Bradley v. Dennision et al

Filing 13

ORDER DISMISSING CASE without prejudice for failure to exhaust administrative remedies. Signed by Judge Staci M. Yandle on 11/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEANDRE BRADLEY,

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Plaintiff,
vs.
JEFFREY DENNISON,
KAREN SMOOT,
A. DAVID,
BRADFORD,
JOHN DOE 1, and
JOHN DOE 2

Case No. 17−cv–0829−SMY

Defendants.

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Deandre Bradley, an inmate currently at Menard Correctional Center, brings this
action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights that occurred at
Shawnee Correctional Center (“Shawnee”). Plaintiff requests monetary damages and injunctive
relief. 1 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

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Since filing this lawsuit, Plaintiff has transferred prisons, making his requests for injunctive relief moot.

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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). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). 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. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The Complaints
Original Complaint
Plaintiff originally brought suit on August 3, 2017 against Defendants Dennison, Smoot,
David and Bradford. (Doc. 1, pp. 5-6).

At the time Plaintiff filed the original Complaint, he

was housed in the infirmary unit. He alleged that Defendants were deliberately indifferent to his
disability and that he suffered 5 injuries between March 10, 2017 and August 3, 2017, some due
to staff assaults. (Doc. 1, p. 1). Specifically, Plaintiff alleged that Lt. Bradford assaulted him on
July 17, 2017 because he was unhappy that Plaintiff was being allowed to visit the dietary unit.
(Doc. 1, p. 3). Plaintiff also alleged that he was assaulted by Officers Causey Maun, Olegs and
Phelps, although he did not name them as defendants. (Doc. 1, p. 5). Plaintiff claimed that he
was denied access to programs, services and activities because Shawnee does not have adequate
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facilities to serve handicapped inmates.

(Doc. 1, p. 2). He also alleged that his housing

assignment denied him access to certain programs and that he has been assaulted in the health
care unit in the past. (Doc. 1, p. 5).
Plaintiff asserted that he has grieved all of the incidents that form the basis of this action.
(Doc. 1, p. 5). However, he also stated that the “majority of these are in the last stage of
exhausting [sic] in which have been sent to the Administrative Review Board in which they have
six months to respond.” Id. Finally, Plaintiff alleged that his health and safety were at risk and
that “anything could happen”. Id. Plaintiff was transferred to Big Muddy River Correctional
Center sometime prior to August 27, 2017. (Doc. 8-1).
Amended Complaint
On September 1, 2017, Plaintiff filed an Amended Complaint. (Doc. 8).

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accompanying motion for leave to amend states that the issues related to Plaintiff’s safety had
been resolved. (Doc. 8-1, p. 1). 2 The Amended Complaint alleges that Shawnee was unable to
accommodate Plaintiff’s disability, that Dr. David was deliberately indifferent to his disability by
failing to provide specific treatments and medical devices, that Smoot and Dennison were
deliberately indifferent to Plaintiff’s complaints and that it was cruel and unusual punishment to
assign Plaintiff to the health care unit because it deprived him of the opportunity to participate in
prison activities. (Doc. 8). The Amended Complaint does not address Plaintiff’s exhaustion of
administrative remedies.

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For good cause shown, Plaintiff’s “Motion to Inform and Request” (Doc. 8-1), attached to Plaintiff’s
proposed Amended Complaint and construed by the Court as Plaintiff’s motion for leave to amend his original
Complaint, is GRANTED.

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Proposed Second Amended Complaint
Subsequently (on September 20, 2017), Plaintiff filed a “Motion for Permission to Add
Additional Claims, Defendants and Relief,” in an attempt to amend his Complaint again in order
to add two additional claims (Doc. 11). Specifically, Plaintiff’s proposed second amended
complaint seeks to re-add a claim against Bradford that was included in the original Complaint,
but not in the Amended Complaint. It also seeks to add another claim against Warden Dennison
based on a policy or custom of not allowing handicapped inmates equal access to facilities and
programs at Shawnee. It lists Counts 5 and 6 only and does not include the claims previously
asserted in the Amended Complaint.
Discussion
As an initial matter, Plaintiff’s “Motion for Permission to Add Additional Claims,
Defendants and Relief” (Doc. 11) will be denied as the Court does not accept piecemeal
complaints. SDLR 15.1. Because an amended complaint supersedes and replaces the original
complaint, it must contain all claims present in a lawsuit – there cannot be more than 1
controlling complaint at any time. Wellness Community-National v. Wellness House, 70 F.3d 46,
49 (7th Cir. 1995). Thus, if the Court were to grant Plaintiff’s motion and allow him to file his
proposed second amended complaint, there would only be 2 claims remaining in the lawsuit,
which the Court does not believe was Plaintiff’s intent. Accordingly, the motion (Doc. 11) is
DENIED.
Additionally, the Court will not conduct a merits review the claims set forth in Plaintiff’s
original Complaint or Amended Complaint because it is clear that Plaintiff failed to exhaust his
administrative remedies prior to filing suit. The Prison Litigation Reform Act (“PLRA”) governs
suits by prisoners. 42 U.S.C § 1997e. A prisoner is required to exhaust his remedies prior to

