The opinion of the court was delivered by: Herndon, District Judge
On, November 21, 2003 Andre J. Twitty ("Plaintiff"), an inmate, filed a pro se Bivens action challenging the conditions of his confinement. (Doc. 1.) Plaintiff amended his complaint on March 25, 2005. (Doc. 11.) Plaintiff argues that by refusing to provide medical treatment for his hernia, Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff additionally claims that Defendants violated his First Amendment right to seek redress of grievances, and that he was retaliated against for initiating legal proceedings.
This matter comes before the Court on a Report and Recommendation (the "Report") filed by Magistrate Judge Philip Frazier on August 3, 2005, pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. 53.) The Report concerns several motions to dismiss that have been filed by Defendants in this case, as well as Plaintiff's motion for judgment as a matter of law. (Docs. 21, 35, 40, 44.) Judge Frazier recommends that (1) Plaintiff's claims against Defendant Conner, deceased, be dismissed; (2) Plaintiff's in forma pauperis status be revoked; (3) Plaintiff be directed to pay the filing fee within thirty days; (4) Defendants' motions to dismiss or for summary judgment (Docs. 21, 35, 44) be granted in part and denied in part such that Plaintiff's claims against Defendants Bezy, Herschberger, Miller, Tharp, and Nitchols be dismissed without prejudice for lack of personal jurisdiction and that Plaintiff's claims against Defendants Bakke, Stepp, Oxford, and Lee be dismissed without prejudice for failure to exhaust administrative remedies; and (5) Plaintiff's Motion for Judgment as a Matter of Law (Doc. 40) be denied. Because Twitty objects (Doc. 69), this Court undertakes de novo review of the Report.*fn1 28 U.S.C. § 636(b)(1)(B); FED. R.CIV.P.72(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision."FED. R.CIV.P. 72(b); Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999).
A. Plaintiff's Claims Against Defendant Conner
The Court first finds that Plaintiff's claims against Defendant N.L. Conner, now deceased, should be dismissed. Conner's death was suggested on the record on January 31, 2005. (Doc. 28.) Pursuant to Federal Rule of Civil Procedure 25(a), Plaintiff had ninety days to file a motion for substitution. He failed to do so. As such, Plaintiff's claims against Defendant Conner are no longer proper.
Once a defendant moves to dismiss for lack of personal jurisdiction - as Defendants have pursuant to Federal Rule of Civil Procedure 12(b)(2) - the burden is on the plaintiff to establish the existence of such jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). To meet this burden, a plaintiff must show that a defendant "purposefully availed itself of the privilege of conducting activities within the forum state. . . . This requirement ensures that a defendant's amenability to jurisdiction is not based on fortuitous contacts, but on contacts that demonstrate a real relationship with the state with respect to the transaction at issue." Id. at 780.
The Court finds that Plaintiff's claims against Defendants Bezy, Hershberger, Miller, Tharp, and Nitchols should be dismissed on lack-of-personal-jurisdiction grounds. Here, Plaintiff has failed to meet his burden because he has not shown that Defendants Bezy, Hershberger, Miller, Tharp, or Nitchols purposefully availed themselves of the privilege of conducting activities in Illinois. Plaintiff has not demonstrated that the conduct of these Defendants made it foreseeable that they would be haled into Illinois courts, nor has he shown that they had a "real" relationship with the state. While Plaintiff correctly points out that "jurisdiction can be based strictly on out-of-state acts having foreseeable effects in the forum State," Shaffer v. Heitner, 433 U.S. 186, 226 (1977), he has not identified any such acts, nor offered any suggestion as to how the above Defendants - who indicate they were employed in Kansas, not Illinois (Doc. 22, p. 3; Doc. 36, p. 3) - might have subjected themselves to this Court's jurisdiction. As such, Plaintiff's burden has not been met. His claims against Defendants Bezy, Hershberger, Miller, Tharp, and Nichols must be dismissed.
As 42 U.S.C. § 1997e(a) provides, prisoners may not bring suits "until such administrative remedies as are available are exhausted." A prisoner does not exhaust administrative remedies unless she "completes the administrative process by following the rules . . . established for that process." Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). "A prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating." Id. at 1024; see also Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2001) (noting that to exhaust, a prisoner "must take all steps prescribed by the prison's grievance system") The general Bureau of Prisons ("BOP") process is laid out at 28 C.F.R. §§ 542.10-16.
The Court finds that Plaintiff's claims against Defendants Bakke, Stepp, Oxford, and Lee should be dismissed for failure to ...