Ramirez v. Valdez et al

Filing 14

ORDER DISMISSING CASE without prejudice for failure to exhaust administrative remedies. Plaintiff is ADVISED that this dismissal shall not count as one of his allotted "strikes" under the provisions of 28 U.S.C. § 1915(g). Signed by Judge Michael J. Reagan on 7/10/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CESAR RAMIREZ, # R15877,
Plaintiff,
vs.
RANDY S. VALDEZ,
MICHAEL E. SANDERS,
ZACHARY ROECHEMAN,
SLAVADOR ANTHONY GODINEZ, and
NICK N. NALLEY,
Defendants.

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Case No. 13-cv-00562-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Cesar Ramirez, serving a ten year sentence for Home Invasion and a
consecutive six year term for predatory sexual assault, is currently incarcerated at Big Muddy
Correctional Center (“Big Muddy”). Plaintiff has brought this pro se civil rights action pursuant
to 42 U.S.C. § 1983. In accordance with 28 U.S.C. § 1915A, the Court must conduct a prompt
threshold review of the complaint.
1. The Standard of Review
In relevant part, 28 U.S.C. § 1915A 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

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(2) seeks monetary relief from a defendant who is immune from such
relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible
on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The claim of

entitlement to relief must cross “the line between possibility and plausibility.

Id. at 557.

Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept
factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
2. Synopsis of the Complaint
The named defendants are Randy S. Valdez and Michael E. Sanders, who are
members of the prison Adjustment Committee; Warden Zachary Roecheman; Director of the
Illinois Department of Corrections Salvador Anthony Godinez; and Correctional Officer (“C/O”)
Nalley. Plaintiff’s contentions stem from C/O Nalley’s search of Plaintiff’s cell on May 25,
2013. First, Plaintiff contends Nalley and other unidentified officers (who are not identified as

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defendants) beat and injured Plaintiff when they arrived to conduct the search, and then C/O
Nalley failed get Plaintiff medical care.

Second, Plaintiff alleges that Nalley and others

interrogated him and threatened him in order to secure a false confession, upon which false
disciplinary charges were based. Third, the Adjustment Committee, comprised of Defendants
Valdez and Sanders, along with Warden Roecheman, denied Plaintiff due process, falsely
convicting him and punishing him with demotion to C Grade for six months, six months in
segregation, the revocation of six months of good conduct credits, a transfer, and loss of
commissary and gym/yard privileges. The fourth and final claim is against C/O Nalley for
stealing from Plaintiff’s property boxes, taking a fan, radio and other items.
The Court need not delineate or discuss Plaintiff’s claims further, as the complaint
and attached exhibits make clear that Plaintiff has failed to exhaust administrative remedies
before filing suit.
3. Exhuastion of Administrative Remedies
The Prison Litigation Reform Act of 1996 (“PLRA”) contains a comprehensive
administrative exhaustion requirement. “No action shall be brought with respect to prison
conditions ... by a prisoner ... until such administrative remedies as are available are exhausted.”
28 U.S.C. § 1997e(a). See also Booth v. Churner, 531 U.S. 956 (2001); Massey v. Wheeler, 221
F.3d 1030, 1034 (7th Cir. 2000). The purpose behind the exhaustion requirement is to give
corrections officials the opportunity to address complaints internally before a federal suit is
initiated. See Porter v. Nussle, 534 U.S. 516, 524–25 (2002). “[I]f a prison has an internal
administrative grievance system through which a prisoner can seek to correct a problem, then the
prisoner must utilize that administrative system before filing a claim under Section 1983.”
Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999); see Smith v. Zachary, 255 F.3d 446, 450

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(7th Cir. 2001).

