UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Carlos Rivera,

Plaintiff,

v.

Michael Sheehan, et al.

Defendants.

No. 20 CV 2396

Judge Lindsay C. Jenkins

MEMORANDUM OPINION AND ORDER

Plaintiff Carlos Rivera sued various employees of the Cook County Department 

of Corrections (“CCDOC”) for allegedly using excessive force against him during an 

altercation in December 2018 (the “Altercation”) in violation of 42 U.S.C. § 1983. 

Because Rivera was incarcerated when he filed suit, he needed to comply with the 

Prison Litigation Reform Act (“PLRA”), which demands prisoners exhaust their 

administrative remedies prior to suing in federal court. 42 U.S.C. § 1997e(a). 

Defendants moved for summary judgment arguing Rivera failed to abide by this 

requirement. The Court agrees, and grants Defendants’ motion.

LOCAL RULE 56.1

“On summary judgment, the Court limits its analysis of the facts to the 

evidence that is presented in the parties’ Local Rule 56.1 statements.” Kirsch v. 

Brightstar Corp., 78 F. Supp. 3d 676, 697 (N.D. Ill. 2015). The statements serve a 

valuable purpose: they help the Court in “organizing the evidence and identifying 

disputed facts.” Fed. Trade Comm’n v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 

(7th Cir. 2005). “To dispute an asserted fact, a party must cite specific evidentiary 

material that controverts the fact and must concisely explain how the cited material 

controverts the asserted fact. Asserted facts may be deemed admitted if not 

controverted with specific citations to evidentiary material.” L.R. 56.1(e)(3).

Any party, including a pro se litigant, who fails to comply with Local Rule 56.1 

does so at their own peril. Wilson v. Kautex, Inc., 371 Fed. Appx. 663, 664 (7th Cir. 

2010) (“strictly enforcing Local Rule 56.1 was well within the district court's 

discretion, even though employee was pro se litigant”); Collins v. Illinois, 554 F.3d 

693, 697 (7th Cir. 2009) (“even pro se litigants must follow procedural rules”); Parker 

v. Fern, 2024 WL 1116092, at *2 (N.D. Ill. Mar. 14, 2024) (“It is well-settled that a 

plaintiff's pro se status does not excuse him from complying with federal and local 

procedural rules.”).

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Here, Defendants filed a Rule 56.1 statement, and as required by Rule 56.2, 

served Rivera with a “Notice to Pro Se Litigant Opposing Motion for Summary 

Judgment.” [Dkts. 111, 113.] This latter filing explains what a motion for summary 

judgment is, and what steps Rivera needed to take to respond to the motion. 

Notwithstanding these instructions, Rivera failed to respond to Defendants’ 

statement of material facts. Nor did he file any additional facts. L.R. 56.1(b)(3). 

Consequently, the Court takes all its facts from Defendants and deems them 

admitted to the extent they are supported by evidence in the record. L.R. 56.1(e)(3); 

Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012).

BACKGROUND

When the Altercation occurred on December 28, 2018, Plaintiff was a convicted 

prisoner temporarily housed at the Cook County Jail, which the CCDOC operates. 

[Dkt. 111 ¶ 1.] Rivera remained at the Cook County Jail for the next three days, but 

was then transferred to an Illinois Department of Corrections (“IDOC”) facility on 

December 31, 2018. [Id. ¶ 16; see also Dkt 111-10 at 2.]1 Defendants Sheehan, 

Bakowski, Beyer, Duharkick, Shaw, Smith, Kramer, and Bily were Cook County 

Sheriff’s employees during the Altercation. [Dkt. 111 ¶¶ 2-10.] 

The CCDOC maintains a formal Inmate Grievance Procedure (“Grievance 

Procedure”) that explains the processes for filing a grievance. It is made available to 

all inmates at the Cook County Jail upon their arrival. [Id. ¶¶ 15, 17, 40.] Individual 

in Custody Services (“IIC”) is the department responsible for receiving, processing, 

tracking, organizing, and maintaining records related to grievances submitted by 

inmates. [Id. ¶ 18.] According to the Grievance Procedure, inmates are instructed to 

complete a grievance form when they have been “injured, harassed, abused, or 

threatened.” [Id. ¶ 20.] These forms are available in each living unit, but can also be 

obtained through the inmate’s Correctional Rehabilitation Workers (“CRWs”) or an 

IIC staff member. [Id. ¶¶ 21-22.] A blank piece of paper can also suffice if an official 

form is not available. [Id.]

