Bandala-Martinez v. Fry et al

Filing 43

ORDER denying 28 Motion for Summary Judgment: For the reasons thoroughly explained in the attached Order, the court DENIES Defendants' Pavey-based summary judgment motion (Doc. 28). Signed by Chief Judge Michael J. Reagan on 5/18/16. (soh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTOR BANDALA-MARTINEZ,
Plaintiff,
vs.
NICHOLAS BEBOUT,
DAVID DAVIS,
RYNE ELLETT,
FRANK EOVALDI,
CORY FRY, and UNKNOWN
CORRECTIONAL OFFICERS,
Defendants.

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Case No. 15-cv-0752-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.

INTRODUCTION
In July 2015, Victor Bandala-Martinez (Plaintiff) filed a pro se complaint in this

Court under 42 U.S.C. 1983 against five named correctional officials and several other
unknown correctional officials. The named Defendants are Nicholas Bebout, David
Davis, Ryne Ellett, Frank Eovaldi, and Cory Fry. Plaintiff alleges that Defendants Fry,
Davis, Bebout, and Eovaldi used excessive force against him (Count 1) and failed to
protect him from the use of excessive force (Count 2), and that the all of the Defendants
failed to treat the injuries he received as a result of the excessive force (Count 3).
The case comes now before the Court on Defendants’ motion for summary
judgment on the basis of failure to exhaust administrative remedies, filed with
supporting brief (Docs. 28 and 29). Plaintiff filed a response (Doc. 33) opposing the

motion. As explained below, the Court DENIES Defendants’ motion.
II.

SUMMARY OF KEY ALLEGATIONS AND EVIDENCE
Plaintiff filed his complaint on July 13, 2015, while confined at Lawrence

Correctional Center, complaining of events that occurred while he was incarcerated at
Menard Correctional Center. As narrowed by the Court’s August 11, 2015 threshold
review Order (Doc. 6), the complaint alleges the following.

On August 14, 2013,

Plaintiff was housed at Menard in the North Two building (Doc. 6, p. 2). At about 4:20
p.m., Plaintiff exited his cell for the cafeteria but along the way was confronted by
Defendant Fry who demanded Plaintiff’s identification badge (Id.). Plaintiff began to
search for his badge, but Fry became aggressive and began hurling verbal insults at
Plaintiff (Id.). A physical altercation resulted between the two. Defendants Eovaldi,
Bebout, and Davis arrived to assist in handcuffing Plaintiff (Id.). He was handcuffed
and chained so tightly that the chain cut into his skin (Id.). After Plaintiff was secured,
Defendants proceeded to punch, kick, elbow, knee, and stomp on Plaintiff’s face, head,
neck, chest, ribs, back, and arms (Id.). After the attack ended, Plaintiff was picked up
off the ground by Fry and other unknown officers and dragged down a hallway to a
break room (Id.). Once in the break room, Plaintiff was held up by Fry while Davis,
Bebout, and Eovaldi took turns punching Plaintiff (Id.). Eovaldi then held Plaintiff so
that Fry could punch him (Id.). Other unknown officers were in the room and aided the
Defendants. None of the individuals tried to protect Plaintiff from the assault (Id.).
Plaintiff was next taken to a holding cell where he was beaten again by Fry, Davis,
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Bebout, and Eovaldi (Id. at p. 3). Plaintiff was then taken to Internal Affairs by Eovaldi
who punched Plaintiff in the face along the way (Id.). At Internal Affairs, Plaintiff was
seen by Ellett who refused to loosen his handcuffs or seek treatment for Plaintiff’s
injuries. None of the other Defendants ever sought to obtain medical treatment for
Plaintiff at any time during the encounter (Id.).

Later that night, Plaintiff was

transferred to Pontiac Correctional Center where his injuries were photographed, and he
received medical treatment (Doc. 6, p. 3). Plaintiff alleges that he suffered a busted lip,
swollen jaw, facial trauma, eye damage (including loss of vision), nerve damage,
scarring, blooding nose, and numerous bruises (Id.).
In response to Plaintiff’s complaint, Defendants move for summary judgment on
the ground that Plaintiff did not exhaust his administrative remedies.