An attempt to exhaust available administrative remedies in the midst of

litigation is insufficient. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004); Perez Wis.
Dep't of Corrs., 182 F.3d 532, 536–37 (7th Cir.1999).
Although exhaustion “is an affirmative defense with the burden of proof on the
defendants” (Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011)), the district court may, if
obvious from the complaint, dismiss a prisoner complaint sua sponte for failure to exhaust. See
also Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002).
Plaintiff asserts in an affidavit attached to the complaint that he has “exhausted all
administrative remedies available to them since 2012 trough 2013 and Defs have been being
destroyed Plaintiffs grievances ….” [sic] (Doc. 1, p. 6). That assertion is broad, reaching back
into 2012, when the incidents at issue occurred over the days between May 25 and June 6, 2013.
The documentation attached to the complaint makes clear that the disciplinary conviction
Plaintiff is taking issue with was not rendered until June 3, 2013; approved by Warden
Roecheman on June 6, 2013, and served upon Plaintiff on June 10, 2013. Plaintiff’s Section
1983 complaint was signed June 11, 2013, and filed on June 13, 2013—leaving no time to
exhaust administrative remedies. An inmate’s belief that exhaustion would be futile is not an
exception to his duty to exhaust under Section 1997e(a). See Fletcher v. Menard Corr. Ctr., 623
F.3d 1171, 1173 (7th Cir. 2010). Thus, the availability of administrative remedies in the past
does not excuse the exhaustion requirement relative to the claims Plaintiff is now pursuing.
Therefore, the complaint shall be dismissed without prejudice, so that Plaintiff can exhaust
administrative remedies.

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4. Pending Motions
Counsel
Plaintiff has moved for the appointment of counsel (Docs. 2, 8). There is no
constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d
847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006).
Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for
an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013).
Because this case is being dismissed so that Plaintiff can exhaust administrative remedies,
Plaintiff’s motions for counsel (Docs. 2, 8) shall be denied as moot.
Discovery
Plaintiff’s motion for production regarding the identities of unknown correctional
officers involved in the alleged constitutional violations (Doc. 6) shall be denied as moot.
Injunctive Relief
By motion filed July 3, 2012, Plaintiff seeks an injunction to stop Defendants
Nalley, Valdez and Sanders from harassing him by, for example, destroying his radio, which is
evidence in this action; destroying Plaintiff’s grievances; and issuing Plaintiff “bogus”
disciplinary tickets (Doc. 7). Because there is no viable action at this juncture, the Court lacks
jurisdiction over the Defendants and Plaintiff’s motion (Doc. 7) shall be denied.
Corruption and Kidnapping Investigation
By motion filed July 3, 2013 (Doc. 9), Plaintiff asserts that C/O McBride and Lt.
Shulter, who are not named as defendants in this action, conducted an illegal search of Plaintiff’s
cell on July 1, 2013, resulting in Plaintiff being “taken hostage” and being taken to another cell
during the cell search. Plaintiff asserts that this recent search and “kidnapping” is in retaliation

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for filing this action. These allegations are fodder for another lawsuit. Because the complaint is
being dismissed, the Court has lost jurisdiction.

Consequently, Plaintiff’s motion for an

investigation (Doc. 9) shall be denied.
5. Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff Ramierez’s
complaint (Doc. 1) is DISMISSED without prejudice for failure to exhaust administrative
remedies as required under 28 U.S.C. § 1997e(a); consequently, this action is DISMISSED
without prejudice for failure to exhaust administrative remedies.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted
“strikes” under the provisions of 28 U.S.C. § 1915(g).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS FURTHER ORDERED that Plaintiff’s motions for counsel (Docs. 2, 8),
motion for production (Doc. 6), motion for injunctive relief (Doc. 7), and motion for a corruption
and kidnapping investigation (Doc. 9) are all DENIED.
Plaintiff is again ADVISED that the obligation to pay the filing fee for this action
was incurred at the time the action was filed, thus the filing fee of $350.00 remains due and
payable, regardless of the dismissal of this action on preliminary review. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
IT IS SO ORDERED.
DATED: July 10, 2013
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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