Slayton v. Emery et al, No. 3:2011cv03223 - Document 6 (C.D. Ill. 2011)

Court Description: OPINION entered by Judge Sue E. Myerscough on 9/1/2011. Plaintiff's complaint is dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. The merit review conference scheduled for September 12, 2011, is cancelled as unnecessary. This case is CLOSED. (MAS, ilcd)

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E-FILED Friday, 02 September, 2011 01:47:51 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION TOMMY SLAYTON ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. M. EMERY et al., Defendants, 11-CV-3223 OPINION SUE E. MYERSCOUGH, U.S. District Judge: Plaintiff Tommy Slayton, currently incarcerated in Western Illinois Correctional Center, proceeds pro se on allegations that he was placed in a cell at McClean County Jail which Defendants knew had recently housed an inmate with Methicillin-resistant Staphylococcus aureus ( MRSA ). He alleges that Defendants failed to clean the cell before placing him there, causing him to contract MRSA on his right buttock. He was allegedly quarantined and treated for 12 days for his MRSA 1 infection. This case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A, which requires the Court to review a Complaint filed by a prisoner against a governmental entity or officer and, through such process, to identify cognizable claims, dismissing any claim that is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . . The Court cannot discern which of the 18 Defendants might bear personal responsibility for this alleged deprivation. Deliberate indifference to a substantial risk of serious harm violates an inmate s constitutional rights, but deliberate indifference requires that a defendant intentionally or recklessly disregard a known and substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). In the context of this case, that means that a defendant must have personally known that Plaintiff was placed in a dangerous cell and had a realistic opportunity to take action. Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009)( Section 1983 does not establish a system of vicarious 2 responsibility. ); Miller v. Smith, 220 F.3d 491, 495 (7th Cir.2000)(police officer could be liable for another officer s excessive force if he or she had a realistic opportunity to prevent the violation). An amended complaint might clarify each defendant s involvement, but the exercise would be futile because no amended complaint could cure Plaintiff s failure to exhaust his administrative remedies. 42 U.S.C. § 1997e(a) states: 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. Exhausting administrative remedies requires timely following the facility s procedures to their conclusion, including all opportunities for appeal. Maddox v. Love, F.3d , 2011 WL 3690049 *9 (7th Cir. 2011). Strict compliance with the facility s procedures is required. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). A prisoner must properly use the prison s grievance process. If he or she fails to do so, the prison administrative authority can refuse to hear the case, and the prisoner s 3 claim can be indefinitely unexhausted. Id. Grievances are intended to [allow prisons] to address complaints about the program it administers before being subjected to suit, [reduce] litigation to the extent complaints are satisfactorily resolved, and [improve] litigation that does occur by leading to the preparation of a useful record. Maddox, 2011 WL 3690049 *9, quoting Jones v. Bock, 549 U.S. 199, 219 (2007)(brackets added in Maddox). Whether the exhaustion requirement has been satisfied is a question for the Court, not the jury. Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008). Failure to exhaust administrative remedies is an affirmative defense which typically the defendants must raise. However, as with any affirmative defense, dismissal on the pleadings is appropriate if the defense is so plain from the face of the complaint that the suit can be regarded as frivolous . . . . Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). Plaintiff admits in his Complaint that he did not exhaust his administrative remedies. He alleges that he failed to do so because the 4 Jail does not have a grievance process. Yet this Court knows from experience in prior cases and also from the Jail s website, www.mcleancountyil.gov, that there are administrative remedies available at the Jail. Attached to this order is the Jail s handbook, printed from the website. Section XII describes how inmates may file request forms about any personal problems they are having, and section VIII(A)(2) sets forth the procedure for requesting medical care. An inmate not satisfied with the response to his request may appeal to the appropriate person listed in Section XII(E). Thus, Plaintiff could have filed an inmate request form about the incident. His allegation that no grievance procedure existed is simply not plausible. IT IS THEREFORE ORDERED: 1. Plaintiff's complaint is dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. This case is closed. 2. The merit review conference scheduled for September 12, 2011, is cancelled as unnecessary. The clerk is directed to notify the 5 plaintiff s prison of the cancellation. ENTERED: September 1, 2011 FOR THE COURT: s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE 6

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