The record

reveals that Plaintiff submitted a grievance directly to the Administrative Review Board
(“ARB”) dated August 27, 2013 (Doc. 29-1, p. 2). The grievance indicates that he was
assaulted while on his way out of North 2 Gallery 5 to the chow hall by seven unknown
correctional officers (Doc. 29-1, p. 2).

The grievance was received by the ARB on

September 3, 2013. It was returned to Plaintiff on February 26, 2014, for the reason that
Plaintiff failed to provide the names of the officers who assaulted him (Doc. 29-1, p. 1).
In response to the returned grievance, Plaintiff submitted a letter to the ARB on
March 19, 2014, identifying the correctional officers by their names and features (Doc. 1,
p. 24-25). Plaintiff’s letter indicates that one of the officers was correctional officer Fry.
Plaintiff goes on to identify the sergeant, lieutenant, and other officers by their physical
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descriptions (Id.). Plaintiff specifically indicated that the sergeant who participated in
the assault might have been named Eovaldi (Doc. 1, p. 24). Defendants do not deny that
Plaintiff sent the March 19, 2014 letter.
III.

APPLICABLE LEGAL STANDARDS
A.

Summary Judgment

Summary judgment is proper only “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. Multi Corp., 648
F.3d 506, 517 (7th Cir. 2011) (internal quotation marks omitted), citing FED. R. CIV. P.
56(a). See also Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607
(7th Cir. 2005).
The party seeking summary judgment bears the initial burden of showing --based
on the pleadings, affidavits, and information obtained via discovery -- the lack of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After
a properly supported motion for summary judgment is made, the adverse party “must
set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), quoting FED R. CIV. P. 56(e)(2). A fact is
material if it is outcome determinative under applicable law. Anderson, 477 U.S. at 248;
Ballance v. City of Springfield, Ill. Police Dep’t, 424 F.3d 614, 616 (7th Cir. 2005). A
genuine issue of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
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B.

Exhaustion Under the PLRA

Lawsuits brought by prisoners are governed by the Prison Litigation Reform Act
(PLRA), 42 U.S.C 1997e. The PLRA requires that “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 … administrative
remedies as are available are exhausted.” 42 U.S.C. 1997e(a) (2013).
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. See Perez v. Wisconsin Department of Corr., 182 F.3d 532, 535 (7th Cir. 1999);
Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). If the inmate fails to exhaust before
filing suit in federal court, the district court must dismiss the suit. See Jones v. Bock,549
U.S. 199, 223 (2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). 1
The Court of Appeals for the Seventh Circuit requires strict adherence to the
PLRA’s exhaustion requirement. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)
('This circuit has taken a strict compliance approach to exhaustion”).

“Unless a

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). This includes the filing of “complaints and appeals in

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, so that the Court can consider evidence
“outside the pleadings,” such as affidavits, grievances, responses, appeals, and
related documentation. See Fed. R. Civ. P. 12(d).

1

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the place, and at the time, the prison’s rules require.” Id. at 1025. If the prisoner fails to
comply with the established procedures, including time restraints, the court may not
consider the claims. Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).
The purpose of the exhaustion requirement is two-fold. First, it gives the prison
officials the chance to address the prisoner’s claims internally, before any litigation
becomes necessary. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Woodford v. Ngo,
548 U.S. 81, 89-90 (2006). Second, it “seeks to reduce the quantity and improve the
quality of prisoner suits.” Porter v. Nussle, 534 U.S. 516, 524 (2002). See also Booth v.
Churner, 532 U.S. 731, 737 (2001).
Because exhaustion is a prerequisite to filing a suit, a prisoner must wait to
commence litigation until he has completed the established process and may not file in
anticipation of administrative remedies soon being exhausted. Perez, 182 F.3d at 535,
citing 42 U.S.C 1997e(a); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A suit filed
prior to exhaustion of available remedies will be dismissed even if the remedies become
exhausted while the suit is pending. Perez, 182 F.3d at 535.
The exhaustion requirement is an affirmative defense, on which defendants bear
the burden of proof. Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). The Seventh
Circuit held that “debatable factual issues relating to the defense of failure to exhaust
administrative remedies” are not required to be decided by a jury but are to be
determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008).
Where failure to exhaust has been raised as an affirmative defense (i.e.,
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exhaustion is contested), the district court should follow this sequence (id., 544 F.3d at
742):
(1) The district judge conducts a hearing on exhaustion and permits
whatever discovery relating to exhaustion he deems appropriate. (2) If
the judge determines that the prisoner did not exhaust his administrative
remedies, the judge will then determine whether (a) the plaintiff has failed
to exhaust his administrative remedies, and so he must go back and
exhaust; (b) or, although he has no unexhausted administrative remedies,
the failure to exhaust was innocent (as where prison officials prevent a
prisoner from exhausting his remedies), and so he must be given another
chance to exhaust (provided that there exist remedies that he will be
permitted by the prison authorities to exhaust, so that he’s not just being
given a runaround); or (c) the failure to exhaust was the prisoner’s fault, in
which event the case is over. (3) If and when the judge determines that
the prisoner has properly exhausted his administrative remedies, the case
will proceed to pretrial discovery, and if necessary a trial, on the merits;
and if there is a jury trial, the jury will make all necessary findings of fact
without being bound by (or even informed of) any of the findings made by
the district judge in determining that the prisoner had exhausted his
administrative remedies.
Defendants raised this affirmative defense in their answer herein (Doc. 22, p. 15).
The PLRA’s exhaustion requirement is dependent upon the procedures
established by the state in which the prison is located. Jones, 549 U.S. at 218. Plaintiff
was confined within the Illinois Department of Corrections (IDOC).
C.

