In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-2817
F REDRICK L EE W ALKER,
                                                  Plaintiff-Appellant,
                                  v.

M ICHAEL F. SHEAHAN, Sheriff, W ILLIAM K AMPIC ,
V INCENT E. G ARRETT, et al.,
                                     Defendants-Appellees.
                      ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 05 C 5634—Samuel Der-Yeghiayan, Judge.
                          ____________
      A RGUED M ARCH 31, 2008—D ECIDED M AY 14, 2008
                          ____________


 Before K ANNE, E VANS, and SYKES, Circuit Judges.
  E VANS, Circuit Judge. Fredrick Lee Walker, a pretrial
detainee who has been incarcerated at the Cook County
Jail (CCJ) for almost 8 years, alleges that the defendant
correctional officers attacked and used excessive force
against him, deprived him of access to medical care, and
retaliated against him for exercising his constitutional
rights. He also brings claims pursuant to Monell v. De-
partment of Social Services of New York City, 

(1978), alleging a widespread practice of using excessive
force of which defendants Cook County and then-Sheriff
2                                                   No. 07-2817

Michael Sheahan had notice. The district court (Judge
Samuel Der-Yeghiayan) granted the defendants’ motion
for summary judgment in full. Walker now appeals this
judgment as well as several discovery rulings pertaining
to his Monell claims.
  According to Walker (all of the “facts” are viewed at
this stage of the case as Walker presents them; we, of
course, do not vouch for their reliability), CCJ officers
attacked and used excessive force against him on January
11, January 14, September 8, and October 6, 2004.1 On
January 11, defendants Giunta and Garrett and other
unknown officers used force against Walker, injuring his
head, back, and arm. Afterwards, Walker was not taken
for medical treatment but rather for a psychological
evaluation and put in restraints for 12 hours. He did not
receive medical care until 3 days later. Walker filed a
grievance in connection with this incident, which was
denied on February 20. Walker then appealed; he re-
ceived the denial of his appeal on February 27.
  On January 14, defendants Cruz, Duffy, Harmon, Norris,
Savala, Steadman, and other unknown officers used force
against Walker, causing visible injuries. Walker filed a
grievance in connection with this incident, which was
denied on September 10. Walker then appealed; he re-
ceived the denial of his appeal on September 24.
  On September 8, defendants Garner, Kampic, Meadows,
Brown, Garrett, Black, Alexander, Taylor, Cobbs, Booker,
and other unknown officers used force against Walker,


1
  Walker also alleged incidents of excessive force that took place
in 2003. Those claims were dismissed by the district court in
an earlier judgment that Walker does not appeal.
No. 07-2817                                                3

injuring his head, back, and face (including a split, bleed-
ing eyebrow) and causing trauma to his torso area. Three
former and current detainees witnessed this incident
and later testified about what they saw. Afterwards,
Walker was taken for medical treatment to Cermak
Health Services. There, staff completed forms stating that
Walker declined medical treatment, although Walker
testified that he did not. CCJ officers then took him to a
psychological unit. Seeing Walker’s injuries, staff there
told the officers to return him to Cermak. On his second
visit, Walker received care for his injuries. Walker filed a
grievance in connection with this incident and received a
response stating that no investigation was warranted.
Walker then appealed; he received the denial of his
appeal on September 24.
  On October 6, defendants Taylor, Black, Brown, Garner,
Alexander, Patterson, Miller, Bertels, and other unknown
officers used force against Walker, causing pain in his back,
torso, and head and bleeding in his ears and nose. After-
wards, Walker was taken to Cermak on a backboard. There,
CCJ officers were reluctant to let Walker receive med-
ical care, only doing so after a nurse intervened. A doctor
eventually showed Walker an X-ray indicating that he
had a broken bone in his face. The doctor made follow-up
appointments for Walker at a hospital, but CCJ staff did
not allow him to keep them. Walker testified that he
gave a social worker a completed grievance form con-
cerning this incident. The social worker then went on
vacation, and Walker was subsequently transferred to
another jail. He never received a copy of his grievance
and does not know what happened to it; currently, no
such grievance is on file at CCJ.
  Walker filed a pro se complaint on September 29, 2005,
seeking to state a claim under 42 U.S.C. § 1983 for viola-
4                                                    No. 07-2817

tions of his constitutional rights. After the district court
appointed his present counsel, Walker filed an amended
complaint on February 13, 2006, adding related federal
and state law claims. The amended complaint sought
money damages for Walker and injunctive relief for
a putative class. 2 During discovery, the district court
denied several of Walker’s motions to conduct additional
discovery concerning his Monell claims. The court later
granted the defendants’ motion for summary judgment
in full. Walker v. County of Cook, No. 05 C 5634, 

