IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

Christopher Harris (#A-93039), )

)

Plaintiff, )

)

v. ) Case No: 11 C 50385

)

Officer Hammil, et al., )

)

Defendants. ) Judge Frederick J. Kapala

ORDER

Defendant Dr. Wahl’s motion for summary judgment [102] is granted. Dr. Wahl is dismissed as a

defendant. Plaintiff’s motions to supplement his response to the motion [129] [140] [141] [147] are

granted. The plaintiff’s motions to strike the motion for summary judgment [128] [139] and the

affidavit of Gina Allen [144] are denied. 

STATEMENT

The plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to

42 U.S.C. § 1983. The plaintiff claims that the defendants, correctional officials and medical

providers at Dixon Correctional Center, have violated his rights by being deliberately indifferent to a

serious medical condition. More specifically, the plaintiff alleges that he suffers from a seizure

disorder and was consequently issued a low bunk permit. The plaintiff further allegesthat on May 31,

2011, defendant Hammil refused to enforce the plaintiff’s low bunk permit, requiring the plaintiff to

sleep in a top bunk. The plaintiff allegesthat he fell out of the top bunk and suffered injury to his head

and back and that defendant Heeley denied him transfer to the health care unit. The plaintiff alleges

that defendant Schottfailed to transfer himto another cell where he could have accessto a lower bunk. 

With respect to the remaining defendants, Chandler, Dusing, Barnhardt, Berkeley, Wahl, Allen, and

Godinez, the plaintiff alleges that although he notified them of his serious medical condition, and the

poor treatment he received, they did nothing to rectify the situation. 

This matter is before the Court for ruling on defendant Wahl’s (hereinafter, “the defendant”

or “defendant Wahl”) motion for summary judgment for failure to exhaust administrative remedies,

and the plaintiff’s motion to strike the motion for summary judgment, responsive motions to

supplement the record with additional evidence, and motion to strike the affidavit of Defendant Gina

Allen. For the reasons contained in this order, the plaintiff’s motions to supplement are granted, his

motionsto strike are denied, and the defendant’s motion for summary judgment for failure to exhaust

administrative remedies is granted.
LEGAL STANDARD

A party is entitled to summary judgment if all the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(a). When considering a summary

judgment motion, the Court construes all facts and reasonable inferences in the light most favorable

to the non-moving party. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005). Summary

judgment is proper when the pleadings, discovery, and disclosures establish that there is no genuine

issue of material fact and the movant is entitled to judgment as a matter of law. Winsley v. Cook

Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009). A genuine dispute as to a material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City

of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001).

Summary judgment may be granted when no “reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party

cannot defeat summary judgment by relying on unsubstantiated facts or by merely resting on its

pleadings. See Hemsworth, II v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Greer v.

Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001). Instead, the party that bears

the burden of proof on an issue must affirmatively demonstrate, with admissible evidence that a

genuine issue of material fact exists that requires a trial. See Hemsworth, 476 F.3d at 490.

When Defendant filed her motion for summary judgment, she included a “Notice to Pro Se

Litigant Opposing Motion for Summary Judgment” asrequired byTimms v. Frank, 953 F.2d 281, 285

(7th Cir. 1992); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982); and Local Rule 56.2. This

notice clearly set out the requirements of this Court’s Local Rule 56.1. In particular, the notice

explains that the plaintiff’s response must comply with Federal Rule of Civil Procedure 56(e) and

Local Rule 56.1.

Local Rule 56.1(b)(3) requires a party opposing a motion for summary judgment to file:

(A) a response to each numbered paragraph in themovingparty's statement,

including, in the case of any disagreement, specific references to the affidavits, parts

of the record, and other supporting materials relied upon, and

(B) a statement, consistingofshort numbered paragraphs, of any additional

facts that require denial of summary judgment, including references to the affidavits,

parts of the record, and other supporting materials relied upon. 

L.R. 56.1(b). The district court may require strict compliance with Local Rule 56.1, even though the

plaintiff is proceeding pro se. See Ammons v. Aramark Uniform Serv., Inc., 368 F.3d 809, 817 (7th

Cir. 2004); Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527 (7th Cir 2000)

(strict compliance with the local rules governing summary judgment is upheld given the importance

of local rules that structure the summary judgment process).

Although pro se plaintiffs are entitled to lenient standards, compliance with procedural rules

is required. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (“rules apply to uncounseled

litigants and must be enforced”); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). Despite being

given this notice, the plaintiff failed to properly respond to Defendant's Rule 56.1 statement of facts. 

While the plaintiff did submit a response, it does not directly address each of the defendant’s

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statements of fact, nor does it create a question of fact as to the statements of facts submitted by the

defendant. Instead, the plaintiff’s responses are argumentative, for example, plaintiff alleges that the

defendant’s statement of fact #2 is fraudulent because an alleged error in the filing date of the

complaint (Defendant states the complaint was filed on December 27, 2011, which is supported by

ECF, and the plaintiff insistsit was filed on December 28, 2011, as amended with the names of all of

the defendants included.) See ECF #112, p. 2 response to 3. The plaintiff focuses much of his

narrative response on arguing that the defendant’s statements of fact are misleading or fraudulent,

focusing on his substantive claim and his illness(es), not on the core question of the motion which is

whether the plaintiff exhausted his administrative remedies prior to filing suit. Assuch the plaintiff’s

“responses” are actually non-responsive.

Additionally, while the plaintiff makesreferencesto exhibits, they are unclear, and he did not

attach exhibits to the response. The references do not seem to correlate the exhibits attached to the

defendant’s Rule 56.1 statements of fact or any exhibits the Court can readily identify. As such, the

plaintiff’s response is not in compliance with L.R. 56.1 (N.D. Ill.); United States v. Dunkel, 927 F.2d

955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs”). 

The Seventh Circuit has “routinely held that a district court may strictly enforce compliance

with its local rules regarding summary judgment motions.” Yancick v. Hanna Steel Corp, Case No.,

No. 10 C 1368, 2011 U.S. App. LEXIS 15896 **7-8 (7th Cir. August 3, 2011); citing Schmidt v.

Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010). Accordingly, as the plaintiff has

failed to properly respond to the defendant’s statement of facts, they are deemed admitted.

However, the plaintiff hassubmittedmultiplemotionsto supplement hisresponse to themotion

for summary judgment and theCourt grantsthose motions. Because Plaintiff is proceeding pro se, the

Court will construe his filings broadly and consider factual assertions he makes in his summary

judgment materials to the extent that he could properly testify about the matters asserted based on his

personal knowledge. Fed. R. Evid. 602.

FACTS

Plaintiff Christopher Harris is an inmate at Dixon Correctional Center (hereinafter “DCC”).

This Section 1983medical deliberate indifference action wasfiled by the plaintiff against Dr. Jill Wahl

and various other employees of the IDOC and the DCC healthcare staff. The plaintiff filed this action

on December 27, 2011, based on the claims that (1) various members of the prison staff were

deliberately indifferent to Plaintiff’s alleged seizure condition by failing to honor a bottom-bunk

permit, and (2) various members of the DCC medical staff were deliberately indifferent in the

treatment of the plaintiff’s alleged back and head pain allegedly caused by a fall he suffered after a

seizure.

Inmatesincarceratedwithin theDepartmentmayfile grievancesin accordancewithDepartment

Rule 504F: Grievance Procedures for Committed Persons. Generally, an inmate must attempt to

resolve grievancesthrough his counselor. If the grieved issue remains unresolved after such informal

efforts, or for example, involves a disciplinary proceeding, the inmate may submit a written grievance

on a grievance form to the facility Grievance Officer designated by the Chief Administrative

Officer (“CAO”). The grievances must contain factual detailsregarding 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. Grievances must be submitted to the facility Grievance

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Officer within sixty days after the discovery of the incident, occurrence, or problem that gives rise to

the grievance.