Inmates can give completed grievance forms directly to a CRW or a 

Correctional Supervisor when those employees make their daily rounds. [Id. ¶ 27.] If 

an inmate needs to mail in a grievance form, the Grievance Procedure prescribes it 

must be sent to “CCDOC Inmate Services Department 2700 S. California Ave.

Chicago, IL 60608.” [Id. ¶ 25.]

The Grievance Procedure requires inmates to submit (or postmark) a grievance 

form within 15 days of the alleged offense. [Id. ¶ 23.] If an inmate receives an adverse 

decision, he then has 15 days to appeal. [Id.] If his appeal is denied, then he has 

exhausted his administrative remedies and may file a lawsuit. [Id.] Put differently, 

1 Citations to docket filings generally refer to the electronic pagination provided by 

CM/ECF, which may not be consistent with page numbers in the underlying documents.

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to properly exhaust the CCDOC’s administrative remedies, the Grievance Procedure

requires inmates to both timely file and appeal their grievance (within 15 days of the 

offense or decision). 

Rivera was aware of and availed himself of the Grievance Procedure prior to 

the Altercation. Indeed, Rivera submitted 46 grievances before December 28, 2018,

(32 of which were deemed compliant), and timely appealed some of those that received 

an adverse decision. [Id. ¶¶ 41-42.]

In this instance, however, Rivera waited until January 18, 2019—21 days after 

the Altercation—to attempt to file a grievance. [Id. ¶ 33.] When he did so, Rivera 

submitted the form to IDOC, which is a separate entity with distinct grievance 

procedures from CCDOC. During his deposition, Rivera admitted he took longer than 

15 days to file a grievance for the Altercation, and testified he did so because he 

“wanted to be precise” and ensure he included all pertinent detail. [Id. ¶ 34; Dkt. 111-

3 at 16.] IDOC responded to Rivera’s grievance on February 6, 2019, informing him 

that he could not grieve incidents at CCDOC through the IDOC grievance process. 

[Dkt. 111 ¶ 36.] 

On or about February 28, 2019, Rivera mailed a grievance to CCDOC 

regarding the Altercation. [Id. ¶ 37.] In a cover letter with the mailing, Rivera 

apologized for the delay, blaming it on his confusion with the distinction between 

IDOC and CCDOC, as well as his transfer shortly after the Altercation. [See Dkt. 111-

7 at 2.] On April 4, 2019, CCDOC responded to Rivera, informing him that his 

grievance was non-compliant because “[t]he grieved issue did not occur within the 

last 15 calendar days nor is it an allegation of sexual assault, harassment, voyeurism, 

or abuse.” [Dkt. 111-7 at 6.] Rivera then sued.2

 

ANALYSIS

Summary judgment is appropriate if 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). A genuine dispute of material fact exists if “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears 

the burden of proving the absence of such a dispute. See Celotex Corp. v. Catrett, 477 

U.S. 317, 323 (1986). All facts and reasonable inferences are construed in the light 

most favorable to the nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 

(7th Cir. 2016). 

The PLRA requires inmates to exhaust their administrative remedies before 

initiating a federal civil rights lawsuit. 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 

2 It is not clear whether Rivera appealed the CCDOC’s decision before filing suit.

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Federal law, by a prisoner confined in any jail, prison, or other correctional facility 

until such administrative remedies as are available are exhausted.”); see also Miles 

v. Anton, 42 F.4th 777, 780 (7th Cir. 2022) (“a suit filed before the prisoner has 

exhausted these remedies must be dismissed”) (cleaned up). Accordingly, if a 

correctional facility has an internal administrative grievance system through which 

an inmate can seek to correct a problem, the inmate must utilize that system before 

filing a claim in federal court. See Chambers v. Sood, 956 F.3d 979, 983 (7th Cir. 

2020). Courts follow “a strict compliance approach to exhaustion under the PLRA.” 

Williams v. Rajoli, 44 F.4th 1041, 1045 (7th Cir. 2022). The burden of proof is on the 

defendant to demonstrate the prisoner failed to exhaust his administrative 

remedies. See Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). 

