Suber, IV v. Waggoner et al

Filing 17

ORDER DISMISSING CASE: The Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies (Doc. 14 ) filed by Defendant Chris Bolyard is GRANTED. This action is DISMISSED without prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly and close this case. Signed by Chief Judge Nancy J. Rosenstengel on 10/8/2019. (ksp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM H. SUBER, IV,
#S14989

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Plaintiff,
vs.
CHRIS BOLYARD,
Defendant.

Case No. 19-cv-00319-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff William H. Suber, IV, an inmate of the Illinois Department of Corrections,
filed this action for alleged deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983. He asserts he was subjected to excessive force by Defendant Chris Bolyard while
he was incarcerated at Vandalia Correctional Center. The matter is now before the Court
for consideration of Defendant’s motion for summary judgment for Suber’s failure to
exhaust his administrative remedies prior to filing suit.
Background
The Complaint alleges the following: On February 14, 2019, Suber was housed in
segregation at Vandalia. (Doc. 1, p. 6). Sergeant Bolyard walked along the gallery
spraying pepper spray. (Id.). Sergeant Bolyard stopped in front of Suber’s cell and started
“say[ing] things.” (Id.). Suber responded that “he was not a kid” and “to talk to him like
a man or stop talking.” (Id.). Sergeant Bolyard left the area and then returned with two

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other officers, opened Suber’s cell door, got in his face calling him names, and then
choked him. (Id.).
Suber’s Complaint is dated February 21, 2019; it was received by the Court on
March 18, 2019. (Doc. 1, p. 7). Following review pursuant to 28 U.S.C. § 1915A, a single
claim proceeded against Sergeant. Bolyard for excessive force. (Doc. 6).
Defendant’s Motion for Summary Judgment
Defendant filed the pending motion for summary judgment on August 12, 2019,
arguing that Suber failed to exhaust his administrative remedies prior to filing suit.
(Docs. 14 and 15). Suber has not filed a response to the motion. The Court considers
Suber’s failure to respond an admission of the facts of Defendant’s motion. SDIL Local
Rule 7.1(c) (failure to timely file a response to a motion may be considered an admission
of the merits of the motion); FED.R.CIV.P. 56(e)(facts may be considered undisputed if a
party fails to respond as required by Rule 56(c)); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.
2003) (failure to respond by the nonmovant as mandated by the local rules results in an
admission); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (non-movant’s failure to
respond to a motion for summary judgment constitutes an admission that there are no
disputed issues of material facts).
The following facts are taken from Defendant’s memorandum in support of
summary judgment and are undisputed. An inmate may grieve prison conditions with
the Illinois Department of Corrections by following the grievance procedures set forth in
20 Ill. Admin. Code 504.800 et seq. (Doc. 15, p. 2). Suber filed a grievance on February 15,
2019, alleging that Defendant Bolyard sprayed pepper spray on his gallery on February
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14, 2019. (Doc. 15, p. 2; Doc. 15-2, pp. 1-2). This grievance was responded to by a counselor
on February 27, 2019 but was not appealed to the grievance officer. (Doc. 15, p. 2; Doc. 152, pp. 1, 3; Doc. 15-3, p. 3). Further, Suber did not file any appeals or direct grievances to
the Administrative Review Board (“ARB”). (Doc. 15, p. 2; Doc. 15-1, p. 4).
Legal Standards
“Summary judgment is proper if the pleadings, discovery materials, disclosures,
and affidavits demonstrate no genuine issue of material fact such that [Defendant] is
entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467
(7th Cir. 2010); FED.R.CIV.P. 56(c). All facts and reasonable inferences must be construed
in favor of the non-moving party. Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017)
(citing Calumet River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO,
824 F.3d 645, 647-48 (7th Cir. 2016)).
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all
administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a);
Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). The Seventh Circuit requires strict
adherence to the PLRA’s exhaustion requirement. Dole, 438 F.3d at 809. “To exhaust
remedies, a prisoner must file complaints and appeals in the place, and at the time, the
prison administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2005). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th
Cir. 2004). A plaintiff cannot file suit and then exhaust his administrative remedies while
the suit is pending. Id.

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Under the procedures set forth in the Illinois Administrative Code, an inmate is
required to file a written grievance within 60 days of the “incident, occurrence or problem
that gives rise to the grievance.” 20 ILL. ADMIN. CODE § 504.810(a). The grievance must be
filed with the inmate’s counselor, unless certain discrete issues are being grieved. Id. If
the complaint is not resolved through a counselor, the grievance is considered by a
grievance officer who must render a written recommendation to the Chief Administrative
Officer (CAO) within two months of receipt, “when reasonably feasible under the
circumstances.” Id. at § 504.830(e). The CAO then advises the inmate of a decision on the
grievance. Id. After receiving the response of the CAO, the inmate may appeal in writing
to the IDOC Director. Id. at §5 04.850(a). The appeal must be received by the
Administrative Review Board within 30 days after the date of the decision. Id.
An inmate may file an emergency grievance if “there is a substantial risk of
imminent personal injury or other serious or irreparable harm to the offender.” Id. at
§ 504.840(a). The grievance is forwarded directly to the CAO and, if the CAO determines
the grievance should be handled as an emergency, he or she must expedite the grievance
process. Id. at § 504.840(b). If the CAO determined the grievance is not an emergency, the
inmate is notified in writing that he may resubmit the grievance as non-emergent, in
accordance with the standard grievance process. Id. at § 504.840(c).
Discussion
As previously stated, because Suber did not file a response to the motion, the facts
presented by the Defendants are uncontroverted. As there are no disputes of fact, the
Court finds that an evidentiary hearing is not needed in this case.
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Defendant has established that Suber had access to the grievance process but did
not file a grievance with the grievance officer regarding the claim alleged in the
Complaint. Further, he did not file or appeal any grievance to the CAO related to that
claim. Additionally, Suber did not file or appeal any grievance with the Administrative
Review Board concerning the claim. The Court concludes, therefore, that Suber did not
exhaust his administrative remedies as to the claim against Defendant prior to filing suit.
Disposition
Accordingly, the Motion for Summary Judgment on the Issue of Exhaustion of
Administrative Remedies filed by Defendant Chris Bolyard is GRANTED. This action is
DISMISSED without prejudice. The Clerk of Court is DIRECTED to enter judgment
accordingly and close this case.
IT IS SO ORDERED.
DATED: October 8, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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