McCoy v. Wexford Health Sources, Inc. et al

Filing 47

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 5/8/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KENDALE McCOY #K-59039,
Plaintiff,
v.
WEXFORD HEALTH SERVICES, INC.,
et al.,
Defendants.

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No.

12 C 5467

MEMORANDUM ORDER
On March 26 of this year this Court issued a brief sua
sponte memorandum order (“Order I”) prompted by the affirmative
defense, included in the Answer filed by Marcus Hardy (“Hardy”)
that charged plaintiff Kendale McCoy (“McCoy”) with not having
exhausted all available administrative remedies as required by 22
U.S.C. §1997e(a)(“Section 1997e(a)”).

When the Attorney

General’s Office then failed to respond to Order I by a timely
filing of the requested showing as to nonexhaustion of
administrative remedies, this Court issued another brief
memorandum order (“Order II”) on April 11 that struck the
affirmative defense that had advanced the Section 1997e(a)
contention and again ordered an explanation from Hardy’s counsel.
This time Order II worked, and on May 3 the Attorney General’s
Office filed what was captioned “Defendant Hardy’s Response to
Court’s Order,” together with copies of three of McCoy’s exhibits
to his First Amended Complaint--its Exs. N, O and U.
That submission has in turn raised further questions as to

the applicability of Section 1997e(a).

It is unclear whether

those exhibits, if they indeed evidence some nonexhaustion of
certain of McCoy’s filed grievances, operate to defeat all or
part or none of McCoy’s current contentions.

Accordingly both

sides are ordered to file statements (together with any
supporting authorities, if applicable) as to the effect of the
identified deficiencies on McCoy’s claims.

Those filings are

ordered to be transmitted to this District Court in time for
their receipt here on or before May 28, 2013,1 and this Court
intends to pursue appropriate proceedings based on those
submissions.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

May 8, 2013

1

Because McCoy cannot control the date of transmission to
this District Court of his filings by the institutional personnel
to whom he delivers his documents, this Court will of course
continue to apply the “mailbox rule” to his filings.
2