Defs’ L.R. 56.1 ¶ 8, Pl.’s Dep. at 17.)
The Cook County Jail established a grievance procedure that was available
to all inmates, including Plaintiff, in June 2007. (Defs.’ L.R. 56.1 ¶ 42, Defs.’ Ex. D,
John Mueller, CCJ Program Services, Aff. at 1; Pl.’s Ex. F.) Stevenson filed a total
of four grievances related to the incident on June 25, 2007. (Defs.’ L.R. 56.1 ¶ 43;
Pl.’s Compl. ¶ 27; Pl.’s Ex. F; Pl.’s Dep. at 36-43, 59, 60, 116-20.) All four grievances
expressed Stevenson’s concern that he had not yet received back surgery and the
grievances specifically requested “corrective back surgery.” (Defs.’ L.R. 56.1 ¶ 43,
Pl.’s Dep. at 38.)
Stevenson acknowledges he received responses to each one of his grievances.
(Defs.’ L.R. 56.1 ¶ 44, Pl.’s Dep. at 38, 60, 117-20.) Stevenson was not satisfied with
the responses because they did not provide him with the surgery he requested.
(Defs.’ L.R. 56.1 ¶ 45, Pl.’s Dep. at 36-43, 59, 60, 117-20.) Stevenson did not appeal
any of the four grievances he filed despite the grievance clearly stating on the
second-page of the form and directly below his signature denoting receipt:
“APPEALS MUST BE MADE WITHIN 14 DAYS OF THE DATE THE DETAINEE
RECEIVED THE RESPONSE.” (Defs.’ L.R. 56.1 ¶ 46, Pl.’s Dep. at 117-20; Pl.’s Ex.
F.)3 According to the Cook County Jail’s detainee grievance policies, a detainee is

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While Plaintiff admits in response to Defendants’ L.R. statement of fact 46 that he
failed to appeal three of the four grievances attempting to deny a failure to appeal the
fourth grievance, he fails to cite to the record in support of his partial denial. Local Rule
56.1(b)(3)(B) requires for any statement that the non-moving party is attempting to contest

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required to properly exhaust all departmental remedies before filing a related
lawsuit. (Defs.’ L.R. 56.1 ¶ 47, Ex. D, Aff. of John Mueller at 1.)4 The proper
exhaustion of all administrative remedies includes filing an appeal contesting the
“grievance response” before filing a related lawsuit. (Id.) Plaintiff is an experienced
litigator, having previously been a litigant in eighteen civil rights lawsuits, most, if
not all, directed at State and County Correctional personnel. (Defs.’ L.R. 56.1 ¶ 1.)
III.

ANALYSIS
A.

Stevenson Failed to Exhaust his Administrative Remedies

The Court cannot entertain Stevenson’s deliberate indifference claim because
Defendants have demonstrated that he failed to exhaust administrative remedies
prior to bringing suit. The Prison Litigation Reform Act of 1996 contains a
comprehensive administrative exhaustion requirement. Under that statute, “[n]o
action shall be brought with respect to prison conditions . . . by a prisoner . . . until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a);
see also Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); Booth v. Churner,
531 U.S. 956 (2001). “[I]f a prison has an internal administrative grievance system
through which a prisoner can seek to correct a problem, then the prisoner must
that the statement be accompanied by some citation to the record or other supporting
material, supporting the denial of the proposed uncontested fact. The Court may require
strict compliance with the Local Rule, which this Court does. See Yancick v. Hanna Steel
Corp, No. 10 C 1368, 2011 U.S. App. LEXIS 15896, at *7-8 (7th Cir. Aug. 3, 2011) (citing
Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010)). Defendants’
L.R. Statement of Fact 46 is deemed admitted in its entirety.
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Plaintiff has also failed to cite to the record in his attempt to deny Defendants’ L.R.
56.1 statement of fact 47. Consequently, it is deemed admitted.

