IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SYLVESTER JAMISON, )

)

Plaintiff, ) Case No. 12 C 0098

)

v. ) Judge Ronald Guzmán

)

COMMANDER WILLIAM FRANKO, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, presently in state custody at Illinois River Correctional Center, brought

this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that

Defendant, Commander William Franko (hereinafter, “Defendant”), violated his First

Amendment rights and his rights under the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”), 42 U.S.C. § 2000(cc), by confiscating his religious head wear

(known as a “kufi”) on November 23, 2011, when he was a pre-trial detainee at the Cook

County Jail. This matter is before the court for ruling on Defendant’s motion for

summary judgment [30]. For the reasons stated below, the motion is granted.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

determining the existence of a genuine issue of material fact, a court construes all facts in

a light most favorable to the non-moving party and draws all reasonable inferences in

that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Weber v.

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Univs. Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). “The evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 255. The court does not “judge the credibility of the witnesses,

evaluate the weight of the evidence, or determine the truth of the matter. The only

question is whether there is a genuine issue of fact.” Gonzalez v. City of Elgin, 578 F.3d

526, 529 (7th Cir. 2009) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249-50

(1986)).

However, Rule 56 “mandates the entry of summary judgment, after adequate time

for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Where the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial.” Sarver v. Experian Info. Solutions, 390 F.3d 969, 970

(7th Cir. 2004) (citations omitted).

LOCAL RULE 56.1

Defendant filed a statement of uncontested material facts pursuant to Local Rule

56.1 (N.D. Ill.). Together with his motion for summary judgment, Defendant included a

“Notice to Pro Se Litigant Opposing Motion for Summary Judgment.” That notice clearly

explained the requirements of the Local Rules and warned Plaintiff that a party’s failure

to controvert the facts as set forth in the moving party’s statement results in those facts

being deemed admitted. See, e.g., Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

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

file:

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(3) a concise response to the movant’s statement that shall

contain

(A) a response to each numbered paragraph in the moving

party’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, consisting of short 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 rigorously enforce compliance with Local Rule 56.1. See,

e.g., Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (“Because of the high volume

of summary judgment motions and the benefits of clear presentation of relevant evidence

and law, we have repeatedly held that district judges are entitled to insist on strict

compliance with local rules designed to promote the clarity of summary judgment

filings” (citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.

2004))). Although pro se plaintiffs are entitled to lenient standards, compliance with

procedural rules is required. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006).

Plaintiff failed to file a proper response to Defendant’s statement of uncontested

facts by not indicating which statements he agrees with and which he disputes. Plaintiff’s

responses appears to be his own statement of facts. However, none of the statements

contains a reference to the record, and though he attaches three documents as exhibits,

they do not properly contest any of Defendant’s statements of fact. The Court has

carefully reviewed Plaintiff’s responses and finds that none of the Defendant’s statements

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of uncontested facts is properly disputed. Accordingly, Defendant’s statements of

uncontested facts are deemed admitted.

However, 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 was a pretrial detainee at the Cook County Jail (“Jail”) starting on

November 16, 2009. (Def’s. 56.1(a)(3) Statement ¶ 1.) He has since been taken into state

custody and is presently housed at Illinois River Correctional Center. (See ECF Docket). 

Commander Franko was a commander in Division 10 of Cook County Jail. (Def’s.

56.1(a)(3) Statement ¶ 5.)

Plaintiff claims that he is an African Hebrew Israelite and wears a kufi. (Id. at ¶

8.) On November 23, 2011 around 11:30 a.m., Plaintiff and another detainee, Larry

Banks, were in the day room and wearing kufis in Tier 4-A of Division 10. (Id. at ¶ 13.) 

Pursuant to Cook County Department of Corrections’ (“CCDOCs”) General Order 14.20,

religious head coverings and caps are considered contraband due to their potential use for

identification with a gang and concealment of other contraband. (Id. at ¶ 16.)

