Kirchner v. Wolfe et al

Filing 70

MERIT REVIEW OPINION: Defendants' motion for summary judgment on the exhaustion of administrative remedies is granted 29 . This case is dismissed, without prejudice, for Plainitff's failure to exhaust his administrative remedies before f iling this case. All other pending motions are denied as moot 19 , 21 , 25 , 27 , 28 , 34 , 35 , 37 , 38 , 40 , 41 , 43 , 45 , 48 , 52 , 53 , 54 , 55 , 57 , 58 , 60 , 61 , 62 , 65 . The clerk is directed to close this case. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 11/07/2017. (SKN, ilcd)

E-FILED

Tuesday, 07 November, 2017 09:09:25 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL WILLIAM KIRCHNER,
Plaintiff,
v.
LT. WOLFE, et al.,
Defendants.

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17-CV-4061

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in the East
Moline Correctional Center. He alleges that on February 11, 2017,
he experienced a seizure or some other kind of physical or mental
emergency, but Defendants did not take Plaintiff’s conditions
seriously, instead laughing at him, throwing him in a van, and not
providing any medical or mental health treatment. The Court
construed the allegations as stating a plausible Eighth Amendment
claim for excessive force and deliberate indifference to Plaintiff’s
serious medical needs.

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Discovery has been stayed pending a ruling on Defendants
motion for summary judgment for failure to exhaust administrative
remedies. 42 U.S.C. § 1997(e)(a) requires inmates to exhaust all
available prison grievance procedures before filing a lawsuit. An
inmate is not permitted to file a lawsuit and complete the grievance
process while a lawsuit is pending. Ford v. Johnson, 362 F.3d 395,
398 (7th Cir. 2004)(a prisoner cannot file first and exhaust
grievance procedure later). If an inmate files a lawsuit before
exhausting the entire prison grievance procedure, then the lawsuit
must be dismissed without prejudice. Ford, 362 F.3d at 398
(affirming dismissal of inmate’s lawsuit where inmate had filed
lawsuit two days before inmate received final decision from the
Administrative Review Board). The purpose of this requirement is
to give the prison notice and an opportunity correct the problem
before the problem becomes a lawsuit. See Smith v. Zachary, 255
F.3d 446, 450 (7th Cir. 2001)(The purpose of the exhaustion
requirement is to provide the prison system with notice and an
"opportunity to address the situation internally, . . . ."). Allowing an
inmate to file first and exhaust later would eviscerate the
exhaustion requirement.
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The Court explained this to Plaintiff shortly after Plaintiff filed
his complaint on February 21, 2017, giving Plaintiff an opportunity
to voluntarily dismiss his action:
2/24/17 text Order: Plaintiff appears to admit in his
complaint that he has not completed the grievance
procedures available to him regarding the alleged
incident which occurred on February 11, 2017. Prisoners
are required to finish exhausting available administrative
remedies before filing a lawsuit. For grievances not
marked as emergencies, the requirement generally means
filing a grievance, waiting for a response from the
grievance officer and the Warden (which may take up to
60 days), and then appealing the grievance to the
Administrative Review Board and waiting for another
response. See Jackson v. Shepard, 552 Fed.Appx. 591
(7th Cir. 2014)(not published in Federal
Reporter)(affirming dismissal where prisoner did not wait
60 days after filing grievance before filing lawsuit).
Plaintiff may move to voluntarily dismiss this lawsuit by
March 6, 2017, if he was unaware of the exhaustion
requirement and has not yet exhausted his
administrative remedies. If Plaintiff files a motion to
voluntarily dismiss, then this case will be dismissed
without prejudice to refiling after Plaintiff exhausts his
administrative remedies, and the order collecting the
filing fee will be vacated.
Plaintiff chose to continue with this lawsuit, even though
he had stated in his complaint that he was waiting for a
response to his grievance.

(Compl. p. 4)(checking “yes” for

exhaustion but stating “no response given yet until the
grievance board determines a response.”).
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Defendants have now moved for summary judgment,
offering evidence that Plaintiff’s only grievance filed before he
filed this lawsuit was filed on February 12, 2017, nine days
before he filed his lawsuit. The grievance officer responded on
February 28, 2017, after Plaintiff filed this lawsuit, finding the
grievance moot because Plaintiff was receiving relief based on a
grievance he had filed on February 24, 2017. (d/e 30-2, p. 5.)
Plaintiff does not dispute that he filed this lawsuit before
receiving a response to his February 12 grievance. He seems
to argue that the many grievances he filed after bringing this
lawsuit suffice to exhaust his administrative remedies. As
discussed above, the exhaustion requirement means that the
grievance procedure must be completed before filing a lawsuit.
Regardless whether Plaintiff has now exhausted his
administrative remedies, he did not exhaust them before
bringing this lawsuit. Accordingly, this case must be
dismissed for failure to exhaust administrative remedies.
IT IS THEREFORE ORDERED:
1)

Defendants’ motion for summary judgment on the

exhaustion of administrative remedies is granted. (d/e 29.)
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2)

This case is dismissed, without prejudice, for Plaintiff’s

failure to exhaust his administrative remedies before filing this
case.
3)

All other pending motions are denied as moot. (d/e’s 19,

21, 25, 27, 28, 34, 35, 37, 38, 40, 41, 43, 45, 48, 52, 53, 54, 55,
57, 58, 60, 61, 62, 65.)
4)

The clerk is directed to close this case.

ENTERED: 11/07/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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