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utilize that administrative system before filing a claim under Section 1983.” Massey
v. Helman, 196 F.3d 727, 733 (7th Cir. 1999); Smith v. Zachary, 255 F.3d 446, 450
(7th Cir. 2001).
An inmate must comply with the rules established by the State [or, in this
case, county] with respect to the form and timeliness of grievances. Pozo v.
McCaughtry, 286 F.3d 1022, 1023-25 (7th Cir. 2002) (barring a prisoner from
pursuing relief in federal court where he failed to avail himself of the
administrative grievance process in a timely manner). In order to exhaust, a
prisoner “must take all steps prescribed by the prison’s grievance system.” Ford v.
Johnson, 362 F.3d 395, 397 (7th Cir. 2001).
Stevenson alleges in this suit that on June 25, 2007, while working in the
kitchen at the Cook County Jail, he injured his back. (Defs.’ L.R. 56.1 ¶¶ 6, 8.) After
he was injured, Stevenson submitted four grievances regarding the incident, and
the resulting need for healthcare. (Defs.’ L.R. 56.1 ¶ 43.) While Stevenson received
responses to these grievances, he did not appeal any of them. (Defs.’ L.R. 56.1 ¶¶
44, 45.)
Plaintiff has admitted that the Cook County Jail had a grievance procedure
in place in 2007, but attempts to dispute the fact that it was available to him.
(Defs.’ L.R. 56.1 ¶ 42; Pl.’s Resp. to Defs.’ L.R. 56.1 ¶ 42.) However, a prisoner’s lack
of awareness of a grievance procedure, does not excuse compliance. Twitty v.
McCoskey, 226 Fed. Appx. 594, 596 (7th Cir. 2007) (citing Chelette v. Harris, 229

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F.3d 684, 688 (8th Cir. 2000)) (noting that 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.”); see also
Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001) (finding that assistant
attorney general responding to prisoner’s informal complaint had no duty to inform
prisoner of prison’s formal grievance procedures).
Furthermore, there is no suggestion here of any affirmative misconduct on
the part of the jail to prevent Stevenson from learning about and pursuing the
grievance procedure. See Dole v. Chandler, 438 F.3d 804, 809. As such, he bore the
responsibility of taking the appropriate steps to comply with the proper procedure.
See Yousef, 254 F.3d at 1221; Chelette, 229 F.3d at 688.
As further evidence that Stevenson knew of and understood the grievance
policy, he includes in his submissions copies of the grievances he submitted at the
time, and admits that he submitted four grievances regarding his alleged injuries.
(Pl.’s Ex. F; Defs.’ L.R. 56.1 ¶ 43.) The Court finds that no reasonable trier of fact
could determine that the grievance process was unavailable to Plaintiff at the time
of his alleged injury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Additionally, Stevenson is a frequent and experienced litigator, having
brought no fewer than eighteen civil rights suits against state and county
correctional employees, since 1993. (Defs.’ L.R. 56.1 ¶ 1.) The front of the Cook

