IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DUSTIN CLAY (R-23623),

Plaintiff,

v.

CHARLES DOWNS, et al.,

 Defendants.

Case No. 12 C 1593

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Currently before the Court is a Summary Judgment Motion from

Officers Downs, Encarnacion, and Wright (the “Defendants”). They

argue that Plaintiff failed to exhaust administrative remedies with

respect to his claims of excessive force by Downs and the claims

against Encarnacion and Wright. Defendants Dr. Ghosh and Wexford,

who entered their appearance around the same time the summary

judgment motion was filed, have not joined the motion. Plaintiff

has responded to the motion. For the reasons stated herein, the

Court denies the Motion.

I. BACKGROUND

Plaintiff, Dustin Clay (“Plaintiff”), an inmate at the

Stateville Correctional Center, filed this civil rights complaint

pursuant to 42 U.S.C. § 1983 against Stateville Officers Charles

Downs (“Downs”), Joe Encarnacion (“Encarnacion”), and Clarence

Wright (“Wright”), and against former Stateville Medical Director

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Dr. Partha Ghosh (“Ghosh”) and Wexford Health Sources (“Wexford”)

(a Pennsylvania company that contracts to provide medical services

to Illinois inmates).

Plaintiff alleges that, on December 1, 2010, Officer Downs

used excessive force when he placed his forearm against Plaintiff’s

throat to demonstrate to another officer how to perform a choke

hold on a prisoner. According to Plaintiff, Downs then repeatedly

harassed him after the incident. Encarnacion and Wright, Downs’

supervisors, allegedly condoned Downs’ conduct, thus allowing it to

continue. Plaintiff also alleges that he received inadequate

medical care for his injuries after the physical abuse. 

II. STANDARD OF REVIEW

A “court shall grant summary judgment 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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath

v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir.

2000). In determining the existence of a genuine issue of material

fact, a court construes all facts in the light most favorable to

the nonmoving party and draws all reasonable inferences in favor of

that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). When addressing a motion for summary judgment, “[t]he

evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Id. at 255. 

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If the moving party meets its burden, the nonmoving party has

the burden “to go beyond the pleadings and affirmatively

demonstrate, by specific factual allegations, that there is a

genuine issue of material fact.” Borello v. Allison, 446 F.3d 742,

748 (7th Cir. 2006) (internal quotation marks and citations

omitted). A genuine issue of material fact is not demonstrated by

the mere existence of “some alleged factual dispute between the

parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt

as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of

material fact exists only if a reasonable finder of fact could

return a decision for the nonmoving party based upon the record. 

See Anderson, 477 U.S. at 252; see also Carrroll v. Merrill Lynch,

--- F.3d ---, 2012 WL 4875456 at *3 (7th Cir. Oct. 16, 2012). With

respect to whether an inmate exhausted administrative remedies, the

court, and not a jury, must resolve factual issues. Pavey v.

Conley, 544 F.3d 739, 742 (7th Cir. 2008).

When addressing summary judgment motions, background facts are

derived from the parties’ Local Rule 56.1 Statements, which assist

the court by “organizing the evidence, identifying undisputed

facts, and demonstrating precisely how each side propose[s] to

prove a disputed fact with admissible evidence.” Bordelon v.

Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000);

see also, N.D. Ill. Local Rule 56.1. Because Plaintiff is

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proceeding pro se, Defendant served him with a “Notice to Pro Se

Litigant Opposing Motion for Summary Judgment” as required by N.D.

Ill. Local Rule 56.2. The notice explains the consequences of

failing to properly respond to a motion for summary judgment and to

a statement of material facts under FED. R. CIV. P. 56(e) and Local

Rule 56.1. (R. 40.)

Plaintiff filed a response to Defendants’ Rule 56.1 Statement

of Facts. (R. 50.) Although Plaintiff did not file a memorandum

in support of his opposition to the summary judgment motion, his

response to the Rule 56.1 Statement suffices. Defendants have not

filed a reply. 

III. FACTS

Plaintiff is an Illinois prisoner, who was and still is

confined at Stateville Correctional Center. (R. 39, Defs.