The Grievance Officer may personally interview the inmate and/or other witnesses as deemed

appropriate and obtain relevant documents to determine the merits of the inmate’s grievance. Upon

completion of such investigation, the Grievance Officer’s conclusions and, if appropriate, any

recommended relief is forwarded to the CAO. The CAO, or CAO’s designee’s, decision is then

submitted to the grieving inmate.

If, after receiving the CAO’s decision the inmate feels the issue is unresolved, he may appeal

in writing to the Director of the Department by submitting the Grievance Officer’s report and CAO’s

decision within thirty days after the date of the decision. Copies of the Grievance Officer'sreport and

the Chief Administrative Officer’s decision should be attached. The ARB, as the Director's designee,

reviews the appeal and first determines whether the inmate’s grievance can be handled without the

necessity of a hearing. If so, the inmate is so advised. Other matters are scheduled for an ARB

hearing involving an interview ofthe grieving inmate, examining relevant documents and at the ARB's

discretion, calling witnesses. 

The ARB submits a written report of its findings and recommendations to the Director or

Director’s designee who then reviews the report and makes a final determination on the grievance. 

A copy of the ARB’s report and the Director’s final decision is sent to the inmate who filed the

grievance. The originals of these documents are maintained in the ARB's filed. Department Rule

504F: Grievance Procedures for Committed Person provides no further means for review beyond

this step.

Certain issues may be grieved directly to the ARB, rather than first through a counselor of

Grievance Officer. These issues include:

a. Decisions involving the involuntary administration of psychotropic medication;

b. Decisions regarding protective custody placement, including continued placement

in or release from protective custody; Decisions regarding disciplinary proceedings

which were made at a facility other than the facility where the inmate is currently

assigned; and,

c. Other issued except personal property issues which pertain to a facility other than

the facility where the inmate is currently assigned.

These grievances are then handled in accordance with the procedures described above.

An inmate may request a grievance be handled on an emergency basis by forwarding the

grievance directly to the CAO rather than to a counselor or grievance officer. If the CAO determines

that there is a substantial risk of imminent personal injury or other serious or irreparable harm to the

inmate, the grievance may be handled on an emergency basis. An inmate may appeal the CAO’s

decision in such a situation to the ARB. The appeal is then handled in accordance with the procedure

described above.

The grievance procedure set forth above must be utilized for complaintsregarding an inmate’s

medical care and treatment provided at IDOC facilities as such is within the Department’s authority. 

Indeed, the mandatory Offender's Grievance form includes a box at the top of the form for inmates to

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check when the grievance involves medical care.

In order for the ARB office to process and consider an inmate’s grievance appeal as required

under Section 504.850(b), the inmate must submit the Committed Person’s Grievance Report, DOC

0047, including the Grievance Officer’s and CAO’s response, and Committed Person’s Grievance,

DOC 0046, including the counselor’s response. The ARB, as the Director’s designee, then reviews

the grievance and the responses of the Grievance Officer and CAO to determine whether the inmate

hasfollowed the proper grievance procedure at the prison where he isincarcerated prior to submitting

the grievance to the ARB. If, for example, the inmate submitted the grievance to the ARB without first

obtaining a procedurally required response from the counselor, Grievance Officer, or CAO, then the

grievance form is returned to the inmate along with another form noting the procedural deficit.

If the inmate followed the proper grievance procedure at the prison where he is incarcerated

prior to submitting the grievance to the ARB, the ARB may consider the appeal and submit a written

report of its findings and recommendations to the Director, or to the Director’s designee, who then

reviewsthe report and makes a final determination on the grievance. Only after the Director makes

a final determination with respect to the grievance is the inmate's administrative remedy fully

exhausted insofar as Department Rule 504F provides no further means for review beyond this step.

Gina Allen is a Chairperson with the Administrative Review Board (the “ARB”) of the Office

ofInmate Issuesfor the IllinoisDepartment ofCorrections("theDepartment"). She searched the ARB

records regarding the plaintiff. The only grievance that the plaintiff submitted concerning his

seizure and fall from the top bunk in his cell is dated June 9, 2010. 

