UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KEVrN DAWSON (#20 l0 -032219 4),

Plaintiff,

v.

)

)

) Case No. 12 C 3005

)

) Judge James B. Zagel

)

COOK COUNTY MUNICIPALITY, et al. )

)

Defendants.

MEMORANDUM OPINION AND ORDER

Kevin Dawson (hereinafter, "Dawson" or "Plaintiffl'), presently in custody at the Cook

County Jail, has filed suit pursuant to 42 U.S.C. $ 1983 and the Americans with Disabilities Act,

42 U.S.C.S. $ 12101 et seq. Plaintiff alleges deliberate indifference to a serious medical

condition while incarcerated at the Jail. Presently pending before the Court are Defendants'

motion for summary judgment (Doc. 37) and Plaintiff s motions in response (Docs.45, 50, and

52). Plaintiff also filed a motion for attorney representation (Doc. 49). Defendants argue that

Plaintiff has: (1) failed to exhaust his administrative remedies prior to filing suit as required by

the Prisoner Litigation Reform Act, 42 U.S.C. $ 1997e(a); (2) failed to establish a deliberate

indifference claim; and (3) failed to establish an official capacity claim or to establish personal

involvement of Defendants in any alleged constitutional violation; and (4) failed to establish a

violation of the Americans with Disabilities Act. Defendants also argue that they are entitled to

qualified immunity.

The record before the Court establishes that Plaintiff failed to exhaust his administrative

remedies prior to filing suit. Thus, for the reasons stated herein, Defendants' motion for

summary judgment is granted. Plaintiff s motions are granted to the extent they seek to place
materials before the Court in response to the motion for summary judgment and denied for all

other purposes. The Court considers the materials as described herein.

STANDARD OF REVIEW AND LOCAL RULE 56.I STATEMENT

Summary judgment is proper "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); Celotex Corp. v. Catrett,4lT U.5.317,322 (1986). All of the evidence and the

reasonable inferences that may be drawn from the evidence are viewed in the light most

favorable to the nonmovant. Miller v. American Family Mutual lns.,203 F.3d997,1003 (7th

Cir. 2000). Summary judgment may be granted when no "reasonable jury could return a verdict

for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.5.242,248 (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 Defendants filed their motion for summary judgment, they included a "Notice to

Pro Se Litigant Opposing Motion for Summary Judgment" as required by Timms v. Frank,953

F.2d281,285 (/thCir. 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 Calhoun's response must comply with Federal Rule of Civil

Procedure 56(e) and Local Rule 56.1.
Plaintiff submitted several responses to Defendants' motion for summary judgment, but

did not submit a response to Defendants' L.R. 56.1 statement of facts. Local Rule 56.1(bX3)

requires aparty opposing a motion for summary judgment to file:

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

supporling 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)(3). The district court may require strict compliance with Local Rule 56.1. See

Ammons v. Aramark Uniform Serv., [nc.,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); United States v. Dunkel,927 F.2d955,956 (7thCir.

l99l ) ("Judges are not like pigs, hunting for truffles buried in briefs").

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) ("[R]ules apply to

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

Despite being given this notice, Plaintiff failed to submit a response to Defendants'Rule 56.1

statement of facts with references to the record. Instead, Plaintiff submitted multiple motions in

response to the motion for summary judgment, including documents and making argument.

Consequently, Defendants'facts contained in their Rule 56.1 statement, to the extent that they

are material and adequately supported by the record, are deemed admitted.
A motion for summary judgment "requires the responding party to come forward with the

evidence that it has--it is the 'put up or shut up' moment in a lawsuit." Eberts v. Goderstad,569

F.3d757,767 (7th Cir. 2009) (citations omitted). If the moving party meets its burden of

showing that there are no issues of material fact and that he or she is entitled to a judgment as a

mater of law, the non-moving party must "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); Celotex, 477 U.S. at 322-26. 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; Insolia v. Phillip Morris Inc.,216 F.3d 596 (7th Cir.

2000).

Because Plaintiff is proceeding pro se, the Court will consider the factual assertions he

makes in his response to Defendants' motion, but only to the extent that they are adequately

supported by reference to the record as required, or to the extent that Plaintiff could properly

testify about the matters at trial - that is, only with respect to those facts within his personal

knowledge. See FEo. R. Evlo.602.

FACTS

The following facts are taken from Defendants'Rule 56.1 statement, from the record

attached to Defendants Rule 56.1 statement, and from Plaintifls responses to Defendants'

motion for summary judgment to the extent that the facts are within his personal knowledge.
Plaintiff was a pretrial detainee at the Cook County Department of Corrections

("CCDOC") during the relevant time period. (Defendants' L.R. 56.1 statements of fact fl l).

Plaintiff is a handicapped pretrial detainee confined to a wheelchair as a result of a gunshot

wound to the spine. (Id. atfl 10).

