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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDRE WILLIAMS

Plaintiff,

v.

OFFICER RUBEN LUNA

Defendant.

Case No. 20-cv-4470

Judge Mary M. Rowland

MEMORANDUM OPINION AND ORDER

Plaintiff Andre Williams initially filed this civil rights lawsuit, pro se, under 42 

U.S.C. § 1983 against Defendant Ruben Luna1, alleging that Luna used excessive 

force against him and failed to protect him while Plaintiff was housed at the Cook 

County Department of Corrections (CCDOC). Defendant has moved for summary 

judgment on the issue of exhaustion only, arguing that this case should be dismissed 

because Williams failed to exhaust his administrative remedies before filing this suit. 

For the reasons stated below, Defendant’s motion for summary judgment [46] is 

denied. 

LEGAL STANDARD

Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

1 Plaintiff, acting pro se, misspelled Officer Luna’s name when he filed this suit. The Defendant has 

now been properly identified. Dkt. 46; Dkt. 47 at 6, ¶ 5. The Clerk is directed to correct the docket with 

Defendant’s full name: Officer Ruben Luna. The correct case caption is Andre Williams v. Officer

Ruben Luna. 

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A genuine dispute as to any 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 substantive law controls which facts are 

material. Id. After a “properly supported motion for summary judgment is made, the 

adverse party ‘must set forth specific facts showing that there is a genuine issue for 

trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)). 

The Court “consider[s] all of the evidence in the record in the light most favorable 

to the non-moving party, and [ ] draw[s] all reasonable inferences from that evidence 

in favor of the party opposing summary judgment.” Logan v. City of Chicago, 4 F.4th 

529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from making 

credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast Corp., 

951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). 

Under the Prison Litigation Reform Act of 1996 (PLRA), “[n]o action shall be 

brought with respect to prison conditions ... by a prisoner ... until such administrative 

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires a 

prisoner to properly take all the steps the prison offers. Williams v. Wexford Health 

Sources, Inc., 957 F.3d 828, 833 (7th Cir. 2020). “Failure to exhaust is an affirmative 

defense, so defendants bear the burden of proving that there was an available remedy 

that went unexhausted.” Gaines v. Prentice, No. 21-1588, 2022 WL 2304227, at *2 

(7th Cir. June 27, 2022) (citing Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022)). 

“Because the district judge, not a jury, is the factfinder on issues of exhaustion, if 

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there are disputed factual issues, then they must be resolved with an evidentiary 

hearing.” Id. (citing Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008)). 

BACKGROUND

I. Local Rule 56.1 

The Court first addresses Defendant’s argument that Plaintiff failed to comply

with Northern District of Illinois Local Rule 56.1. “Local Rule 56.1 statements serve 

to streamline the resolution of summary judgment motions by having the parties 

identify undisputed material facts and cite the supporting evidence.” Laborers’ 

Pension Fund v. Innovation Landscape, Inc., No. 15 CV 9580, 2019 WL 6699190, at 

*1 (N.D. Ill. Dec. 9, 2019). The Seventh Circuit has “consistently upheld district 

judges’ discretion to require strict compliance with Local Rule 56.1.” Flint v. City of 

Belvidere, 791 F.3d 764, 767 (7th Cir. 2015); Judson Atkinson Candies, Inc. v. 

Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th Cir. 2008). 

 The party opposing the motion for summary judgment must file “a response to 

the LR 56.1(a)(2) statement of material facts that complies with LR 56.1(e) and that 

attaches any cited evidentiary material not attached to the LR 56.1(a)(2) statement.” 

N.D. Ill. R. 56.1(b)(2). The non-moving party's failure to admit or deny facts as 

presented in the moving party's statement or to cite to any admissible evidence to 

support facts presented in response by the non-moving party render the moving 

party’s facts undisputed. Ammons v. Aramark Unif. Servs., 368 F.3d 809, 818 (7th

Cir.2004). 

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Plaintiff failed to provide a statement of facts in opposition to the motion as 

required by the local rule. Instead, his response brief contains a section entitled 

“Material Facts”, that relies on his affidavit, attached to the response brief. Dkt. 47.

