12-5725.141 September 4, 2014

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSEPH PIERCE, )

 )

Plaintiff, )

 )

v. ) No. 12 C 5725

 ) 

COOK COUNTY et al., )

 )

Defendants. )

MEMORANDUM OPINION

Defendants move for summary judgment pursuant to Federal Rule

of Civil Procedure 56(a). For the following reasons, the court

grants in part and denies in part the motion.

BACKGROUND

Plaintiff, Joseph Pierce, has brought this civil rights action

pursuant to 42 U.S.C. § 1983 against Cook County Correctional

Officers Jason Earl, Shenita Winston, Anthony Parker, Michael

1

Matanic, Norlander Young, Gordon (no first name given), and Mason

(no first name given); unknown Correctional Officers; the Cook 2

County Sheriff (the “Sheriff”); and Cook County (the “County”). 

Pierce alleges that on July 21, 2011, while he was a pretrial

 The case caption spells Ms. Winston’s first name as “Shanita,” but she 1/

testified at her deposition that it is spelled “Shenita.” (Defs.’ L.R. 56.1

Statement, Ex. D, Dep. of Shenita Winston at 4.) 

Officer Mason was named in the complaint but was never served with 2/

process. 
- 2 -

detainee at the Cook County Jail (the “Jail”), the defendant

correctional officers “severely” beat and kicked him while other

defendant correctional officers stood by and failed to intervene. 

(Compl. ¶ 9.) As a result, plaintiff allegedly suffered serious

eye trauma and fractures to his orbital and jaw bones. The

complaint contains four counts: § 1983 excessive force and failure

to intervene against the defendant officers (Count I); state-law

battery against the defendant officers (Count II); respondeat

superior against the Sheriff (Count III); and indemnification

against the County (Count IV). 

Defendants move for summary judgment. 

DISCUSSION

A. Summary Judgment Standards

“The 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). In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom

in the light most favorable to the nonmoving party. See Kvapil v.

Chippewa County, Wis., 752 F.3d 708, 712 (7th Cir. 2014). “Summary

judgment should be denied if the dispute is ‘genuine’: ‘if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
- 3 -

Inc., 477 U.S. 242, 248 (1986)); see also Bunn v. Khoury Enters.,

Inc., 753 F.3d 676, 681-82 (7th Cir. 2014). The court will enter

summary judgment against a party who does not “come forward with

evidence that would reasonably permit the finder of fact to find in

[its] favor on a material question.” Modrowski v. Pigatto, 712

F.3d 1166, 1167 (7th Cir. 2013).

B. Facts

On August 27, 2010, Pierce entered the Jail after his arrest

for armed robbery. He remained there until he was convicted and

sentenced in late 2011 to ten years’ imprisonment in the Illinois

Department of Corrections. Pierce is currently in custody at the

Pontiac Correctional Center. (Pl.’s Resp. to Defs.’ L.R. 56.1

Statement ¶ 2; Defs.’ L.R. 56.1 Statement, Ex. B, Dep. of Joseph

Pierce at 43.) 

Plaintiff contends that on July 21, 2011, defendant Earl was

escorting him to a court appearance when Earl and other officers,

including Gordon, stopped him in a hallway and beat him up in

retaliation for derogatory comments plaintiff had made to Earl

earlier that morning. (Pl.’s Resp. to Def.’s L.R. 56.1 Statement

¶¶ 9, 18-21.) According to plaintiff, Gordon told him to stand

against the wall; Earl then said, “Talk that shit now,” and punched

plaintiff in the left eye. Gordon then punched plaintiff twice. 

(Pl.’s Resp. to Def.’s L.R. 56.1 Statement ¶¶ 19-20.) Plaintiff

fell to the floor, and Gordon, Earl, and another officer stomped on
- 4 -

and beat plaintiff. (Pierce Dep. at 93-94.) Other officers

allegedly arrived and joined in, beating plaintiff with their

walkie-talkies and kicking, punching, and stomping on him. (Id. at

90, 96.) Plaintiff estimates that at least 13 officers punched him

more than 100 times and stomped on him more than 100 times. (Id.

at 99, 124-26.)

