The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
In his Complaint, Plaintiff Stanley Majka claims that while he was in
the custody of Defendant Cook County Sheriffs Police Department
("Sheriffs Department"), its employees and agents, through the use of
excessive force, caused him to suffer internal and external injuries of a
permanent and lasting nature. Majka is seeking monetary damages for these
The Sheriffs Department now moves to dismiss both counts of Majka's
Third Amended Complaint. A motion to dismiss under Rule 12(b)(6) is
proper where 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). In reviewing a motion to
dismiss, the court must construe all allegations in the complaint in the
light most favorable to the plaintiff and accept all well-pled facts and
allegations as true. Bontkowski v. First Nat'I Bank, 998 F.2d 459, 461
(7th Cir. 1993).
Count I of Majka's Complaint alleges that, through the actions of its
employees and agents, the Sheriffs Department violated 42 U.S.C. § 1983
and caused Majka to sustain severe,
long term injury. The Sheriffs Department argues Majka's § 1983 Claim
should be dismissed because Majka failed to take advantage of
administrative remedies available at the Cook Count Department of
Corrections ("CCDOC"). According to the Prison Litigation Reform" Act
("PLRA"), "no action shall be brought with respect to prison conditions
under § 19997 of the revised Statutes of the Unites States, or any other
Federal aw, 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. § 1997(e)(a). Any § 1983 complaints, including
those made for particular episodes of excessive use of force, filed
before the prisoner's administrative remedies are exhausted, must be
dismissed. Porter v. Nussle, 534 U.S. 516, 532 (2002); See also Smith v.
Zachary, 255 F.3d 446 (7th Cir. 2001), Perez v. Wisconsin Dep't of
Corrections, 182 F.3d 532 (7th Cir. 1999).
Majka acknowledges this general rule but argues that an exception
created by the Seventh Circuit is applicable to his case. In Perez, Judge
Easterbrook noted that in cases where the injury had healed before the
suit begins, where the only remedy is damages, and where the
administrative process did not allow for compensation, there would be,
practically speaking, no administrative remedy available and that the
prisoner could be excused from its pursuit Id.
There are two problems with applying this exception to Majka's case.
First, the Seventh Circuit's decision in Zachary effectively overruled
that part of Perez and closed the door to any such exception. Zachary,
255 F.3d 446 at 452. Second, even assuming the exception is still good
law, it would not apply to Majka, The exception applied only to
plaintiffs whose injuries were fully healed before the suit began not to
plaintiffs like Majka whose injuries are "of a permanent and lasting
nature." (Complaint P. 2). Accordingly, I find Majka was not excused
from exhausting his administrative remedies as required by the PLRA.
Since Majka has failed to allege that he made any administrative
grievance at the CCDOC, I am dismissing Count I of his Complaint.
The Sheriffs Department argues in its Reply that Count n should also be
dismissed because it is actually a claim for an intentional tort and as
such is inactionable against the Sheriffs Department. Since the Sheriffs
Department's treatment of this issue was fairly brief and since Majka did
not have a chance to respond, I am reluctant to dismiss Count n at this
time. If the Sheriffs Department would like to pursue this issue in
greater depth, it may file a second motion to dismiss.
Defendant's Motion to Dismiss Plaintiffs Third Amended Complaint is
GRANTED as to Count I and DENIED as to Count II.
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