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Case No. 3:17-cv-722-NJR-DGW (S.D. Ill. Jul. 25, 2018)

Case No. 3:17-cv-722-NJR-DGW




WILKERSON, Magistrate Judge :

This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the question of whether Plaintiff exhausted his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1997e(a). For the reasons set forth below, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants on February 9, 2018 (Doc. 25) be DENIED and that the Court adopt the following findings of fact and conclusions of law.


Plaintiff, Rinaldo Bankston, was an inmate incarcerated at the Shawnee Correctional Center. He no longer is incarcerated and currently resides in Chicago, Illinois. Plaintiff brought suit on July 10, 2017 pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated when he was housed at the Vandalia Correctional Center that year. Plaintiff claims that on May 18, 2017, he was violently assaulted by Defendants Cage and Simmons, that Defendant Cooper failed to intervene, and that they did so because of his race.

The Warden at Vandalia CC, where Plaintiff was housed when this suit was filed, was retained in this lawsuit to carry out any injunctive relief that may be ordered. Plaintiff is proceeding on the following counts:

Count 1 - Eighth Amendment claim against C/O Cage and Sergeant Simmons for using excessive force against Plaintiff at Vandalia on May 18, 2017;
Count 2
- Eighth Amendment claim against Major Cooper for not only failing to intervene and protect Plaintiff from the use of excessive force by C/O Cage and Sergeant Simmons on May 18, 2017, but also encouraging it;
Count 3
- Fourteenth Amendment equal protection claim against Defendants for singling Plaintiff out for punishment, which included a verbal and physical assault on May 18, 2017, because of his race.

Defendants now seek summary judgment on the affirmative defense of failure to exhaust administrative remedies. They argue that Plaintiff failed to file a grievance prior to filing this lawsuit on July 10, 2017 (Doc. 24). Plaintiff responded to the motion on March 26, 2018 (Doc. 27). A hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), was set on the matter to take place on July 9, 2018 (Doc. 33). Plaintiff failed to appear at the hearing and a Show Cause Order was issued (Doc. 34). In response to that Order, Plaintiff states that he is without funds to travel to East St. Louis, Illinois and that he has medical conditions that prevent travel (Doc. 36). Upon further review, no additional hearing is required in this matter.


On May 21, 2017, Plaintiff penned an emergency grievance in which he discussed the events of May 18, 2017 (Doc. 27, pp. 15-16). He stated that Cooper tried to choke him, that Cage grabbed him in a headlock, and that Simmons grabbed his hand and cuffed him (Id. 16). He further stated that Simmons and Cage then started to punch him, twist the cuffs, and taunt him, all while making racial slurs (Id.). There is no institutional response to this grievance. Two months later, Plaintiff penned a letter to Warden Stephanie Waggoner and stated that he had handed her the above grievance but that he had not received a response (Id. 17-18). This letter is notarized.

Plaintiff states in his response, which is in the form of an affidavit (Id. 10), that he gave the above grievance to the Warden and also placed a duplicate in the institutional mailbox. He then was transferred to Shawnee Correctional Center on June 13, 2017 and thereafter wrote the letter to Warden Waggoner (the Warden at Vandalia CC) inquiring about the grievance. He mailed that letter but never received a response.

Defendants' only evidence is that Plaintiff failed to send any grievance to the Administrative Review Board prior to filing this lawsuit. Defendants have made no argument or presented any evidence that Plaintiff did not, in fact, submit the emergency grievance set forth above. Defendants did not file a reply to Plaintiff's response. As such, it is undisputed that Plaintiff submitted a May 21, 2017 emergency grievance to which he received no response.


Summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that 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 the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).

The Prison Litigation Reform Act provides:

No action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is a precondition to suit. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Perez v. Wis. Dept. of Corr.,182 F.3d 532, 534-535 (7th Cir. 1999) (stating that §1997e(a) of the PLRA "makes exhaustion a precondition to bringing suit" under § 1983). Failure to exhaust administrative remedies is an affirmative defense; defendants bear the burden of proving a failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 483 F.3d 804, 809 (7th Cir. 2006). The Supreme Court has interpreted the PLRA to require "proper exhaustion" prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means "using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Id. at 90, (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In finding that the PLRA requires proper exhaustion, the Supreme Court agreed with the Seventh Circuit's interpretation of the statute as stated in Pozo, which required an inmate to "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. In Pavey, the Seventh Circuit instructed District Courts to conduct a hearing to determine whether a Plaintiff has exhausted his remedies. Id. 544 F.3d at 742. If a Plaintiff has exhausted his remedies, the case will proceed on the merits. If, however, a Plaintiff has not exhausted, the Court may either allow Plaintiff to exhaust or terminate the matter.

Plaintiff submitted an emergency grievance two months prior to filing the complaint in this matter. He did so in accordance with Illinois' Administrative Code which directs emergency grievances to be forwarded directly to the Warden. 20 ILL.ADMIN.CODE § 504.840. The grievance named Defendants and was sufficient to place Defendants on notice of the problems that he was having. He did not receive a response. The failure to respond to the grievance rendered the process unavailable. See Roberts v. Neal, 745 F.3d 232 (7th Cir. 2014) (finding that a plaintiff did not need to do anything further to exhaust his administrative remedies after an emergency grievance went unanswered for several weeks.); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). Plaintiff is deemed to have exhausted his administrative remedies as to the claims in this case.


For the foregoing reasons, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants on February 9, 2018 (Doc. 25) be DENIED and that the Court adopt the foregoing findings of fact and conclusions of law.


Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service. Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).

You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge. DATED: July 25, 2018



United States Magistrate Judge