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Ross v. Bock

United States District Court, N.D. Illinois, Western Division

November 29, 2017

Earl Gene Ross, Jr. M-54752, Plaintiff,
Shawn R. Bock, et al., Defendants.


          Iain D. Johnston, United States Magistrate Judge

         It is this Court's Report and Recommendation that Defendants' request for dismissal of the complaint be granted, and that Plaintiff's claims be dismissed without prejudice for failure to exhaust his administrative remedies. Any objection to this Report and Recommendation must be filed by December 18, 2017. Failure to object may constitute a waiver of objections on appeal. See Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260 (7th Cir. 1989).


         On September 2, 2016, Plaintiff Earl Gene Ross, Jr. filed a complaint pursuant to 42 U.S.C. § 1983, alleging that officers at Dixon Correctional Center subjected him to improper force, and that during the incident one of the Defendants sexually assaulted him.

         Defendants answered the complaint and raised the affirmative defense that Plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). (See Dkt. No. 20, at pg. 5.) On October 25, 2017, the Court held a Pavey hearing on Plaintiff's exhaustion of his administrative remedies. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); see also Waggoner v. Lemmon, 778 F.3d 586, 591-92 (7th Cir. 2015) (exhaustion is a preliminary issue that should be resolved before addressing the merits of complaint). Plaintiff and Ann Lahr of the Administrative Review Board, Illinois Department of Corrections (“ARB”), testified at the hearing. Defendants relied on exhibits attached to Plaintiff's complaint. (See Dkt. No. 39.)


         Plaintiff alleges that on December 28, 2015, while a prisoner at Dixon Correctional Center, Officer Bock took him to see a doctor. Plaintiff contends that Officer Bock handled him aggressively. When he returned to his cell, according to Plaintiff, Officer Bock pushed him into his bed. Plaintiff tripped over his mattress (which was on the ground) and hit his mouth on the bunk, injuring his bottom lip.

         Plaintiff then refused to give up his handcuffs, and told Officer Bock to call his lieutenant. However, when the lieutenant arrived, he told Plaintiff that he did not believe anything he had to say. The lieutenant offered to get a nurse for Plaintiff, however.

         Nurses arrived to examine Plaintiff. At that point, according to Plaintiff, Officer Bock wiped his dirty shoes on Plaintiff's mattress and blankets. Plaintiff lost his temper and spit in Officer Bock's face. According to Plaintiff, Officer Bock responded by beating him and kneeing him in the ribs. Other officers were called, including Officer Zaccard. Plaintiff alleges that the officers beat him, and that Officer Zaccard struck his fingers in Plaintiff's rectum and referred to him using a racial slur. Plaintiff contends he suffered rib pain and asked the nurse for an x-ray, but did not receive one.


         Pursuant to the Prison Litigation Reform Act (“PLRA”), inmates who bring civil rights suits must first exhaust their administrative remedies within the correctional system. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see also Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999); Pavey, 544 F.3d at 740. To fulfill the exhaustion requirement, an inmate must comply with the procedures and deadlines established by the prison's policy. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016); see Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011) (in order to properly exhaust his remedies, an “inmate must file a timely grievance utilizing the procedures and rules of the state's prison grievance process.”).

         The exhaustion of remedies is a precondition to filing suit; a prisoner's attempt to exhaust his administrative remedies after filing suit is insufficient. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). The Seventh Circuit requires strict adherence to the exhaustion requirement. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). “[U]nless the prisoner completes the administrative process by following rules the state has established for that process, exhaustion has not occurred.” Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). “Unexhausted claims are procedurally barred from consideration.” Pyles v. Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016).

         Because exhaustion is mandatory, the U.S. Supreme Court has held that judge-made exceptions to the requirement are impermissible, even in circumstances where the prisoner makes a reasonable mistake about grievance procedures. Ross v. Blake, 136 S.Ct. 1850, 1857 (2016) (“[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.”). However, by the plain language of the statute, prisoners must exhaust only those administrative remedies that are “available.” Id. at 1858; see 42 U.S.C. § 1997e(a). Additionally, the failure to exhaust available remedies is an affirmative defense, and the defendants bear the burden of proving such a failure. See Dole, 438 F.3d at 809; see also Jones v. Dart, No. 14 C 1929, 2016 WL 1555588, at *2 (N.D. Ill. Apr. 18, 2016) (Kendall, J.) (collecting cases and holding defendants must prove failure to exhaust by a preponderance of the evidence).

         In regard to the availability of remedies, the U.S. Supreme Court has recognized three circumstances in which an administrative remedy may be unavailable: (1) when it operates as a “simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the administrative exhaustion scheme is so opaque that the procedure is essentially “unknowable, ” so that “no ordinary prisoner can discern or navigate it”; and (3) when correctional officials thwart ...

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