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February 25, 2004.

DENISE COLLINS, Individually and as Personal Representative of the Estate of RICKY COLLINS, Deceased, Plaintiff,
CAPT. SEEMAN, SGT. BEETHEM, CORRECTIONAL OFCR. STEVEN SCHUCK, CORRECTIONAL OFCR. SAM BUCALO, and any other correctional officers presently unknown responsible for RICKY COLLINS' supervision and care, jointly and severally, Defendants

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on the motion of Defendants Deborah Seeman, Julie Beethem, Steven Schuck, and Sam Bucalo to dismiss the complaint for failure to state a claim. For the reasons set forth below, the motion is denied.


  The factual background of this case was detailed in our prior opinion. Collins v. Seeman, 2003 WL 23144867 (N.D. Ill. Dec. 29, 2003). Familiarity with the facts Page 2 and the procedural history to date is assumed, and we recite here only the developments in the case since the dismissal of the first amended complaint. Pursuant to our prior opinion, Plaintiff Denise Collins ("Mrs. Collins") amended her complaint to allege exhaustion of remedies as required by the Prisoner Litigation Reform Act. 42 U.S.C. § 1997e(a). The third amended complaint*fn1 differs from the first by alleging that, after her son Ricky committed suicide while an inmate at Sheridan Correctional Center ("Sheridan"), Mrs. Collins requested that Sheridan conduct an investigation into the circumstances surrounding Ricky's death. She was informed that Sheridan had no procedures for investigating inmate suicide. Her counsel later confirmed that Sheridan provided no administrative remedies in situations such as this one. Defendants have again moved to dismiss the complaint on the grounds that the PLRA exhaustion requirement has not been satisfied.


  A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the Page 3 plaintiff, construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l. Bank of Cicero, 998 F.2d 459.461 (7th Cir. 1993): Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). With these principles in mind, we turn to the motion at hand.


  The Prisoner Litigation Reform Act provides that
[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted,
42 U.S.C. § 1997e(a). The threshold question under this statutory provision is "whether any `remedies' are `available'" for the injury allegedly caused by the conditions of confinement Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 537 (7th Cir. 1999) (emphasis in original); see also, e.g., McDonald v. Snyder, 2003 WL 22427797, at *3 (N.D. Ill. Oct. 23, 2003). If the answer is yes, the administrative Page 4 route must be exhausted before any suit can proceed. See Porter v. Nussle, 122 S. Ct 983, 992 (2002).

  Defendants' argument that the complaint is still legally deficient centers on Ricky. They contend that his individual failure to file an administrative grievance means that this suit is barred by the PLRA. Although Defendants do not expressly say so, their argument necessarily contains two independent parts: first, only Ricky can bring the instant suit; second, because Ricky did not personally pursue any administrative remedies, the PLRA's bar is triggered.

  Defendants' argument is legally and logically flawed. In cases of prisoner suicide, § 1983 claims are regularly brought on behalf of the deceased by an estate representative. See, e.g., Matos ex rel. Matos v. O'Sullivan, 335 F.3d 553 (7th Cir. 2003); Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001). It is entirely proper for us to consider actions taken on Ricky's behalf in addition to those he took himself. Furthermore, it goes without saying that it would be nonsensical to read the PLRA as requiring a prisoner to pursue administrative remedies with respect to his imminent suicide either before or after its occurrence. The injury that is the basis of the alleged constitutional violation is the deprivation of Ricky's right to life. There could be no remedy for this injury under the circumstances of this case until Ricky could no longer take action on his own behalf. Once the alleged injury occurred, Mrs. Collins avers Page 5 that she explored the potential for a remedy with Sheridan to no avail. Taking all her allegations as true, as we must, this court concludes that Mrs. Collins did what she could to resolve her dispute through administrative channels, but Sheridan provided her with no remedies to pursue. The PLRA requires no less and no more. See Perez, 182 F.3d at 537. She is now free to bring a § 1983 claim in federal court on Ricky's behalf The third amended complaint states a cognizable claim, and the motion to dismiss is correspondingly denied.


  Based on the foregoing analysis, Defendants' motion to ...

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