IN THE 

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JUAN ANTONIO REGALADO (42244-424 ), )

)

)

Plaintiff, )

)

v. ) Case No. 12 C 1499

)

)

CATHERINE LINAWEAVER, et al. ) Judge John J. Tharp

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Juan Antonio Regalado (“Plaintiff”), currently confined at the Metropolitan Correctional

Center in Chicago (“MCC”), filed this civil rights action against MCC’s Warden Catherine

Linaweaver, Nurse Velasquez, Dr. Russo, Dr. Harvey, Medical Director Fearday, and Captain Sala

(“Defendants”). According to Plaintiff, he entered the MCC in November 2010, complaining of pain

in his lower abdomen, but nothing was done at that time. He states that he continued to complain

of pain but received only ibuprofen and other pain relievers. Allegedly, he did not see another

physician until April 2011, and again received only medication but no examination, even though he

informed medical personnel that there was blood in his stool. Plaintiff states that he was not again

examined until September 2011, when an outside physician diagnosed external hemorrhoids,

stomach ulcers, a hernia, and esophageal inflammation. Plaintiff contends the Defendants acted with

deliberate indifference to his medical condition. 

Pending before this Court is Defendants’ motion for summary judgment. They contend that

Plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) before filing this

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case. Plaintiff has responded, and the Defendants have replied. For the reasons set forth below, the

Court grants Defendants’ summary judgment motion and dismisses this case with prejudice.

SUMMARY JUDGMENT 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);

Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). In addressing Defendants’ motion, this

Court construes the facts and makes all reasonable inferences in favor of Plaintiff. Jajeh, 678 F.3d

at 566. Once the moving party demonstrates the absence of a disputed issue of material fact, “the

burden shifts to the non-moving party to provide evidence of specific facts creating a genuine

dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-movant must go beyond the

pleadings and “set forth specific facts showing that there is a genuine issue.” Hannemann v.

Southern Door County School Dist., 673 F.3d 746, 751 (7th Cir. 2012). A genuine issue of material

fact exists only if there is evidence to permit a verdict for the nonmoving party. Egonmwan v. Cook

County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010). 

When addressing a summaryjudgment motion, this Court derives the background facts 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). The movant’s Rule 56.1 Statement must “consist of short numbered paragraphs,

including within each paragraph specific references to the affidavits, parts of the record, and other

supporting materials relied upon to support the facts set forth in that paragraph.” Local Rule

56.1(a)(3) (N.D. Ill). The non-movant must respond “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.” Rule 56.1(b)(3)(B). The nonmovant may submit “any affidavits or other materials” to support his or her responses to the

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movant’s statements, as well as any additional facts requiring denial of summary judgment. Rule

56.1(b)(1); see also Fed. R. Civ. P. 56(c). A non-movant’s failure to respond to a Local Rule 56.1

statement of fact that is supported by the record results in that fact being considered admitted. 

Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). 

In the present case, because Plaintiff is proceeding pro se, the Defendants served him with

a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment” as required by Local Rule

56.2. (R. 26.) The notice explains the consequences of failing to properly respond to a motion for

summary judgment and to the facts set out in the movant’s Local Rule 56.1 Statement. Id. Plaintiff

filed a response to the Defendants’ summary judgment motion, (R. 28), but not their Rule 56.1

statements of fact. Although pleadings from pro se litigants are liberally construed, pro se litigants

must still complywith the Court’s local procedural rules. Dale v. Poston, 548 F.3d 563, 568 (7th Cir.

2008); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). Accordingly, this Court will consider

Defendants’ Rule 56.1 statements admitted, to the extent theyare supported bythe record. Raymond,

442 F.3d at 608. With these standards in mind, the Court turns to the facts of this case. 

FACTS

Plaintiff has been incarcerated at the Metropolitan Correctional Center (“MCC”) since

November 23, 2010. (R. 24, Defs. SOF ¶ 1.) He initiated this action in February 2012, alleging

deliberate indifference to his medical needs by MCC personnel. (Id. at ¶ 3.) According to MCC

Warden Secretary Abigail Hoyos’ declaration and the “Administrative Remedy Generalized

Retrieval Report” attached thereto, Plaintiff filed two requests for administrative relief before

initiating this suit. (Id. at ¶ 4; citing Hoyos Decl., citing Administrative Report attached to Decl.) 

One request for administrative relief was an appeal of a disciplinary finding, which he filed on May

9, 2011, and which concluded on May 16, 2011. (Id. at ¶ 4.) That request has nothing to do with this

case. The other request was filed on May 2, 2011, and sought medical attention. (Id. at ¶ 5.) 

According to Warden Secretary Hoyos and the Administrative Remedy Retrieval Report, Plaintiff

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withdrew this request and the administrative process was closed on June 7, 2011. (Id.) The Bureau

of Prisons has administrative remedy procedures, which include a three-tiered grievance process. 

