United States District Court, S.D. Illinois
Allory Smith, Plaintiff, Pro se, Pontiac, IL.
For Kathy Butler Lovies, Registered Nurse, party updated per order 12/9/14, Kala Sims Robinson, party updated per order on 12/9/14, Matt Payne, Registered Nurse, Rhonna Medlin, Registered Nurse, Laura Qualls, Registered Nurse, Wanda Evans, Clinical Social Worker, Dr Marvin Powers, Jagannathan Srinivasaraghavan, Defendants: Timothy P. Dugan, LEAD ATTORNEY, Carla Gail Tolbert, Sandberg, Phoenix et al. - St. Louis, St. Louis, MO.
For Cheyl Couch, Clinical Social Worker, Dr Shicker, Medical Director, Dr Wendy Blank, Clinical Psychologist, Mr Smith, Major, Correctional Major, Ms Ramsey, Correctional Lieutenant, Chad Perrish, Correctional Lieutenant, Terri Anderson, Acting Director, Department of Corrections, Defendants: Adam C. Lipetz, Office of the Attorney General-Springfield, Springfield, IL.
MEMORANDUM & ORDER
Michael J. Reagan, CHIEF UNITED STATES DISTRICT JUDGE.
Introduction and Procedural Background
On November 22, 2013, Plaintiff Allory Smith (an inmate in the Illinois Department of Corrections) filed a § 1983 civil rights complaints alleging Defendants violated several of his constitutional rights. At § 1915A threshold review, the undersigned found that Plaintiff stated constitutional claims against all Defendants for (1) retaliating against him for complaining, (2) a failure to treat Plaintiff's depression and knee injury, and (3) a claim for conspiracy. (Doc. 8). The case is before the court on three motions for summary judgment re: Plaintiff's purported failure to exhaust his administrative remedies before filing suit.
The first dispositive motion (Doc. 83), filed by Defendants Qualls, Evans, Medlin, and Sims Robinson, ripened in June 2014. (Doc. 93). Plaintiff, in his response, agrees to voluntarily dismiss Qualls, Evans, and Medlin. Effectively ceding that he did not exhaust administrative remedies as to those Defendants, Plaintiff's claims against Qualls, Evans, and Medlin are DISMISSED without prejudice.
The second dispositive motion was filed by Defendants Anderson, Blank, Couch, Perrish, Ramsey, Smith, and Shicker (the " IDOC Defendants"). Plaintiff filed a response in which he admitted he is still pursuing administrative remedies against all IDOC Defendants save Couch, and requesting those Defendants be dismissed without prejudice. The Court, noting that Plaintiff has ceded the issue, DISMISSES Defendants Anderson, Blank, Perrish, Ramsey, Smith, and Shicker without prejudice. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (plaintiff cannot file suit then exhaust his administrative remedies while suit is pending).
Finally, Defendant Srinivasaraghavan, who was served after the other Defendants, filed his Motion for Summary Judgment for Plaintiff's failure to exhaust administrative remedies on June 13, 2014. Plaintiff never filed a Response to this Motion, and the time to do so has lapsed, making the motion ripe for disposition.
In short, the Court must assess the dispositive motions of Defendants Sims Robinson, Couch, and Srinivasaraghavan.
1. Summary Judgment at the Exhaustion Stage
The instant dispositive motion is brought pursuant to the regime announced in Pavey v. Conley, the case in which the Seventh Circuit announced the procedures for determining whether a prisoner has exhausted his administrative remedies. In Pavey, the Seventh Circuit held that " debatable factual issues relating to the defense of failure to exhaust administrative remedies" are not required to be decided by a jury, but are to be determined by the judge, Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). A Motion for Summary Judgment filed pursuant to Pavey typically requires a hearing to determine any contested issues regarding exhaustion, and (unlike standard summary judgment motions) a judge may make limited findings of fact at that time. Id. at 742. The case may proceed on the merits only after any contested issue of exhaustion is resolved. Id. A hearing is not required where " there are no disputed facts regarding exhaustion." Doss v. Gilkey, 649 F.Supp.2d 905, 912 (S.D.Ill. 2009). Here, no hearing is required, since Plaintiff's failure to respond acts as an admission of the merits (or, rather, the factual bases) of the motions.
2. PLRA's Exhaustion Requirement
Suits brought by prisoners are governed by the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e. PLRA requires a prisoner to first exhaust all administrative remedies available before bringing an action concerning prison conditions. 42 U.S.C. § 1997e(a). The exhaustion requirement of the PLRA is dependent upon the procedures established by the state in which the prison is located. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Unexhausted claims may not ...