The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Riley L. Fleming, currently an inmate at Vienna
Correctional Center, brings this pro se complaint pursuant to
42 U.S.C. § 1983, alleging that correctional officers assaulted
him when he was detained at the Cook County Department of
Corrections ("CCDOC"). Defendants Officer Domma (improperly named
as Dahmer), Officer Hower (improperly named as Howard), Officer
Kearns, and Officer Messina (improperly named as Mussina)
("Defendants") have filed a motion to dismiss, arguing that
Fleming did not exhaust his administrative remedies.
I. Standard of Review on a Motion to Dismiss
The purpose of a motion to dismiss is to test the sufficiency
of the complaint, not to decide the merits. Gibson v. Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). Federal notice pleading
requires only that the plaintiff "set out in her complaint a
short and plain statement of the claim that will provide the
defendant with fair notice of the claim." Scott v. City of
Chicago, 195 F.3d 950, 951 (7th Cir. 1999). When ruling on a
motion to dismiss, the court assumes that well-pleaded allegations are true and draws all reasonable
inferences in the light most favorable to the plaintiff.
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). This
rule has particular force when considering the allegations of a
pro se complaint, which are held "to less stringent standards
than formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 520 (1972). Accordingly, pro se complaints are to
be liberally construed. Wilson v. Civil Town of Clayton, Ind.,
839 F.2d 375, 378 (7th Cir. 1988).
However, while it is often said that a claim may be dismissed
only if, as a matter of law, "it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations," Neitzke v. Williams, 490 U.S. 319, 327
(1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)), the Seventh Circuit has observed that this maxim "has
never been taken literally." Kyle v. Morten High School,
144 F.3d 448, 455 (7th Cir. 1998) (quoting Sutliff, Inc. v. Donovan
Companies, Inc., 727 F.2d 648, 654 (7th Cir. 1984)). All
plaintiffs whether pro se or represented must include in
the complaint allegations concerning all material elements
necessary for recovery under the relevant legal theory. Chowla
v. Klapper, 743 F. Supp. 1284, 1285 (N.D. Ill. 1990).
In line with the foregoing authorities, the following factual
statement as it pertains to Fleming's attempts to exhaust his
administrative remedies is drawn from Fleming's complaint and his
response to Defendants' motion to dismiss.
Fleming alleges that on June 4, 2003, Defendants used excessive
force. On June 6, 2003, Fleming filed a grievance. (Plaintiff's
Ex. A, attached to his response to the motion to dismiss.) On
June 12, 2003, the social worker told him that his grievance had
been denied. When Fleming inquired about appealing the grievance, the social worker told
him: "This is as far as it goes." On June 13, 2003, Fleming was
transferred back to the custody of the Illinois Department of
Corrections ("IDOC"). On June 19, 2003, Fleming received his
property at Lawrence Correctional Center. Sometime in July 2003,
Fleming spoke with an investigator from CCDOC. During the
conversation, Fleming asked about the appeal process, and the
investigator told him that there was no appeal process once the
I.A.D. (Internal Affairs Division) made a decision. On October
15, 2003, Fleming filed this action.
Exhaustion of administrative remedies, pursuant to the Prison
Litigation Reform Act, is required for all prisoner suits seeking
redress for prison circumstances or occurrences, regardless of
whether they involve general circumstances of incarceration or
particular episodes, and whether they allege Eighth Amendment
violations based on use of excessive force or some other wrong.
Porter v. Nussle, 534 U.S. 516 (2002). Under
42 U.S.C. § 1997e(a), the court is directed to dismiss a suit brought with
respect to prison conditions if the court determines that
plaintiff has failed to exhaust his administrative remedies.
Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir.
The Seventh Circuit addressed the issue of the procedures a
prisoner must follow when using the administrative process in
Pozo v. McCaughtry, 286 F.3d 1022
, 1023-24 (7th Cir. 2002) and
[U]nless the prisoner completes the administrative
process by following the rules the state has
established for that process, exhaustion has not
occurred. Any other approach would allow a prisoner
to `exhaust' state remedies by spurning them, which
would defeat the statutory objective of requiring the
prisoner to give the prison administration an
opportunity to fix the problem or to reduce the
damages and perhaps to shed light on factual disputes that
may arise in litigation even if the prison's solution
does not fully satisfy the prisoner.
The CCDOC Detainee Grievance Procedure is contained in the Cook
County Department of Corrections General Order No. 14.5. The
procedures provide that within five days of receipt of the
resolved grievance, the Correctional Rehabilitation worker (CRW)
will provide a written copy of the findings to the detainee. If
the grievance is not resolved, the CRW shall notify the detainee
in writing of the status of the case. If a detainee wishes to
appeal the grievance decision, the detainee will have five
working days from receipt of the decision to appeal to the
Administrator of Program Services or designee.
Defendants argue that because Fleming concedes that he did not
appeal the denial of his grievance, he did not exhaust his
administrative remedies. Fleming argues that his failure to file
an appeal should be excused on three basis: (1) CCDOC never
provided him with any information as to the procedures for filing
grievances; (2) the social worker and the investigator both told
him that no appeal was available; (3) the jail shipped Fleming
back to IDOC about 12 hours after his grievance was denied, thus
preventing him from filing an appeal.
In Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002), the
Court of Appeals held that an inmate's administrative remedies
are deemed exhausted when prison officials fail to respond to his
grievances, thus making the administrative remedies unavailable.
The court emphasized that it refused "to interpret the PLRA `so
narrowly as to . . . permit [prison officials] to exploit the
exhaustion requirement through indefinite delay in responding to
grievances.' Goodman v. Carter, No-2000 C 948, 2001 WL 755137,
at *3 (N.D.Ill. July 2, 2001)."
In the instant case, Fleming has consistently maintained that
several CCDOC officials told him that he could not appeal. This
goes beyond a mere delay in responding to a grievance. In fact, by not providing Fleming with information about the
grievance process and telling him that he could not appeal his
grievance, it appears that ...