Gee v. Dart
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 10/19/2017:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Centrell Gee (R-24227),
Case No. 16 C 3061
Judge Amy J. St. Eve
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiff Centrell Gee, now a prisoner at Lawrence Correctional Center, filed this pro se
civil rights action pursuant to 42 U.S.C. § 1983, alleging that he was subjected to unconstitutional
conditions of confinement in Division 1 of the Cook County Jail from November 2014 to March
2015. Defendant Cook County Sheriff Tom Dart moves for summary judgment, arguing that
Plaintiff failed to exhaust his administrative remedies and that his claim fails on the merits. For
the following reasons, the Court grants Defendant’s motion as to the failure to exhaust, and as such
need not address Defendant’s argument as to the merits of Plaintiff’s claim.
Northern District of Illinois Local Rule 56.1
Because Plaintiff is proceeding pro se, Defendant served him with a Local Rule 56.2
“Notice to Pro Se Litigant Opposing Motion for Summary Judgment,” as required by Northern
District of Illinois Local Rule 56.2. (Dkt. No. 48.) That notice explains how to respond to a motion
for summary judgment, and in particular how to respond to a statement of facts. It also explains
that failure to comply with Fed. R. Civ. P. 56 and Local Rule 56.1 will result in the Court assuming
the truth of the Defendant’s factual assertions. (See id.)
Local Rule 56.1 “is designed, in part, to aid the district court, ‘which does not have the
advantage of the parties’ familiarity with the record and often cannot afford to spend the time
combing the record to locate the relevant information,’ in determining whether a trial is necessary.”
Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (internal citation omitted). Local Rule
56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the
moving party contends there is no genuine issue and that entitles the moving party to judgment as
a matter of law.” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citing N.D. Ill.
R. 56.1(a)(3)). “The opposing party is required to file ‘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.’” Id. (citing N.D. Ill. R.
56.1(b)(3)(B)). The non-moving party also may submit his own statements of facts, to which the
moving party must similarly reply. N.D. Ill. R. 56.1(b)(3)(C). The Court may consider true a
moving party’s Rule 56.1 factual statement that is supported by the record and that is not properly
addressed by the opposing party. See id. (“All material facts set forth in the statement required of
the moving party will be deemed to be admitted unless controverted by the statement of the
opposing party.”). The same rule applies for facts submitted by a non-moving party that are not
contested or responded to by the moving party. See Koursa, Inc. v. manroland, Inc., 971 F. Supp.
2d 765, 770-71 (N.D. Ill. 2013) (citing N.D. Ill. R. 56.1(a) (providing that if additional facts are
submitted by the opposing party, the movant may submit a concise reply, and the failure to do so
will result in the additional facts being deemed admitted).
Generally, the purpose of Local Rule 56.1 statements and responses is to identify the
relevant admissible evidence supporting the material facts, not to make factual or legal arguments.
See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (holding that pro se plaintiff’s statement
of material facts did not comply with Rule 56.1 as it “failed to adequately cite the record and was
filled with irrelevant information, legal arguments, and conjecture.”). “When a responding party’s
statement fails to dispute the facts set forth in the moving party’s statement in the manner dictated
by the rule, those facts are deemed admitted for purposes of the motion.” Cracco, 559 F.3d at 632;
see also Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 513 (7th Cir. 2013).
A district court may insist on strict compliance with its local rules regarding summary
judgment. Metropolitan Life Ins. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). Although Plaintiff
is pro se, he was nonetheless obligated to comply with Local Rule 56.1. See Cady, 467 F.3d at
1061 (“even pro se litigants must follow rules of civil procedure”). Defendant submitted a
Statement of Material Facts in accordance with Local Rule 56.1. (Dkt. 46.) Plaintiff has not
responded to Defendant’s 56.1 factual statements, and thus the Court will consider them true to
the extent they are supported by the record. See Keeton v. Morningstar, Inc., 667 F.3d 880, 884
(7th Cir. 2012).
Plaintiff has submitted a Statement of Additional Material Facts to which Defendant has
responded. (See Dkt. Nos. 64, 73.) Most of Plaintiff’s facts are not supported by citations to the
record, and many consist of legal argument. Nevertheless, because Plaintiff is proceeding pro se,
the Court will consider the factual assertions in his summary judgment materials about which he
would be able to competently testify at a trial. See Fed. R. Evid. 602; Williams v. Saffold, No. 15
C 3465, 2016 WL 1660527, at *1 (N.D. Ill. Apr. 27, 2016); Hill v. Officer Phillips, No. 12 C 9404,
2014 WL 626966, at *1 (N.D. Ill. Feb. 18, 2014). The Court observes, however, that the facts as
to exhaustion are really not in dispute. Rather, the parties dispute whether exhaustion was required.
