Opinion
4:23-cv-00412-BRW-PSH
11-06-2023
SIKARIOS PHENOEXOUSIAZO aka JOHNNY JOHNSON ADC #127556 PLAINTIFF v. JAMES GIBSON, et al. DEFENDANTS
ORDER
Pending before the Court are motions for preliminary injunctions filed by Plaintiff Sikarios Phenoexousiazo (“Plaintiff”) (Doc. Nos. 20 & 31). All but one defendant has been served and answered. See Doc. Nos. 24-25, 33. Wellpath has not been able to contact defendant L. Thompson, a former Wellpath employee, for service instructions. See Correspondence No. 2. Defendants Jared Byers, James Gibson, and Dexter Payne have filed a response to one of plaintiff's motions (Doc. No. 26).
Based on a review of the pleadings, the Court believes that an evidentiary hearing on the motions would be beneficial. However, before setting a hearing, the Court needs to know whether the Defendants intend to pursue a defense that Plaintiff failed to exhaust his administrative remedies before filing this lawsuit. In order to succeed on his motion, Plaintiff must prove that he is likely to succeed on the merits of this case; if he has not exhausted his available administrative remedies, he cannot do so. See e.g., Gakuba v. Jeffreys, No. 19-CV-01081-SMY, 2020 WL 1248295, at *2 (S.D. Ill. Mar. 16, 2020) (finding that plaintiff was not entitled to a preliminary injunction because he cannot establish a likelihood of success on his claim if he has not exhausted his available administrative remedies); Endicott v. Allen, No. 2:17-CV-29-DDN, 2019 WL 480014, at *5 (E.D. Mo. Feb. 7, 2019) (finding that plaintiff had not demonstrated a likelihood of success on the merits where it appeared defendants were likely to at least partially succeed with a defense that plaintiff had failed to exhaust his claims).
Defendants must notify the Court within fourteen days from the date of this Order whether or not they intend to pursue a defense that Plaintiff failed to exhaust his administrative remedies. If they intend to do so, the defense must be raised by motion for summary judgment no later than December 8, 2023.
IT IS SO ORDERED.