Exhaustion Under Illinois Law

As an IDOC inmate, Plaintiff was required to follow the regulations contained in
the IDOC's Grievance Procedures for Offenders to properly exhaust his claims. 20 Ill.
Admin. Code 504.800, et seq. The grievance procedures first require inmates to speak
with their Counselor about the issue or problem. 20 Ill. Admin. Code 504.810(a). If
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the Counselor does not resolve the issue, the inmate must file a grievance within sixty
days of the events or occurrence with the Grievance Officer. Id. The grievance must:
contain factual details regarding each aspect of the offender’s complaint,
including what happened, when, where, and the name of each person who
is subject of or who is otherwise involved in the complaint. The provision
does not preclude an offender from filing a grievance when the names of
individuals are not known, but the offender must include as much
descriptive information about the individual as possible.
20 Ill. Admin. Code 504.810(b).
“The Grievance Officer shall [then] consider the grievance and report his or her
findings

and

recommendations

in

writing

to

the

Chief

Administrative

Officer...[who]shall advise the offender of the decision in writing within 2 months after
receipt of the written grievance, where reasonably feasible under the circumstances.”
20 Ill. Admin. Code 504.830(d).

If the inmate is not satisfied with the Chief

Administrative Officer’s response, he or she can file an appeal with the Director through
the ARB.
More specifically: “If after receiving the response of the Chief Administrative
Officer, the offender still feels that the problem, complaint or grievance has not been
resolved to his or her satisfaction, he or she may appeal in writing to the Director within
30 days after the date of the decision. Copies of the Grievance Officer’s report and the
Chief Administrative Officer’s decision should be attached.”

20 Ill. Admin. Code

504.850(a).
“The Administrative Review Board shall submit to the Director a written report of
its findings and recommendations.” 20 Ill. Admin. Code 504.850(e). “The Director
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shall review the findings and recommendations of the Board and make a final
determination of the grievance within 6 months after receipt of the appealed grievance,
where reasonably feasible under the circumstances. The offender shall be sent a copy of
the Director’s decision.” 20 Ill. Admin. Code 504.850(f).
The grievance procedures also allow for an inmate to file an emergency grievance.
To file an emergency grievance, the inmate must forward the grievance directly to the
Chief Administrative Officer (CAO) who may determine that "there is a substantial risk
of imminent personal injury or other serious or irreparable harm to the offender” and
thus the grievance should be handled on an emergency basis. 20 Ill. Admin. Code
504.840(a). If an inmate forwards the grievance to the CAO as an emergency grievance,
the CAO “shall expedite processing of the grievance and respond to the offender”
indicating to him which course he has decided is necessary after reading the grievance.
20 Ill. Admin. Code 504.840(b). Once the CAO has informed the inmate of his decision,
the inmate may then appeal that decision to the ARB on an expedited basis. 20 Ill.
Admin. Code 504.850(g).