An issue is not considered exhausted unless and until an administrative decision is addressed at the

institutional, regional, and central office levels. (Id. at ¶¶ 7-8.) 

The above stated facts are taken from Defendants’ Rule 56.1 statements of fact, which are

supported by the record. Plaintiff did not respond to Defendants’ Rule 56.1 Statement. Nor did he

submit evidence, such as his own affidavit or declaration. (R. 28.) Plaintiff’s one-page response

states that MCC staff “did not respond to plaintiff’s administrative remedy request (BP-9)” and that

“he did not withdraw his complaint.” (Id.) Given that Defendants’ statements of facts are supported

by the record and the lack of a response, their statement of facts are deemed admitted. The Court

notes, however, that, even if Plaintiff’s response sufficed to create a disputed issue of fact as to

whether he received a response to his grievance or withdrew it, the summary judgment evidence still

shows that he did not exhaust his claim of deliberate indifference to his medical needs because,

whether he withdrew the request or not, he did not pursue the administrative process to its

completion. 

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. The exhaustion requirement applies

to federal prisoners bringing Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), actions

against federal prison officials. Kaba v. Stepp, 458 F.3d 678, 684-85 (7th Cir. 2006); Dale v. Lappin,

376 F.3d 652, 654-55 (7th Cir. 2004). Under § 1997e’s exhaustion requirement, 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) (citation omitted). Even

where the prisoner seeks relief that was unavailable in the administrative system, such as money

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damages, he must still exhaust available administrative remedies. Dole v. Chandler, 438 F.3d 804,

808-09 (7th Cir. 2006). 

Exhaustion of available administrative remedies “‘means using allsteps that the agencyholds

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 1022, 1024 (7th Cir. 2002)). Proper use of a

prison 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, 438 F.3d at 809;

see also Woodford, 548 U.S. at 90. “The benefits of exhaustion can be realized only if the prison

grievance system is given a fair opportunity to consider the grievance.” Pavey v. Conley, 663 F.3d

899, 905-06 (7th Cir. 2011). Such an opportunity exists only if “the grievant complies with the

system's critical procedural rules.” Id.

Exhaustion of administrative remedies at the MCC involves a four step process. An inmate

must first attempt to resolve the issue informally. If attempts for informal resolution are

unsuccessful, the inmate is to then utilize the Bureau of Prison’s three-tiered grievance system,

which requires him to submit his request for administrative reliefto the Warden, then to the Regional

Director, and finally to the General Counsel. See 28 C.F.R. § 542.13-18. 

According to the summary judgment evidence, Plaintiff filed one BP-9 Administrative

Remedy Request for medical care on May 2, 2011; a response was due June 11, 2011; but the

administrative request process was closed on June 7, 2011, because the request was withdrawn. (R.

24, Defs. SOF ¶ 5, see also Exh. 1, Hoyos Decl. ¶ 7 and Administrative Remedy Generalized

Retrieval Form attached to declaration). As noted above, given that Plaintiff did not adequately

respond to Defendants’ Rule 56.1 statement or their evidence and given that their statement is

supported by the record, these facts are considered admitted, even though Plaintiff states that he

never withdrew his grievance. Cady, 467 F.3d at 1061; Raymond, 442 F.3d at 608. The summary

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judgment evidence thus demonstrates that Plaintiff did not exhaust his claim of deliberate

indifference to his medical needs. 

The Court notes as well that summary judgment is still warranted even if the Court considers

Plaintiff’s response compliant with Local Rule 56.1. While Plaintiff correctly indicates that

administrative remedies cannot be considered “available” if prison officials prevented him from

utilizing the administrative process, see Pavey, 663 F.3d at 906, his contentions that he never

withdrew his administrative request nor heard a response do not indicate that administrative remedies

were unavailable. The Bureau of Prison’s administrative procedures provide that, “if the inmate does

not receive a response within the time allotted for reply, including extension, the inmate may

consider the absence of a response to be a denial at that level.” 28 C.F.R. § 542.18. If Plaintiff did

not withdraw his grievance and never heard a response, he should have considered the grievance

denied at that level and proceeded to the next level of administrative review. 

In short, Plaintiff failed to pursue his administrative claim through all of the avenues

available to him and therefore failed to exhaust his administrative remedies. Furthermore, given that

Plaintiff’s claims concern allegedly inadequate medical care prior to September 2011, when he was

examined by an outside physician and his medical issues were properly diagnosed, it appears that

Plaintiff cannot now exhaust administrative remedies. The BOP’s administrative procedures require

submission of a grievance within 20 days of the date of the complained-of incident. 28 C.F.R. §

542.14(a). The dismissal is therefore with prejudice. 

CONCLUSION

For the reasons stated above, the Court grants Defendants’ motion for summary judgment

(R. 22), and dismisses the complaint with prejudice.

ENTER: _____________________________

John J. Tharp, Jr.

DATE: 3/22/2013 United States District Court Judge

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