However Local Rule 56.1 requires a separate statement “of any additional facts that 

require the denial of summary judgment.” Hall v. Vill. of Flossmoor Police Dep’t, No. 

11 C 5283, 2012 U.S. Dist. LEXIS 171439, at *28 n. 8 (N.D. Ill. Dec. 4, 2012) (citing 

Chicon v. Exelon Generation Co.,401 F.3d 803, 809 (7th Cir. 2005)); see also Malec v. 

Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (“Simply providing additional facts in 

one’s responsive memorandum is insufficient to put those facts before the Court.”). 

Because Plaintiff failed to comply with Local Rule 56.1, all of Defendants’ facts in its 

Rule 56.1 Statement are deemed admitted so long as they are supported by the record. 

At the same time, the Court will not, as Defendant requests, disregard Plaintiff’s 

deposition testimony or his affidavit.

II. Material Facts 

a. Plaintiff and the Grievances at Issue

At all times relevant to this action, Plaintiff Williams was a pretrial detainee 

housed at CCDOC. Dkt. 45 at ¶ 1. Defendant Luna was a correctional officer 

employed by the Cook County Sheriff’s Office. Id. at ¶ 2. When Plaintiff entered Cook 

County Jail, he received the CCDOC Inmate Handbook and signed the 

acknowledgment form.2 Id. at ¶ 6.

2 Defendant relies on Plaintiff’s deposition testimony to support this assertion. Dkt. 45 at ¶ 12; Dkt. 

45-1. 

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It is undisputed that on February 22, 2020, Plaintiff submitted a grievance 

alleging that Defendant (who Plaintiff identified as “third-shift officer”) walked past 

Plaintiff’s cell and pepper sprayed him. Id. at ¶ 7. The grievance was received on 

February 26, 2022 (February grievance). Id. Further on March 6, 2020, Plaintiff 

received a response to his grievance that found insufficient evidence to support his 

allegations. Id. at ¶ 8. Plaintiff did not sign this response or appeal it. Id. at ¶¶ 9–10; 

Dkt. 49-1 at 6. Plaintiff disputes that he did not appeal this grievance.

It is undisputed that Plaintiff filed a grievance related to this issue on July 9, 

2020. Dkt. 48 at 4; Dkt. 49; Dkt. 49-1 at 8. That grievance was filed too late. According 

to Defendant, Plaintiff did not file any other grievances related to this alleged 

incident while in custody at CCDOC. Dkt. 45 at ¶ 11. Plaintiff disputes this fact via 

his deposition testimony and his affidavit. 

b. CCDOC Grievance Process

The CCDOC grievance procedure requires inmates to complete an Inmate 

Grievance Form if the inmate believes that he or she has been injured, harassed, 

abused, or threatened. Dkt. 45 at ¶ 13. Inmates at CCDOC are made aware of the 

grievance procedures through methods such as the Inmate Handbook and 

information contained on the Inmate Grievance Form itself. Id. at ¶ 14. Both the 

Inmate Handbook and the CCDOC Inmate Grievance Form direct the inmates that 

they are required to complete and submit an Inmate Grievance Form within fifteen 

(15) days of the alleged offense. Id. at ¶ 15. Inmates must appeal the response of a 

grievance within fifteen (15) days of receiving the response to the grievance. Id. at ¶ 

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16. In order to exhaust the administrative remedies, the inmate must file an appeal 

of a grievance response. Id. at ¶ 17. 

ANALYSIS

Defendant argues that Plaintiff has not exhausted his administrative remedies,

and therefore cannot proceed in this Court. Construing the evidence in the light most 

favorable to the Plaintiff, there is a genuine issue of material fact requiring an 

evidentiary hearing. 