With these standards in mind, the Court turns to the facts of this case.
This lawsuit arises from Plaintiff’s allegations that he was subjected to unconstitutional
conditions of confinement in Division 1, Tier A2 of the Cook County Jail, where he was housed
from November 24, 2014, to sometime in March 2015. (Def.’s Stmt. (Dkt. No. 46) at ¶¶ 4, 5.)
Plaintiff alleges conditions including mice in his cell, a lack of hot water in his cell and in the
shower, mold in the shower that caused a rash, broken windows, and a leaking toilet. (Id. at ¶¶ 520). The parties disagree about the severity of these conditions and Defendant’s responsibility for
creating them or allowing them to persist. As noted above, however, the Court declines to address
the merits of the dispute.
Regarding exhaustion, Plaintiff did not file a grievance about the conditions in his cell. (Id.
at ¶ 23.) Plaintiff acknowledged in his deposition testimony that he received an inmate handbook
upon entry to the Cook County Jail, and that he was aware of the grievance procedure at the jail.
(Id. at ¶ 22; see Pl.’s Dep., Dkt. No. 46-2, at 36:23-37:7.) Plaintiff described the procedure as
allowing detainees to submit complaints against officers for unjust conditions. (Id.) Plaintiff filed
a grievance about the location of the showers in the dayroom and the fact that detainees did not
have privacy while showering. (Id. at ¶ 23.) That was the only grievance he could recall filing.
(See Pl.’s Dep. at 37:24-38:2.) (Pl.’s Stmt. (Dkt. No. 64) at pg. 2, ¶ 1 under subheading
“Exhaustion.”) Plaintiff further states that Cook County Jail inmates have been filing grievances
since at least 2010 with no improvement in the conditions, although he again cites no evidence in
support of this statement. (Id. at pg. 3, ¶ 3.)
Plaintiff refers to a 2010 Department of Justice report describing conditions at the jail that
he states are similar to the conditions in his lawsuit. (Id.) He does not attach a copy of the report.
As Defendant surmises, this is likely a reference to a report created in advance of United States v.
Cook County, No. 10 C 2946, which resulted in the entry of a consent decree requiring Sheriff
Dart to implement remedial measures to ensure constitutional conditions of confinement at the jail.
The consent decree was terminated as to Sheriff Dart earlier this year after the Sheriff’s Office
demonstrated sustained compliance with its provisions. (See United States v. Cook County, No.
10 C 2946, at Dkt. Nos. 358, 361.)
Plaintiff also states that as of 2017, the Department of Justice released another report about
Cook County Jail inmates having been subjected to unconstitutional practices, and as a result
Division 1 was condemned. (Pl.’s Stmt. at pg. 3, ¶ 4 under subheading “Exhaustion.”) It is unclear,
however, to what report Plaintiff is referring, and he does not provide it. Plaintiff further questions
why he had to exhaust his administrative remedies at all given that there’s “an ongoing suit about
the conditions of Cook County Jail.” (Id. at ¶ 5.) It is unclear whether Plaintiff is referring to
United States v. Cook County or some other matter, and again, Plaintiff does not cite to any
evidence in the record in support of this assertion.
Summary judgment is appropriate when the record, viewed in the light most favorable to
the non-moving party, reveals that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Smith v. Hope
School, 560 F.3d 694, 699 (7th Cir. 2009). A genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599
(7th Cir. 2000) (“The existence of a mere scintilla of evidence supporting a plaintiff’s position is
insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.”). In
ruling on a motion for summary judgment, the court must consider the record as a whole, in the
light most favorable to the non-moving party, and draw all reasonable inferences in favor of the
non-moving party. Anderson, 477 U.S. at 255.
The party seeking summary judgment has the initial burden of showing that there is no
genuine dispute and that he is entitled to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010). If the moving party demonstrates the absence of a
disputed issue of material fact, “the burden shifts to the non-moving party to provide evidence of
specific facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012).
