depositions, affidavits, and admissions filed in the case ‘show that . . . there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.’”
Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is evidence that would
support the entry of a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc.,
477 US. 242, 249 (1986). To determine if such material facts are genuinely disputed, the
reviewing court must view the evidence in the light most favorable to the non-moving party and
resolve all doubts in that party’s favor. Jd. at 245-50. The moving party bears the burden of
identifying the material facts which are without genuine dispute and support summary judgment
in favor of the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-
moving party must identify which facts raise genuine disputes. Jd. at 324.

The only issue presented in this case is whether Arreola exhausted all of his available
administrative remedies before he filed suit in this Court. The PLRA provides that a prisoner
may not bring an action with respect to prison conditions until the administrative remedies
available to the prisoner have been exhausted. 42 U.S.C. § 1997e(a). The text of the statute is
clear; the prisoner must exhaust “such administrative remedies as are available.” Id. (emphasis
added). Thus, when a prison or jail has an internal grievance system through which a prisoner
can seek to correct a problem or raise a dispute or claim, the prisoner must pursue a grievance to
completion through the institution’s internal system before filing suit in court under 42 U.S.C. §
1983. Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999).

Administrative remedies are deemed exhausted and thus unavailable when a prisoner
takes every opportunity to obtain relief through outlined procedures but is stymied by prison

officials’ action or inaction. See Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002); Powe,


859 F.2d 517 (7th Cir. 1988); see also Bank of Illinois v. Allied Signal Safety Restraint Systems,
75 F.3d 1162, 1169 (7th Cir. 1996) (quoting Van T. Junkins & Associates, Inc. v. U.S. Industries,
Inc., 736 F.2d 656, 657 (11th Cir. 1984) (When a party has given clear answers to unambiguous
questions which negate the existence of any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony)). Defendants contend that Arreola’s affidavit contradicts the
statements he made in his original pro se complaint suggesting that he circumvented the
grievance procedure because he thought he would receive a quicker response if he went directly
to Velasco, the head of the jail. The flaw in defendant’s argument, however, is that the sham-
affidavit rule applies only to prior sworn testimony. Bank of Illinois, 75 F.3d at 1169. A
complaint is not sworn testimony, but a general assertion in a lawsuit. Israel v. Sonic-
Montgomery Flm, 231 F.Supp. 2d 1156, 1165 (M.D. Ala. 2002). Similarly, the statements made
in the complaint were not given in response to an “unambiguous” question. /d. An admission in
a pleading may be used against the party who made it, but it is not irrevocable. See generally ,
30B M. Graham, Federal Practice and Procedure (Evidence) § 7026, at 271 (2000). Thus, the
sham-affidavit rule is inapplicable here.

In any event, the statements in Arreola’s affidavit do not contradict the statements made
in his letter to Velasco, which appears to have been written before he filed his federal complaint.
Though not a sworn statement, the letter tends to support the notion that Arreola is not simply
attempting to create a sham issue of fact by totally contradicting his previous story. Defendants
dispute whether the letter Arreola submits to the Court is the same one he wrote to Velasco, but

the authenticity of this piece of evidence cannot be determined at this juncture. Anderson, 477


grievance form or otherwise assisted him in filing a grievance.

After being repeatedly denied access to a grievance form, Arreola alleges that he wrote a
letter to Emesto Velasco, director of the Cook County Jail, in which he explained his grievance
and the steps he had already taken to follow the jail’s grievance procedure. Arreola claims that
he never received a transfer, a response to his letter, or any other acknowledgment of his
grievance. He claims that as a result of not being able to use a cane or crutches, on May 18, 2001
he slipped on a stairwell and broke his cast. The jail refused to give him a new cast, and he did
not receive a new one until he returned to Hill Correctional Center several days later. He claims
that as a result of defendants’ actions and policies he continues to suffer a severe ankle injury
including acute pain, deformity, soreness, bruising and swelling. He also claims that he suffers
mental distress and anguish.

Discussion

Rule 16(c)(1) allows a district court to “take appropriate action, with respect to the
formulation and simplification of the issues... .” Fed. R. Civ. P. 16(¢)(1). The elimination of a
claim pursuant to Rule 16(c)(1) on the ground that there is no triable issue of fact is tantamount
to the grant of summary judgment pursuant to Federal Rule of Civil Procedure 56. See 6A C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure (Civil) § 1529, at 299-300 (1990).
Arreola has correctly treated the motion as such, citing the standards applicable to summary
judgment motions and offering evidence to show why there are material facts that are in genuine
dispute on the issue of whether jail grievance procedures were “available” to him. The Court
will therefore treat the present Rule 16 motion as a motion for summary judgment under Rule 56.

