Washington v. Baugh et al

Filing 3

ORDER DISMISSING CASE with prejudice. This dismissal will not count as a strike for the purposes of 28 U.S.C. 1915(g). Signed by Judge Nancy J. Rosenstengel on 1/30/2018. (tjk)

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

BURL WASHINGTON,
Plaintiff,
vs.
BAUGH, LISA MADIGAN,
ATTORNEY GENERAL FOR THE
UNITED STATES,
DIRECTOR, CENTRAL OFFICE,
WARDEN, USP MCCREARY,
JUDE ONUCHA, K. BENNETT-BAKER,
P. ROBINSON, PAUL LAIRD,
PAUL HARVEY, B. AUTERSON,
JAMES CROSS, DOUGLAS KRUSE,
HAROLD GILLIAN, ROBINSON,
W. LIRIOS, LYONS,
DAVID GOLDSBOROUGH,
STEVEN HOFFIMERR,
FRANK FESTER,
MARGARET HODGES, and
DIRECTOR OF THE FEDERAL BUREAU
OF PRISONS,
Defendants.

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Case No. 17 cv–1162 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Burl Washington, an inmate in Edgefield Correctional Institution in Edgefield South
Carolina, brings this action for deprivations of his constitutional rights pursuant to both Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C.
§ 1983. 1 Plaintiff requests monetary compensation in the amount of $30,000,000.

1
Plaintiff has invoked § 1983 by checking a box on the complaint form, and he has named a single state actor,
Lisa Madigan, the Attorney General for the State of Illinois. Unfortunately, however, Plaintiff has not included any
allegations against Madigan, and it is unlikely that she would have been involved in any of the conduct that Plaintiff
alleges, because his allegations address decisions made by Federal Bureau of Prisons employees. The Court presumes that

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
(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, 1026-27 (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 Complaint
Plaintiff alleges a conspiracy between John Doe #1, Loranth, Massa, Meeks, Garcia, Lapaine,
John Doe #2, Barron, Rhonda Jones, Jude Onucha, K. Bennett-Baker, P. Robinson, John Doe #3,
John Doe #4, John Doe #5, 2 Paul Laird, Paul Harvey, B. Auterson, James Cross, Baugh, Douglas

the inclusion of Madigan is an error based on a misapprehension of her role as Attorney General of Illinois, which the
Court notes is distinct and separate from the United States Department of Justice and has nothing to do with its operation.
2
Plaintiff identifies four unknown defendants in his list of defendants: Unknown Attorney General for the United
States, Unknown Director/General Counsel for the Central Office, Warden of USP McCreary, and the Director of the
Federal Bureau of Prisons. Of those, Plaintiff specifically identifies the BOP Director as John Doe #1, and the Warden of
USP McCreary as John Doe #2. It is not clear who John Does #3-5 refer to, and Plaintiff makes no allegations against the

2

Kruse, Harold Gillian, Mrs. Robinson, Mrs. Lyons, Mrs. Lirios, David Goldsborough, Steven
Hoffimerr, Frank Fester, Jason Jones, Margaret Hodges, and others 3 to deny or delay him adequate
medical care for his vision problems. (Doc. 1-1, p. 2). Specifically, Plaintiff alleges that Defendants
have denied him access to surgery, a glaucoma specialist, a low vision therapist, and assistance with
ambulation, medication administration, and routine daily activities from December 2011 to
December 2015 and beyond July 2016. Id.
Plaintiff had an appointment at Barnes-Jewish Hospital on December 8, 2011. (Doc. 1-1, p.
10). As he was being transported for the appointment, he alleges that Defendant Margaret Hodges
kicked him. Id. When Plaintiff returned to FCI Greenville (“Greenville”), he reported this incident of
staff misconduct to non-defendant Lt. Salem. 4 Id. Salem took Plaintiff to administrative detention; he
also denied Plaintiff medical treatment for his injuries. (Doc. 1-1, p. 11). In retaliation for Plaintiff’s
report, Hodges filed a false and fabricated incident report. Id. Salem conducted an investigation, and
after the investigation was completed, Plaintiff was released back into general population on
December 13, 2011. (Doc. 1-1, p. 12). He reported the kick to Defendant Lyons and non-defendant
Smith on December 15, 2011. Id. He reported the kick to Defendant Robinson on December 19,
2011. Id. Plaintiff requested documents from non-defendant Lt. Philips related to this incident, but
when he received the documents on December 20, 2011, non-defendant Captain Cooper confiscated
them and sent Plaintiff to the special housing unit (“SHU”). (Doc. 1-1, p. 13). Plaintiff alleges that