Commander Franko told Officer Tiscareno to take the two detainees’ head

coverings. (Id. at ¶ 28.) Officer Tiscareno ordered Plaintiff and Larry Banks to give him

their kufis. (Id. at ¶ 29.) Plaintiff disobeyed the order and refused to hand over his kufi.

(Id. at ¶ 30.) Plaintiff said, “I ain’t giving my kufi up,” and told Commander Franko, “I

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don’t got any contraband, I don’t have any contraband.” (Id. at ¶ 31.) Larry Banks also

stated that he and Plaintiff were not taking off their kufis. (Id. at ¶ 32.) 

Superintendent of Division 10 was notified. (Id. at ¶ 33.) The Superintendent

instructed the officers to confiscate all head coverings, including kufis because they are

contraband. (Id. at ¶ 34.) Tier 4A was placed on administrative lockdown. (Id. at ¶ 35.) 

Commander Franko told Plaintiff and Banks that he would have to confiscate

their head coverings and store them with their other personal property. (Id. at ¶ 36) 

Plaintiff and Banks stated, “We will not give them up,” and “You’re going to have to

fight us for them.” (Id. at ¶ 37.) During this entire incident, several inmates were out of

their cells in the day room. (Id. at ¶ 38.) These inmates overheard Plaintiff and Banks

refusing to obey the officers’ orders and threatening to fight them if they tried to take

away the kufis. (Id.) 

Commander Franko had Lieutenant Johnson report to Tier 4A for backup. (Id. at

¶ 39.) Plaintiff and Larry Banks were searched, but no kufi was found. (Id. at ¶ 40.) 

CCDOC “Inmate Grievance Procedure” Sheriff’s Order 11.14.5.0 has governed

the administrative grievance process and been available to inmates since July 14, 2011 to

the present. (Def’s. 56.1(a)(3) Statement ¶ 58.) Under the Inmate Grievance Procedure,

an inmate must deliver a grievance to the Correctional Rehabilitation Worker within

fifteen days of the event he is grieving. See Jamison v. Bryant, et al., Case No 11 C

5911, 2012 U.S. Dist. LEXIS 180865, *18 (N.D. Ill. Dec. 21, 2012) (Guzmán, J.).

Plaintiff was aware of the grievance process, but between November 23, and 30,

2011, did not file any grievances. (Id. ¶¶ 59, 61.) However, Plaintiff included with his

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response to Defendant’s motion for summary judgment a copy of a grievance submitted

by fellow detainee Larry Banks. (Pl.’s Resp. ECF #33, p. 21)

ANALYSIS

The Court cannot entertain Plaintiff’s First Amendment and RLUIPA claims

because Defendant has demonstrated that Plaintiff failed to exhaust administrative

remedies prior to bringing suit. The Prison Litigation Reform Act of 1996 contains a

comprehensive administrative exhaustion requirement. Under that statute, “[n]o action

shall be brought with respect to prison conditions . . . by a prisoner . . . until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see Booth

v. Churner, 531 U.S. 956 (2001); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir.

2000). “[I]f a prison has an internal administrative grievance system through which a

prisoner can seek to correct a problem, then the prisoner must utilize that administrative

system before filing a claim under Section 1983.” Massey v. Helman, 196 F.3d 727, 733

(7th Cir. 1999); see Smith v. Zachary, 255 F.3d 446, 450 (7th Cir. 2001).

An inmate must comply with the rules established by the State (or, in this case,

county) with respect to the form and timeliness of grievances. Ford v. Johnson, 362 F.3d

395, 397 (7th Cir. 2004); Pozo v. McCaughtry, 286 F.3d 1022, 1023-25 (7th Cir. 2002)

(where prisoner failed to avail himself of the administrative grievance process in a timely

manner, he was barred from pursuing relief in federal court). In order to exhaust, a

prisoner “must take all steps prescribed by the prison’s grievance system.” Ford, 362

F.3d at 397. 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

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insufficient. See Ford, 362 F.3d at 398; Perez Wis. Dep’t of Corrs., 182 F.3d 532, 536-37

(7th Cir. 1999). 

