Sheahan, 81 F.3d 1422 (7th Cir. 1996), the court stated that such high level officials ordinarily
cannot be held liable for “clearly localized, non-systemic violations.” Id. at 1428-29. But if
Bailey’s cell was on record since 1993 as having been condemned and thus presumably in need
of repair, it is conceivable that it is the type of violation for which an official like Velasco, who
has overall responsibility for the Jail, may have responsibility. In addition, Velasco is ina
position to identify the unnamed officers who allegedly did not remove Bailey from the cell.
Antonelli, 81 F.3d at 1428; Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). However,
Sheahan, the Sheriff of Cook County, is too far removed from particularized conditions at the
Jail to be held liable. The claims against Sheahan must therefore be dismissed.
Conclusion

For the foregoing reasons, the Court dismisses for failure to exhaust administrative
remedies Bailey’s claims concerning ventilation, shaving and haircuts, sitting space, clothes
washing facilities, the law library, social services, and his medical care following the February
25, 2001 fall. The claims against defendants Sheahan and Noel are likewise dismissed. The
Clerk is directed to issue a summons to defendant Ernesto Velasco and to attach a Notice of
Availability of Magistrate Judge and a copy of this Memorandum Opinion to the summons, and
to send the plaintiff the same Notice as well as the Court’s standard Instructions for Submitting

Documents along with a copy of this order.

MATTHEW F. KENNELLY
Date: July 29, 2002 United States District Judge



This leaves only Bailey’s claims regarding the conditions in his cell and the slip and fall.
Bailey filed grievances regarding these claims but alleges that he never received responses other
than claims that the matter was being looked into. Though there is no “futility” exception to the
PLRA’s exhaustion requirement, see Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000),
the institution’s failure to respond to a properly-filed grievance can, depending on the
circumstances, excuse exhaustion. Compare Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.
2001) (defendant failed to show that further procedures were available after institution failed to
respond to grievance) with Martinez v. Williams, 186 F. Supp. 2d 353, 356 (S.D.N.Y.
2002)(inmate who did not receive response to grievance should have filed next-level appeal to
challenge failure to respond). See generally O’Connor v. Featherston, No. 01 CIV 3251, 2002
WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002). Based on Bailey’s allegations, the Court will
permit these claims to proceed, without prejudging whether Bailey ultimately will be able to
show that he exhausted the Jail’s internal remedies.

The Court also assesses whether Bailey can state a claim regarding the slip and fall. To
sustain his claim, Bailey ultimately will have to show that he suffered a serious injury due to the
defendants’ deliberate indifference, i.e., that the defendants were aware of a substantial risk of
serious injury to Bailey but failed to take appropriate steps to protect him. See, e.g., Butera v.
Cottey, 285 F.3d 601, 605 (7th Cir. 2002). Without deciding whether Bailey will prevail, his
allegations that the cell had been condemned in 1993 and that he had filed grievances about the
water on the floor suggest that Jail authorities knew of the danger and therefore suffice to allow
him to proceed with that claim.

Bailey has not identified the particular officers or officials who failed to move him from

his cell. Rather, he has sued the Sheriff and the Executive Director of the Jail. In Antonelli v.

3



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shes United Sates District Court, Northern District of Illinois
ame ieaneneeyuaee | Matthew F. Kennelly | Suge Otter
CASE NUMBER 02 C 2232 DATE 7129102
CASE Bailey vs. Sheahan
TITLE

{In the following box (a) indicate the party filing the motion, e.g,, plaintif¥, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:

DOCKET ENTRY:

ay QO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

Q), i) Answer brief to motion due___. Reply to answer brief due.

(4) oO Ruling/Hearing on setfor at

(5) im Status hearing[held/continued to] [set for/re-set for] on setfor__ at.

(6) im} Pretrial conference[held/continued to] [set for/re-set for]on__setfor___——at__.
(@) im] Trial[set for/re-set for]on__—_—at.

(8) im) (Bench/Jury trial] [Hearing] held/continuedto saat

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) O General Rule21 CFRCP41(a)(1) 1 FRCP41(a)(2).