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filing suit. 42 U.S.C. § 1997e(a). The exhaustion requirement is dependent upon the procedures
established by the State in which the prison is located. Jones v. Bock, 549 U.S. 199, 218 (2007).
Unexhausted claims may not be brought to court, Id. at 211 (citing Porter v. Nussle, 534 U.S.
516, 524 (2002)), and “unless a prisoner completes the administrative process by following the
rules the State has established for that process, exhaustion has not occurred.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
Inmates confined in the IDOC must adhere to the Department’s Grievance Procedures for
Offenders in order to properly exhaust claims; anything less is a failure to exhaust. 20 Ill. Adm.
Code § 504.810. Prisoners must first speak with their counselor about the issues they raise, and
if the dispute is not resolved, a formal grievance must be filed within sixty days of the events or
occurrence with the grievance officer. 20 Ill. Adm. Code § 504.810(a). The grievance officer
must then review the grievance and report findings and recommendations to the Chief
Administrative Officer (“CAO”). 20 Ill. Adm. Code § 504.830(d). The prisoner then has the
opportunity to review the CAO’s response, and if unsatisfied, may appeal to the Director through
the ARB within 30 days of the Warden’s response. 20 Ill. Adm. Code § 504.830(d); 20 Ill. Adm.
Code § 504.850. The ARB is then required to provide a written report to the Director of its
recommendation on the grievance and the Director “shall review the findings and
recommendations of the Board and make a final determination of the grievance within 6 months
after receipt of the appealed grievance, where reasonably feasible under the circumstances.” 20
Ill. Admin. Code § 504.850(e), (f).
Failure to exhaust administrative remedies is an affirmative defense and while the Court
typically will wait for a defendant to raise the issue, the Court may invoke an affirmative defense
on behalf of an un-served defendant if it is clear from the face of the complaint that the defense

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applies. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash v. Yuswak, 308 F.3d
758, 760 (7th Cir. 2002). The defense must be both apparent and unmistakable. Walker, 288
F.3d at 1010.
Here Plaintiff affirmatively stated that he had not received a response from the ARB to
his grievances prior to filing suit. Plaintiff has indicated in some of his pleadings that he filed an
“emergency complaint” in the instant action. Emergency situations may excuse a failure to
exhaust when “there is no possibility of some relief and so nothing for the prisoner to exhaust.”
Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1174 (7th Cri. 2010) (reasoning that if a
prisoner’s life was in danger tomorrow and the available remedies take two weeks, that prisoner
has no remedy to exhaust). However, this exception is narrowly applied.
There is no indication that the conditions Plaintiff complained of were emergent, so as to
render the grievance process unavailable to him. Although he alleged that he felt “anything”
could happen to him, he did not articulate a specific proximate threat from an identified source.
Plaintiff’s fears appear to be based on his past experience with assaults, but past conduct does
not meet the imminent danger exception, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003),
much less the narrower exception to the exhaustion requirement. For these reasons, The Court
finds no basis to excuse Plaintiff’s failure to exhaust before filing his original Complaint.
Although Plaintiff subsequently filed an Amended Complaint, an amended complaint
cannot cure a failure to exhaust administrative remedies unless it addresses new claims not
present in the original Complaint that were exhausted prior to filing an amended complaint. See
Barnes v. Briley, 420 F.3d 673, 678 (7th Cir. 2005) (allowing a plaintiff to proceed on an
amended complaint where plaintiff exhausted remedies after filing suit when the amended
complaint named new parties and proceeded under a different statute than the original

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complaint); Antonelli v. Sherrow, 246 F. App’x 381, 385 (7th Cir. 2007) (rejecting plaintiff’s
argument that he exhausted his FTCA remedies prior to filing an amended complaint where
amended complaint added a defendant pursuant to Bivens and thus was irrelevant to FTCA
exhaustion).
In this case, the Amended Complaint is silent as to any matter relating to the exhaustion
of remedies. However, it does not add any claims that are sufficiently distinct from the claims
already present in this action. Rather, the Amended Complaint eliminates Defendant Bradford
and any claims against him, which has no effect on the exhaustion question. The Amended
Complaint also seeks to add an unknown supervisor for improper supervision of Dennison and
Smoot. But because there is no supervisory liability under § 1983, whether or not this claim is
properly is irrelevant. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). See also Monell v.
Dep’t of Soc. Serv., 436 U.S. 658 (1978); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) (doctrine of respondeat superior does not apply to § 1983 actions).
Finally, Plaintiff seeks to add the transfer coordinator who approved his placement at
Shawnee.

While Plaintiff did not name a “John Doe” transfer coordinator in his original

Complaint, he did allege that his placement at Shawnee was improper in light of the availability
of prisons with handicapped facilities. Thus, that claim was ostensibly present in the original
Complaint and Plaintiff would have had to exhaust his administrative remedies relative to the
claim it prior to filing suit. He has affirmatively stated that he has not done so, which requires
dismissal of this suit at this time.
Pending Motions
Plaintiff has requested a copy of the original Complaint (Doc. 6). If Plaintiff would still
like to receive a copy, he should tender $4.50 ($.50 per page) to the Clerk’s Office for a copy of

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Doc. 1 in Case No. 17-829. The motion shall be DENIED as moot, as Plaintiff simply needs to
tender payment to secure the documents he seeks. (Doc. 6).
Disposition
IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for
failure to exhaust administrative remedies. This case shall be closed and judgment entered.
Should Plaintiff exhaust his remedies, he may file a new suit raising these issues. Plaintiff’s
Motion for Request Copy of the Complaint is DENIED as moot. (Doc. 6). Plaintiff’s Motion
for Permission to Add Additional Claims, Defendants, and Relief is DENIED. (Doc. 11).
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed
no more than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline
cannot be extended.
The Clerk of Court is DIRECTED to close this case and enter judgment.

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IT IS SO ORDERED.

DATED: November 28, 2017

s/ STACI M. YANDLE
U.S. District Judge

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