United States District Court, N.D. Illinois, Western Division
Earl Gene Ross, Jr. M-54752, Plaintiff,
Shawn R. Bock, et al., Defendants.
REPORT AND RECOMMENDATION
D. Johnston, United States Magistrate Judge
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).
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.
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.)
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.
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,
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.
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
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).
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
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 ...