Vigilant v. Zurliene

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSEPH S. VIGILANT, II, #Y41237

)

Plaintiff, )

)

vs. )

) Case No. 20-cv-761-RJD

JACOB A. DUCK, et al, )

)

Defendants. )

)

)

ORDER

DALY, Magistrate Judge:

Plaintiff, currently incarcerated within the Illinois Department of Corrections (“IDOC”),

filed this case pursuant to 42 USC §1983. Following the Court’s threshold review conducted

pursuant to 28 U.S.C. §1915A, Plaintiff’s case proceeded as an Eighth Amendment claim against

Defendants Duck, Zurliene, and Leek for allegedly using excessive force against Plaintiff and/or

failing to intervene in an altercation at Centralia Correctional Center (Doc. 13). This matter

comes before the Court on Defendants’ Motion for Summary Judgment for Failure to Exhaust

Administrative Remedies (Docs. 36 and 37). Plaintiff responded (Doc. 40). As explained

further, Defendants’ Motion is GRANTED.

Background

Plaintiff alleges that on June 17, 2020, Defendants Zurliene and Duck grabbed and pulled

his arms through a chuckhole in the South 5 cell house at Centralia Correctional Center (Doc. 1,

p. 6). They placed handcuffs on him through the chuckhole and continued to pull and twist his

arms, dislocating his left shoulder and right thumb (Id.). Defendant Duck appeared and twisted

the handcuffs on Plaintiff, bruising and scraping him (Id.).

Plaintiff submitted a grievance dated June 17, 2020 where he described an altercation with

37-1, p. 23-24). The Warden determined the grievance warranted an expedited review (Id., p. 21-

23). Ultimately, the grievance officer recommended that the grievance be denied because

Plaintiff’s claims could not be substantiated (Id., p. 21). On June 28, 2020, the Warden concurred

with the grievance officer’s recommendation and denied the grievance (Id.). Plaintiff appealed

the grievance to the ARB (Id., p. 20). The ARB received his appeal on July 6, 2020 (Id.).

Plaintiff filed this lawsuit on August 5, 2020 (Doc. 1). He explained in his Complaint that, on the

date of filing, he had not received the ARB’s decision on his appeal (Id., p. 5). On February 3,

2020, the ARB denied Plaintiff’s grievance (Doc. 37-1, p. 20). In his Response to Defendants’

Motion for Summary Judgment, Plaintiff simply states that he exhausted his administrative

remedies via the June 17, 2020 grievance (Doc. 40, p. 2, 6).

Legal Standards

Summary judgment is appropriate only if the moving party can demonstrate “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); 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). The

moving party bears the initial burden of demonstrating the lack of any genuine issue of material

fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is

made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists

when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at

248). In considering a summary judgment motion, the district court views the facts in the light

most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex

Exhaustion Requirements

Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative

remedies prior to filing lawsuits in federal court. “[A] prisoner who does not properly take each

step within the administrative process has failed to exhaust state remedies.” Pozo v. McCaughtry,

286 F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies

have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on

the merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v.

Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll dismissals under § 1997e(a)

should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).

An inmate in the custody of the Illinois Department of Corrections must first submit a

written grievance within 60 days after the discovery of the incident, occurrence or problem, to his

or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN.

CODE § 504.810(a). Within the grievance, the inmate must include “factual details regarding each

aspect of [his] complaint, including what happened, when, where and the name of each person

who is the subject of or who is otherwise involved in the complaint.” Id. §504.810(c). 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 — usually the

Warden — within 2 months of receipt, “when reasonably feasible under the circumstances.” Id.

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

An inmate may appeal the decision of the Chief Administrative Officer in writing within

30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); see also Dole

v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written report of its

findings and recommendations to the Director who shall review the same and make a final

determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and

grievance process before filing with the Court in order to “[allow prisons] to address complaints

about the program [they administer] before being subjected to suit, [reduce] litigation to the extent

complaints are satisfactorily resolved, and [improve] litigation that does occur by leading to the

preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007).

Discussion

Defendants are entitled to summary judgment because Plaintiff filed his Complaint before

he received the ARB’s response to his grievance. The Seventh Circuit takes a “strict compliance

approach to exhaustion” and “as long as the administrative authority has the ability to take some

action in response to the complaint,” the inmate has not exhausted his administrative remedies.

Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Plaintiff stated in his Complaint that he had

not received the ARB’s response when he filed suit, and so he did not wait for the prison’s

administrative process to “run its course before litigation beg[an].” Id. Accordingly, the PLRA

prohibits this case from proceeding further. Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2021)

(‘the PLRA requires prisoners to exhaust administrative remedies before filing suit; a “sue first,

exhaust later” approach is not acceptable”).

Conclusion

Defendants’ Motion for Summary Judgment (Doc. 36) is GRANTED. Plaintiff’s claims

are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to enter judgment

accordingly. All other pending motions are denied as moot.

IT IS SO ORDERED.

DATED: September 12, 2022

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge