Diaz-Guillen v. Vieregge et al

Filing 80

ORDER regarding 66 Motion for Judgment on the Pleadings filed by Jay L Swanson. The Motion for Judgment on the Pleadings is hereby CONVERTED to a Motion for Summary Judgment for Failure to Exhaust Administrative Remedies. Plaintiff is GRANT ED through February 22, 2018 to file any additional materials regarding grievances he made against Dr. Shah that were not already included in his Response (Doc. 75) or Declaration in Opposition (Doc. 76). It is FURTHER ORDERED that the Motion for Summary Judgment is SET for hearing on February 26, 2018 at 1:30 p.m. in the East Saint Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Plaintiff shall appear by videoconference. Signed by Magistrate Judge Donald G. Wilkerson on 2/9/2018. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUIS DIAZ-GUILLEN,
Plaintiff,
v.
VIPIN SHAH and JAY L. SWANSON,
Defendants.

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Case No. 3:15-cv-1101-NJR-DGW

MEMORANDUM AND ORDER
WILKERSON, Magistrate Judge
Pending before the Court is a Motion for Judgment on the Pleadings filed by Defendant Dr.
Jay Swanson (Doc. 66). For the reasons set forth below, the Motion is CONVERTED to a Motion
for Summary Judgment for Failure to Exhaust Administrative Remedies, Plaintiff Luis
Diaz-Guillen is GRANTED through February 22, 2018 to file any additional materials regarding
grievances against Dr. Swanson and the Motion for Summary Judgment is SET for hearing on
February 26, 2018 at 1:30 p.m. in the East Saint Louis Courthouse before Magistrate Judge Donald
G. Wilkerson, with Plaintiff to appear by videoconference.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Luis Diaz-Guillen was previously incarcerated at the Fayette County Jail in
Vandalia, Illinois (Doc. 7, p. 6) Proceeding pro se, Diaz-Guillen filed a civil rights action pursuant
to 42 U.S.C. § 1983. The Court conducted a threshold review pursuant to 28 U.S.C. § 1915A and
allowed Diaz-Guillen to proceed on one claim of deliberate indifference to a serious medical need
against Defendants Dr. Shah and Dr. Swanson (Doc. 8). On May 19, 2017 Swanson filed the
pending Motion for Judgment on the Pleadings (Doc. 66). Diaz-Gullien filed a Response (Doc. 75)
on August 17, 2017 and a Declaration in Opposition (Doc. 76) on August 25, 2017.
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ANALYSIS
Swanson’s Motion for Judgment on the Pleadings was filed pursuant to Federal Rule of
Civil Procedure 12(c) (Doc. 67, p. 3). The argument raised by Swanson is that he is entitled to
Judgment on the Pleadings because Diaz-Gullien failed to exhaust his administrative remedies
(Doc. 67, p. 4). Failure to exhaust administrative remedies, however, is an affirmative defense that
Defendants have the burden of proving. Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus, Diaz-Gullien was not obligated to plead
exhaustion in his Complaint.
While an affirmative defense can be a basis for a Rule 12(c) motion, where a party submits
matters outside the pleadings the motion should be converted to a motion for summary judgment
under Rule 56 and the parties must be given an opportunity to present additional materials relevant
to the motion. Fed. R. Civ. P. 12(d); U.S. v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015).
Here, Swanson attached almost 500 pages of documents to his motion, including: the
Grievance Procedure for Offenders (Doc. 67-1), Plaintiff’s IDOC file (Doc. 67-2), Plaintiff’s
IDOC Grievances (Doc. 67-3), and Plaintiff’s IDOC Medical Grievances (67-4). Because
Swanson asks the Court to consider voluminous records that are not part of the pleadings, the
Court finds it proper to convert Swanson’s Motion for Judgment on the Pleadings to a Motion for
Summary Judgment for Failure to Exhaust Administrative Remedies.
CONCLUSION
Swanson’s Motion for Judgment on the Pleadings is hereby CONVERTED to a Motion
for Summary Judgment for Failure to Exhaust Administrative Remedies. Plaintiff Luis
Diaz-Guillen is GRANTED through February 22, 2018 to file any additional materials regarding
grievances he made against Dr. Shah that were not already included in his Response (Doc. 75) or

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Declaration in Opposition (Doc. 76). It is FURTHER ORDERED that the Motion for Summary
Judgment is SET for hearing on February 26, 2018 at 1:30 p.m. in the East Saint Louis Courthouse
before Magistrate Judge Donald G. Wilkerson. Plaintiff shall appear by videoconference.

SO ORDERED.
DATED: February 9, 2018

DONALD G. WILKERSON
United States Magistrate Judge

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