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United States District Court, N.D. Illinois

March 19, 2004.


The opinion of the court was delivered by: JAMES ZAGEL, District Judge


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 injuries.

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

  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, Page 2 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 Page 3 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.

 Count II

  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. Page 1


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