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Larry G. Harris, #N-57672 v. Danny Allen

July 12, 2012


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


A. Introduction

In August 2010, Larry G. Harris, an inmate of the Illinois Department of Corrections ("IDOC") who was then confined at Lawrence Correctional Center in Sumner, Illinois, filed suit in this District Court under 42 U.S.C. § 1983, claiming violations of his federally secured constitutional rights. Harris' original pleadings and motions were quite lengthy, even in terms of pro se filings. His First Amended Complaint, with exhibits, was 144 pages long and dismissed for running afoul of Federal Rule of Civil Procedure 8's requirement for a "short and plain statement" of the claim. Harris filed a Second Amended Complaint in May 2011, naming 24 Defendants (most of whom were correctional officials or "C/O"s at Pinckneyville Correctional Center and Lawrence Correctional Center).

On threshold review of Harris' Second Amended Complaint in July 2011, the undersigned Judge dismissed certain claims and severed certain Defendants into a separate action,*fn1 leaving two named Defendants in this suit: "Danny Allen" and "Warden Swartz" (see Docs. 17, 22). The two claims that remained herein were identified as: Count 1 -- retaliation by Swartz and Allen for Harris' prior litigation involving a soy-free diet, and Count 2 -- deliberate indifference by Allen to Harris' medical needs.

Allen filed his answer and affirmative defenses in mid-November 2011. Swartz filed his answer and affirmative defenses in mid-January 2012. In his affirmative defenses (Doc. 32, p. 3), Allen asserted that Harris had failed to exhaust available administrative remedies before filing this suit, as required by the Prison Litigation Reform Act, 42 U.S.C. 1997e(a). The case was referred to the Honorable Stephen C. Williams, United States Magistrate Judge, for pretrial proceedings, and a discovery and trial schedule was entered.

On March 1, 2012, Defendant Allen timely moved for summary judgment based on Harris' failure to exhaust (Docs. 32-39). On May 14, 2012, Magistrate Judge Williams submitted to the undersigned District Judge a Report (Doc. 44), recommending that the Court deny Defendant Allen's summary judgment motion. Allen filed objections to the Report on May 29, 2012 (Doc. 45), and Harris responded on June 7, 2012 (Doc. 46). The issue of Allen's exhaustion now ripe, the Court rules thereon, beginning with reference to the applicable legal standards.


Timely objections having been filed, the District Judge undertakes de novo review of the portions of the Report to which Defendant Allen specifically objected. 28 U.S.C. 636(b)(1); FED.R.CIV.P. 72(b); Southern Dist. Illinois Local Rule 73.1(b). The undersigned can accept, reject, or modify the recommendations made by Judge Williams, receive further evidence, or recommit the matter to Judge Williams with instructions.Id.


The Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. 104-134, 110 Stat. 1321 (1996), requires prisoners to exhaust administrative remedies before they file suit in federal court. 42 U.S.C. 1997e(a). The exhaustion requirement applies to all lawsuits challenging prison conditions under 42 U.S.C. 1983 and to actions under any other federal law brought by a prisoner confined in any jail or correctional facility. See Porter v. Nussle, 534 U.S. 516, 532 (2002)(United States Supreme Court held that PLRA exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong").

Exhaustion is a condition precedent to suit in federal court, so the inmate must exhaust before he commences his federal litigation; he cannot exhaust while his lawsuit is pending. See Perez v. Wisconsin Department of Corr., 182 F.3d 532, 535 (7th Cir. 1999); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). If the inmate fails to exhaust before filing suit in federal court, the district court must dismiss the suit (or dismiss any claims which are not fully exhausted). See Jones v. Bock, 549 U.S. 199, 223 (2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005).

Because exhaustion is an affirmative defense, "the burden of proof is on the prison officials." Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). So here, Defendant Allen bears the burden of demonstrating that Plaintiff Harris failed to exhaust all available administrative remedies before he filed this suit. Kaba, 458 F.3d at 681, citing Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).

To properly exhaust within the meaning of the PLRA, the inmate must "file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). As an inmate confined in the IDOC, Harris was obligated to follow the regulations contained in the IDOC's grievance procedures.

The IDOC's three-step administrative process for resolving inmate grievances is delineated in 20 Illinois Administrative Code 504.800, et seq. (West 2008). At step one, the inmate presents his complaint to a correctional counselor. If that fails to resolve the problem, step two entails the inmate submitting a written grievance on a designated form to the facility's Grievance Officer within a specific period (usually the grievance must be filed within 60 days after the inmate discovers the problem about which he complains). After ...

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