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Duncan v. Walker

March 11, 2009

DARYL R. DUNCAN, PLAINTIFF,
v.
ROGER E. WALKER, JR., ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, formerly an inmate in the Vienna Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.

MEDICAL TREATMENT

In June 2006, while he was in the East Moline Correctional Center, Plaintiff injured his left arm and foot while cutting grass. From the complaint, it appears that Plaintiff received medical treatment as he was transferred to various institutions, until his arrival at Vienna on January 15, 2008. He now alleges that he has received no medical treatment at Vienna for this injury. About a month after his arrival at Vienna, Plaintiff slipped on the stairs, injuring his back. He was placed on medical observation following this fall, but he believes he should have been taken to an outside hospital. Plaintiff states that he filed grievances about medical care on February 1, March 30, and April 14 of 2008. Apparently dissatisfied with the initial response, he filed this lawsuit on April 28, 2008.

Pursuant to 42 U.S.C. § 1997e(a), an inmate complaining of the conditions of his confinement must exhaust his administrative remedies prior to filing suit. Failure to so exhaust is grounds for summary dismissal of the complaint. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002); Ester v. Principi, 250 F.3d 1068, 1071 (7th Cir. 2001); Bigboy v. Smith, 210 F.3d 374 (7th Cir. 2000).

The Illinois Administrative Code sets forth the grievance procedures to be followed by committed persons. See 20 Ill. Adm.Code § 504.800 et seq. An inmate first must take his complaint to a correctional counselor for informal resolution.*fn1 If this does not resolve the problem, he is to file a written grievance on an institutional form within sixty days of the incident or occurrence complained of, and that grievance should be addressed to the Grievance Officer. Each institution has one or more designated Grievance Officers who review such grievances. The Grievance Officer reports his or her findings and recommendations to the Chief Administrative Officer, i.e., the warden, and the warden is to advise the inmate of his or her decision within two months after receipt of the grievance, "where reasonably feasible under the circumstances."

The inmate may appeal the warden's disposition of the grievance in writing to the Director of the Department of Corrections within 30 days of the warden's decision. The Director reviews the grievance and the responses of the Grievance Officer and warden, and determines whether the grievance requires a hearing before the Administrative Review Board ("ARB"). If it is determined that the grievance is without merit or can be resolved without a hearing, the inmate is to be advised of this disposition in writing. Otherwise, the grievance is referred to the ARB, which may hold hearings and examine witnesses. The ARB submit a written report of its findings and recommendations to the Director, and the Director then makes a final determination within six months after receipt of the appealed grievance, "where reasonably feasible under the circumstances."

20 Ill.Adm.Code §§ 504.810-850.

A failure to exhaust administrative remedies in a timely manner may lead to dismissal of the action without consideration of the merits, absent any waiver, estoppel and equitable tolling. See Ester v. Principi, 250 F.3d 1058, 1071 (7th Cir. 2001); Gibson v. West, 201 F.3d 990, 993-94 (7th Cir. 2000); White v. Bentsen, 31 F.3d 474, 474-76 (7th Cir. 1994). Further, unless 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 ...


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