Kirby v. Spiller et al

Filing 46

ORDER GRANTING Motion for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Shah (Doc. 36 ) and Motion for Summary Judgment On the Issue of Exhaustion of Administrative Remedies filed by Thomas A. Spiller, Ty Bates, Suzann Bailey (Doc. 41 ). Signed by Judge Staci M. Yandle on 5/10/2016. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARTHUR KIRBY,
Plaintiff,
v.
THOMAS A. SPILLER, et al.,
Defendants.

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Case No. 15-cv-384-SMY-PMF

MEMORANDUM AND ORDER
YANDLE, District Judge:
Before the Court are motions for summary judgment filed by the defendants Vipin Shah,
Suzann Bailey, Ty Bates and Thomas Spiller as to the affirmative defense of failure to exhaust
administrative remedies (Docs. 36, 41).

Plaintiff Arthur Kirby filed this civil rights case

pursuant to 42 U.S.C. § 1983 challenging some of the conditions experienced in prison. He
alleges in Count 1 that Ty Bates, Suzann Bailey and Thomas Spiller implemented a 2-meal
policy in violation of the Eighth Amendment’s proscription against cruel and unusual
punishment.

In Count 2, he alleges that Defendant Vipin Shah responded with deliberate

indifference to health problems attributed to soy foods, also in violation of the Eighth
Amendment. The defendants seek dismissal due to Kirby’s failure to exhaust all administrative
remedies mandated by the Illinois Administrative Code. Kirby did not respond to the motion
filed by Shah, despite adequate notice. As to the argument advanced by Defendants Bailey,
Bates and Spiller, Kirby was barred from opposing their motion as a discovery sanction (Doc.
40).
Inmates who are unhappy with aspects of their prison confinement are required to
exhaust available administrative remedies before turning to the Court for a remedy. 42 U.S.C.
§1997(e(a); Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to exhaust is an affirmative

defense that must be pleaded and proved by the defendant. Pavey v. Conley, 544 F.3d 739, 74041 (7th Cir. 2008). The state’s procedural rules establish the contours of the requirement. Jones
v. Bock, 549 U.S. 199, 218 (2007). In other words, to exhaust, inmates must filed complaints
and appeals in the place and at the time the prison’s administrative rules require. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). In Illinois, the grievance procedure starts
with an informal effort to resolve a concern with a correctional counselor, progresses to the
institutional level, and ends with a decision by the director, who acts through the administrative
review board (ARB). 20 Ill. Admin. Code §§ 504.810, 504.850.
Here, the defendants have satisfied their burden of proof on the affirmative defense by
showing that Kirby did not appeal an adverse decision regarding one of his grievances to the
director through the ARB. As such, the undersigned finds that Kirby did not properly exhaust
because he failed to take the last step in the administrative process prior to filing this litigation.
Accordingly, IT IS ORDERED that the motions for summary judgment (Docs. 36, 41)
are GRANTED. Count 1 is DISMISSED without prejudice as to Ty Bates, Suzann Bailey and
Thomas Spiller. Count 2 is DISMISSED without prejudice as to Vipin Shah. Judgment shall
enter.
If any party wishes to appeal, a notice of appeal must be filed within 30 days after entry
of judgment. A notice of appeal is timely if it is deposited in a correctional institution’s internal
mail system on or before the last day for filing. If any party wishes to ask for a new trial or to
alter or amend the judgment, that motion is due within 28 days, and there is an exception from
the general rule for extending time. Any party wishing to challenge this decision should consult
Fed. R. Civ. P. 59, 6; Fed. R. App. P. 4, 12.

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IT IS SO ORDERED.
DATED: May 10, 2016

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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