To exhaust remedies under § 1997e(a), a 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 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 remedies in the corrections system, 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 v. Nussle, 534 U.S. 516, 524-25

(2002).

In his response to Defendant’s motion, Plaintiff alleges that he filed an emergency

grievance related to Defendant confiscating his kufi. However, the grievance he attaches

to his response was filed by Larry Banks, not Plaintiff. Moreover, the grievance says

nothing about the confiscation of kufis and is dated November 22, 2011, the day before

the alleged incident with Defendant Franko. Thus, even if the grievance could somehow

be attributed to Plaintiff, it is plainly not related to the alleged incident underlying this

case.

Alternatively, plaintiff argues that the grievance procedure was unavailable to

him. But he has not offered any facts to support that argument. See Minor B v. Duff, No.

06 C 4912, 2009 U.S. Dist. LEXIS 61109, *35 (N.D. Ill. July 17, 2005) (stating that

grievance procedure may be unavailable if the required grievance form is not given to the

prisoner or he is threatened with violence for attempting to use the procedure (citing Dale

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v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) & Hemphill v. New York, 380 F.3d 680, 688

(2d Cir. 2004))). 

Furthermore, there is no suggestion here of any affirmative misconduct on the

part of the jail to prevent Plaintiff from learning about and pursuing the grievance

procedure. See Dole v. Chandler, 438 F.3d 804, 809. As such, he bore the responsibility

of taking the appropriate steps to comply with the proper procedure. See Yousef v. Reno,

254 F.3d 1214, 1221 (10th Cir. 2001); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.

2000) (“[42 U.S.C. § 1997e(a)] says nothing about a prisoner’s subjective beliefs, logical

or otherwise, about administrative remedies that might be available to him. The statute’s

requirements are clear: If administrative remedies are available, the prisoner must

exhaust them.”). 

Because the evidence is clear that Plaintiff did not exhaust his administrative

remedies prior to filing suit, judgment is granted to Defendants. Although the time for

submitting a grievance has expired per CCDOC’s policies, the dismissal of Plaintiff’s

claim is without prejudice, as this Court does not rule on whether a state court would

apply an exhaustion requirement similar to that of § 1997e(a) with respect to Plaintiff’s

claims. See Ford, 362 F.3d at 401. In short, the Court’s ruling does not preclude the

Plaintiff from pursuing any relief that may be available to him through the state court.

But because by operation of § 1997e(a) Plaintiff has no further recourse in federal court,

the dismissal without prejudice nevertheless constitutes a final, appealable, order.

Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (order dismissing § 1983 claims for

failure to exhaust administrative remedies is appealable where there are no further

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remedies that plaintiff can pursue); Barnes v. Briley, 420 F.3d 673, 676 (7th Cir. 2005)

(same).

If Plaintiff wishes to appeal this final judgment, he may file a notice of appeal in

this Court within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion

for leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present

on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be

liable for the $455.00 appellate filing fee irrespective of the outcome of the appeal. Evans

v. Ill. Dep’t of Corrs., 150 F.3d 810, 812 (7th Cir. 1998). Furthermore, if the appeal is

found to be non-meritorious, Plaintiff may also be assessed a “strike” under 28 U.S.C. §

1915(g). The Plaintiff is advised that, pursuant to that statute, if a prisoner has had a total

of three federal cases or appeals dismissed as frivolous, malicious, or failing to state a

claim, he may not file suit in federal court without prepaying the filing fee unless he is in

imminent danger of serious physical injury.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment [30] is

granted because Plaintiff failed to exhaust administrative remedies prior to filing suit. 

Plaintiff’s motion for status [45] is denied as moot. This matter is closed.

Dated: March 15, 2013 __________________________

Ronald A. Guzman

U.S. District Court Judge

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