Walker v. Rowland et al
Filing
27
ORDER granting 23 MOTION for Summary Judgment on Issue of Exhaustion filed by defendant Trevor M. Rowland and dismisses this case without prejudice. Signed by Judge Michael J. Reagan on 8/13/2013. (myz)
Walker v. Rowland et al
Doc. 27
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANELL WALKER,
Plaintiff,
vs.
TREVOR M. ROWLAND,
Defendant.
)
)
)
)
)
)
Case No.12-cv-0329-MJR-SCW
)
)
)
MEMORANDUM AND ORDER
REAGAN, District Judge:
A.
Introduction and Procedural Overview
Danell Walker (Plaintiff) brought this action under 42 U .S.C. § 1983, alleging
deprivations of his constitutional rights while incarcerated at Menard Correctional Center, within the
Southern District of Illinois. Plaintiff initially ftled suit in the Northern District of Illinois; the case
was transferred to this District in April 2012. Threshold review was conducted, and service was
ordered on the named Defendant (Trevor Rowland), who answered the complaint in late October
2012. 1
The complaint alleges that Rowland assaulted Plaintiff - using excessive force against
Plaintiff and thereby violating his right (secured by the Eighth Amendment to the United States
Constitution) to be free of cruel and unusual punishment.
On January 8, 2013, Rowland moved for summary judgment, based on Plaintiffs
failure to exhaust administrative remedies (Doc. 23).
Plaintiff had until February 25, 2013 to
respond. See Doc. 25; SDIL-LR 7.1(c)(1), SDIL-LR 5.1(c). No response opposing summary
judgment was ever ftled. The motion is ripe for disposition.
A second Defendant (an unidentified "John Doe") was dismissed in April
2013 pursuant to Federal Rule of Civil Procedure 41(b). See Doc. 26.
Page 1 of7
Dockets.Justia.com
In this judicial district, failure to timely respond to a motion may be considered an
admission of the motion's merits. SDIL-LR 7.1(c). See Whitfield v. Snyder, 263 Fed.Appx. 518,
521 (7th Cir. 2008). The Court considers Plaintiffs failure to respond to the motion-in any waysuch an admission. Because there is an admission to the merits of Defendant's dispositive motion,
the motion will be granted and the case dismissed without prejudice. Even if the Court were to
overlook Plaintiffs failure to oppose Defendant's motion, it is clear from the record that summary
judgment is warranted here, because Plaintiff did not exhaust his administrative remedies.
B.
Applicable Legal Standards
1.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the admissible evidence considered as a whole shows
there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a
matter of law. Dynegy Mktg. & Trade v. Muldut Corp., 648 F.3d 506, 517 (7th Cir. 2011),
citing FED. R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of
demonstrating-based on the pleadings, affidavits and/ or information obtained via discovery-the
lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
determining whether a genuine issue of material fact exists, the Court must view the record in the
light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
In the prisoner litigation context, a "Pavey" motion for summary judgment typically
requires a hearing to determine any contested issues regarding exhaustion, and a judge may make
limited findings of fact at that time. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). The case
may proceed on the merits only after any contested issue of exhaustion is resolved. Id, 544 F.3d at
742. In Pavey, the United States Court of Appeals for the Seventh Circuit held that "debatable
factual issues relating to the defense of failure to exhaust administrative remedies" are not required
Page2of7
to be decided by a jury but are to be determined by the judge. Pa.vey, 544 F.3d at 740-41. See a.lso
BegoUi v. Home Depot, USA, Inc., 701 F.3d 1158, 1160 (7th Cir. 2012)("Pa.vey holds that the
judge can resolve contested factual issues germane to whether the prisoner ... exhausted his
remedies under the Act even if the prisoner demanded a jury trial in his civil rights suit.").
A hearing is not required where "there are no disputed facts regarding exhaustion, only a legal
question."
Doss v. Gilkey, 649 F.Supp.2d 905, 912 (S.D.Ill. 2009). Here, Plaintiff has not
disputed any of Defendants' factual assertions, so no hearing is required.
2.
PLRA'S EXHAUSTION REQUIREMENT
In his answer in the case at bar, Defendant Rowland asserted the affirmative defense
of exhaustion. The affirmative defense of failure to exhaust depends on whether a plaintiff has
fulfilled the Prison Litigation Reform Act's exhaustion requirement. See Jones v. Bock, 549 U.S.
199, 218 (2007). The Prisoner Litigation Reform Act ("PLRA") provides that "no action shall be
brought [under federal law] with respect to prison conditions . . . by a prisoner ... until such
administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Under the PLRA,
exhaustion of administrative remedies is mandatory and unexhausted claims cannot be brought in
court. Jones, 549 U.S. at 211. The case may proceed on the merits only after any contested issue
of exhaustion is resolved by the court. Pa.vey, 544 F.3d at 742.
The purpose of exhaustion is to give prison officials an opportunity to address the
inmate's claims internally, prior to federal litigation. Ka.ba. v. Stepp, 458 F.3d 678, 684 (7th Cir.
