Wilson v. Obaisi et al
Filing
152
OPINION AND ORDER; Plaintiff's motions for reconsideration 147 and for leave to file 4th Amended Complaint 144 are denied. Signed by the Honorable William T. Hart on 8/17/2016:Mailed notice(clw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY SCOTT WILSON,
Plaintiff,
v.
SALEH OBAISI, M.D., et al.,
Defendants.
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No. 13 C 3656
OPINION AND ORDER
During times relevant to this lawsuit, plaintiff Gregory Scott Wilson was
an inmate at Stateville Correctional Facility in Illinois. Plaintiff is currently
incarcerated at Hill Correctional Center. Plaintiff contends that defendants acted
with deliberate indifference to his serious medical needs in that he complained of
the need for treatment of a hernia beginning in September 2011, but a surgical
repair was not performed until September 2014, after the present lawsuit was filed.
On July 8, 2016, judgment was entered dismissing this action without prejudice
for failure to satisfy the exhaustion requirement of 42 U.S.C. ยง 1997e(a). See ECF
[143]; see also Wilson v. Obaisi, 2016 WL 3640412 (N.D. Ill. July 7, 2016).
Plaintiff timely moves for reconsideration pursuant to Fed. R. Civ. P. 59(e) and for
leave to file a Fourth Amended Complaint.
Plaintiff now contends that he should be allowed to amend his complaint
and continue this lawsuit because he fully and adequately exhausted his
administrative remedies while this lawsuit was pending. As previously held,
Seventh Circuit case law is clear that "[i]f a prisoner brings suit before
administrative remedies are fully exhausted, the lawsuit must be dismissed even if
exhaustion was completed after the lawsuit is filed and before the entry of
judgment in the lawsuit.? Wilson, 2016 WL 3640412 at *2 (citing Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004); Moore v. Sergeant, 2016 WL
427567 *4 (S.D. Ind. Feb. 4, 2016)). Citing a one-paragraph, per curiam Eighth
Circuit decision, plaintiff contends it is sufficient to complete administrative
exhaustion while the court case is pending. See Williams v. Norris, 176 F.3d
1089 (8th Cir. 1999). This court, however, is bound to follow Seventh Circuit
case law. Moreover, Williams has been overruled in the Eighth Circuit itself.
Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003). The law is clear that
plaintiff cannot continue the present lawsuit. Any continuation of his claims
would require the filing of a new lawsuit.
Citing a Sixth Circuit case, see Owens v. Keeling, 461 F.3d 763, 772-773
(6th Cir. 2006), plaintiff contends he should not be required to pay another filing
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fee if he files a new case raising the same claims. That holding is based, in large
part, on the Sixth Circuit requiring a heightened pleading standard for exhaustion
and requiring that prisoners affirmatively plead exhaustion. The Seventh Circuit,
though, treats exhaustion in a prisoner case as an affirmative defense. At least two
district court cases from other Circuits have expressly rejected the holding of
Owens as being applicable in their Circuits. See Ellis v. Kitchin, 2010 WL
4071874 *1 (E.D. Va. June 9, 2010); Slaughter v. Carey, 2007 WL 1865501 *1
(E.D. Cal. June 28, 2007). Slaughter relies on the distinction that the Ninth
Circuit treats exhaustion as an affirmative defense. It would appear that the filing
fee should not be waived if plaintiff chooses to refile his claim. No final
determination of that issue, however, would be made unless plaintiff refiles his
case. If plaintiff has any Seventh Circuit precedents supporting that the filing fee
should be waived, he should cite them in support of any motion to waive fees that
might be filed if he refiles his case.
Plaintiff also asserts that he fully, timely, and properly exhausted his
claim after the original suit was filed. The decision of the Administrative Review
Board, though, indicates that review was denied because plaintiff's appeal was not
timely. Thus, it would appear that exhaustion is not properly satisfied. When
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presenting the Rule 59(e) motion in court, counsel for plaintiff contended he could
show that exhaustion was proper and sufficient. No final determination as to the
adequacy of exhaustion is made at this time. However, should plaintiff refile this
action, both counsel and plaintiff must have a good faith basis for contending that
exhaustion was adequate. See Fed. R. Civ. P. 11.
IT IS THEREFORE ORDERED that plaintiff's motions for
reconsideration [147] and for leave to file 4th Amended Complaint [144] are
denied.
ENTER:
UNITED STATES DISTRICT JUDGE
DATED: AUGUST 17, 2016
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