United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Phil Gilbert U.S. District Judge
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
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.
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
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.
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,
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).
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. ...