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Carr v. Shah

United States District Court, S.D. Illinois

June 6, 2017

RANSOM CODY CARR, Plaintiff,
v.
VIPIN SHAH, WEXFORD HEALTHCARE SOURCES, and PHIL MARTIN. Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert U.S. District Judge

         Plaintiff Ransom Cody Carr, an inmate in Vienna Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 for events that occurred at Robinson Correctional Center. Plaintiff seeks monetary damages. 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.

         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). Frivolousness is an objective standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         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.

         The Complaint

         While incarcerated at the McLean County Jail, another inmate assaulted Plaintiff on July 6, 2016, causing an ACL tear. (Doc. 1, p. 10). Plaintiff saw a Dr. Armstrong, who ordered an MRI and told Plaintiff he needed surgery. Id. However, the health care administrator at McLean told Plaintiff that the Illinois Department of Corrections would order the surgery, and that Plaintiff would have to wait until he was in their custody. Id. Plaintiff was placed at Robinson Correctional Center around August or September 2016. Id.

         After entering Robinson, Plaintiff submitted several requests for health care. Id. He met with Dr. Shah, who told Plaintiff he wanted to order x-rays. Id. Shah also told Plaintiff that his knee was an old injury that would heal on its own, and that no surgery would be ordered. Id. Plaintiff alleges that Shah disregarded his prior MRI in favor of an x-ray, which does not show ligament damage. Id. Plaintiff further alleges that the preference for x-rays over MRIs is part of a deliberate policy choice of Wexford Health Sources to save money. Id Plaintiff has alleged that he filed a grievance on the relevant conduct and has attached a grievance as an exhibit. Plaintiff filed his grievance on December 2, 2016. (Doc. 1-1, p. 1). His counselor responded on December 14, 2016. Id. Plaintiff then appealed to the grievance officer on December 27, 2016, who responded on December 28, 2016. (Doc. 1-1, p. 3). The warden signed off on the disposition of the grievance on January 9, 2017. Id. While the grievance Plaintiff submitted as an exhibit is blank in the section that affirms the inmate's intention to appeal to the Administrative Review Board (“ARB”), Id., Plaintiff alleges that he has done so, which the Court accepts as true. (Doc. 1, p. 5). Plaintiff affirmatively stated that he received no result after sending the grievance to the ARB. Id. Plaintiff signed his Complaint on February 23, 2017. (Doc. 1, p. 12).

         Discussion

         While Plaintiff's Complaint may contain a viable deliberate indifference claim in violation of the Eighth Amendment, the Court will not address the merits of the case at this time because it is clear from the face of the Complaint that Plaintiff did not exhaust his administrative remedies prior to filing suit. The Seventh Circuit has been clear that the proper step in that situation is to dismiss the case without prejudice, even if a plaintiff exhausts his remedies while the suit is pending. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999). The purpose of this requirement is to “keep the courthouse door closed” while the administrative process runs its course in order not to undercut the administrative process. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).

         Failure to exhaust is an affirmative defense, and while typically the issue is one for defendants to raise, the Court may invoke an affirmative defense on behalf of an un-served defendant if it is clear from the face of the complaint that the defense applies. Walker v. Thomspon, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002); see also Franklin v. McCaughtry, 110 F. ...


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