ALEJANDRO ESCOBAR v. THE STATE OF ILLINOIS (2003)

OPINION

This cause comes before the court on a Complaint filed by Alejandro Escobar on July 19, 2001, seeking $100,000 as compensation from Respondent, State of Illinois, for personal injuries received by Claimant on August 9, 2000, as a result of an assault by another inmate while Claimant was incarcerated at Pickneyville Correctional Center (PCC). Jurisdiction for this case, sounding in tort, is found in section 8(d) of the Court of Claims Act. 705 ILCS 505/8(d)(2000). Claimant appeared and testified at trial.

Motion to Dismiss

Prior to trial but after the filing deadline, Respondent filed a Motion to Dismiss on two grounds. First, Respondent argued that the Complaint should be dismissed because Claimant had not shown that he exhausted his remedies against the inmate that assaulted him. 705 ILCS 505/25 (2002). Respondent cites Lewis v. State of Illinois, (1995), 47 Ill.Ct.Cl. 199, in support of this argument. In Lewis, the Court denied the claim where an inmate sought recovery for injuries caused during an attack by several inmates. The Lewis Court, in reliance upon decisions in previous cases, found that the inmate failed to exhaust his other remedies, because he did not attempt to recover for his damages via any other remedies, administrative, legal or equitable. Id at 200 (citing Howell v. State of Illinois, (1993), 45 Ill.Ct.Cl. 60; Doe v. State of Illinois, (1991), 43 Ill.Ct.Cl. 172; and Lutz v. State of Illinois, (1989), 42 Ill.Ct.Cl. 124).

Second, Respondent states that the portion of the Complaint that alleges improper medical care must be accompanied by the filing of an affidavit and a health professional's report as required by Section 2-622 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-622. Respondent notes that no such affidavit or health professional's report was filed.

The Law

At the trial, the Commissioner found that the Motion to Dismiss was untimely because the Motion was not filed within the deadline previously ordered and proceeded with trial. An Order dated September 20, 2001, entered by the Commissioner set a deadline for filing motions dispositive of some or all of the issues. The deadline was December 15, 2001. The Respondent's Motion to Dismiss was filed on March 6, 2002. The trial was held March 13, 2002. No affirmative defense was filed by Respondent.

The Claimant testified that he arrived at PCC in May, 2000. He had received threats at his prior institution and at PCC because of his gang tattoo. He expressed concern orally and in writing about his safety but did not identify any specific individual. He stated that he added the name of Andy Arroyo to his enemy, keep separate list in July, 2000. He provided a copy of his letter dated July 27, 2000, identifying the individual and indicating that he feared for his safety. PCC did not have a protective custody section, according to Claimant.

An Adjustment Committee Report indicates that the name, Andy Arroyo, was added to Claimant's keep separate enemy list on 7/26/00. The report and several Incident Reports regarding Claimant's injuries indicate that Claimant and Arroyo were observed fighting in the dietary on August 9, 2000. Claimant was disciplined for fighting and received 14 days in segregation and demotion to C grade for one month.

Claimant testified that he went to the dining room on the day of the incident. The offender worked in the dining room serving water. Claimant said he was sitting when he was hit from behind by Arroyo. Claimant testified he attempted to defend himself. Claimant was struck in the back of his head. He landed on a table and he suffered a head and back injury. The injury was a soft tissue injury. Claimant presented his medical records at trial but Claimant presented no medical expert testimony to establish the standard of care, a deviation from the standard of care, the proximate cause of injury, or the extent of his injuries.

The Law

Respondent's Motion to Dismiss was not timely filed. Section 25 of the Court of Claims Act requires a claimant to exhaust all other remedies and sources of recovery whether administrative or judicial before seeking final determination of his claim. 705 ILCS 505/25 (2000). The Court of Claims Regulations require the claimant to exhaust all other remedies, whether administrative, legal or equitable, against all other sources of recovery for the injury or damages sought to be recovered by the claimant, provided that no frivolous or unreasonable action is required to be brought against any third party. 74 Ill.Adm.Code 790.60 (2000).