In the grievance, the plaintiff states that Corrections Officer Hammil failed to enforce the

plaintiff's bottom-bunk permit. The plaintiff further states that on the night of May 31, 2011, he

suffered seizures while sleeping in the top bunk of his cell and fell out of the bunk, hurting his back

and his head. The plaintiff also complains that he was then seen by Nurse Heeley, who told Plaintiff

to ice his head and back, but refused to send Plaintiff to the Health Care Unit.

Counselor Grafton responded to the grievance on June 30, 2011 by sending the grievance

directly to the plaintiff’s Grievance Officer. Grievance Officer Chris Barnhart responded on July 12,

2011, determining that the complaint detailed in the grievance had been addressed and did not require

further action. Chief Administrator Nedra Chandler signed Grievance Officer Chris Barnhart’s

response on July 14, 2011. The plaintiff then appealed the grievance to the Administrative Review

Board on July 20, 2011. On November 15, 2011, Illinois Department of Corrections Administrative

Review BoardChairperson Gina Allen reviewed the Plaintiff's appeal ofthe grievance and determined

that the issues set forth in the grievance were appropriately addressed by the institutional

administration.

The grievance does not pertain to medical treatment rendered by Dr. Jill Wahl. Plaintiff’s

medical recordsindicate that following his alleged fall on May 31, 2011, Plaintiff did not see Dr. Wahl

for treatment of any kind until August 9, 2011. Prior to filing the instant lawsuit on December 27,

2011, Plaintiff did not file a grievance complaining about any ongoing inability to obtain adequate

medical care, nor did he complain regarding any medical issues regarding care provided by the

defendant.

ANALYSIS

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The defendant, Dr. Jill Wahl, argues that she is entitled to summary judgment for multiple

reasons, relating to the plaintiff’s failure to fully exhaust his administrative remedies. Exhaustion of

administrative remedies, pursuant to the PrisonLitigationReformAct, isrequired for all detainee suits

seeking redress for jail circumstances or occurrences, regardless of whether they involve general

circumstances of incarceration or particular episodes. See Porter v. Nussle, 534 U.S. 516 (2002). 

Under 42 U.S.C. § 1997e(a), the court is directed to dismiss a suit brought with respect to jail

conditions if the court determines that plaintiff has failed to exhaust his administrative remedies. See

Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir. 1999).

A detainee must take all the steps required by the institution’s grievance system in order to

exhaust his administrative remedies properly. Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004);

Pozo v. McCaughtry, 286 F.3d 1022, 1023 24 (7thCir. 2002). Moreover, exhaustion is a precondition

to filing suit, so that a detainee's attempt to exhaust available administrative remedies in the midst of

litigation is insufficient. See Ford, 362 F.3d at 398; Perez, 182 F.3d at 536-37. 

To exhaust remedies under § 1997e(a) a detainee or prisoner “must file complaints and appeals

in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025; see

also Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999) (“[T]he exhaustion requirement in §

1997e(a) is directed at exhausting the prisoner's administrative remediesin the correctionssystem, and

investigation by another agency does not satisfy the requirement of the statute.”). The purpose behind

the exhaustion requirement is to give corrections officials the opportunity to address complaints

internally before a federal suit is initiated. See Porter, 534 U.S. at 524-25. 

Here, Plaintiff filed a grievance on June 9, 2011, regarding his May 31, 2011, fall from the top

bunk in his cell. In that grievance he made two complaints: (1) Defendant Hammil was deliberately

indifferent to his need for a low bunk permit, resulting in the plaintiff having to sleep in a top bunk,

falling out of bed due to a seizure, and injuring himself; and (2) Nurse Heeley (later identified as Nurse

Berkeley) denied him access to the Health Care Unit for treatment for the injuries he sustained in the

fall to his head and back, instead giving him an ice pack. The plaintiff was not allowed to go to the

HealthCare Unit until the following day, when hewas given prescriptionsfor Baclofen and Ibuprofen.