Rule 56 requires that summary judgment be entered “only when the pleadings,



177 F.3d at 394 (Sth Cir. 1999); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); Foulk, 262
F.3d at 698 (8th Cir. 2001). Because the PLRA does not define the circumstances under which a
remedy is considered “available,” courts must look to that term’s plain meaning: immediately
utilizable, accessible or at hand. See Brown, 312 F.3d at 112-13; Miller, 247 F.3d at 740. A
grievance procedure which is not made known to inmates is not an ‘available’ administrative
remedy. Hail v. Sheahan, No. 00 C 1649, 2001 WL 111019, at *1 (N.D.IIL Feb. 2, 2001). As
the court in Hall aptly explained, “an institution cannot keep inmates in ignorance of the
grievance procedure and then fault them for not using it.” Jd. at *2 (citing Johnson v. Garraghty
57 F. Supp. 2d 321, 329 (E.D. Va. 1999)). Thus, when administrative remedies are effectively
made unavailable by the actions of prison officials, the prisoner may file suit without pursuing
those unavailable remedies to conclusion.

Illinois Department of Corrections regulations provide that a prisoner wishing to file a
grievance must “fill out the Inmate Grievance Form (emphasis in original). If forms are not
available blank writing paper is acceptable.” Cook County Department of Corrections General
Order No. 14.5, § III(B)(1). Grievances are to be placed in a designated locked box located on
each living unit. Jd. at (B)(2). The grievances are then collected by a Correctional Rehabilitation
Worker, logged, and forwarded through the proper channels to be resolved. Prisoners wishing to
appeal a grievance decision must appeal to the Administrator of Program Services or its
designee, Their decision on the matter is deemed final. Jd. at (C)(2). Usually, it is only after
such final decision is rendered may a prisoner seek relief pursuant to 42 U.S.C. § 1983 in federal
court.

Defendants, however, have not met their burden of proving that Arreola failed to properly



US. at 255 (On summary judgment a court may not make credibility determinations, weigh the

evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.)

Thus, when the Court views the evidence in the light most favorable to the Arreola, as Rule 56

requires, we must deny defendants’ request for to dismiss Arreola’s suit for failure to exhaust.
Conclusion

For the reasons stated above, defendants’ Rule 16(c)(1) motion is denied.

MATTHEW F. KENNELLY
United States District Judge

Date: April 22, 2004

Sage-inreNSE ORT



Minute Order Form {08/97}

_ United States District Court, Northern District of Hlinois
N f Assigned Sitting Judge if ~]
Judge or Magistrate Matthew F. Kennelly esther than
Judge Assigned Judge
CASE NUMBER 03 C 2854 DATE 4/22/2004
CASE Arreola vs. Mohammed Choudry, M.D.
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly

MOTION: the nature of the motion being presented.]

DOCKET ENTRY:

Cl) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Q Brief in support of motion due

(3) im Answer brief to motion due__. Reply to answer brief due____

(4) Oo Ruling/Hearingon set for at

(5) Qa Status hearing[held/continued to] [set for/re-set for] on__setfor_____at.

(6) Qa Pretrial conference{held/continued to] [set for/re-set for]on__—_eset ffor__ at _
(7) Oo Trial{set for/re-set for] on at

(8) a [Bench/Jury trial] [Hearing] held/continued to___at

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

OOFRCP4(m) OlLocal Rule 41.1 CI FRCP41(a)(t) [) FRCP41(a)(2).

ao) i [Other docket entry} For the reasons set forth on the attached Memorandum Opinion and Order,
defendants’ Rule 16(c)(1) motion is denied.

(11) | [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
Number

No notices required.
q umber of notices

Notices mailed by judge's staff. nM AR é3 2ons
Pei ?

Notified counsel by telephone. date docketed

vealtbenn 33

dave mailed notice

v Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge

courtroom
OR deputy's
initials

Date/time received in
central Clerk’s Office railing depoty iniials



exhaust available administrative remedies. In support of their motion, defendants offer the
affidavit of John Mueller, Assistant Administrator of the Cook County Department of
Correction’s Program Services Department. Mueller states that CCDOC has no record or
indication that Arreola ever filed a grievance regarding the claims he asserts in this suit.
Defendants also attach to their motion the original complaint that Arreola filed with this Court,
which according to defendants suggests that Arreola attempted to circumvent Cook County’s
established grievance procedure when he wrote the letter to Velasco. Relying on these facts,
defendants argue that they are entitled to judgment on the issue of exhaustion. However, on the
record that is before the Court, we are unable to make this determination as a matter of law.