Unknown Attorney General for the United States or the Unknown Director/General Counsel for the Central Office. He has
also not included the descriptor John Does #3-5 in his list of defendants.
3
Of the listed individuals, Loranth, Massa, Meeks, Garcia, Lapaine, Barron, and Rhonda Jones are not among the
listed defendants or included in the case caption. Additionally, Plaintiff’s list of defendants includes only four unknown
defendants, despite his repeated references to John Doe #5 in the body of the Complaint, and so Plaintiff has effectively
failed to list Doe #5 in his list of defendants as well. That omission precludes the consideration of any claims against those
individuals in this case. FED. R. CIV. P. 10. See also Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (to be
properly considered a party a defendant must be “specif[ied] in the caption”).
4
Plaintiff also refers to a number of individuals in his statement of claim who are not listed in the case caption,
the list of defendants, or included in Plaintiff’s general statement of claim. The Court presumes that Plaintiff did not intend
to proceed against these individuals and did not consider any potential claims against them.

3

Cooper took those actions in retaliation for Plaintiff’s complaints regarding Hodges. (Doc. 1-1, p.
14).
Plaintiff was housed in the SHU from December 20, 2011 until March 19, 2012 with Cross’s
approval, despite the fact that he had not received an incident report or a shot, or committed any
violations. Id.
Kruse and Cross approved and scheduled at least two surgeries to address Plaintiff’s
glaucoma. (Doc. 1-1, p. 8). On March 15, 2012, a surgery was performed at Barnes-Jewish Hospital
by non-defendants Dr. Kraus 5 and Dr. Arthur. Id. Plaintiff’s discharge instructions from the surgery
required him to use a plastic eye-shield. Id. Fester and Kruse denied Plaintiff use of the eye shield.
Id. Doe #1, Cross, Baugh, Fester, and Kruse all conspired to delay Plaintiff’s follow-up between
March 26, 2012 and April 27, 2012. Id.
Moreover, on March 16, 2012, two officers cuffed Plaintiff to his hospital bed and refused to
allow him to use the bathroom. (Doc. 1-1, p. 18). As a result, Plaintiff soiled himself and was forced
to lie in soiled linen until the next shift change. Id. On March 19, 2012, Goldsborough and Hoffimerr
confiscated a letter to Plaintiff’s son and his son’s guardian. Id. After conversing with Kruse, they
then confiscated all of Plaintiff’s belongings, including an eye patch. Id. During shift change,
Goldsborough and Hoffimerr met with Fester and non-party Jones. Id. During the next couple days,
Jones and Fester deliberately turned on the air conditioner to make it uncomfortably cold in
Plaintiff’s room, in violation of doctor’s orders. (Doc. 1-1, p. 19). On March 21, 2012, Fester struck
Plaintiff on the back of the head. Id. When Plaintiff was discharged on March 22, 2012, the nurse
gave him an eye shield, but Fester, non-party Pollman, and Kruse caused the eye shield to be
confiscated. (Doc. 1-1, p. 20). It was not returned until March 27, 2012. Id. As a result, Plaintiff had
difficulty sleeping, and the stitches in his left eye broke and began to bleed, causing swelling and

5

Plaintiff sometimes spells Kraus’s name as “Krause,” but the Court presumes this is the same person.