Rule 56.1 Statement of Facts (“SOF”) ¶ 1; R. 50, Pl. Rule 56.1

Statement of Facts (“SOF”) ¶ 1.) Defendants Downs, Wright, and

Encarnacion were correctional officers at Stateville. (Defs. SOF

¶ 2; Pl. SOF ¶ 2.) Plaintiff alleges that, on December 1, 2010,

Defendant Downs used excessive when put his forearm on Plaintiff’s

throat purportedly to demonstrate to a new officer how to do a

choke hold. (Defs. SOF ¶ 5; Pl. SOF ¶ 5.) According to Plaintiff,

Downs harassed Plaintiff daily after this incident. (Pl. SOF ¶ 5.) 

Plaintiff alleges that he complained to Defendants Wright and

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Encarnacion about Downs’ behavior, but they ignored the complaints. 

(Defs. SOF ¶ 6; Pl. SOF ¶ 6.) 

The Illinois Department of Corrections has a formal grievance

procedure for inmates. (Defs. SOF ¶ 7; Pl. SOF ¶7.) Under this

procedure, an inmate is supposed to first attempt to resolve an

issue with his counselor. If the issue is not resolved, the inmate

can then file a grievance with a grievance officer. The grievance

officer may interview the inmate and witnesses, as well as gather

relevant documents to determine the merits of the grievance. 

(Defs. SOF ¶ 8.) After the grievance officer determines whether

the grievance has merit, the grievance is forwarded to the Chief

Administrative Officer (the “CAO”) (or designee), who either

concurs or does not concur with the grievance officer’s

determination. The CAO’s decision is then submitted to the inmate. 

(Defs. SOF ¶ 9; Pl. SOF ¶ 9.) If the inmate is not satisfied with

the CAO’s decision, he may appeal, in writing, to the Director of

the Department within 30 days. (Defs. SOF ¶ 10.) The

Administrative Review Board (“ARB”), the Director’s designee,

reviews the appeal, determines whether it can be decided without a

hearing, and submits a written report of its findings to the

Director, who then reviews the report and makes a final decision. 

(Defs. SOF ¶ 11; Pl. SOF ¶ 11.) The Director’s decision and ARB

report are then forwarded to the inmate. (Defs. SOF ¶ 12; Pl. SOF

¶12.) 

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If a grievance is believed to be an emergency, the inmate may

submit the grievance directly to the CAO, without first presenting

it to a counselor. (Defs. SOF ¶ 13; Pl. SOF ¶¶ 8, 13.) For such

grievances, the CAO determines if the inmate faces imminent danger

of personal injury or irreparable harm. An inmate may appeal the

CAO’s decision to the ARB within 30 days of the CAO’s decision. 

(Defs. SOF ¶13.) 

Plaintiff filed an emergency grievance on December 1, 2010,

about Officer Downs’ actions. (Defs. SOF ¶ 14.) Warden Hardy

(Stateville’s CAO) denied the grievance on December 7, 2010, as not

an emergency. (Id. at ¶ 15; Pl. SOF ¶ 15.) According to

Defendants, Plaintiff did not appeal the warden’s denial of the

grievance as an emergency until September 22, 2011, thus

demonstrating that Plaintiff did not properly exhaust

administrative remedies. (Defs. SOF ¶ 16.)

According to Plaintiff, after Warden Hardy determined that the

December 1, 2010, grievance was not an emergency, the grievance was

not returned to Plaintiff, but instead to his counselor, who

responded to it and returned it to Plaintiff at the end of December

2010. (Pl. SOF ¶ 8.) A copy of a grievance attached to

Plaintiff’s Complaint indicates that the counselor received the

grievance on December 21, 2010, and denied it on December 31, 2010. 

(Compl. at 20 (copy of grievance).) Believing that the grievance

had completed the counselor-review stage, Plaintiff submitted the

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grievance to a grievance officer. (Id.) Plaintiff contends that

the grievance officer received the grievance on January 4, 2011,

but did not rule on it until April 12, 2012, over fifteen months

later. (Id.; see also Exh. B (copy of Grievance Officer’s Report,

stating 1/4/11 as the date received and 4/12/12 as the date

reviewed)). Plaintiff states that, after not hearing a response

from the grievance officer for several months, he sent the CAO’s

denial of the emergency grievance to the Director. (Id.) Plaintiff

included with his Complaint a copy of the ARB’s decision denying

relief. That document indicates that the appeal was received on

September 22, 2011, and decided on October 21, 2011. (Compl. at

18.) 

