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Dixon v. Page

May 28, 2002

MARCUS DIXON, PLAINTIFF-APPELLANT,
v.
THOMAS PAGE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Illinois. No. 97-323-GPM--G. Patrick Murphy, Chief Judge.

Before Cudahy, Easterbrook and Evans, Circuit Judges.

The opinion of the court was delivered by: Cudahy, Circuit Judge

As amended July 3, 2002.

MARCUS DIXON, PLAINTIFF-APPELLANT,
v.
THOMAS PAGE, ET AL., DEFENDANTS-APPELLEES.

Appeal from the United States District Court for the Southern District of Illinois. No. 97-323-GPM--G. Patrick Murphy, Chief Judge.

Before Cudahy, Easterbrook and Evans, Circuit Judges.

The opinion of the court was delivered by: Cudahy, Circuit Judge

 Argued December 6, 2001

In this appeal, Marcus Dixon argues that the district court erred in dismissing without prejudice Counts II and III of his complaint because he failed to exhaust his administrative remedies. We affirm.

I.

Because Dixon's complaint was dismissed under Rule 12(b)(6), all statements of fact in the complaint are taken as true and all reasonable inferences must be drawn in favor of Dixon. Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000). Dixon, a former Illinois prisoner, now released, was an inmate at Menard Correctional Center ("Menard"). Upon arriving at Menard on December 13, 1995, he immediately asked to be placed in segregation because of a "hit" placed upon him by a gang called the Vice Lords. On January 8, 1996, Dixon was beaten up by three members of the Vice Lords after the prison ended a lockdown that had prevented prisoners from moving about outside their cells. The failure of prison officials to prevent this beating formed the basis of Count I of Dixon's complaint.

In Count II of his complaint, Dixon asserts that prison officials failed to protect him from assault and harassment by several inmates. He alleged that after the January 8, 1995 incident, he asked for protection again and was moved to the protective custody unit on Gallery 7. However, Dixon found that he was also in danger in Gallery 7 because there were Vice Lords there, who frequently threatened him. Despite repeatedly asking for assistance from prison officials, he received none. On February 22, 1996, Dixon was stabbed by Tyrone Jackson, a Vice Lord who had been placed in the cell with him. Dixon wrote several more letters asking for help but continued to receive no assistance. On May 28, 1996, Dixon was attacked and struck by another inmate, and he continued to be harassed by various inmates. He filed written grievances after each incident. In July, in response to his grievances, the Administrative Review Board told Dixon to contact his counselor. Dixon made repeated attempts to obtain a transfer to another prison through his counselor and through the other defendants but was told that he was ineligible at that time.

In Count III of his complaint, Dixon alleged that he had been beaten by prison officials in retaliation for his filing of an administrative complaint against these same officials. He filed several more grievances and was subsequently granted a transfer to another prison. However, he was never transferred.

On April 16, 1997, Dixon filed an initial two-count complaint in federal court under sec. 1983. He filed an amended complaint on February 23, 1998, adding Count III, and the case was assigned to Magistrate Judge Proud. The defendants moved for dismissal on the ground that Dixon had failed to exhaust his administrative remedies. Dixon then filed a second amended complaint adding that he had filed written grievances on specified dates. Magistrate Judge Proud issued an order and recommendation ...


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