Plaintiff was transported to the Cook County Hospital (the

“Hospital”) that day. The next day, he was transferred from the

Hospital to Cermak Health Services (“Cermak”), the medical division

of the Jail. He was transferred back to the Hospital on August 8,

2011 and then back to Cermak on August 11, 2011. (Defs.’ Resp. to

Pl.’s L.R. 56.1 Statement ¶¶ 51-53.) Plaintiff states that he had

surgery on October 1, 2011 “to repair [his] orbital bone and

reposition [his] left eye.” (Pl.’s Resp. to Defs.’ Mot. for Summ.

J., Ex. A, Aff. of Joseph Pierce ¶ 8.) 

C. Exhaustion of Administrative Remedies

Pierce alleges in Count I that the defendant officers used 

excessive force or failed to intervene during the use of excessive

force, thereby violating 42 U.S.C. § 1983. Defendants first argue

that Pierce failed to exhaust the Jail’s administrative remedies

prior to bringing suit, as the Prison Litigation Reform Act of 1995

(“PLRA”) requires. See 42 U.S.C. § 1997e(a) (“No action shall be

brought with respect to prison conditions under section 1983 of

this title, or any other Federal law, by a prisoner confined in any
- 5 -

jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”); Fluker

v. County of Kankakee, 741 F.3d 787, 791 (7th Cir. 2013). “[T]he

PLRA’s exhaustion requirement applies to all inmate suits about

prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or

some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 

The exhaustion requirement “gives prisoners an effective incentive

to make full use of the prison grievance process and accordingly

provides prisons with a fair opportunity to correct their own

errors.” Woodford v. Ngo, 548 U.S. 81, 94 (2006). 

The Seventh Circuit takes a “strict compliance” approach to

exhaustion and interprets the PLRA to require a prisoner to

properly use the institution’s grievance process by following its

specific rules and procedures. Dole v. Chandler, 438 F.3d 804, 809

(7th Cir. 2006). A prisoner must exhaust administrative remedies

even if he believes that the process is futile or requests relief

that the relevant administrative body does not have the power to

grant, id. at 808-09, but the duty to exhaust is limited to those

remedies that are “available in fact and not merely in form.” 

Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013). “[A] remedy

becomes ‘unavailable’ if prison employees do not respond to a

properly filed grievance or otherwise use affirmative misconduct to

prevent a prisoner from exhausting.” Dole, 438 F.3d at 809. 
- 6 -

Lack of exhaustion is an affirmative defense, with the burden

of proof on the defendants. Turley v. Rednour, 729 F.3d 645, 650

(7th Cir. 2013) (citing Jones v. Bock, 549 U.S. 199, 203-04

(2007)). On summary judgment, defendants must “do more than point

to a lack of evidence in the record; rather, they must establish

affirmatively that the evidence is so one-sided that no reasonable

fact finder could find that the plaintiff was prevented from

exhausting his administrative remedies.” See Santiago v. Anderson,

496 Fed. App’x 630, 636 (7th Cir. 2012).

The Cook County Department of Corrections has established an

Inmate Grievance Procedure (the “Procedure”). (Defs.’ L.R. 56.1

Statement, Ex. E, Aff. of John Mueller, Ex. 1.) The Procedure

requires an inmate to file a grievance, defined generally as “a

written complaint by an inmate regarding a policy within the CCSO

[the Sheriff’s Office], a condition in the CCSO, or a CCSO action

or incident affecting an inmate,” “within 15 days of the event

he/she is grieving.” (Id. at 2-3.) To file a grievance, “the

inmate shall fill out an Inmate Grievance/Response Form. If forms

are not available, the use of blank writing paper or other

department forms is acceptable.” (Id. at 3.) The Procedure also

requires the inmate to “deliver the signed and dated Inmate

Grievance/Response Form to the CRW [Correctional Rehabilitation

Worker]/Platoon Counselor.” (Id.) The CRW/Platoon Counselor is

defined as “the Sheriff’s Office employee assigned to collect,
- 7 -

process grievances and assist detainees with the grievance

process.” (Id. at 2.) The Procedure does not contain any

provision that excuses untimely filings for good cause.