The case law cited by Respondent in its Motion accurately states the status of the law in relation to the requirement that an assaulted inmate must pursue his remedies against the offender prior to proceeding against the State in the Court of Claims. The exceptions to exhaustion appear to be threefold. First, if the identify of the offender is not known, exhaustion is not required. Henderson v. State of Illinois, (2001), 53 Ill.Ct.Cl. 193, 201. Second, exhaustion is not required if the claimant is able to demonstrate that an action against the offender would be frivolous or unreasonable. Ferro v. State of Illinois, (2000), 91 CC 1736 (unpublished citing); Tunk v. State of Illinois, (1988), 40 Ill.Ct.Cl. 1. The Court noted in Lucius v. State of Illinois, (1996), 48 Ill.Ct.Cl. 306, that the Court cannot presume an inmate to be judgment-proof without any evidence presented by Claimant. 48 Ill.Ct.Cl. 306, 310. The degree of evidence necessary would be dependent upon the circumstances of each case. In the instant case, because Respondent failed to properly raise the exhaustion issue, the only evidence before the Court is that Inmate Arroyo was in prison and was a gang member. The Court can find from these facts under the circumstances as they exist that it would be unlikely that a judgment could be collected from Inmate Arroyo. The third exception is that the State may waive the exhaustion requirement. Wilson v. State of Illinois, (1994), 46 Ill.Ct.Cl. 20. The failure to exhaust remedies is not jurisdictional. If it is not raised prior to trial, the issue is waived.

In the present case, the Respondent failed to properly raise exhaustion of remedies prior to trial. The State raised the issue only in an untimely Motion to Dismiss. The State could have sought leave to file an affirmative defense but did not do so. Additionally, the State could have filed a Motion to Dismiss within the time limits set by the Commissioner. The Respondent failed to do so and waived the exhaustion of remedies defense.

To prevail, the Claimant must prove that the State had notice of the potential assault by another inmate and that the attack was foreseeable. Hayes v. State of Illinois, (1995), 47 Ill.Ct.Cl. 389; Alexander v. State of Illinois, (1994), 46 Ill.Ct.Cl. 172. In this case, the Claimant and Claimant's attorney both warned the Respondent of the likelihood of an attack. Claimant told his caseworker and wrote the warden and requested a transfer away from Arroyo. The assailant, Andy Arroyo, was placed on Claimant's enemy keep separate list. The State allowed Claimant and Arroyo to be in the same area where an attack was clearly foreseeable. Claimant has met his burden of proof. The Respondent was negligent in not keeping Claimant separate from his enemy, Inmate Arroyo. There is no purpose for an enemy list if Respondent does not separate the inmates. Based on all of these facts, we find the attack on Claimant by Inmate Arroyo to be foreseeable and the Respondent should have anticipated the attack. Smith v. State of Illinois, (1991), 44 Ill.Ct.Cl. 45.

Claimant presented no expert testimony in regard to his medical negligence claim and there is no evidence in the record to support a finding of the standard of care, a deviation from the standard of care, or the proximate cause of an injury to Claimant. Medical negligence must be proved by expert testimony. Tackett v. State of Illinois, (1993), 45 Ill.Ct.Cl. 334. Claimant's medical negligence claim must be denied as Claimant has failed to meet his burden of proof.

Damages

Claimant was struck in the head by Inmate Arroyo. When he landed, he hit the table. Claimant was in physical therapy two to three times a week. He was also prescribed a pain killer. Claimant could not play basketball or lift weights as he had before. Claimant's neck pain eventually went away. Claimant complains of continued back pain. Claimant's medical records do not show a complaint of back pain on August 9, 2000. The medical note of August 9, 2000, makes no mention of back pain. The medical note of August 15, 2000, indicates shoulder and neck pain and stiffness. The first mention of back pain is in the Claimant medical note of April 3, 2001. Claimant presented no medical expert testimony regarding his injuries and presented no medical testimony regarding causation of the back pain.

The medical evidence before the Court from the medical records which the Court considers is that Claimant was struck in the head, had neck and shoulder pain for several weeks, and received a pain medication, Tylenol, for about a month. There was no permanent injury proven by Claimant and the neck pain ended. The Court finds that $850.00 is fair compensation for the injuries suffered by Claimant based on the evidence before the Court.

For the foregoing reasons, it is the Order of the Court that Claimant is awarded $850.00 in full satisfaction of his claims.

FREDERICK, J.