IV. DISCUSSION

The Prisoner Litigation Reform Act requires that, “[n]o action

shall be brought with respect to prison conditions under section

1983 . . . or any other federal law, until such administrative

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

Under § 1997e, no prisoner “is entitled to judicial relief for a

supposed or threatened injury until the prescribed administrative

remedy has been exhausted.” Woodford v. Ngo, 548 U.S. 81, 88-89

(2006). Exhaustion of available administrative remedies “‘means

using all steps that the agency holds out, and doing so properly

(so that the agency addresses the issues on the merits).’” 

Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d

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1022, 1024 (7th Cir. 2002)). Proper use of the prison grievance

system requires a prisoner “to file complaints and appeals in the

place, and at the time the prison's administrative rules require.” 

Pozo, 286 F.3d at 1025; Dole v. Chandler, 438 F.3d 804 at 809; see

also Woodford, 548 U.S. at 90.

Although a prisoner must properly exhaust administrative

remedies before bringing his claim to court, he need exhaust only

remedies that are “available” to him. § 1997e(a). If an inmate is

prevented from exhausting administrative remedies, such remedies

may be considered unavailable. See Pavey v. Conley, 544 F.3d 739,

742 (7th Cir. 2008); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir.

2004) (prison officials allegedly refused to give prisoner

necessary forms, rendering exhaustion unavailable); Brown v. Croak,

312 F.3d 109, 113 (3d Cir. 2002) (untimely grievance would be

excused if prison official told prisoner to wait before filing it). 

However, if the fault for not following a facility’s exhaustion

rules lies with the prisoner, then a claim may be considered

unexhausted. See Pavey, 544 F.3d at 742. The prison employees

bear the burden of establishing that administrative remedies were

available to the prisoner. See Kaba v. Stepp, 458 F.3d 678, 686

(7th Cir.2006).

Defendants contend that Plaintiff failed to exhaust

administrative remedies because he did not timely appeal the

warden’s December 7, 2010, refusal to consider the grievance an

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emergency. According to Defendants, Plaintiff waited until

September 2011 to appeal the warden’s decision that the grievance

was not an emergency. Plaintiff contends that the grievance

officer’s 15-month delay to decide the grievance presented to him

prevented Plaintiff from seeking further review. 

Although Defendants discuss Plaintiff’s September 2011 appeal

of the warden’s decision that the grievance was not an emergency,

they do not address Plaintiff’s contention that his “emergency”

grievance was provided to Plaintiff’s counselor in December 2010

and, from there, apparently traveled the usual and prescribed route

for grievances. The grievance attached to Plaintiff’s Complaint,

indicating that indicates that the counselor received it on

December 21, 2010, and denied it on December 31, 2010, (Compl. at

20), and the grievance officer’s report submitted with Plaintiff’s

Rule 56.1 Statement, which indicates that the grievance officer

received the appeal on January 4, 2011, but did not rule on it

until April 12, 2012, support Plaintiff’s contention that he sought

to exhaust administrative remedies, but was unable to do so. (Pl.

SOF, Exh. B, copy of grievance officer’s report). 

Viewing the evidence in a light most favorable to Plaintiff,

the summary judgment record does not allow a decision that

Plaintiff failed to exhaust available administrative remedies. If

an appeal was filed with the prison’s grievance officer in January

2011, but not decided until April 2012, such a delay rendered

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administrative remedies unavailable to Plaintiff. See Brengettcy

v. Horton, 423 F.3d 674, 682 (7th Cir.2005); Lewis v. Washington,

300 F.3d 829, 833 (7th Cir. 2002) (not responding to a grievance or

an excessive delay with a response may make administrative remedies

unavailable). The current summary judgment record, thus

demonstrates that administrative review was not available to

Plaintiff in accordance with § 1997e(a). Accordingly, Defendants’

Summary Judgment Motion is denied. They may refile their Motion if

discovery reveals evidence that administrative remedies were, in

fact, available to Plaintiff but that he failed to make proper use

of them. 

V. CONCLUSION

For the reasons stated herein, Defendants’ Motion for Summary

Judgment [37] is denied. Plaintiff’s Motion opposing Defendant’s

motion [50] is granted to the extent it is construed as Plaintiff’s

response to both Defendants’ Summary Judgment Motion and their

Local Rule 56.1 Statement. 

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE: 12/27/2012

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