On August 21,2011, Plaintiff was transfened to Division 10 of CCDOC after he

requested protective custody. (ld. at tT 16). If a detainee requests protective custody, it is

CCDOC policy to act upon any request for protective custody subject to the safety, security and

medical needs of the detainee. (ld. at 1T 17). It is also protocol to inquire of the detainee every

month to ask if he wants to sign out of protective custody as a well being check. Id. At no time

did Plaintiff request to be out of protective custody. ft/. In August 2011, the only location

available for a wheelchair bound detainee who requested protective custody would be in

Division 10, in an observation cell in administrative segregation . Id. The Plaintiff agreed to stay

in Division 10 because he could not be around other inmates. Id.

Plaintiff was housed in segregation in an observation cell. (ld. atfl l8). The observation

cell that Plaintiff was assigned to had a glass door and its own toilet and sink and was subject to

twenty-four hour-a-day observation. 1d. Plaintiffs wheelchair fit in the cell. Id. A plastic

shower chair was provided for Plaintiff to take a shower. Id. Plaintiff was the only person in a

wheelchair in Division 10 and the only one in protective custody. (Id. at fl 19).

The "Inmate Grievance Procedure" was available to all detainees in 201 I through 2012.

(Id. atn2\. Plaintiff is familiar with the CCDOC detainee grievance procedure. (ld. at fl 31).

Plaintiff filed no grievances in August 2011. (ld. at n 3D. On September 27,2071, Plaintiff

filed a grievance dated September 13, 2011, with his Correctional Rehabilitation Worker

("CRW"). (Id. at fl 33). That grievance was given control number 20ll X 2352. Plaintiff
received the response to this grievance on October 21, 2011. Id. Plaintiff did not appeal this

grievance.ld.

On October 21, 2011, Plaintiff filed a grievance dated October 1 8, 201 1 , with his CRW.

(Id. at fl 34). The grievance was given control number 2011X2488. Id. Plaintiff received the

response to this grievance on November 10, 2011. Plaintiff did not appeal this grievance. Id.

On November 4,2077, Plaintiff filed a grievance dated October 31,2011, with his CRW.

(ld. at fl 35). The grievance was given control number 2011 X 2611. Id. Plainttff received the

response to this grievance onNovember 30,2011. Id. Plaintiff did not appeal this grievance.

rd.

On November 4, 2011, Plaintiff filed a grievance dated October 31, 2011, with his CRW.

(ld. at fl 36). The grievance was given control number 2011 X 2612. Id. Plaintiff received the

response to this grievance on November 17,2011. Id. Plaintiff did not appeal the grievance. Id.

On November 18, 2077, Plaintiff filed a grievance dated November 15,2011, with his

CRW. (Id. at n 37). The grievance was given control number 2011 X 2862. Id. Plaintiff

received the response to this grievance on December 74,2011. Id. Plaintiff did not appeal the

grievance. Id.

On December 21, 2071, Plaintiff filed a grievance dated December 12,2011, with his

CRW. (Id. at !.| 4l). The grievance was given control number 2011){ 3999. Id. lt pertained to

not being let out of his cell. Id. It also contained complaints about not being allowed to shower

before going to court, talking to his attorney for more than five minutes, and a litany of other

complaints including a statement on the third page of the three page grievance that he was unable

to turn around in his cell in order to clean it because of his wheelchair . Id. It was referred to the

Division 10 Superintendent. Id. Plaintiff received the response to this grievance on January 24,
2012. Id. The response provided reads, "Inmate is housed in 1A due to being placed in

administrative segregation." Id. Plaintiff has provided a copy of the grievance to the Court that

contains a completed appeal for this grievance. (Doc. 51 p. 3).

On January 4, 2072, Plaintiff filed a grievance dated January 4,2012, with his CRW.

(Defendants' L.R. 56.1 statements of fact fl 42). The grievance was given control number 2012

X0202. Id. Plaintiff received the response to this grievance on January 25,2012. Id. Plaintiff

never appealed the grievance. Id.

On January 71,2012, Plaintiff filed a grievance dated January 10,2072, with his CRW.

(Id. at fl 43). The grievance was given control number 2012X 0598. Id. It pertained to medical

treatment and was referred to Cermak. Id. Plaintiff received the response to this grievance on

March 26,2012. Id. Plarntrff did not appeal the grievance. Id.

On January 12, 2072, Plaintiff filed a grievance dated January 72, 2072, with his CRW.

(ld. atl44). The grievance was given control number 2012X0604. Id. Plaintiff received the

response to this grievance on March 8,2012. Id. Plaintiff did not appeal the grievance. Id.

On January 20, 2012, Plaintiff filed a grievance dated January 18, 2012, with his CRW.

(ld. at fl 45). The grievance was given control number 2012X0890. Id. Plaintiff received the

response to this grievance on February 2,2012. Id. Plaintiff did not appeal the grievance. Id.

On February 2, 2012, Plaintiff filed a grievance dated February 2, 2012, with his CRW.

(ld. atn4T. The grievance was given control number 2012X 1464. Id. Plaintiff received the

response to this grievance on March 9,2012. Id. Plaintiff did not appeal the grievance. Id.

On February 27,2012, Plaintiff filed a grievance dated February 19,2012, with his CRW.