(10) [Other docket entry} _ For the reasons set forth on the attached Memorandum Opinion and Order, the Court
dismisses for failure to exhaust administrative remedies Bailey’s claims concerning ventilation, shaving and haircuts,
sitting space, clothes washing facilities, the law library, social services, and his medical care following the 2/25/01 fall.
The claims against defendants Sheahan and Noel are likewise dismissed. The Clerk is directed to issue a summons to
defendant Emesto Valasco and to attach a notice of availability of Magistrate Judge and a copy of this memorandum
opinion to the summons, and to send the plaintiff the same notice as well as the Court’s standard instructions for
submitting documents along with a copy of this order.

(1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

lo notice ined.
Ne ices requi umber of notices,

AuG 0 7 2002

date docketed,

| Notices mailed by judge’s staff.

Notified counsel by telephone.

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date mailed notice
courtroom

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S~ fy 29

; 5, Date/time received in -
~! “ceniral Clerk’s Office ‘ling deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JAVIER P. BAILEY, )
)
Plaintiff, ) D, OevErED
) AU,
vs. ) Case No.02 C2232 4 97 2002
)
MICHAEL F. SHEAHAN, Sheriff of Cook )
County; ERNEST VELASCO, Director of y
Cook County Jail; and R/O MS. NOEL, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

On May 3, 2002, the Court dismissed the complaint of pro se plaintiff Javier Bailey, a
pretrial detainee at the Cook County Jail, and gave him leave to file an amended complaint.
Bailey did so on May 30, 2002. The Court reviews the amended complaint to determine whether
it states a claim against the various defendants and whether Bailey has properly alleged that he
exhausted administrative remedies available at the Jail. 28 U.S.C. §1915(e)(2)(b); 28 U.S.C.
§1915A; 42 U.S.C. §1997e(a).

Bailey claims that in late December 2000, he was placed in a cell that had been
condemned in 1993. Because of a cracked foundation, water containing dirt, worms, roaches and
_ rust leaked into the cell, and rodents entered the cell and crawled on him. He notified officers of

the conditions and filed grievances in January and mid-February 2001, but received no response
" other than statements by officers that the matter was being looked into. Bailey alleges that on
, Sunday, February 25, 2001, he slipped on standing water on the cell’s floor and fell, scraping his

back on the edge of the metal bunk beds and landing on his buttocks. He says that a layer of sk#


was removed, causing him to bleed, and leaving a scar. The fall also caused back injuries which
he says still affect him today. Bailey requested medical attention and spoke with an officer Noel,
who told him that no one answered when she called the dispensary. He saw a doctor the next
day, who gave him aspirin but declined to order an x-ray. In his amended complaint, Bailey
makes claims concerning the conditions of his cell, the slip and fall, and the alleged denial of
medical care, as well as claims concerning inadequate ventilation, restrictions on shaving and
haircuts, access to the law library and social services, and inadequate sitting space and facilities
for washing clothes.

The Court’s May 3 order noted that Bailey’s original complaint did not include
allegations reflecting that he had filed and pursued grievances regarding his claims. Under the
Prison Litigation Reform Act (PLRA), before filing suit a prisoner must exhaust internal
remedies, including appeals, established by the institution. 42 U.S.C. §1997e(a); Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Bailey has attached several grievances to his
amended complaint, but they concern only the conditions in his cell, the fall, and the medical
care issue. All of his remaining claims must therefore be dismissed for failure to exhaust
administrative remedies. The Court reaches the same conclusion regarding Bailey’s claim for
denial of medical care following the fall. The only grievance Bailey has attached regarding that
issue was made on the day of the fall and concerned only the initial one-day delay in obtaining
care. The amended complaint gives no basis to believe that the one-day delay caused Bailey any
harm at all, even though the Court called that issue to Bailey’s attention in the May 3 order.

Bailey has not attached any grievances regarding the care that he received from the unnamed

doctor the day after the fall. He thus cannot pursue a claim regarding the adequacy of the

treatment he received on that day.