A. Plaintiff adequately identified Luna

Defendant argues that Plaintiff failed to exhaust because he did not adequately 

identify Luna in the February 2020 grievance form. The Inmate Grievance Form calls 

for either the party’s name or identifier. Dkt. 49-1 at 4. Plaintiff identified Defendant 

as “third shift officer” who entered “his cell [210]”. Id. In Roberts v. Neal, 745 F.3d 

232, 234 (7th Cir. 2014), the Court found Plaintiff failed to adequately identify the 

proper defendant when his grievance named “an intake screening nurse at 

Pinckneyville” and “a Big Muddy River doctor” but the actual defendant was a nurse 

at Big Muddy. Plaintiff identified the wrong job title and/or the wrong facility. In 

finding the inmate had failed to exhaust, the Roberts court noted: “a grievant is not 

required to know the name of the prison employee whom he’s complaining about-- -

often he will not know the employee’s name and so it is enough if he ‘include[s] as 

much descriptive information about the individual as possible.’” Id. at 236. Here, 

Plaintiff did not misidentify anything about Luna. In Bowers v. Dart, 1 F.4th 513, 518 

(7th Cir. 2021), the plaintiff adequately identified the defendant in the grievance but 

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failed to grieve the claim that he pursued in litigation prompting the court to note a 

court cannot “consider a claim that has not traveled the required administrative 

path.” (citation omitted). The plaintiff in Bowers filed a grievance asserting that the 

officer ignored his pleas for help during an attack whereas his complaint alleged that 

the defendant officer had advance notice of the risk he would be attacked and failed 

to protect him. See Coleman v. Garcia, No. 19-CV-06251, 2022 WL 226010, at *4 (N.D. 

Ill. Jan. 26, 2022) (finding failure to exhaust because plaintiff vaguely referenced 

“officers” in his grievance and failed to raise the claim of failure to protect). 

To the contrary, the claim here is unchanged. Williams alleged that Officer Luna 

sprayed him with mace in his cell in both the complaint and in his grievance forms. 

Here, Plaintiff’s identification of Luna is sufficient. 

B. There is a question of material fact in dispute

In response to Defendant’s summary judgment motion, Plaintiff submitted a

sworn affidavit stating that he attempted to submit two additional grievances: one 

that was torn up by an officer, in February 2020 and one in March 2020 in response 

to the denial of the February 2020 grievance. According to Plaintiff’s affidavit, he 

attempted to submit his first grievance the day after the incident, but an officer on 

deck destroyed it in his presence. Dkt. 47 at 6 ¶ 5. He submitted the second grievance 

through a guard as a response to the “insufficient evidence” response he received from 

the February 2020 grievance. Id. at ¶ 9.

Relying on the “sham affidavit” rule, Defendant contends that Plaintiff’s affidavit 

is contradicted by his prior deposition testimony and urges the Court not to consider 

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it. Dkt. 48 at 2. “[T]he sham-affidavit rule prohibits a party from submitting an 

affidavit that contradicts the party’s prior deposition or other sworn testimony.... We

also disregard an affidavit that contradicts a statement made under penalty of 

perjury, even if the statement was not made in the course of litigation.” James v. 

Hale, 959 F.3d 307, 316 (7th Cir. 2020) (citations omitted).

Having reviewed the affidavit and Plaintiff’s deposition, the Court does not find

his affidavit to be a “sham affidavit”. In addition, the Court does not need to consider 

the affidavit to find a question of material fact that defeats summary judgment. 

During his deposition, Williams testified that he tried to file a grievance and an 

officer destroyed the grievance. Counsel was asking Williams whether his July 2020 

grievance was his second grievance, and Williams corrected counsel stating: “No, that 

would have made the third – the third grievance. The second one never made it. It 

never left the deck.” Dkt. 45-1 at 28:9–11. He went on to explain that a “heavyset, 

Hispanic guy, a male, officer “ripped [the second grievance] in my face and closed the 

door.” Id. at 28:12-18. See Ross v. Blake, 578 U.S. 632, 639-40 (2016) (“Under § 

1997e(a), an inmate's obligation to exhaust hinges on the “availab[ility]” of 

administrative remedies. A prisoner is thus required to exhaust only those grievance 

procedures that are “capable of use” to obtain “some relief for the action complained 

of.”) Without relying on Williams’ affidavit, this creates a question of fact as to 

whether Williams attempted to submit a grievance that was ripped up.

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At another point in the deposition, Williams was asked if he ever appealed a 

grievance before and he responded “no ... other than this one.” Dkt. 45-1 at 25:9–11.

