Opinion
Case No. 17-1227-MJR-GCS
01-17-2019
LEONARD GORDON, Plaintiff, v. OFFICER HEWITT, et al., Defendants.
REPORT AND RECOMMENDATION SISON, Magistrate Judge :
Pending before the Court is Defendants Hewitt and Johnson's July 24, 2018 motion for summary judgment on the issue of exhaustion of administrative remedies (Docs. 26 & 27). As of this date, Plaintiff Gordon has not filed a response to the motion. The Court considers Plaintiff's failure to respond an admission of the facts of Defendants' motion. See SDIL Local Rule 7.1(c). See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (noting that a failure to respond constitutes an admission that there are no undisputed material facts).
Pursuant to Federal Rule of Civil Procedure 56, Timms v. Frank, 953 F.2d 281 (7th Cir. 1992) and Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), Defendants filed a notice informing Plaintiff Gordon of the consequences of failing to respond to the motion for summary judgment (Doc. 28).
This matter has been referred to United States Magistrate Judge Gilbert C. Sison by United States District Judge Michael J. Reagan pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a). Based on the following, the undersigned recommends that the District Court ADOPT the following findings of fact and conclusions of law and GRANT the motion for summary judgment based on failure to exhaust.
FINDINGS OF FACT
Plaintiff Leonard Gordon, an inmate in Centralia Correctional Center, filed this lawsuit for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 for events that occurred at Vandalia Correctional Center. Plaintiff Gordon alleges that Defendant Amy Hewitt used excessive force against him, that Defendant Dustin Hewitt used excessive force against him and that this use of force was in retaliation for filing a grievance against Defendant Amy Hewitt, and that Defendant Johnson was complicit in the use of force for failing to fully investigate. On January 2, 2018, Chief Judge Reagan screened Plaintiff Gordon's complaint pursuant to 28 U.S.C. § 1915A and the following claims survived review:
Count 1 - Mrs. Hewitt and John Doe # 1 violated Plaintiff's rights under the Eighth Amendment on December 28, 2016, when Mrs. Hewitt punched and choked Plaintiff for no reason and John Doe # 1 approved, condoned, or turned a blind eye to the behavior;
Count 2 - Mr. Hewitt, John Does #2-7, and Johnson violated Plaintiff's rights under the Eighth Amendment on February 24, 2017, when they beat him and otherwise used excessive force, and/or approved, condoned, or turned a blind eye to the behavior;
Count 3 - Mr. Hewitt retaliated against Plaintiff for filing grievances against Mrs. Hewitt in violation of the First Amendment when he attacked him on February 24, 2017; and
Count 4 - John Doe # 8 was deliberately indifferent to Plaintiff's serious medical needs when she refused to provide medical treatment in the wake of the February 24, 2017 attack and failed to document Plaintiff's symptoms. (Doc. 7).
Defendants Amy Hewitt and Sarah Johnson filed a motion for summary judgment arguing that Plaintiff Gordon failed to exhaust his administrative remedies as to the claims against them because he did not forward a grievance about his complaints other than a grievance regarding Defendant Dustin Hewitt's use of excessive force to the Administrative Review Board prior to filing suit. In their motion, Defendants also assert that while Plaintiff Gordon did file a grievance mentioning Defendant Johnson's name, that grievance related to the alleged behavior of medical staff, not Defendant Johnson's action in review of his grievance against Defendant Dustin Hewitt. Plaintiff Gordon has not responded to the motion.
LEGAL STANDARDS
Summary judgment is appropriate only if the moving party can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. See Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In determining a summary judgment motion, the district Court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. See Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative remedies prior to filing lawsuits in federal court. "[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies." Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). "[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment." Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). "[A]ll dismissals under § 1997e(a) should be without prejudice." Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
An inmate in the custody of the Illinois Department of Corrections must first submit a written grievance within 60 days after the discovery of the incident, occurrence or problem, to his or her institutional counselor, unless certain discrete issues are being grieved. See 20 ILL. ADMIN. CODE § 504.810(a). 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 — usually the Warden —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.
An inmate may appeal the decision of the Chief Administrative Officer in writing within 30 days to the Administrative Review Board for a final decision. Id. § 504.850(a). See also Dole v. Chandler, 438 F.3d 804, 806-807 (7th Cir. 2006). The Administrative Review Board will submit a written report of its findings and recommendations to the Director who shall review the same and make a final determination within 6 months of receipt of the appeal. See 20 ILL. ADMIN. CODE § 504.850(d) and (e).
An inmate may request that a grievance be handled as an emergency by forwarding it directly to the Chief Administrative Officer. Id. at § 504.840. If it is determined that there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is handled on an emergency basis, which allows for expedited processing of the grievance by responding directly to the offender. Id. Inmates may further submit certain types of grievances directly to the Administrative Review Board, including grievances related to protective custody, psychotropic medication, and certain issues relating to facilities other than the inmate's currently assigned facility. Id. at § 504.870.
CONCLUSIONS OF LAW
As mentioned previously, Plaintiff Gordon has not filed a response, and under the Court's Local Rules, the Court will deem the facts as presented by Defendants Hewitt and Johnson to be uncontroverted. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (noting that a failure to respond constitutes an admission that there are no undisputed material facts). Further, as there are no disputes of fact, the Court finds that an evidentiary hearing is not needed in this case. Based on the record, it is recommended that the Court find Plaintiff Gordon failed to exhaust his administrative remedies as to his claims against Defendants Amy Hewitt and Sarah Johnson.
Plaintiff did not file a grievance regarding Defendant Amy Hewitt's alleged use of excessive force or Defendant Johnson's alleged complicity in the alleged use of excessive force. Patty Thull, a Chairperson for the Administrative Review Board confirmed that Plaintiff Gordon did not file any grievances with the Board relating to actions by Defendant Amy Hewitt or allegations that Defendant Johnson was complicit regarding the allegations of use of force. Pursuant to the Illinois Administrative Code, grievances must contain factual details regarding each aspect of the inmate's complaint, including the name of each person who is the subject of or who is otherwise involved in the complaint. See ILCS § 504.810(b). It is apparent from the record that Plaintiff Gordon failed to follow this directive with respect to the alleged conduct against both Defendants Amy Hewitt and Sarah Johnson. Here, the prison officials were never put on notice that the actions of Defendants Amy Hewitt and Sarah Johnson were at issue or needed to be addressed prior to Plaintiff Gordon filing this lawsuit.
Specifically, Ms. Thull declared: "At the request of the Attorney General's Office, I have searched the ARB's records in regards to Inmate Leonard Gordon, 17-1227. I was asked to look specifically for any grievances by this inmate related to the alleged actions by Amy Hewitt and Sarah Johnson allegedly disregarding Plaintiff's claims. I have found no grievances by this inmate that were filed with the ARB related to these allegations of misconduct." (Doc. 27-1, p. 3).
RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED that the Court GRANT Defendant Hewitt and Johnson's motion for summary judgment on the issue of exhaustion (Doc. 26); that the Court FIND that Plaintiff Gordon did not exhaust his administrative remedies prior to filing suit against Defendants Amy Hewitt and Johnson; that these Defendants be DISMISSED without prejudice; and that the Court ADOPT the foregoing findings of fact and conclusions of law.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen (14) days after service of this Report and Recommendation to file written objection thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Report and Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
IT IS SO ORDERDED.
Date: January 17, 2019.
/s/
Gilbert C. Sison
United States Magistrate Judge