It is undisputed that Arreola wrote a letter directly to Velasco instead of following the
jail’s formal grievance procedure. It is genuinely disputed, however, that the jail’s grievance
procedure was “available” to Arreola. Arreola alleges that he asked several prison officials for
grievance forms but claims his requests were either denied outright, or he was told that no forms
were available. Pl’s Resp. at 2. He further claims that he was never told or otherwise made
aware that he could file a grievance on blank writing paper if grievance forms were not made
available to him. Thus, there is a genuine issue regarding whether the jail’s grievance procedure
was actually available to Arreola.

Defendants contend that the Court is precluded by the sham-affidavit rule from
considering Arreola’s affidavit, in which he alleges that prison officials denied him access to
grievance forms and did not make him aware of Cook County’s grievance policy. The sham-
affidavit rule states that a party may not establish a genuine issue of material fact solely by filing

an affidavit that contradicts prior sworn testimony. See Adelman-Tremblay v. Jewel Companies,



IN THE UNITED STATES DISTRICT COURT a

FOR THE NORTHERN DISTRICT OF ILLINOIS Ge:
EASTERN DIVISION

APR 2 8 2004

GILBERT ARREOLA,
Plaintiff,

vs. Case No. 03 C 2854
MOHAMMED CHOUDRY, M.D.,
ERNESTO VELASCO, DIRECTOR OF
COOK COUNTY JAIL, MICHAEL
SHEAHAN, COOK COUNTY SHERIFF,
AND COOK COUNTY

APR

Defendants.
MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Gilbert Arreola, a prisoner in the Illinois Department of Corrections, has filed suit under
42 U.S.C. §1983 against Mohammed Choudry, a former doctor at Hill Correctional Center;
Emesto Velasco, the director of Cook County Jail; Michael Sheahan, Cook County Sheriff; and
Cook County, claiming violation of his equal protection rights as well as deliberate indifference
to injuries he suffered while incarcerated. Arreola seeks indemnification from Cook County for
any judgment entered against Velasco or Sheahan. The Cook County defendants have filed a
motion seeking dismissal of the suit pursuant to Rule 16(c)(1) of the Federal Rules of Civil
Procedure and the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, on the grounds that
Arreola failed to exhaust administrative remedies before filing suit in this Court. For the reasons

stated below, the Court denies defendants’ motion.

%



Background

Arreola is currently incarcerated at Dixon Correctional Center in Dixon, Illinois. He was
previously incarcerated at Hill Correctional Center, where on April 22, 2001 he was kicked in his
lower right leg and ankle while playing soccer, causing him an injury which required him to be
taken to the infirmary by wheelchair. The next day Arreola sought treatment from Dr.
Mohammed Choudry, who allegedly refused to treat Arreola upon finding out from the back of
Arreola’s identification card that he was Jewish. On April 27, 2001, Arreola was sent to Cook
County Jail on a writ on an unrelated matter. At Cook County Hospital, Arreola’s foot and ankle
were x-rayed, and medical personnel determined that his ankle was broken. Arreola was given a
cast, ordered a cane, and instructed to refrain from bearing weight on his right leg. Despite this,
when Arreola returned to his tier at the jail, he was not allowed a cane or crutches due to a jail
policy prohibiting such items. Arreola claims that without his cane or crutches he had extreme
difficulty walking.

Arreola alleges that on April 29, 2001 he asked Captain Holmes, a jail officer, for a
grievance form, but that Captain Holmes refused his request and instructed him to ask his tier
officer for a form. Pl’s Resp. at 2. Arreola claims that he asked the first-shift tier officer for a
grievance form and permission to move to a tier where he could use crutches, but that after
inquiring as to why Arreola needed a grievance form the officer told Arreola that he did not have
any. Id. Arreola further claims that the following day, he asked the second-shift tier officer for a
grievance form, but was told by the officer that he too did not have any forms but would tell the
first-shift tier officer to get Arreola one. Jd. Arreola alleges that he spoke to numerous other

officers including Lieutenant Ingram, Captain Malek, and others, none of whom gave plaintiff a