Suber, IV v. Waggoner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIAM H. SUBER, IV, )

#S14989 )

)

Plaintiff, )

) Case No. 19-cv-00319-NJR

vs. )

)

CHRIS BOLYARD, )

)

Defendant. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff William H. Suber, IV, an inmate of the Illinois Department of Corrections,

filed this action for alleged deprivations of his constitutional rights pursuant to 42 U.S.C.

§ 1983. He asserts he was subjected to excessive force by Defendant Chris Bolyard while

he was incarcerated at Vandalia Correctional Center. The matter is now before the Court

for consideration of Defendant’s motion for summary judgment for Suber’s failure to

exhaust his administrative remedies prior to filing suit.

Background

The Complaint alleges the following: On February 14, 2019, Suber was housed in

segregation at Vandalia. (Doc. 1, p. 6). Sergeant Bolyard walked along the gallery

spraying pepper spray. (Id.). Sergeant Bolyard stopped in front of Suber’s cell and started

“say[ing] things.” (Id.). Suber responded that “he was not a kid” and “to talk to him like

a man or stop talking.” (Id.). Sergeant Bolyard left the area and then returned with two

other officers, opened Suber’s cell door, got in his face calling him names, and then

choked him. (Id.).

Suber’s Complaint is dated February 21, 2019; it was received by the Court on

March 18, 2019. (Doc. 1, p. 7). Following review pursuant to 28 U.S.C. § 1915A, a single

claim proceeded against Sergeant. Bolyard for excessive force. (Doc. 6).

Defendant’s Motion for Summary Judgment

Defendant filed the pending motion for summary judgment on August 12, 2019,

arguing that Suber failed to exhaust his administrative remedies prior to filing suit.

(Docs. 14 and 15). Suber has not filed a response to the motion. The Court considers

Suber’s failure to respond an admission of the facts of Defendant’s motion. SDIL Local

Rule 7.1(c) (failure to timely file a response to a motion may be considered an admission

of the merits of the motion); FED.R.CIV.P. 56(e)(facts may be considered undisputed if a

party fails to respond as required by Rule 56(c)); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.

2003) (failure to respond by the nonmovant as mandated by the local rules results in an

admission); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (non-movant’s failure to

respond to a motion for summary judgment constitutes an admission that there are no

disputed issues of material facts).

The following facts are taken from Defendant’s memorandum in support of

summary judgment and are undisputed. An inmate may grieve prison conditions with

the Illinois Department of Corrections by following the grievance procedures set forth in

20 Ill. Admin. Code 504.800 et seq. (Doc. 15, p. 2). Suber filed a grievance on February 15,

2019, alleging that Defendant Bolyard sprayed pepper spray on his gallery on February

14, 2019. (Doc. 15, p. 2; Doc. 15-2, pp. 1-2). This grievance was responded to by a counselor

on February 27, 2019 but was not appealed to the grievance officer. (Doc. 15, p. 2; Doc. 15-

2, pp. 1, 3; Doc. 15-3, p. 3). Further, Suber did not file any appeals or direct grievances to

the Administrative Review Board (“ARB”). (Doc. 15, p. 2; Doc. 15-1, p. 4).

Legal Standards

“Summary judgment is proper if the pleadings, discovery materials, disclosures,

and affidavits demonstrate no genuine issue of material fact such that [Defendant] is

entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467

(7th Cir. 2010); FED.R.CIV.P. 56(c). All facts and reasonable inferences must be construed

in favor of the non-moving party. Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017)

(citing Calumet River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO,

824 F.3d 645, 647-48 (7th Cir. 2016)).

The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust all

administrative remedies before bringing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a);

Dole v. Chandler, 438 F.3d 804, 808 (7th Cir. 2006). The Seventh Circuit requires strict

adherence to the PLRA’s exhaustion requirement. Dole, 438 F.3d at 809. “To exhaust

remedies, a prisoner must file complaints and appeals in the place, and at the time, the

prison administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.

2005). Exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th

Cir. 2004). A plaintiff cannot file suit and then exhaust his administrative remedies while

the suit is pending. Id.

Under the procedures set forth in the Illinois Administrative Code, an inmate is

required to file a written grievance within 60 days of the “incident, occurrence or problem

that gives rise to the grievance.” 20 ILL. ADMIN. CODE § 504.810(a). The grievance must be

filed with the inmate’s counselor, unless certain discrete issues are being grieved. Id. If

the complaint is not resolved through a counselor, the grievance is considered by a

grievance officer who must render a written recommendation to the Chief Administrative

Officer (CAO) within two months of receipt, “when reasonably feasible under the

circumstances.” Id. at § 504.830(e). The CAO then advises the inmate of a decision on the

grievance. Id. After receiving the response of the CAO, the inmate may appeal in writing

to the IDOC Director. Id. at §5 04.850(a). The appeal must be received by the

Administrative Review Board within 30 days after the date of the decision. Id.

An inmate may file an emergency grievance if “there is a substantial risk of

imminent personal injury or other serious or irreparable harm to the offender.” Id. at

§ 504.840(a). The grievance is forwarded directly to the CAO and, if the CAO determines

the grievance should be handled as an emergency, he or she must expedite the grievance

process. Id. at § 504.840(b). If the CAO determined the grievance is not an emergency, the

inmate is notified in writing that he may resubmit the grievance as non-emergent, in

accordance with the standard grievance process. Id. at § 504.840(c).

Discussion

As previously stated, because Suber did not file a response to the motion, the facts

presented by the Defendants are uncontroverted. As there are no disputes of fact, the

Court finds that an evidentiary hearing is not needed in this case.

Defendant has established that Suber had access to the grievance process but did

not file a grievance with the grievance officer regarding the claim alleged in the

Complaint. Further, he did not file or appeal any grievance to the CAO related to that

claim. Additionally, Suber did not file or appeal any grievance with the Administrative

Review Board concerning the claim. The Court concludes, therefore, that Suber did not

exhaust his administrative remedies as to the claim against Defendant prior to filing suit.

Disposition

Accordingly, the Motion for Summary Judgment on the Issue of Exhaustion of

Administrative Remedies filed by Defendant Chris Bolyard is GRANTED. This action is

DISMISSED without prejudice. The Clerk of Court is DIRECTED to enter judgment

accordingly and close this case.

IT IS SO ORDERED.

DATED: October 8, 2019

NANCY J. ROSENSTENGEL

Chief U.S. District Judge