Von Ryburn v. Williams et al

Filing 65

MEMORANDUM Order: This memorandum order is issued sua sponte because of the problematic nature of the two asserted affirmative defenses ("Ads") that follow the answer of defendants Tarry Williams and Officer Perdomo. AD 1 is stricken. A s for AD 2, it asserts Ryburn's failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Defense counsel is given until July 30, 2015 to provide certain documentation, failing which AD 2 will be deemed to have been forfeited. Signed by the Honorable Milton I. Shadur on 7/9/2015:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THOMAS V. RYBURN,
Plaintiff,
v.
OFFICER WILLIAMS, etc., et al.,
Defendants.

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Case No. 14 C 4308

MEMORANDUM ORDER
Stateville Correctional Center Warden Tarry Williams and Officer Perdomo of the
Illinois Department of Corrections ("Department") have filed a joint answer to the First
Amended Complaint ("FAC") brought against them and other defendants by prisoner plaintiff
Thomas Ryburn ("Ryburn"). This memorandum order is issued sua sponte because of the
problematic nature of the two asserted affirmative defenses ("ADs") that follow the Answer
itself. 1
AD 1 advances a qualified immunity defense on the predicate that the two defendants
"acted in good faith and in furtherance of lawful objectives without violating Plaintiff's clearly
established statutorily constitutional rights of which a reasonable person would have known." 2
Apart from its unsuitability as an AD because it is at odds with Ryburn's allegations (see

1

This Court expresses no views as to the content of the Answer, including its extensive
use of Fed. R. Civ. P. ("Rule") 8(b)(5) disclaimers. Any issues that may exist in that respect are
left to the litigants to address.
2

From that assertion it would seem likely that defense counsel is referring to an "Officer
Williams" (also a defendant), but every paragraph of the Answer refers to the answering
"defendants" without differentiation. This Court must perforce take defense counsel at her word.

App'x ¶ 5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)), that
contention raises a factual dispute that can be resolved only through an evidentiary hearing -that is, at trial. And that being so, the prospect of sparing the officers from being sued and
having to defend this action -- the basic purposes of qualified immunity -- is simply not in the
cards. Accordingly AD 1 is stricken.
As for AD 2, it asserts Ryburn's failure to exhaust his administrative remedies as required
by 42 U.S.C. § 1997e(a). That too poses factual issues, normally dealt with in a so-called Pavey
hearing. But before this Court orders such an evidentiary hearing, defense counsel needs to flesh
out that contention by providing chapter-and-verse documentation (coupled with whatever brief
description may be needed for a full understanding) of the Department's records on that score.
Defense counsel is given until July 30, 2015 to do so, failing which AD 2 will be deemed to have
been forfeited.

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Milton I. Shadur
Senior United States District Judge
Date: July 9, 2015

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