Johnson v. Visvardis

Filing 34

Memorandum Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 4/3/2012:Mailed notice(keg, )

IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EDWARD JOHNSON (R-11484),
Plaintiff,
v.
OFFICER VISVARDIS
Defendant.

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Case No. 11 C 239
Judge Sharon J. Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Richard Johnson (“Plaintiff”) initiated this suit in January 2011 while he was
incarcerated at the Cook County Jail. He is currently an inmate at the Western Illinois Correctional
Center. Plaintiff alleges that Cook County Jail Officer Visvardis (“Defendant”) used excessive force
against him on November 29, 2010. According to Plaintiff, he was in the dayroom of the jail when a
fight occurred; officers stopped the fight, and instructed inmates to lie on the floor with their arms
outstretched, which Plaintiff did. While walking among the inmates, Visvardis stepped on Plaintiff’s arm
and kicked his left eye.
Currently before the court is Defendant’s motion for summary judgment, wherein he argues that
Plaintiff failed to exhaust administrative remedies before bringing this suit. Plaintiff has responded, and
Defendant has replied. For the reasons that follow, the court grants the motion.
LOCAL AND FEDERAL RULES FOR SUMMARY JUDGMENT
A “court shall grant summary judgment 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);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211
F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine issue of material fact, a court

construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences
in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When addressing a
motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
If the moving party meets its burden, the nonmoving party has the burden “to go beyond the
pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of
material fact.” Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and
citations omitted); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by
the mere existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247,
or by “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if a reasonable
finder of fact could return a decision for the nonmoving party based upon the record. See Anderson, 477
U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596 (7th Cir. 2000). Whether an inmate exhausted
administrative remedies is an issue for a court, as opposed to a jury; and the court must resolve factual
issues relating to exhaustion. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
When addressing summary judgment motions, background facts are derived from the parties’
Local Rule 56.1 Statements, which assist the court by “organizing the evidence, identifying undisputed
facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible
evidence.” Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000); see also
N.D. Ill. Local Rule 56.1. Because Plaintiff is proceeding pro se, Defendant served him with a “Notice
to Pro Se Litigant Opposing Motion for Summary Judgment” as required by N.D. Ill. Local Rule 56.2.
The notice explains the consequences of failing to properly respond to a motion for summary judgment
and to a statement of material facts under Fed. R. Civ. P. 56(e) and Local Rule 56.1. (R. 23.) A

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plaintiff’s failure to respond to Rule 56.1 statements, even a plaintiff proceeding pro se, results in those
statements being considered true. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006).
Plaintiff filed a response to Defendant’s motion for summary judgment, (R. 28); however, he
filed no response to Defendant’s Rule 56.1 Statement. The Court may thus consider Defendant’s Rule
56.1 statements to be true. See Raymond, 442 F.3d at 608.
FACTS
On November 29, 2010, Plaintiff was a pretrial detainee at the Cook County Jail. (R. 24, Def’s
SOF ¶ 2.) At 3:00 a.m., Plaintiff, along with 50 other detainees, were in the dayroom waiting for
breakfast. (Id. at ¶ 3.) About ten feet from Plaintiff, a fight broke out involving approximately 20
detainees. (Id. at ¶ 4.) Officers arrived in response to an emergency call and directed all pretrial
detainees to lie on the floor with their palms out. (Id. at ¶¶ 6-7.) Plaintiff complied, but an officer
(Defendant) walking by him told him “palms out.” (Id. at ¶ 7.) When Plaintiff replied that his palms
were out, Defendant told Plaintiff to face his hands downward. Defendant then stepped on his arm, at
which time Plaintiff turned his palms. Defendant then kicked Plaintiff in the eye, possibly as an
accident. (Id. at ¶¶ 12-13.) Plaintiff immediately stood up and informed a sergeant. (Id. at ¶ 15.) While
he spoke to the sergeant, Defendant stood next to Plaintiff but said and did nothing. (Id. at ¶ 16.)
Plaintiff was taken to Cermak for treatment, where he received eye drops and an ice pack for his eye,
as well as an ice pack for his arm. (Id. at ¶¶ 17-18.)
After he received treatment, he gave a statement on a videotape about the incident. (R. 24-2, Pl’s
Depo. at 45.) Several days later, Plaintiff submitted a complaint form to Internal Affairs, and Plaintiff
gave another verbal statement to someone from Internal Affairs. (Id. at 47.)
Plaintiff did not file a grievance about the incident. (R. 24, Def’s SOF ¶ 19.) In lieu of writing
a grievance, he prepared the instant suit. (Id. at ¶ 20; see also Complaint at 1, 6 (the complaint is signed

