Vargas v. Smith et al

Filing 34

MEMORANDUM AND ORDER, The Court OVERRULES Vargas's objections (Doc. 33) and DECLINES to vacate the judgment in this case. Signed by Judge J. Phil Gilbert on 2/6/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSE A. VARGAS,
Plaintiff,
v.

Case No. 16-cv-1376-JPG-SCW

LIEUTENANT SMITH and UNITED
STATES OF AMERICA,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Jose A. Vargas’s late objections to the
Report and Recommendation (“Report”) (Doc. 30). In the Report, Magistrate Judge Stephen C.
Williams recommended that the Court grant the defendants’ motion for summary judgment (Doc.
19) on the grounds that Vargas failed to exhaust administrative remedies for his Bivens and Federal
Tort Claims Act (“FTCA”) causes of action. Magistrate Judge Williams issued the Report on
January 10, 2018, and objections were due fourteen days later. Vargas had an additional three
days since the order was served on him by mail, see Fed. R. Civ. P. 6(d), and until the following
Monday since that date fell on a weekend, see Fed. R. Civ. P. 6(a)(1)(C), so his objections were
due January 29, 2018. The Court did not receive them until the following day, and in the
meantime, the Court had adopted the Report after conducting a review for clear error. Although
Vargas’s objections were late, the Court considers whether they would have made a difference had
the Court timely received them and reviewed the Report de novo.
In the Report, Magistrate Judge Williams found that, although Vargas may have exhausted
his remedies for the claims he brought in this lawsuit, he did so after he filed the lawsuit on
December 21, 2016. Specifically, he found Vargas exhausted his Bivens claims on January 4,

2017, when the Bureau of Prisons Central Office finally responded to his BP-11 form and denied
his administrative remedy. He further found that Vargas had exhausted his FTCA claim on
March 24, 2017, and March 30, 2017, when the Bureau of Prisons Regional Counsel denied his
two administrative claims. Magistrate Judge Williams noted that exhaustion must be completed
before the lawsuit is filed; exhausting while the lawsuit is pending is not sufficient.
In his objection, Vargas asserts he suffered symptoms of a concussion while he was filing
and did not intend to file his lawsuit early. He also argues he was under extreme pressure in the
Special Housing Unit when he filed his administrative remedies.
Even considering these objections in a de novo review of the Report, the Court finds
Magistrate Judge Williams’s findings and conclusions were correct for the reasons he explained in
the Report. It is clear that Vargas exhausted his administrative remedies after he filed this
lawsuit. The excuses he offers now are more appropriate to an argument that he should be
excused from exhausting or being late because, in light of his mental state and his living
environment, he was unable to complete the process on time. However, Vargas completed the
process just fine. He did everything he needed to do administratively at the appropriate time and
was just impatient by filing suit early. As a consequence, the Court must dismiss this claim for
failure to exhaust administrative remedies.
For the foregoing reasons, the Court OVERRULES Vargas’s objections (Doc. 33) and
DECLINES to vacate the judgment in this case. The Court notes, however, that the dismissal is
without prejudice, so he may try again, at least on his Bivens claim. Since the statute of
limitations for a Bivens lawsuit in Illinois is two years, Cesal v. Moats, 851 F.3d 714, 722 (7th Cir.
2017), and the wrong of which Vargas complains occurred in August 2016, Vargas still has time to

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refile that claim in a new lawsuit.1 It appears he may be too late on his FTCA claim, however,
because the FTCA requires that a lawsuit must be filed within six months of the mailing of the
denial of the administrative claim. See 28 U.S.C. § 2401.
IT IS SO ORDERED.
DATED: February 6, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

Vargas need not concern himself with exhaustion requirements in this new suit since he is no
longer incarcerated and the Prison Litigation Reform Act does not require non-prisoners to exhaust
administrative remedies.
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