2006). The Seventh Circuit takes a strict compliance approach to exhaustion, requiring inmates
follow all grievance rules established by the correctional authority. Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006). A prisoner must "flle complaints and appeals in the place, and at the time,
the prison's rules require." Pozo v. McCa.ughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
Page 3 of7
An inmate is required to exhaust only those administrative remedies that are available
to him. 42 U.S.C. § 1997e(a). The Seventh Circuit has held that administrative remedies become
"unavailable" when prison officials fail to respond to inmate grievances. Lewis v. Washington,
300 F.3d 829, 833 (7th Cir. 2002).
However, if the prisoner fails to follow the proper procedure,
the grievance will not be considered exhausted. Pavey v. Conley, 663 F.3d 899, 903 (7th Cir.
2011).
Additionally, exhaustion is a condition precedent to suit in federal court, so the
inmate must exhaust before he commences his federal litigation. He cannot exhaust while his lawsuit
is pending or in antic-zpation of his remedies soon being exhausted.
See Perez v. Wisconsin
DepartmentofCorrections, 182 F.3d 532,535 (7th Cir. 1999); Dixon v. Page, 291 F.3d 485,488
(7th Cir. 2002); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
If the inmate fails to exhaust before filing suit in federal court, the district court must
dismiss the suit. See Jones, 549 U.S. at 223; Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir.
2005). 2 Exhaustion-based dismissals are made without prejudice. Burrell, 431 F.3d at 285, citing
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002)("Dismissal for failure to exhaust is
without prejudice ... "), and Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)("all dismissals
under§ 1997e(a) should be without prejudice").
Although dismissal is the procedural step the district court takes if a plaintiff
failed to exhaust prior to filing suit, the issue of exhaustion most often is raised via
summary judgment motion, allowing the Court can consider evidence "outside the
pleadings," such as affidavits, grievances, responses, appeals, and related
documentation. See FED. R. CIV. P. 12(d).
Page 4 of7
3.
EXHAUSTION REQUIREMENT UNDER ILLINOIS LAW
The Illinois Department of Corrections
(IDOC)'s process
for exhausting
administrative remedies is delineated in the !DOC's Grievance Procedures for Offenders. 20 Ill.
Admin. Code § 504.810. If unable to resolve dispute with the counselor, the prisoner may flle a
written grievance with the Grievance Offlcer within 60 days of discovery of the dispute. Id. The
grievance should include "factual details regarding each aspect of the offender's complaint, including
what happened, when, where, and the name of each person who is the subject of or who is
otherwise involved in the complaint ... [or] as much descriptive information about the individual as
possible."
Id.
The grievance officer shall review the grievance and report flndings and
recommendations to the Chief Administrative Officer (CAO). 20 Ill. Adm. Code § 504.830(d).
The prisoner will then have the opportunity to review the CAO's response. Id. If the prisoner is
unsatisfied with the institution's resolution of the grievance, he may file an appeal to the Director
through the Administrative Review Board (ARB) within 30 days of the CAO's decision. 20 Ill.
Adm. Code§ 504.850. Completion of this process exhausts a prisoner's administrative remedies.
In certain circumstances, a prisoner may exhaust his remedies by filing a grievance
directly with the ARB.
20 Ill. Adm. Code § 504.870. Those circumstances include grievances
addressing (a) placement in protective custody; (b) involuntary administration of psychotropic
medication; (c) decisions regarding disciplinary proceedings that took place at an institution other
than where the inmate currently resides; and (d) all other issues, with the exception of personal
property issues, that occurred at a previous institution. I d.
C.
Analysis
In the case at bar, Plaintiff did not attach any grievances to his initial complaint.
Indeed, at no time in this litigation has he submitted any grievances or other exhibits.
Page 5 of7
In support of his summary judgment motion, Defendant Rowland submitted a copy
of a grievance dated January 14, 2011 describing the cell extraction incident at issue here (Doc. 24-1,
p. 7). This grievance was submitted directly to the ARB and received on February 28, 2011 (Doc.
24-1, p. 6). The ARB rejected the grievance for failure to include the grievance officer's and CAO's
response (Doc. 24-1, p. 6). Plaintiff received the grievance back on April 8, 2011, and he was told
that it was no longer timely (Doc. 24-1, p. 9). There is no evidence that Plaintiff ever appealed the
April 8, 2011 determination.
The Court concludes that Plaintiff failed to exhaust his administrative remedies.
While IDOC regulations permit a prisoner to ftle grievances directly with ARB, this avenue is only
available in limited circumstances. None of those circumstances is applicable to Plaintiffs case.
Plaintiff was grieving Defendant's alleged use of excessive force at his current institution. He was
not grieving a decision to place him in protective custody or administer psychotropic medication.
Nor was he attempting to grieve the outcome of a disciplinary proceeding or events that happened
at a different institution. Therefore Plaintiff's grievance ftled with the ARB did not exhaust his
administrative remedies. Additionally, Plaintiff had to ftle a grievance with his counselor on or
before March 15, 2011. There is no evidence in the record that Plaintiff did so. Defendant is
entitled to summary judgment on this point.
D.
Conclusion
Plaintiff's failure to respond to Defendant's dispositive motion acts as an admission
to the merits of the motion. Even if the Court overlooks Plaintiff's lack of response, the record
clearly establishes that Plaintiff failed to exhaust administrative remedies before filing this lawsuit.
Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment (Doc. 23) and
DISMISSES this case without prejudice. No claims remain herein. The Clerk shall close the
case.
Page 6 o£7
IT IS SO ORDERED.
DATED August 13,2013.
s/ Michael]. Reagan
Michael]. Reagan
United States District Judge
Page 7 of7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?