Defendants move for summary judgment based on Plaintiff’s failure to exhaust 

his administrative remedies regarding the Altercation. Specifically, Defendants 

argue the two grievances Plaintiff filed did not comply with CCDOC’s Grievance 

Procedure because Rivera waited more than 15 days after the Altercation to submit 

a grievance. [Dkt. 112 at 1, 7-10.] A prisoner who fails to timely file his grievance 

according to the facility’s procedures cannot satisfy the exhaustion requirement.

Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (“when the prisoner causes the 

unavailability of the grievance process by simply not filing a grievance in a timely 

manner, the process is not unavailable but rather forfeited.”).

Defendants are correct. Rivera’s first grievance was erroneously filed with 

IDOC 21 days after the Altercation, and was rejected because IDOC was not involved.

Even if Rivera sent the grievance to CCDOC, it was nearly a week late. After 

receiving IDOC’s response on February 6, 2019, Rivera then waited another three 

weeks, until February 28, 2019, to send a grievance to CCDOC. By then, Rivera’s 

grievance was untimely and CCDOC rejected it under the Grievance Procedure. 

Plaintiff’s failure to comply with CCDOC’s grievance process renders his claim

unexhausted. Kaba, 458 F.3d 678 at 684; see also Pozo v. McCaughtry, 286 F.3d 1022, 

1025 (7th Cir. 2002) (an inmate must file grievances in the place, time, and manner 

specified by the facility’s rules to administratively exhaust).

The question thus becomes whether Rivera had a legally cognizable excuse for 

not complying with the Grievance Procedure. There are three such circumstances. 

The first is where the grievance process is “so opaque ... no ordinary prisoner can 

discern or navigate it.” Wallace v. Baldwin, 55 F.4th 535, 542 (7th Cir. 2022). The 

second occurs when “the prison administrators thwart inmates from taking 

advantage of a grievance process through machination, misrepresentation, or 

intimidation.” Id. (quoting Ross v. Blake, 578 U.S. 632, 644 (2016)). The third 

situation is when the grievance process is a “dead end” because “officers [are] unable 

or consistently unwilling to provide any relief to aggrieved inmates.” Id. 

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Rivera’s response brief focuses on why his grievance was untimely, which, in

its entirety, states as follows:

My reason for Grievance Procedure being late is [be]cause while I was 

housed in 2 north psych wing for the few days we are not given any pens 

or grievances. They say we can turn a pen into a weapon to harm 

ourselves and others. So we are not allowed to have any. My purpose 

for turning the grievance so late was [be]cause coming back to IDOC I 

had to wait until I purchased a pen on commissary to write with. Then 

me struggling with all my severe injuries physically and mentally 

having to write and think precisely on everything and everyone the 

incident occurred with took a little extra time. A lot occurred during 

that altercation. I went through the IDOC grievance process, then when 

I got the response about it having to get sent to Cook County 

Correctional Center. My transfer also plays a part in my delay. 

[Dkt. 118 at 1.] Although Rivera focuses on the right issue, his response is unavailing

because it does not fall within any of the noted exceptions. Indeed, Rivera does not 

cite to any factual or legal support at all, which is enough to sink his claims on 

summary judgment. Rahn v. Bd. of Trs. of N. Ill. Univ., 803 F.3d 285, 295 (7th Cir. 

2015) (a party that fails “to cite any legal authority in support of their argument” 

waives it).

As an initial matter, Rivera’s explanation for why he did not timely file his 

grievance is inconsistent with his deposition testimony. During his deposition, 

Defendants’ counsel specifically asked Rivera why he waited more than 15 days to 

file the grievance to IDOC. Rivera responded he had “to get everything in order ... to 

make sure that [he] missed nothing out.” [Dkt. 111-3 at 16.] Rivera added he “wanted 

to be precise. So, you know, I had to make sure that everything was right and 

everything was where it needed it to be. It took me time to write ... From when the 

incident occurred, I wanted to be specific on everything that happened.” [Id.] 

Rivera cannot create a genuine issue of material fact with “testimony”

inconsistent with what he said at his deposition. See Abraham v. Washington Grp. 

Int’l, Inc., 766 F.3d 735, 741 (7th Cir. 2014) (“a deponent may not use an affidavit 

sworn to after a deposition to contradict deposition testimony without giving a 

credible explanation for the discrepancies”); see also James v. Hale, 959 F.3d 307, 315 

(7th Cir. 2020) (explaining that, in absence of exceptions not relevant here, courts 

should “disregard a ‘sham’ affidavit—typically an affidavit that contradicts prior 

deposition testimony.”).