The non-movant must go beyond the pleadings and “set forth specific facts showing there is a
genuine issue for trial.” Hannemann v. Southern Door County School Dist., 673 F.3d 746, 751 (7th
Pursuant to the Prison Litigation Reform Act (“PLRA”), inmates who bring civil rights
suits must first exhaust their administrative remedies within the correctional system. 42 U.S.C. §
1997e(a) (“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.”). Exhaustion is required
even where a suit seeks only money damages and the grievance procedure does not permit the
award of such damages, provided that “some action” can be taken in response to the grievance.
Booth v. Churner, 532 U.S. 731, 736-37 (2001); see Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006) (if correctional officials have the ability to take some action in response to the complaint
(even if it is not the remedy requested by the inmate) the administrative process is available for
the purposes of the PLRA).
To fulfill the exhaustion requirement, an inmate must comply with the procedures and
deadlines established by the jail’s policy. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016);
see Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011) (in order to properly exhaust his remedies,
an “inmate must file a timely grievance utilizing the procedures and rules” of the facility’s
grievance process). The exhaustion of remedies is a precondition to filing suit; a prisoner’s attempt
to exhaust his administrative remedies after filing suit is insufficient. Ford v. Johnson, 362 F.3d
395, 398 (7th Cir. 2004). The Seventh Circuit requires strict adherence to the exhaustion
requirement. Dole, 438 F.3d at 809. “[U]nless the prisoner completes the administrative process
by following rules the state has established for that process, exhaustion has not occurred.” Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
“Unexhausted claims are procedurally
barred from consideration.” Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016).
Because exhaustion is mandatory, the Supreme Court has held that judge-made exceptions
to the requirement are impermissible, even in circumstances where the prisoner makes a reasonable
mistake about grievance procedures. Ross v. Blake, 136 S.Ct. 1850, 1857 (2016) (“[M]andatory
exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial
discretion.”). Under the plain language of the statute, however, prisoners must exhaust only those
administrative remedies that are “available.” Id. at 1858; see 42 U.S.C. 1997e(a). Additionally,
the failure to exhaust available remedies is an affirmative defense, and the defendant bears the
burden of proving such a failure. See Dole, 438 F.3d at 809; Dale v. Lappin, 376 F.3d 652, 655
(7th Cir. 2004).
In addition, the Supreme Court has recognized three circumstances in which an
administrative remedy may be unavailable: (1) when it operates as a “simple dead end – with
officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the
administrative exhaustion scheme is so opaque that the procedure is essentially “unknowable,” so
that “no ordinary prisoner can discern or navigate it”; and (3) when correctional officials thwart
inmates from using the grievance process “through machination, misrepresentation, or
intimidation.” Ross, 136 S.Ct. at 1859-1860.
Both Plaintiff and Defendant agree that Plaintiff did not file a grievance about the
conditions in his cell. They also agree that Plaintiff had received a copy of the jail’s inmate
handbook, which outlines the grievance procedure, and that he had used the grievance process to
complain about another matter – the lack of privacy in the shower. There is no dispute then, that
the Cook County Jail had an established grievance procedure at the time of Plaintiff’s detention,
and that Plaintiff was aware of it, but did not use it to complain about the conditions at issue in this
Plaintiff does not argue that the grievance process was too confusing to navigate, nor would
such an argument be persuasive given that he acknowledges having used the procedure in relation
to the shower privacy complaint. Nor does he argue that correctional officials took any actions to
prevent him from filing a grievance. Plaintiff seems to argue that the grievance process was
unavailable because it would have resulted in a dead end. His contention is that detainees at the
jail have been filing grievances since 2010, but that conditions have remained the same. Plaintiff,
however, cites no evidence that jail conditions have remained unchanged since 2010, and no
evidence about the outcome of grievances in general. In describing an administrative procedure
that results in a dead end, the Supreme Court has given as examples circumstances in which the
inmate handbook directs grievances to be submitted to a particular office, “but in practice that
office disclaims the capacity to consider those petitions,” or in which correctional officials have
authority to address grievances, “but decline ever to exercise it.” Ross, 136 S.Ct. at 1859. Plaintiff
may have believed that submitting a grievance would be ineffective to address his complaints, but
this subjective belief falls well short of evidence that the jail’s grievance process was actually
unavailable. See Twitty v. McCoskey, 226 Fed. App’x 594, 596 (7th Cir. 2007) (“As the Eighth
Circuit has observed, 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.’”)
(quoting Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000)).