(N.D. Ill. June 28, 2007).
   We review a grant of summary judgment de novo,
construing the evidence in the light most favorable to the
nonmoving party. Tanner v. Jupiter Realty Corp., 

, 915 (7th Cir. 2006). Summary judgment is proper
if “there is no genuine issue as to any material fact and [ ]
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). A mere scintilla of evidence in support
of a claim will be insufficient; there must be evidence on
which a jury could reasonably find for the nonmoving
party. Insolia v. Philip Morris Inc., 

, 599 (7th Cir.
2000).
  We begin with Walker’s Monell claims against Sheriff
Sheahan, which the district court dismissed for lack of
sufficient evidence. Actions against individual defendants
in their official capacities are treated as suits brought
against the government entity itself. Hafer v. Melo, 

, 25 (1991). A governmental unit is not liable under
§ 1983 unless the deprivation of constitutional rights is



2
   At this point in time, Walker has not moved for class certifica-
tion.
No. 07-2817                                                5

caused by its own policy or custom. Kujawski v. Bd. of
Comm’rs of Bartholomew County, 

, 737 (7th Cir.
1999); see also 

. A local govern-
mental unit’s unconstitutional policy or custom can be
shown by: (1) an express policy causing the loss when
enforced; (2) a widespread practice constituting a “custom
or usage” causing the loss; or (3) a person with final
policymaking authority causing the loss. Chortek v. City of
Milwaukee, 

, 748 (7th Cir. 2004). Walker pro-
ceeds under the second method, arguing that, what-
ever CCJ’s formal policies were, it did not in practice
enforce policies against excessive use of force. Walker
specifically argues that there was widespread use of
excessive force, inadequate investigation and training,
and a “code of silence” at CCJ.
  Walker’s evidence is insufficient to preclude summary
judgment on this issue. Aside from his own testimony,
Walker primarily relies on a 2003 grand jury investiga-
tion that examined 783 complaints of excessive force over
the 5-year period from 1998 to 2003 to support his claim.3
That investigation, however, did not result in the issuance
of any indictments. And, while the investigation re-
vealed that, of the 355 files opened by the sheriff in-
volving officers for on-the-job offenses, 18 of the 33 sus-
tained were for excessive force, this fact does not demon-
strate that claims were not adequately investigated. Walker
also alleges inadequate training, but “the inadequacy of
police training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate


3
  We decline to address the defendants’ argument that this
evidence is inadmissible because the outcome of this issue is
unnecessary to our decision.
6                                               No. 07-2817

indifference to the rights of persons with whom the police
come into contact.” Canton v. Harris, 

, 388
(1989). Here, the training received by the correctional
officers imposes limitations on the amount of force that
the officers may use. The defendants have also con-
sistently stated that the sheriff’s office trains them to use
only as much force as necessary in each situation. Finally,
Walker’s evidence is insufficient to establish a “code of
silence.” The evidence shows that CCJ officers have been
disciplined for the use of force and are trained to inter-
vene and file a report if they observe a coworker attack
a detainee. Based on this evidence, a reasonable jury
could not find for Walker on his Monell claims.
   Related to this issue is the question of whether the
district court properly denied Walker’s requests for
additional discovery to support his Monell claims. Specifi-
cally, Walker sought to interview and photograph other
detainees who claimed to have been attacked by CCJ
officers, depose another detainee and two officers, inter-
view a defense witness on various topics, compel produc-
tion of additional documents from the 2003 grand jury
investigation, and extend discovery. We review such
rulings for an abuse of discretion. Reynolds v. Jamison, 

, 761 (7th Cir. 2007). A court does not abuse
its discretion unless: (1) the record contains no evidence
upon which the court could have rationally based its
decision; (2) the decision is based on an erroneous con-
clusion of law; (3) the decision is based on clearly errone-
ous factual findings; or (4) the decision clearly appears
arbitrary. The complaining party must also establish
that the district court’s decision resulted in “actual and
substantial prejudice.” 

in the record supports the district
court’s rulings on these issues. For example, the record
No. 07-2817                                                  7

shows that some deposition requests were denied be-
cause Walker could not state that those witnesses had
information relevant to the specific incidents involved or
to CCJ’s policies and procedures. And, as for the grand
jury documents, Walker glosses over the fact that he
received the final 2003 grand jury report and exhibits,
which alone consisted of over 6,000 pages. In addition,
Walker deposed more than 25 of the named defendants, a
program services representative, a Cermak representative,
an expert, and multiple detainees at CCJ and other facili-
ties. Because district courts are in the best position to
decide the proper scope of discovery, see, e.g., Gile v. United
Airlines, Inc., 