Plaintiff filed a complaint about the alleged incident with

the Sheriff’s Office of Professional Review (the “OPR”).3

Participation in an internal-affairs investigation is nonetheless

“no substitute for an available grievance process” and therefore

does not exhaust available administrative remedies. Pavey v.

Conley, 663 F.3d 899, 905 (7th Cir. 2011) (“Pavey II”). Pierce

effectively fails to dispute that he did not file a grievance by

using the Inmate Grievance Procedure. He testified at his

deposition that could not remember whether he had filed a

grievance, Pierce Dep. 48-49, and has failed to submit any evidence

that he filed one. Defendants have submitted the affidavit of John

Mueller, Deputy Director of Inmate Services at the Cook County

Department of Corrections, who states that a “thorough review of

the CCDOC grievance records was conducted” to search for

“Grievances and Non-Grievance/Requests” by Pierce relating to the

July 21, 2011 incident and that Pierce did not file any such

grievance or request. (Mueller Aff. ¶¶ 6-7.) Defendants rely on

Mueller’s affidavit when stating in their Local Rule 56.1 Statement

that “Mr. Pierce did not file any grievances or requests whatsoever

Plaintiff states that he asked his mother to file this complaint. 3/

(Pierce Aff. ¶ 14.)
- 8 -

regarding any incident alleged to have occurred in Division 9 in

the Cook County Jail.” Plaintiff responds: “Disputed. There is no

indication in the record of what a request is. However, Mr. Pierce

did make several requests to various correctional officers for a

grievance forms [sic] and to speak with a counselor.” (Pl.’s Resp.

to Defs.’ L.R. 56.1 Statement ¶ 40.) Because plaintiff fails to

respond to that portion of the statement regarding his failure to

file a grievance, the court deems it admitted. 

Plaintiff contends that the grievance policy at the Jail was

in fact unavailable to him within the meaning of the PLRA for two

reasons: 1) he was physically incapable of drafting and filing a

grievance within the 15-day window; and 2) Jail correctional

officers and staff members prevented him from filing a grievance. 

The Seventh Circuit has held that an administrative remedy is not

“available” to a person physically unable to pursue it, Hurst v.

Hantke, 634 F.3d 409, 412 (7th Cir. 2011), or when officials at the

institution prevent an inmate from using the administrative

process, Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006), or

mislead the inmate about what steps he must take to pursue a

remedy, Pavey II, 663 F.3d at 906. Plaintiff submits an affidavit

in which he states in pertinent part as follows:

On July 21, 2011 I was severely beaten by Cook

County Sheriff Correctional officers. The officers broke

my left orbital bone causing my left eye to get knocked

back and down into my skull. The damage done to my eyes

and face was so severe that I could barely see anything

for almost a month and suffered from double vision. I
- 9 -

had to wait until October 1, 2011 for the swelling in my

face to go down enough to get surgery to repair my skull. 

As a result of this beating I was taken to the Cook

County Hospital on July 21, 2011. 

. . . 

On about ten occasions, from July 21, 2011--August

8, 2011, I spoke to correctional officers and requested

grievance forms and access to a counselor to talk about

the grievance process and for help making a grievance. 

The sheriffs repeatedly told me that I needed to speak to

a counselor to file the grievance. I was repeatedly told

the counselor would get around to me eventually but I

never saw or met one, until a month after the incident. 

