Opinion
99 C 4109
May 4, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff, Alonje K. Walton, is currently being detained at the Cook County Jail. He filed this complaint pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights by: 1) making inflammatory statements about him to other prisoners; and 2) refusing to protect him from the aggression of those prisoners. Defendant Superintendent Moore filed her motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Also pending are various motions filed by plaintiff.
BACKGROUND
Plaintiff alleges that certain employees of the Cook County Jail were informing other jail prisoners that plaintiff was being charged with rape. This information was disseminated to inflame sentiment against plaintiff and resulted in violence against him. Plaintiff feared for his continued safety and sought protection from other inmates but alleges that his requests were ignored or obstructed.
Defendant Moore now seeks to have the amended complaint dismissed for failure to exhaust administrative remedies. In his response to the motion to dismiss plaintiff states, "plaintiff did admit in his First Amended Complaint that an appeal is pending, but plaintiff do feel that the grievance procedure was completed." (Plaintiff's answer to Moore's motion to dismiss). Plaintiff requests that the motion to dismiss be denied because the administrative procedure is completed and the procedure is unsatisfactory.
STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). At this stage in the litigation, the court must accept as true all facts alleged and draw all reasonable inferences from the facts in plaintiff's favor. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). Moreover, as compared with pleadings drafted by attorneys, complaints prepared by pro se litigants are viewed with special tolerance. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992).
DISCUSSION A. Defendant Moore's Motion to Dismiss
In support of her motion, defendant Moore argues the court lacks subject matter jurisdiction. Defendant is incorrect in her assertion. The Seventh Circuit addressed this issue in Perez v. Wisconsin Department of Corrections, 182 P.3d 532 (7th Cir. 1999). In Perez, the Seventh Circuit held that a prisoner's failure to exhaust administrative remedies under the PLRA does not deprive federal courts of subject matter jurisdiction. Id. at 535. Therefore this court has proper federal subject matter jurisdiction over plaintiff's claim. See also Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999).
Section 1983 does not contain a comprehensive administrative exhaustion requirement, but the Prison Litigation Reform Act of 1996 (hereinafter "PLRA") has an exhaustion requirement for prisoners. The PLRA provides that no civil rights action may be brought "by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.S. 1997e(a). "Prison conditions" includes the alleged failure of prison officials to protect inmates from physical violence from other inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Moore argues that plaintiff is required to exhaust administrative remedies before filing suit. Plaintiff does not agree that he is required to exhaust administrative remedies and if he were, he argues further, the grievance procedure is completed. Plaintiff's answer to the motion to dismiss concedes that he did have administrative grievances pending during this lawsuit.
A section 1983 complaint filed by a prisoner before administrative remedies have been completed must be dismissed pursuant to 42 U.S.C. S 1997e(a). Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir. 1999). Because "the outcome of the administrative process could affect the quantum of damages available in litigation," the court held, the "pursuit of administrative remedies is necessary no matter what relief the plaintiff seeks." Id. at 538.
Plaintiff would like the motion to dismiss to be denied because administrative remedies have been exhausted. But the Seventh Circuit Court specifically held that exhaustion must be accomplished before suit is filed and suggested that "judicial economy" is not a proper counter-consideration in holding a prisoner to the exhaustion requirement. Perez, 182 F.3d at 534. Plaintiff also argues that the motion to dismiss should be denied because the grievance procedure is unsatisfactory. But whether or not plaintiff is correct about the utility of the jail grievance system, the Seventh Circuit expressly rejected the proposition that a futility exception negates the exhaustion requirement. See Perez, 182 F.3d at 536. The PLRA does not condition the applicability of the exhaustion requirement on the effectiveness of the administrative remedy available in a given case. See Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998). As noted in Perez, "the statutory question is whether any `remedies' are `available'; § 1997e(a) does not require the prison to use the prisoner's preferred remedy." Perez, 182 F.3d at 537. The potential effectiveness of an administrative response bears no relationship to the statutory requirement that prisoners first attempt to obtain relief through administrative procedures. Whether the administrative process actually produces a result that satisfies the inmate is not the appropriate inquiry. Instead, courts merely need to ask whether the institution has an internal administrative grievance procedure by which prisoners can lodge complaints about prison conditions. If such an administrative process is in place, then § 1997e(a) requires inmates to exhaust those procedures before bringing a prison conditions claim.
As plaintiff had administrative grievances pending at the time he filed his complaint, it was filed before he had exhausted his remedies. Accordingly, defendant Moore's motion to dismiss is granted. The claims against defendant Moore are dismissed without prejudice.
B. Remaining Defendants
In light of the foregoing discussion and in the interest of avoiding piecemeal litigation, the plaintiff's claims against the remaining defendants are dismissed without prejudice.
CONCLUSION
Plaintiff's § 1983 claims against defendant Moore are dismissed without prejudice for failure to exhaust administrative grievance procedures at the Cook County Jail. Plaintiff's claims against the remaining defendants are dismissed without prejudice. This action is dismissed without prejudice in its entirety. Plaintiff's motions for appointment of counsel [docket #34-1] and for a writ of habeas corpus ad testificandum [docket #36-1] are dismissed as moot.