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County Jail grievance form includes a section for appeals and the language:
“APPEALS MUST BE MADE WITHIN 14 DAYS OF THE DATE THE DETAINEE
RECEIVED THE RESPONSE.” (Defs.’ L.R. 56.1 ¶ 46.) It is undisputed that
Stevenson failed to appeal the four grievances that he submitted regarding his
injuries and subsequent medical care, prior to filing suit. (Defs.’ L.R. 56.1 ¶¶ 44-45.)
It is also undisputed that a detainee at the Cook County Jail is required to properly
exhaust all departmental remedies before filing a related lawsuit. (Defs.’ L.R. 56.1 ¶
47.)
To satisfy the PLRA's exhaustion requirement, “a prisoner must file
complaints and appeals in the place, and at the time, the prison's administrative
rules require.” Pozo, 286 F.3d at 1025 (7th Cir. 2002). “[A] suit filed by a prisoner
before administrative remedies have been exhausted must be dismissed; the district
court lacks discretion to resolve the claim on the merits, even if the prisoner
exhausts intraprison remedies. Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th
Cir. 1999); see also Ford, 362 F.3d at 398. Stevenson did not exhaust his
administrative remedies prior to filing suit for two reasons. First, he admits to
failing to appeal three of his four grievances and, with respect to the fourth, he does
not provide adequate evidence of the appeal. Instead he generally refers to
complaints he made to a Lieutenant Mayweather with respect to the response that
he got to the grievances, but all of the appeals sections of the grievance forms are
blank, (see Pl.’s Ex. F), and the unchallenged affidavit of John Mueller indicates
that there is no record of Plaintiff filing an appeal to any of his grievances, (see
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Defs.’ Ex. E). Second, the Court must accept as admitted Defendants’ L.R. 56.1
paragraphs 46 and 47, which state that Plaintiff did not appeal his grievances,
because Plaintiff’s responses did not adequately cite to the record in support of his
denials to those paragraphs.
As the evidence is clear that Stevenson did not fully exhaust his
administrative remedies prior to filing suit, summary judgment is granted in favor
of Defendants. Furthermore, because it is now too late for Stevenson to avail
himself of grievance procedures, dismissal of that claim is with prejudice. See, e.g.,
Pozo, 286 F.3d at 1023-24; Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002); Hope v. Velasco, No. 01 C 1574, 2004 WL 417198, at *4 (N.D. Ill. Feb. 23,
2004).
B.

Plaintiff’s Motions

Plaintiff filed a motion for partial summary judgment [Doc. No. 77], a motion
to strike Defendants’ L.R. 56.1 statement of facts [Doc. No. 154], a motion for
appointment of counsel [Doc. No. 150], and a motion for the Court to take judicial
notice of a U.S. Justice Department Report regarding the quality of medical care
provided to detainees at the Cook County Jail [Doc. No. 160]. Plaintiff’s motion for
partial summary judgment contends that there is no material question of fact that
Defendants were deliberately indifferent to his serious medical needs. But because
Plaintiff did not exhaust his administrative remedies prior to filing suit, this Court
cannot rule on his substantive claim. See 42 U.S.C. § 1997e(a); see also Massey v.

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Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); Booth v. Churner, 531 U.S. 956
(2001).
With regard to Plaintiff’s motion to strike Defendants’ L.R. 56.1 statement of
facts, Plaintiff is correct that some of the statements include multiple statements of
fact within a single numbered paragraph. However, the errors did not render the
statements somehow incomprehensible or unwieldy, and the Court declines to
strike those statements. As for Plaintiff’s concerns regarding use of his medical
prescriptions and history, that material was not considered by the Court because
Defendants’ motion was decided solely on the issue of exhaustion. Plaintiff also
attacks Defendants’ documents with regard to proper foundation. Rule 56 requires
merely that Defendants make proper citation to the record, which they have done.
Consequently, the Court determines that this and the rest of Plaintiff’s contentions
are merely argumentative and declines to strike Defendants L.R. 56.1 statement of
facts. Plaintiff’s motion for the Court to take judicial notice of the U.S. Justice
Department Report regarding quality of medical care provided to prisoners at the
Cook County Jail is denied as moot, because the motion for summary judgment was
decided solely on the issue of exhaustion. Plaintiff’s motion for appointment of
counsel is denied as moot.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment [Doc.
No. 140] is granted. Defendants’ motion to strike Stevenson’s response to their L.R.
56.1 statement of facts [Doc. No. 161] is granted in part and denied in part.
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Stevenson’s motions for partial summary judgment [Doc. No. 77], motion to strike
Defendants’ L.R. 56.1 statement of facts [Doc. No. 154], motion for appointment of
counsel [Doc. No. 150], and motion for the Court to take judicial notice of a U.S.
Justice Department Report regarding the quality of medical care provided to
detainees at the Cook County Jail [Doc. No. 160] are denied.

SO ORDERED.

ENTERED:

DATE: ___March 22, 2012___

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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