When I was at Cermak, on several occasions I saw guards

pass my room, I would flag them down and ask them for

grievance forms. They always either told me that they

didn’t have them, or that I would need to speak to a

counselor.

I was in the Cerma[k] Hospital unit of the Cook

County Jail for more than a month after the beating and

I did not have access to grievance forms or a counselor

while I was at either Cook County Hospital or Cerma[k]

Infirmary. I did not have access to pens or pencils

while at Cerma[k] or Cook County Hospital.

In the first month after I was beaten, I could

barely see, get to the shower, leave my room, or go to

the common area. I could not go anywhere or do anything

unassisted because I could barely see, was medicated, and

would become dizzy if I walked around too much. I had

headaches, double vision, and blurred vision[.] My face

was so swollen I could barely see anything and could not

read or see well enough to identify what papers I was

given and could not see what I was writing on papers. To

this day I have headaches, double vision, and blurred

vision.

I do not know which guards I asked for access to a

counselor or for grievance forms because my eyesight was

very bad at the time and I could not see their badges for

their names or star numbers.

After a week of not getting the forms or seeing a

counselor, I asked my mother, Ester Pierce-Pearson to

file a complaint for me.
- 10 -

I did not give this information at my deposition

because I was never asked about my stay at Cook County

Hospital or Cermak Infirmary. I was also never asked if

I tried to file a grievance in this case.

(Pierce Aff. ¶¶ 3, 10-15.) 

In reply, defendants assert that plaintiff’s arguments are

“spurious,” and they deem his affidavit “unsupported” and “selfserving.” (Defs.’ Reply at 2, 6-7.) The Seventh Circuit, however,

has debunked the notion that evidence presented in a “self-serving”

affidavit is insufficient to thwart summary judgment. See Payne v.

Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (“Provided that the

evidence meets the usual requirements for evidence presented on

summary judgment--including the requirements that it be based on

personal knowledge and that it set forth specific facts showing

that there is a genuine issue for trial--a self-serving affidavit

is an acceptable method for a non-moving party to present evidence

of disputed material facts.”). 

Defendants also submit in reply the affidavit of Susie HarrisRichardson, who was a Correctional Rehabilitation Worker at Cermak

at the relevant time. Her duties included attending to inmate

needs, addressing their requests, and assisting them with

grievances. (Defs.’ Reply to Pl.’s L.R. 56.1 Statement, Ex. A,

Aff. of Susie Harris-Richardson ¶¶ 1-3.) Harris-Richardson states

that “each day”, she “would go from living unit to living unit to

see if any inmates had requests, if they needed blank grievance

forms, or to collect grievance forms that had been filled out,” and
- 11 -

was also “available to answer any questions regarding their

requests or the grievance process.” (Id. ¶ 4.) She has “no

independent recollection of” Pierce but states that any interaction

she “would have had” with him “would have either been through a

filed grievance or reflected in the Request logbook.” (Id. ¶ 5.) 

She describes the “CCDOC Master Grievance log book” and the

“Request logbook” and states that she reviewed the Request logbook

(without specifying for which dates) and that “it shows that on

July 22, 2011, Joseph Pierce . . . made a request for me to contact

his family regarding the status of his incarceration. Joseph

Pierce did not make any further requests during the relevant time

period.” (Id. ¶ 6-8.) Harris-Richardson also states (without 4

explaining what she searched or whether she reviewed the Master

Grievance log book): “Upon completion of my search, and reviewing

the Complaint, I found that Mr. Pierce never filed any grievance

related to the issues alleged in his Complaint.” (Id. ¶ 9.) 

