Smith v. Hare

Filing 9

ORDER DISMISSING CASE: The entire action and Defendant HARE will be dismissed without prejudice for failure to state a claim upon which relief may be granted. Plaintiff is advised that this dismissal shall count as one of her allotted "strikes& quot; under the provisions of 28 U.S.C. § 1915(g). Plaintiff's obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $350 remains due and payable. Signed by Judge J. Phil Gilbert on 8/28/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ABBY SMITH , # 19516
Plaintiff,

vs.
MIKE HARE,
Defendants.

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Case No. 12-cv-856-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Abby Smith is currently detained at Madison County Jail, in the Southern
District of Illinois. She filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendant Hare, Madison County Deputy Sheriff on July 30, 2012 for incidents occurring two
weeks prior. This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
Upon review of the complaint, the Court finds it appropriate to exercise its
authority under § 1915A; this action is subject to summary dismissal.

1

Although claims brought pursuant to § 1983, when involving detainees, arise
under the Fourteenth Amendment and not the Eighth Amendment, see Weiss v. Cooley, 230 F.3d
1027, 1032 (7th Cir. 2000), the Seventh Circuit has “found it convenient and entirely appropriate
to apply the same standard to claims arising under the Fourteenth Amendment (detainees) and
Eighth Amendment (convicted prisoners) ‘without differentiation.’” Board v. Farnham, 394
F.3d 469, 478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir.
1999)).
Proceeding thus, the Court notes that the Plaintiff has, on the face of her
pleadings, made it evident that she has failed to exhaust her grievances in this matter. Plaintiff’s
complaints, which range from being denied a vitamin to having an officer cause her to cry,
began around July 16, 2012, according to her pleadings. At some point, she wrote two letters to
a captain at the jail. Within less than two weeks, having no response, she had filed this federal
lawsuit.
Plaintiff may not pursue her § 1983 claims in federal court until after she has
exhausted her available remedies. See 42 U.S.C. § 1997e(a). Although failure to exhaust
administrative remedies is usually an affirmative defense, when, as here, it is clear from the face
of the complaint that Plaintiff has not exhausted her available remedies, the complaint fails to
state a claim upon which relief may be granted.

Jones v. Bock, 549 U.S. 199, 214-215

(2007);see Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002) (“the existence of a
valid affirmative defense is so plain from the face of the complaint that the suit can be regarded
as frivolous”).

2

Thus, for ‘cruel and unusual punishment’ claims brought by a detainee, the plaintiff must show
that the jail officials knew that the plaintiff was at risk of serious harm, and that they disregarded
that risk by failing to reasonably discharge the risk. Grieveson v. Anderson, 538 F.3d 763, 77172, 777-79 (7th Cir. 2008).
Disposition
The entire action and Defendant HARE will be dismissed without prejudice for failure
to state a claim upon which relief may be granted.
Plaintiff is advised that this dismissal shall count as one of her allotted “strikes” under the
provisions of 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350 remains due and payable.
See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk shall CLOSE this case.
IT IS SO ORDERED.
DATED: August 28, 2012
s/J. Phil Gilbert
United States District Judge

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