When asked directly whether he appealed the February 2020 grievance, he stated:

And then right away, I wrote – I wrote another grievance – I thought I was going 

to get another response from that. They never sent it to me, so I wrote it again, But I 

never –

Dkt. 45-1 at 27:17–23. According to Williams, when he submitted the grievance, 

albeit on a separate grievance form, he believed he was appealing the denial of his 

February 2020 grievance. Plaintiff’s affidavit is consistent with this testimony. Dkt. 

47 at 6 ¶ 9.

In terms of the grievance procedure, Williams testified that he understood what a 

grievance was, how it should be submitted and what response to expect. Dkt. 45-1 at 

24:17–25:3. However, he testified that he did not understand the appeal process:

Q: Okay. And once they receive your – the – I guess, the response back, do you 

understand that you have to appeal it if you do not agree with it? 

A: No, I – no, ma’am.

Dkt. 45-1 at 25:4–8. Plaintiff’s statement in his affidavit that he “did not 

describe the appeal process in great detail,” Dkt. 47 at 6, ¶ 12, does not contradict his 

deposition testimony and as a result, the affidavit is not a sham.3

Though the Seventh Circuit requires strict adherence to the exhaustion 

requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006), an inmate is 

3 Defendant argues that the affidavit does not reference any specific material on the record. Id. at 3. 

As the court has already determined, the affidavit is not necessary to defeat summary judgment. In 

addition, Plaintiff’s affidavit references his CCDOC grievance and his own deposition testimony—

those are matters in the record. Dkt. 47 at 6 ¶¶ 7–12. 

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required to exhaust only those administrative remedies that are available to him. 42 

U.S.C. § 1997e(a). Administrative remedies become “unavailable” to prisoners 

primarily when prison officials fail to respond to a properly filed grievance or when 

prison officials' “affirmative misconduct” thwarts a prisoner from exhausting his 

remedies. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Dole, 438 F.3d at 

809.

Here, there is a question of fact whether a prison official’s affirmative misconduct 

prevented Plaintiff from exhausting his administrative remedies. Dkt. 45-1 at 28:7–

24; Dkt. 47 at 6, ¶ 5. In addition, Plaintiff’s so-called “Reply Grievance” was filed in 

response to the rejection of his February 2020 grievance. Dkt. 47 at 1. According to 

Plaintiff, he never received a response. Id. at 2, 6 ¶ 9. This testimony presents a 

question of fact whether Plaintiff appealed the denial of his February 26, 2020 

grievance. 

Defendant relies on the grievance record from CCDOC to argue that Plaintiff’s 

assertions are “wrong”. Dkt. 48 at 3. But in light of Plaintiff’s testimony and affidavit, 

the court is confronted with disputed material facts. See Dkt. 49-1; Prentice, No. 21-

1588, 2022 WL 2304227, at *2 (7th Cir. June 27, 2022) (finding evidentiary hearing 

was necessary to determine whether defendants carried their burden of showing that 

administrative remedies were available); see also DeBenedetto v. Salas, No. 13-CV07604, 2020 WL 2836764, at *3 (N.D. Ill. June 1, 2020) (evidentiary hearing required 

where parties’ differing accounts created “discrepancy constitute[ing] a genuine 

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dispute as to the material question of whether prison officials actively thwarted 

[plaintiff’s] attempts to take advantage of the MCC grievance procedure...”.)

At this stage the Court must construe the facts in the light most favorable to 

Plaintiff as the nonmoving party. See Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 

2016) and must refrain from resolving factual disputes. See Roberts v. Neal, 745 F.3d 

232, 234 (7th Cir. 2014) (“A swearing contest requires an evidentiary hearing to 

resolve, and...a judge can resolve an issue of exhaustion [][her]self, in order to avoid 

multiple trials in the same case [but[only after conducting an evidentiary hearing.”). 

As such, there remains a genuine dispute of material fact as to whether Plaintiff has 

properly exhausted his administrative remedies and an evidentiary hearing is 

required.

CONCLUSION

For the stated reasons, Defendant’s motion for summary judgment [46] is denied. 

On or before November 4, 2022, the parties should file a status report addressing 

whether they will proceed with the Pavey hearing or instead waive their exhaustion 

defense and proceed to the merits.

 

Dated: October 17, 2022

E N T E R:

MARY M. ROWLAND

United States District Judge

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