Considering the facts in a light most favorable to plaintiff,

as is required at this procedural posture, the court concludes that

defendants have failed to show the evidence is so one-sided that no

reasonable fact finder could find that the plaintiff was prevented

from exhausting his administrative remedies. Plaintiff’s affidavit

Plaintiff asks that the court strike paragraphs 7 and 8 of Harris- 4/

Richardson’s affidavit on the grounds that they “constitut[e] garden-variety

hearsay,” are not based on personal knowledge, and are not accompanied by a copy

of the “Request logbook.” (Pl.’s Mem. of Law Regarding Susie Harris-

[Richardson’s] Affidavit.) Because the court is denying defendants’ motion and

holding a hearing on exhaustion, the request to strike is denied as moot. 
- 12 -

sufficiently creates issues of material fact regarding whether an

administrative remedy was actually “available” to him. It is true,

as defendants point out, that Pierce’s affidavit does not contain

officers’ names or allegations of specific misconduct. It is also

true that Pierce was not so physically incapacitated that he was

unable to ask his mother to file the OPR complaint. On the other

hand, Harris-Richardson’s affidavit does not address the entirety

of plaintiff’s affidavit. Moreover, defendants fail to

substantively address plaintiff’s contention that no writing

implements were available to him during the 15-day period following

the alleged incident. These are issues that must be explored in an

evidentiary hearing under the procedures set forth in Pavey v.

Conley, 544 F.3d 739, 742 (7th Cir. 2008) (“Pavey I”). In Pavey I,

the Court of Appeals explained: 

The sequence to be followed in a case in which exhaustion

is contested is therefore as follows: (1) The district

judge conducts a hearing on exhaustion and permits

whatever discovery relating to exhaustion he deems

appropriate. (2) If the judge determines that the

prisoner did not exhaust his administrative remedies, the

judge will then determine whether (a) the plaintiff has

failed to exhaust his administrative remedies, and so he

must go back and exhaust; (b) or, although he has no

unexhausted administrative remedies, the failure to

exhaust was innocent (as where prison officials prevent

a prisoner from exhausting his remedies), and so he must

be given another chance to exhaust (provided that there

exist remedies that he will be permitted by the prison

authorities to exhaust, so that he’s not just being given

a runaround); or (c) the failure to exhaust was the

prisoner’s fault, in which event the case is over. (3) If

and when the judge determines that the prisoner has

properly exhausted his administrative remedies, the case

will proceed to pretrial discovery, and if necessary a
- 13 -

trial, on the merits; and if there is a jury trial, the

jury will make all necessary findings of fact without

being bound by (or even informed of) any of the findings

made by the district judge in determining that the

prisoner had exhausted his administrative remedies.

544 F.3d at 742. 

Because the court cannot say at this juncture that the

evidence is so one-sided that no reasonable factfinder could find

that Pierce was prevented from exhausting his adminstrative

remedies, defendants’ motion is denied without prejudice as to the

exhaustion issue, and the court will set a hearing pursuant to

Pavey I. 

D. Section 1983 and Battery Claims

1. Section 1983 - Fourteenth Amendment

In his § 1983 claim, plaintiff alleges that the defendant

officers “in physically abusing plaintiff and/or failing to

intervene to prevent such abuse . . . violated Plaintiff’s Fourth

Amendment right to be free from unreasonable seizures, and caused

the injuries set forth above.” (Compl. ¶ 12.) Defendants assert

that plaintiff’s claims arise under the Fourteenth Amendment, not

the Fourth Amendment, because the alleged incident occurred while

plaintiff was a pretrial detainee. Pretrial detainees, having had

a probable-cause hearing, are “protected from excessive force by

the Due Process Clauses of the Fifth or Fourteenth Amendments,” as

opposed to the Fourth Amendment. Kingsley v. Hendrickson, 744 F.3d

443, 456 (7th Cir. 2014); Williams v. Rodriguez, 509 F.3d 392, 403
- 14 -

(7th Cir. 2007). Plaintiff does not respond to defendants’

argument, so we will construe his § 1983 claim as a Fourteenth

Amendment claim and give him leave to amend his complaint

accordingly. 