Rivera’s arguments also fail on the merits. It is undisputed Rivera was aware 

of CCDOC’s Grievance Procedure as early as August 2013 when he arrived at Cook 

County Jail. [Dkt. 111 ¶¶ 15, 40.] The Grievance Procedure explains how and when 

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to submit a grievance. Rivera availed himself of this process on dozens of occasions 

prior to the Altercation. [Id. ¶¶ 41-42.] Consequently, the Grievance Procedure

cannot be described as “opaque”; an ordinary prisoner such as Rivera was able to 

navigate it time and again. Wallace, 55 F.4th 535, at 542. And while Rivera’s transfer 

to an IDOC facility during the 15-day period added a level of complexity to filing, the 

grievance form Rivera submitted to IDOC was still untimely by nearly one week. 

Regardless, ignorance of the correct procedures is not a valid excuse. Twitty v. 

McCoskey, 226 F.App’x 594, 596 (7th Cir. 2007) (holding that a prisoner’s alleged lack 

of knowledge of grievance procedures does not excuse noncompliance with available 

administrative remedies).

The Court likewise finds no dispute exists as to whether prison administrators 

thwarted Rivera from filing the grievance. Again, Rivera’s transfer may have 

subjectively confused him, but there is no indication CCDOC transferred Rivera for 

the purpose of stopping him from filing a grievance; he does not even make the 

argument. [See Dkt. 118.] This notion is undercut further still by the fact Rivera did 

file a grievance (albeit six days too late). At most, there is a “metaphysical doubt” 

Rivera was transferred to disrupt his ability to file a grievance, but that is not enough 

to survive summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 

Corp., 475 U.S. 574, 586 (1986).

As for Rivera’s other proffered reasons, he argues he needed to purchase a pen 

from IDOC commissary before he could write the grievance. [Dkt. 118.] But Rivera

does not take the next step and contend this was a “machination, misrepresentation, 

or intimidation” by IDOC staff to stop him from filing a grievance. Wallace, 55 F.4th 

535, at 542. He does not argue, for example, IDOC staff withheld Rivera’s ability to 

access a pen, or falsely represented they would provide him a pen but failed to do so. 

Rivera also fails to provide any details on whether he asked for a pen to write a 

grievance, whether he had enough money in his commissary account to purchase a 

pen, when he ultimately obtained a pen, or any other details to provide substance to 

this argument.

Rivera’s final argument is that he was struggling with injuries sustained 

during the Altercation, which impeded his ability to think and write about what 

occurred. [Dkt. 118.] Even if this argument fit within one of the three Wallace

exceptions, Rivera has failed to provide any documents, such as medical records, to 

support this assertion. Arguments without evidence is not enough to defeat summary 

judgment. Wade v. Ramos, 26 F.4th 440, 446 (7th Cir. 2022) (summary judgment “is 

the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence 

it has that would convince a trier of fact to accept its version of events.”)

Ultimately, Rivera has not raised any arguments which create a genuine issue 

of material fact on whether he exhausted his administrative remedies. Rather, the 

record establishes Rivera filed two untimely grievances. Because he did not exhaust 

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his remedies, he cannot sue. Kaba, 458 F.3d 678, at 684. Defendants are entitled to 

summary judgment. 

CONCLUSION

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

summary judgment and dismisses this case without prejudice for failure to exhaust. 

If Plaintiff wants to appeal, he must file a notice of appeal with this Court 

within thirty days of the entry of judgment. See Fed. R. App. P. 4(a)(1). If he appeals, 

he will be liable for the $605 appellate filing fee regardless of the appeal’s outcome. 

See Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir. 1998). If the appeal is found 

to be non-meritorious, Plaintiff could be assessed a “strike” under 28 U.S.C. § 1915(g). 

If a prisoner accumulates three “strikes” because three federal cases or appeals have 

been dismissed as frivolous or malicious, or for failure to state a claim, the prisoner 

may not file suit in federal court without pre-paying the filing fee unless he is in 

imminent danger of serious physical injury. Id. If Plaintiff seeks leave to proceed in 

forma pauperis on appeal, he must file a motion for leave to proceed in forma pauperis

in this Court that specifies the issues he wants to raise on appeal. See Fed. R. App. 

P. 24(a)(1).

Enter: 20 CV 2396

Date: May 2, 2024

__________________________________________

Lindsay C. Jenkins

United States District Judge 

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