, 495 (7th Cir. 1996), and there
was enough discovery here to choke a horse, we find
no evidence that the judge acted arbitrarily or that his
rulings resulted in substantial prejudice to Walker’s case.
   We now turn to Walker’s individual claims, which
the district court disposed of for various reasons. The
district court granted summary judgment on Walker’s
claims arising out of the January 11 and 14, 2004, incidents
because they occurred more than 2 years before Walker
filed his amended complaint on February 13, 2006. While
a 2-year statute of limitations does indeed apply to
Walker’s § 1983 claims, see Ashafa v. City of Chicago, 

, 461 (7th Cir. 1998), the limitations period is
tolled while a prisoner completes the administrative
grievance process. Johnson v. Rivera, 

, 522 (7th
Cir. 2001). Here, Walker did not receive the denial of
the appeal of his January 11 and January 14 grievances
until February 27 and September 24, 2004, respectively.
The defendants argue that we should not apply Johnson’s
tolling rule here because Walker did not file his griev-
ances within 15 days of the incidents, in violation of CCJ
8                                                No. 07-2817

procedure (General Order 14.5). However, CCJ’s own
witness, Roshonda Carroll, testified that general orders
were not available to detainees, and Walker testified that
he was not aware of the 15-day deadline. The rule in
Johnson applies, and summary judgment on these inci-
dents should not have been ordered.4
   The district court found that Walker’s evidence re-
garding the September 8 incident was conclusory and
insufficient to demonstrate a genuine issue of material
fact. We disagree. In addition to his own testimony, Walker
cited the testimony of three eyewitnesses who saw
CCJ officers hit him in the face, beat him with handcuffs,
and stomp on him while he was on the floor. He also
submitted medical records indicating that he suffered
trauma, bruises, and cuts on his face as a result. The
defendants defend the district court’s ruling by con-
tending that their medical expert, Dr. Flaherty, estab-
lished that Walker’s version of the events was “com-
pletely medically impossible” based on the injuries he
actually sustained. While Dr. Flaherty did opine that
Walker’s injuries were consistent with the defendants’
account of the incident, he concluded that he could not
say whether the force used by CCJ officers was excessive
under the circumstances. Based on the evidence, a rea-
sonable jury could disagree with the defendants’ expert
and accept Walker’s version of the events. Thus, summary
judgment is improper regarding the September 8 incident.


4
  Defendant Garrett also argues, for the first time on appeal,
that there is inadequate evidence to support a finding that
he himself used excessive force during the January 11 attack.
Even if this argument were proper, Walker’s testimony linked
Garrett to the attack and supplied sufficient evidence to
create a question of fact on this issue.
No. 07-2817                                                    9

  The district court granted summary judgment on
Walker’s claims arising from the October 6 incident
because Walker had not satisfied the exhaustion require-
ments of the Prison Litigation Reform Act of 1995 (PLRA).
See 42 U.S.C. § 1997e(a). We disagree. Contrary to the
district court’s finding, Walker did not “admit” that he
failed to file a grievance or an appeal in connection
with this incident. While the October 6 grievance was
omitted in an initial interrogatory, Walker’s deposition
testimony and responses to the defendants’ statements
of fact explained that
    with respect to the October 6, 2004, incident, [Walker]
    filed a grievance with a social worker but the social
    worker went on vacation, [Walker] was transferred to
    Kendall County for several months, and [he] never
    received a copy of the grievance or knew what hap-
    pened to it.
Thus, Walker notified the defendants during discovery
that he attempted to grieve the October 6 incident, making
the “sham affidavit” rule inapplicable. See Bank of Ill. v.
Allied Signal Safety Restraint Sys., 

, 1168 (7th Cir.
1996) (“[P]arties cannot thwart the purposes of Rule 56
by creating ‘sham’ issues of fact with affidavits that
contradict their prior depositions.”). Moreover, although
CCJ’s records custodian, Roshonda Carroll, testified that
no grievance is currently on file, this is consistent with
Walker’s testimony that social workers do not always
submit grievances. And, if Walker did submit a griev-
ance but received no ruling, he was not required to file an
appeal. See Lewis v. Washington, 

, 833 (7th Cir.
2002). Thus, Walker’s testimony demonstrates the ex-
istence of a genuine issue of material fact as to whether
he grieved the October 6 incident.
10                                              No. 07-2817

  The district court granted summary judgment on
Walker’s state law claims pursuant to the one-year statute
of limitations in the Illinois Local Governmental and
Governmental Employees Tort Immunity Act (ILGGETIA),
745 Ill. Comp. Stat. 10/1-101 et seq. We disagree. The rec-
ord shows that the defendants failed to plead this defense
and therefore waived it. See Johnson v. Sullivan, 