2. Defendants Matanic, Young, and Winston

Defendants Matanic, Young, Winston, and Parker contend that

the court should enter summary judgment in their favor on

plaintiff’s § 1983 and battery claims because there is no evidence

of their personal involvement in the alleged incident. Individual 5

liability under § 1983 is appropriate only where the individual

defendant caused or participated in a constitutional deprivation. 

Smith v. Bray, 681 F.3d 888, 899 (7th Cir. 2012). Under Illinois

law, battery is the “unauthorized touching” of another that

“offends a reasonable sense of personal dignity.” Chelios v.

Heavener, 520 F.3d 678, 692 (7th Cir. 2008) (citing Cohen v. Smith,

648 N.E.2d 329, 332 (Ill. App. Ct. 1995)).6

Plaintiff does not address defendants’ arguments as to

Matanic, Young, or Winston, and he fails to submit any evidence

that these three defendants participated in or were present and

failed to intervene in the alleged beating. Therefore, the court

Defendants concede that Pierce’s deposition testimony concerning Earl 5/

and Gordon’s actions is sufficient to create a genuine issue of material fact as

to their personal involvement. (Defs.’ Mem. in Supp. of Mot. for Summ. J. at 9-

10.)

The parties do not dispute that Illinois law applies to plaintiff’s 6/

state-law claims. 
- 15 -

will enter summary judgment against plaintiff and in favor of these

defendants on plaintiff’s § 1983 and battery claims. 

3. Defendant Parker

Plaintiff does maintain that summary judgment should not be

entered in favor of defendant Parker on the § 1983 and battery

claims. Plaintiff points to his testimony that Parker “rushed” him

“with the other officers when I was getting stomped and beaten and

everything.” (Pierce Dep. at 107.) 

Plaintiff’s testimony that Parker was part of the group that

“rushed” him immediately before he was beaten is sufficient to

create an issue of material fact regarding whether Parker failed to

intervene. A jury could reasonably infer that because Parker was

part of this group, he was standing very close to the officers that

are alleged to have beaten plaintiff and thus could see what was

happening and had a realistic opportunity to intervene. 

Plaintiff’s testimony is not sufficient, however, to create a

genuine issue of material fact regarding whether Parker used

excessive force and battered plaintiff. Plaintiff was asked

whether he saw Parker “strike or beat” him and answered, “I don’t

remember.” (Pierce Dep. at 107.) Therefore, the court enters

summary judgment in Parker’s favor and against plaintiff on the

battery and excessive force claims but not on the failure to

intervene claim. The court denies Parker’s summary judgment motion

as to the plaintiff’s failure to intervene claim. 
- 16 -

E. Respondeat Superior Claim

Defendants argue that the Sheriff cannot be held liable in a

§ 1983 action under a theory of respondeat superior. Plaintiff so

concedes, but he correctly points out that the Sheriff can be held

liable on the state-law battery claim under this theory, see Brown

v. King, 767 N.E.2d 357, 361-64 (Ill. App. Ct. 2001), and

defendants do not reply. Accordingly, the court denies the

Sheriff’s motion for summary judgment on Count III. 

CONCLUSION

For the foregoing reasons, defendants’ motion for summary

judgment [25] is granted as to plaintiff’s § 1983 and battery

claims against defendants Michael Matanic, Norlander Young and

Shenita Winston and as to plaintiff’s excessive force and battery

claims against defendant Anthony Parker; the remainder of the

motion is denied without prejudice. Summary judgment is hereby

entered in favor of defendants Michael Matanic, Norlander Young and

Shenita Winston and against plaintiff on Counts I and II and in

favor of defendant Anthony Parker and against plaintiff on

plaintiff’s excessive force claim and on Count II. 

Plaintiff is given leave to file an amended complaint to

assert his § 1983 claim under the Fourteenth Amendment instead of

the Fourth Amendment by September 12, 2014. 

The case is set for a status hearing on September 15, 2014 at

8:45 a.m.
- 17 -

 DATE: September 4, 2014

ENTER: _______________________________________________

Amy J. St. Eve, United States District Judge