The defendant argues in her motion that the plaintiff failed to exhaust his administrative

remedies because he did not name her in the grievance. The Seventh Circuit has held that despite the

administrative rule requiring a prisoner to name persons involved in the complaint, a prisoner has

exhausted so long asthe grievance placesthe state on notice of the need for corrective action. Maddox

v. Love, 655 F.3d 709, 721 (7th Cir. 2011); see also Young v. Wexford Health Sources, No. 10 C

8220, 2012 U.S. Dist. LEXIS 17416 at **25-27 (N.D. Ill. February 14, 2102) (Pallmeyer, J.).

The court has held that “[w]here prison officials address an inmate’s grievance on the merits

without rejecting it on procedural grounds, the grievance has served its function of alerting the state

and inviting corrective action, and defendants cannot rely on the failure to exhaust defense.” Maddox,

655 F.3d at 722 (citing Conyers v. Abitz, 416 F.3d 580, 585 (7th Cir. 2005); Riccardo v. Rausch, 375

F.3d 521, 524 (7th Cir. 2004); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004)). Significantly, the

court pointed out that “providing early notice to those who might later be sued has not been thought

to be one of the leading purposes of the exhaustion requirement.” Id. (citing Jones v. Bock, 549 U.S.

199, 219 (2007); Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)).

The same legal principle applies with respect to the defendant’s argument that because the

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plaintiff checked the “staff conduct” box, rather than the one marked “medical treatment,” he failed

to exhaust. The evidence in the record evaluated under controlling SeventhCircuit case law forecloses

the defendant's arguments regarding exhaustion for failure to check the right box or to name the

defendant in the grievance.

However, the substance ofthe grievance isspecific to two correctional/medical personnel, and

to a discreet set of events occurring between May 31, 2011 and June 1, 2011. The plaintiff does not

grieve any ongoing deficiency or delay in receivingmedical care, and the defendant, Dr. Wahl, did not

treat the plaintiff until August 9, 2011, after the plaintiff had received a response to his grievance from

the grievance officer. Accordingly, the plaintiff failed to alert the state and invite corrective action

with respect to any deliberate indifference to a serious medical condition. As such, the evidence is

clear that the plaintifffailed to exhaust his administrative remedies asto any possible claimagainst the

defendant, and she must be dismissed as a defendant. Furthermore, because it is now too late for the

plaintiffto avail himself of grievance procedures, dismissal iswith prejudice. See, e.g., Pozo, 286 F.3d

at 1023-24; Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Hope v. Velasco, No. 01 C

1574, 2004WL417198, *4 (N.D. Ill. Feb. 23, 2004) (Hibbler, J.). The plaintiff has also submitted

a motion to strike the affidavit of Gina Allen, asserting that it was submitted in bad faith. However,

the Court has determined, based on the record, that the plaintiff has exhausted the claims on which he

submitted a grievance, he just failed to grieve at all regarding any alleged ongoing deliberate

indifference. Because the Court did not rely on the information contained in Ms. Allen’s affidavit in

deciding that the plaintiff failed to exhaust, the motion to strike is denied.

The plaintiff’s motion to strike the defendant’s motion for summary judgment merely contains

additional argument regarding the plaintiff’s technical compliance with the IDOC's grievance

procedures. The Court has found that the grievance submitted on June 9, 2011, complied with the

requirements with respect to the events occurring on May 31, 2011 and June 1, 2011. Consequently,

the motion to strike is denied as duplicative of argument made in the plaintiff’s variousresponses, and

not material to the decision made by the Court.

CONCLUSION

For the foregoing reasons, the defendant’s motion for summary judgment is granted. Dr. Jill

Wahl is dismissed as a defendant. The plaintiff's motions to supplement his response to the motion

are granted. The plaintiff’s motions to strike the motion for summary judgment and the affidavit of

Gina Allen are denied. 

Date: 9/30/2013 ENTER:

_________________________

FREDERICK J. KAPALA

District Judge

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