A final decision of the ARB will exhaust the grievance

requirement.
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 (1) placement in protective custody, (2) involuntary
administration of psychotropic medication, (3) decisions regarding disciplinary
proceedings that took place at an institution other than where the inmate currently
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resides, and (4) all other issues, with the exception of personal property issues, that
occurred at a previous institution. Id.
IV.

ANALYSIS
Defendants argue that Plaintiff did not exhaust his administrative remedies,

because his grievance was rejected on the ground that he failed to identify or describe
the Defendants in his grievance. The Illinois Administrative Code requires that an
inmate’s grievance “contain factual details regarding each aspect of the offender’s
complaint, including what happened, when, where, and the name of each person who is
subject of or who is otherwise involved in the complaint. This provision does not
preclude an offender from filing a grievance when the names of individuals are not
known, but the offender must include as much descriptive information about the
individual as possible.” 20 Ill. Admin. Code 504.810(b). See also Ambrose v. Godinez,
510 Fed. Appx. 470, 472 (7th Cir. 2013); Jackson v. Shepherd, 552 Fed. Appx. 591, 593 n.1
(7th Cir. 2014).
The United States Court of Appeals for the Seventh Circuit has held that an
inmate is required to provide enough information to serve a grievance’s function of
giving “prison officials a fair opportunity to address [an inmate’s] complaints.”
Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011). This is especially true in light of the
fact that the IDOC’s grievance forms do not inform inmates that they are to provide the
name or description of the subject person, but instead merely require that an inmate
provide a “brief summary” of the grieved issues. Id. When prison officials have been
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afforded an opportunity to address an inmate’s claims internally prior to federal
litigation, the purpose of exhaustion has been met, and the prisoner has properly
exhausted his available remedies. Kaba, 458 F.3d at 684.
In the case at bar, the Court finds that Plaintiff furnished enough information to
put the ARB on notice to address his claims. While Plaintiff (on the grievance form) did
not identify the correctional officers by name or physical description, he provided the
ARB the date, location, and time of the attack, and he indicated that he was attacked by
seven correctional officers then on duty. This information should have provided the
ARB enough details to look into Plaintiff’s allegations of an assault and the possible
individuals involved given the time and location.

Plaintiff also indicated that a

sergeant and a lieutenant were involved in the beating, and it would have been easy for
the ARB to determine what sergeant and lieutenant were working that shift in that
cellhouse at that time. Thus, the Court concludes that there was enough information in
Plaintiff’s grievance for the ARB to investigate and address Plaintiff’s claims.
Furthermore, even if Plaintiff’s original grievance did not properly identify or
describe the correctional officers, he filed an additional letter to the ARB (in response to
the denial of the grievance) further describing the individuals. Defendants do not deny
that Plaintiff sent this letter. They argue only that it is evidence that Plaintiff knew the
identities at the time that he wrote the original grievance and could have included the
information in that grievance. But there is nothing in the administrative code which
prevents Plaintiff from remedying or resubmitting a grievance. In fact, the “Return of
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Grievance or Correspondence” indicates that a grievance can be resubmitted if additional
information is needed (Doc. 29-1, p. 3).
Although the additional information portion was not selected by the ARB
(instead the ARB marked that no further redress or additional consideration was
needed), the only reason the grievance was returned to Plaintiff was because he did not
properly identify the officers, and Plaintiff subsequently sent the ARB a correspondence
doing just that. There is no indication that the ARB responded to that correspondence,
for instance by rejecting it as untimely, as not being on the proper form, or for some
other procedural deficiency. Nor is there any indication that the correspondence, along
with the grievance, was re-examined on the merits.
Thus, once Plaintiff submitted his additional correspondence and did not receive
a response, the grievance process became unavailable to him as he had no further
instruction from the ARB. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (a remedy
can be unavailable to a prisoner if the prison does not respond to the grievance or
uses misconduct to prevent a prisoner from exhausting his resources). See also Lewis
v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). On these facts, the Court finds that
Plaintiff did all that he could to exhaust his administrative remedies.
V.

CONCLUSION
Accordingly, the Court DENIES Defendants’ motion for summary judgment

(Doc. 28).
IT IS SO ORDERED.
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DATED May 18, 2016.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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