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12/22/10 and was received on 1/13/11.) Not until January 31, 2011, did Plaintiff submit a grievance that
mentioned the November 29, 2010, incident. That grievance requested that he visit an eye doctor or
other medical care provider at Cermak about Plaintiff’s vision. (Def’s SOF ¶ 21.)
According to John Mueller, Assistant Administrator of Program Services for the Cook County
Jail, Detainee Grievance Procedures were available to pretrial detainees in 2010 and 2011. (R. 24-3,
Affidavit of John Mueller ¶ 4.) Although Mueller does not explain what procedures must be followed,
he states that Plaintiff did not file a grievance about the November 29, 2010, incident, and that not until
January 31, 2011, did Plaintiff file a grievance seeking medical attention for his eye. (Id. at ¶¶ 6, 8.)
Plaintiff does not dispute the above-stated facts, but instead, states that he was unaware of the
grievance procedures and that he was in and out of the jail on a work-release program during that time.
(R. 28, Pl’s Resp. at 2.)
ANALYSIS
The Prisoner Litigation Reform Act requires that, “[n]o action shall be brought with respect to
prison conditions under section 1983 ... or any other federal law, until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Under § 1997e, no prisoner “is entitled to judicial
relief for a supposed or threatened injury until the prescribed administrative remedy has been
exhausted.” Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). Even if the prisoner is seeking judicial relief
that was unavailable in the administrative system, he must still exhaust available administrative
remedies. Dole v. Chandler, 438 F.3d 804, 808-09 (7th Cir. 2006).
Exhaustion of available administrative remedies “‘means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits).’” Woodford, 548 U.S.
at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Proper use of a jail’s
grievance system requires an inmate “to file complaints and appeals in the place, and at the time [as] the

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prison's administrative rules require.” Pozo, 286 F.3d at 1025; Dole v. Chandler, 438 F.3d at 809; see
also Woodford, 548 U.S. at 90.
It is not clear from the materials Defendant presents exactly what steps a Cook County Jail
pretrial detainee must take to exhaust the jail’s administrative remedies. Defendant demonstrates that
Cook County Jail “had established grievance procedures” (R. 25, Memorandum in Support of Summary
Judgment Motion at 3), and that “[d]etainees are required to file a grievance.” (R. 124-3, Mueller Aff.
at ¶ 5). Nonetheless, it is clear and undisputed that Plaintiff filed no grievance about Defendant’s
conduct prior to filing suit. At his deposition, when asked, “You never filled out a detainee grievance
about this incident, you just filed a federal lawsuit, correct,” Plaintiff responded, “Right, Correct.” (R.
24-2, Pl’s Depo. at 55.) His response to the summary judgment motion further clarifies that he never
filed a grievance about the November 29, 2010, incident, and that the only grievance he filed relating
at all to the incident was his January 31, 2011, grievance seeking medical attention for his eye, which
was filed several weeks after this court received his complaint. (R. 28.) “[C]hoos[ing] to forego the
grievance procedure in favor of [a] lawsuit . . . is precisely what the PLRA seeks to prevent.” Canady
v. Davis, No. 07 C 5028, 2009 WL 1177081, *4 (N.D. Ill. April 29, 2009) (Kennelly, J.), vacated and
remanded on other grounds 376 F.3d 625 (7th Cir. 2010).
The summary judgment record thus demonstrates that grievance procedures were available to
Plaintiff, (R. 24-3, Mueller Aff. ¶ 4); that he filed one several weeks after he initiated this suit; but that
he never filed a grievance about the November 29, 2010, incident before initiating this suit.
Accordingly, Plaintiff did not exhaust administrative remedies,1 and Defendant is correct that this case
1

Although Plaintiff did not file a grievance about the November 29, 2010, incident, he did
file a complaint with Internal Affairs, which videotaped his interview about the incident. (R. 24-2,
Pl’s Depo. at 46-49.) Neither Plaintiff nor Defendant addresses whether an Internal Affairs
(continued...)
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must be dismissed. The dismissal is without prejudice. Burrell v. Powers, 431 F.3d 282, 285 (7th Cir.
2005) (dismissal should be without prejudice to [the plaintiff]’s initiating another action if he deems it
appropriate after he has exhausted administrative remedies”).
CONCLUSION
Defendant’s motion for summary judgment [22] is granted. This case is dismissed without
prejudice to Plaintiff filing another action if he is able to exhaust administrative remedies. This case is
terminated.

ENTER: ____________________________
Sharon J. Coleman
United States District Court Judge
DATE: April 3, 2012

1

(...continued)
complaint constitutes exhaustion of administrative remedies. Nevertheless, this court has held that
an “internal affairs complaint and efforts to pursue criminal charges . . . are outside of the grievance
procedure provided for Cook County inmates, and do not indicate that [an inmate] exhausted his
administrative remedies.” Calhoun v. Myatt, No. 09 C 4238, 2011 WL 3796888, *3 (N.D. Ill. Aug.
24, 2011) (Manning, J.).
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