, 355 (7th Cir. 1990). The defendants attempt to get
around this default by arguing that defendant Garrett
raised the ILGGETIA statute of limitations defense in
his answer, which the district court allowed all defend-
ants to adopt. The problem with this argument is that
Garrett’s answer only raised immunity defenses appearing
in sections 2-109, 2-201, 2-202, 2-204, and 2-208 of
ILGGETIA; it never mentioned the limitations provision,
which appears in section 8-101. The defendants first
put Walker on notice of their intent to rely on a statute
of limitations at summary judgment. While the district
court has discretion to allow affirmative defenses to be
amended in certain situations, see Venters v. City of Delphi,

, 967-68 (7th Cir. 1997), we can discern no
justification for the delay in this case. Thus, summary
judgment on this basis is improper.
  The district court disposed of Walker’s claims of inade-
quate access to medical case based on “admissions” and
insufficient evidence. Once again, we disagree. Walker
consistently disputed that he received adequate medical
care in connection with the January 11, September 8, and
October 6 incidents, and his medical records are not
inconsistent with his testimony. The records confirm, for
instance, that Walker received no medical treatment for
3 days after his injuries on January 11; he was taken for
a psychological exam and put in restraints instead. They
No. 07-2817                                              11

also indicate that it took two trips to the emergency
room before Walker received treatment for his Septem-
ber 8 injuries. Finally, the records support Walker’s con-
tention that he was denied timely and adequate follow-
up treatment for the fractured cheekbone he suffered as a
result of the October 6 incident. As the defendants concede,
when an officer causes injuries by using excessive force, as
Walker alleges here, the law imposes a higher stan-
dard—“a duty of prompt attention to any medical need to
which the beating might give rise[.]” Cooper v. Casey, 

, 917 (7th Cir. 1996) (emphasis added). Walker’s
evidence creates a question of fact on this issue. As with
several of the other issues we discussed, the defendants
offer some decent arguments in rebuttal, but these argu-
ments are appropriately made to a jury.
  Finally, the district court granted summary judgment on
Walker’s retaliation claims based on insufficient evidence.
However, the defendants never raised this argument; they
moved for summary judgment on the retaliation claims
solely on the basis that they were barred by Heck v.
Humphrey, 

(1994). Granting summary judg-
ment sua sponte is improper “unless the party against
whom summary judgment was entered had (1) proper
notice that the district court was considering entering
summary judgment and (2) a fair opportunity to present
evidence in opposition to the court’s entry of summary
judgment.” Simpson v. Merchants Recovery Bureau, Inc., 

, 549 (7th Cir. 1999). Here, Walker had no notice
that the adequacy of his retaliation evidence was being
challenged and accordingly did not address it in his brief
or statements of fact. Walker now points to evidence he
would have supplied if given notice and to evidence
already in the record sufficient to raise an issue as to
12                                            No. 07-2817

whether several attacks were in retaliation for his griev-
ances. Thus, summary judgment on these claims cannot
be upheld.
  In sum, we agree that Walker’s evidence was insuf-
ficient to overcome summary judgment on his official
capacity claims. We also conclude that the district court
did not abuse its discretion in denying Walker addi-
tional discovery to support these claims. However, we
disagree that the defendants should have been granted
summary judgment on Walker’s individual claims. Accord-
ingly, the case will be remanded for further proceedings.
  Walker’s final request is that we use Circuit Rule 36 to
direct his case to a new judge on remand. Rule 36 applies
primarily on retrial after reversal, “but we apply it in
our discretion to avoid the operation of bias or mindset
which seems likely to have developed from considera-
tion and decision of motions to dismiss or motions for
summary judgment and the like.” Cange v. Stotler and Co.,

, 1208 (7th Cir. 1990). Walker argues that
applying Rule 36 is appropriate here because the dis-
trict judge implicitly made credibility determinations. Of
course, credibility determinations are inappropriate on
summary judgment. Washington v. Haupert, 

,
550 (7th Cir. 2007). However, the district judge’s deci-
sion indicates that he concluded only that there was
insufficient evidence on which a jury could reasonably
find for Walker. Because our opinion today settles that
issue, we do see a problem with an ordinary remand. We
therefore deny Walker’s request to apply Rule 36.
  For the foregoing reasons, the judgment of the dis-
trict court is A FFIRMED IN P ART, R EVERSED IN P ART, and
R EMANDED for further proceedings consistent with this
No. 07-2817                                    13

opinion. And those further proceedings should not
include any more discovery: enough is enough.




                USCA-02-C-0072—5-14-08