(Id. at fl 4S). The grievance was given control number 2012X2732. Id. Plaintiff received the

response to this grievance on March 26,2012. Id. Plaintiff did not appeal the grievance. Id.
Plaintiff did not appeal any grievance related to the claims made in the complaint in this

case, prior to filing suit. (ld. at fl 49). Plaintiff did submit a grievance to the Court in his

responsive materials that involved allegations of excessive force, and on which the date of appeal

was February 6,2013, almost ayear afterhe filed suit. (Doc. 45,p.36).

ANALYSIS

Defendants argue that they are entitled to summary judgment for multiple reasons,

including that Plaintiff failed to fully exhaust his administrative remedies.

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 also Masseyv. Wheeler,22lF.3d 1030, 1034 (7th Cir.2000); Boothv.

Churner,531 U.S. 956 (2001). "[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); 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 administratirie grievance process in a timely manner, he was barred from

pursuing relief in federal court). Proper use of the facility's grievance system requires a prisoner

"to file complaints and appeals in the place, and at the time [as] the prison's administrative rules

require." Pozo,286 F.3d at 1025; Dole v. Chandler,438 F.3d 804, 809 (7th Cir. 2006); see also

Woodfordv. Ngo,548 U.S.81, 90 (2006).
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. The

purpose behind the exhaustion requirement is to give coruections 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 the present case, the record reflects that the grievance process was available to Plaintiff

and that he was aware of it. Plaintiff filed no fewer than twelve grievances during the relevant

time period. The record reflects that Plaintiff did not appeal eleven of the twelve grievances. The

only grievance that Plaintiff arguably exhausted (there is a discrepancy in the record as to

whether the grievance was fully grieved based upon different copies of the appeal page of the

grievance, one supplied by Defendants without the appeal porlion completed, and one supplied

by Plaintiff with the appeal portion completed), does not involve Plaintifls claims in this suit.

Plaintiff s response to the motion for summary judgment centers around grievance 2011x

3999. However, the substance of the grievance involves not being allowed to shower prior to

going to court, not being allowed enough time on the phone with his lawyer, not taking him to

the dispensary to change the dressing on his wound. On the third page of the three page

grievance, Plaintiff also complains of not being able to clean his cell because it is difficult to turn

around in the cell while in his wheelchair.

Plaintiff s claims in this case are for deliberate indifference to his needs as a wheelchair

bound inmate, and non-compliance with the Americans with Disabilities Act in failing to

accommodate his needs as a disabled person. However, the claims in this case center around the

allegations that there are no safety bars in his cell or in the showers, and problems with

wheelchair accessibility of his bed, toilets, and showers. Plaintiff alleges he fell in the shower
and injured his leg due to no safety bars and a faulty shower chair. None of those issues are

raised in his grievance.

The complaint does not mention conditions of confinement related to the cleanliness of

Plaintiffls cell, or any need for accommodation Plaintiff might have in trying to clean his cell.

Accordingly, the Court finds that although Plaintiff exhausted this one grievance, it did not

adequately place Defendants on notice of the claims raised in his complaint. Plaintiff does raise

one other grievance that he insists he fully exhausted, grievance 2013 x 0229, that by its very

designation could not have been submitted until after Plaintiff filed suit in this case. Based on the

record before the Court, the one grievance that Plaintiffmay have appealed prior to filing suit did

not sufficiently allege the claims ultimately raised in Plaintiffs complaint, such that jail

personnel would have an opportunity to address those complaints prior to Plaintiff filing suit.

See Porter v. Nussle, 534 U.S. at 524-25. "[A] suit filed by a prisoner before administrative

remedies have been exhausted must be dismissed; the district couft lacks discretion to resolve the

claim on the merits, even if the prisoner exhausts intraprison remedies before judgment." Perez

v. Wisconsin Dep't. of Corrections,l82 F.3d 532,535 (7th Cir. 1999) (emphasis added); see also

Ford,362F.3d at 398.

As the evidence is clear that Plaintiff failed to fully exhaust his administrative remedies

prior to filing suit, judgment is granted to Defendants. The Court grants Defendants judgment

because Plaintiff failed to exhaust his administrative remedies prior to filing suit; accordingly it

declines to address Plaintiff s substantive claims. Furthermore, because it is now too late for

Plaintiff to avail himself of grievance procedures, dismissal is with 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 1574,2004WL 417198, *4 (N.D. Ill. Feb. 23,2004) (Hibbler, J.).

l0
CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment (Doc. 37) is

granted. Plaintiff s motions (Docs. 45, 50, and 52) are granted. The Clerk is directed to enter

judgment in favor of the Defendants pursuant to Fed. R. Civ. P. 56. The case is terminated.

Plaintifls motion for attorney representation (Doc. a9) is denied as unnecessary. The motion

was decided on the issue of exhaustion and not on the substance of the claims. Accordingly, no

attorney representation was required as Plaintiff was adequately able to defend a motion brought

on the basis of failure to exhaust administrative remedies. See Navejarv. Iyiola,7L8F.3d692,

696 (7th Cir. 2013); (citing Pruitt v. Mote,503 F.3d 647, 655 (7th Cir. 2007) (en banc)).

Dated: March 3,20!4 E

11