Additionally, Plaintiff’s speculation that his complaints would not have been remedied
even if he had filed a grievance “confuses the ‘effectiveness’ an administrative procedure with the
‘availability’ of one.” Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999). In rejecting a
prisoner’s argument that the administrative remedy process was unavailable because there was no
procedure that could provide him money damages – the only relief he sought – the Seventh Circuit
Court of Appeals observed:
[W]hether the administrative process actually produces a result that satisfies the
inmate is not the appropriate inquiry. Instead, courts merely need to ask whether
the institution has an internal administrative grievance procedure by which
prisoners can lodge complaints about prison conditions. If such an administrative
process is in place, then § 1997e(a) requires inmates to exhaust those procedures
before bringing a prison conditions claim.
Id. at 733-34. The same is true in this case. Even if Plaintiff believed the response to his grievance
would have been unsatisfactory, he was obligated to try. See Perez v. Wisconsin Dep’t of Corr.,
182 F.3d 532, 536-37 (7th Cir. 1999) (rejecting prisoner’s argument that filing a grievance would
have been futile because he was not able to obtain changes to his medical care during the pendency
of his lawsuit, and observing, “No one can know whether administrative requests will be futile; the
only way to find out is to try.”) (emphasis in original). “A prisoner who voluntarily bypasses an
available grievance procedure for any reason has not exhausted his administrative remedies.”
Coleman v. Ilderton, No. 3:05-CV-459 RM, 2006 WL 572195, at *1 (N.D. Ind. Mar. 6, 2006).
Plaintiff further indicates that the exhaustion requirement should not apply to his lawsuit
because Defendant was aware of the complained-of conditions due to an ongoing lawsuit. But he
neither identifies that lawsuit nor cites any case law supporting the proposition that lawsuits about
similar jail conditions can excuse the filing of a grievance. Nor is the Court aware of any. To
allow such an exception would conflict with the Supreme Court’s admonition that aside from the
requirement that a remedy be available, “the PLRA’s text suggests no limits on an inmate’s
obligation to exhaust.” Ross, 136 S.Ct. at 1856. Because Defendant has established that Plaintiff
failed to exhaust an available grievance procedure prior to filing this lawsuit, his motion for
summary judgment is granted.
Dismissals under § 1997e(a) are always without prejudice. Ford, 362 F.3d at 400-01. Such
a dismissal, however, is final and appealable when the statute of limitations would block a new
lawsuit, or when the facility’s grievance procedure would bar any attempt to cure the failure to
exhaust. Id.; see also Hill v. Snyder, 817 F.3d 1037, 1040 (7th Cir. 2016). Both of those
circumstances likely apply in the instant case, so this dismissal is final and appealable.
If Plaintiff wishes to appeal, he must file a notice of appeal with the Court within thirty
days of the entry of judgment. See Fed. R. App. P. 4(a)(1). If Plaintiff appeals, he will be liable
for the $505.00 appellate filing fee regardless of the appeal’s outcome. See Evans v. Ill. Dep’t of
Corr., 150 F.3d 810, 812 (7th Cir. 1998). If the appeal is found to be non-meritorious, Plaintiff
could be assessed a “strike” under 28 U.S.C. § 1915(g). If a prisoner accumulates three “strikes”
because three federal cases or appeals have been dismissed as frivolous or malicious, or for failure
to state a claim, the prisoner may not file suit in federal court without pre-paying the filing fee
unless he is in imminent danger of serious physical injury. Ibid. If Plaintiff seeks leave to proceed
in forma pauperis on appeal, he must file a motion for leave to proceed in forma pauperis in the
Court. See Fed. R. App. P. 24(a)(1).
Plaintiff need not bring a motion to reconsider the Court’s ruling to preserve his appellate
rights. However, if Plaintiff wishes the Court to reconsider its judgment, he may file a motion
under Federal Rule of Civil Procedure 59(e) or 60(b). He must file any Rule 59(e) motion within
28 days of the entry of this judgment. See Fed. R. Civ. P. 59(e). The time to file a motion pursuant
to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion
suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R.
App. P. 4(a)(4)(A)(iv). He must file any Rule 60(b) motion within a reasonable time and, if
seeking relief under Rule 60(b)(1), (2), or (3), he must file it no more than one year after entry of
the judgment or order. See Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot
be extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an
appeal until the Rule 60(b) motion is ruled upon only if the motion is filed within 28 days of the
entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).
For the reasons stated herein, Defendant’s motion for summary judgment (Dkt. No. 45) is
granted. Final judgment will be entered.
Dated: October 19, 2017
AMY J. ST. EVE
United States District Judge
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