4

pain. (Doc. 1-1, p. 21). The pressure in Plaintiff’s left eye also began to increase, but Greenville staff
did not notify Dr. Kraus, contrary to Plaintiff’s discharge instructions. Id.
Plaintiff received a conduct report regarding alleged comments he made to Dr. Kraus on
March 20, 2012. (Doc 1-1, p. 22). Plaintiff had asked Dr. Kraus what her involvement was in a
disciplinary report he received on March 19, 2012. Id.
Plaintiff reported that Fester struck him to Baugh and non-party Mills on March 26 and April
11, 2012, respectively. Id. Despite his report, Doe #1, Cross, Baugh, and Fester conspired against
him and continued to allow Fester to escort Plaintiff, effectively denying him medical care. (Doc. 11, p. 23).
Plaintiff alleges that on April 27, 2012, he met with Dr. Kraus and Dr. Arthur at BarnesJewish hospital and that they recommended that he undergo laser surgery to lower his IOP. (Doc. 11, p. 2). Plaintiff alleges that he was denied the treatment, however, because John Doe #1, Laird,
Harvey, Auterson, Cross, Kruse, Robinson, Lyons, Lirios, Goldsborough, Hodges, and Hoffimerr
transferred him in retaliation on April 30, 2012. (Doc. 1-1, p. 3). The transfer stemmed from a March
26, 2012 incident in which Lirios intentionally submitted a false and fabricated incident report and
statement to Auterson. Id. On April 18, 2012, Kruse and Hoffimerr provided false and fabricated
statements in support of the disciplinary report to Auterson, and Auterson found Plaintiff guilty,
despite the fact that Plaintiff’s conduct did not violate the Federal Bureau of Prison’s Prohibited
Code Act. Id. As a result of the disciplinary action, on April 25, 2012, Lyons, Robinson, and Cross
submitted a request for Plaintiff to be transferred to an institution with higher security, more
restrictions, and fewer privileges. Id. Plaintiff alleges that Harvey, Laird, and Doe #1 (the Director of
the Federal Bureau of Prisons) became aware of the scheme to transfer him despite his glaucoma
follow-up visit scheduled for April 25, 2012. (Doc. 1-1, p. 4). They approved the transfer despite
knowing that the lack of treatment for glaucoma can cause blindness and/or death. Id. Plaintiff was

5

transferred from Greenville to the Federal Transit Center in Oklahoma on April 30, 2012, and from
Oklahoma to United States Penitentiary McCreary in Kentucky on May 24, 2012. Id.
John Does # 1-5, Rhonda Jones, Barron, Bennett-Baker, and P. Robinson conspired to deny
Plaintiff access to a glaucoma specialist between April 30, 2012 and February 7, 2013. (Doc. 1-1, p.
5). On July 22, 2013, Dr. Mohay recommended laser surgery for Plaintiff. Id. She told Onucha,
Bennett-Baker, and P. Robinson of her treatment plan. Id. Plaintiff was informed that Dr. Moore had
agreed to do the surgery on August 21, 2013. Id. Before Plaintiff could undergo the surgery, he was
transferred again on October 23, 2013—this time to South Carolina. (Doc. 1-1, p. 6).
Plaintiff alleges that he could not undergo a scheduled laser surgery to address his glaucoma
on December 23, 2014, because prison employees Loranth and Massa failed to place Plaintiff on
NPO status for six to eight hours prior to the surgery. Id. The same thing happened again on June 10,
2015. (Doc. 1-1, p. 7). Before Plaintiff could be rescheduled again, he was transferred by Doe #1,
Meeks, Loranth, and Massa on August 28, 2015 to the federal holdover facility in Atlanta and then to
FCI Estill in South Carolina on September 9, 2015. Id.
Plaintiff alleges that Doe #1 conspired with Garcia and Lapaine to deny Plaintiff access to a
glaucoma specialist from September 9, 2015 through December 31, 2015. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se
action into a single count, as that appears to be Plaintiff’s intention. The parties and the Court will
use this designation in all future pleadings and orders, unless otherwise directed by a judicial officer
of this Court.
Count 1:

Defendants John Doe #1, Loranth, Massa, Meeks, Garcia, Lapaine,
John Doe #2, Barron, Rhonda Jones, Jude Onucha, K. Bennett-Baker,
P. Robinson, John Doe #3, John Doe #4, John Doe #5, Paul Laird,
Paul Harvey, B. Auterson, James Cross, Baugh, Douglas Kruse,
Harold Gillain, Mrs. Robinson, Mrs. Lyons, Mrs. Lirios, David
Goldsborrough, Steven Hoffimerr, Frank Fester, Jason Jones,
Margaret Hodges, and others conspired to deny or delay Plaintiff
6

adequate medical care for his vision problems in violation of the
Eighth Amendment.
The Court construed the allegations in the Complaint as a single claim for a number of
reasons. Plaintiff has previously struck out and is no longer eligible for in forma pauperis status.
Thus, he paid his full filing fee in this matter. Of note, this is not the first time that Plaintiff has
appeared before the undersigned. Plaintiff has previously raised all of the allegations stemming from
his incarceration at Greenville in this Court in Case Nos. 12-cv-854-NJR-DGW (“12-854”), 13-cv613-NJR-DGW (“13-613”), and 13-cv-614-NJR-DGW (“13-614”). Those cases were all dismissed
without prejudice for failure to exhaust administrative remedies.
Likewise, Plaintiff previously brought his allegations regarding his treatment at USP
McCreary in Washington v. Bennett-Baker, Case No. 14-cv-172-GFVT, in the Eastern District of
Kentucky (“the McCreary litigation”). That case was dismissed on the merits because the Court
found that Plaintiff had failed to make out a prima facie case of deliberate indifference under the
Eighth Amendment as to the medical providers and failed to establish that non-medical providers
were personally involved in the conduct at issue. (McCreary Litigation, Doc. 21, E.D. Ken. Sept. 30,
2015).
Plaintiff also filed a case in the District of South Carolina, Washington v. United States, No.
16-cv-03913-BHH-KDW (“South Carolina litigation”). The South Carolina litigation is nearly
identical to this case; it appears that Plaintiff made some changes on South Carolina’s complaint
form, but his statement of claim here is an exact copy of the one he submitted in that case. The South
Carolina court dismissed all of the non-South Carolina defendants for lack of jurisdiction. (South
Carolina litigation, Doc. 28). The remainder of that case remains pending.
The Court believes that Plaintiff’s attempt to frame his case as a conspiracy is an attempt to
get around this Court’s prior findings that he failed to exhaust his administrative remedies and
distinguish this case from Plaintiff’s other suits. Plaintiff alleges here that he exhausted his claims by
7

way of grievances filed while he was in South Carolina at FCI Williamsburg and FCI Estill. (Doc. 1,
p. 8). The Court has reviewed the documents attached to the Complaint in support of Plaintiff’s
assertion that he exhausted his remedies, and there is no mention of FCI Greenville or any of the
associated defendants. The only way that these exhibits would show proof of exhaustion is if the
Court construed Plaintiff’s allegations as a single claim.
But that is not enough to save this case from dismissal. Plaintiff cannot proceed on his
conspiracy claims. Plaintiff has attempted to bring claims across at least three institutions. While this
raises questions regarding venue and jurisdiction, the claims would be subject to dismissal regardless.
As an initial matter, Plaintiff’s allegations of conspiracy are vague and conclusory. To
establish a prima facie case of a civil conspiracy, a plaintiff must show (1) an express or implied
agreement among defendants to deprive plaintiff of his constitutional rights and (2) actual
deprivations of those rights in the form of overt acts in furtherance of the agreement. Scherer v.
Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Plaintiff has not alleged any facts that show or imply an
agreement to deprive him of his rights. The common thread between all defendants appears to be
their status as employees of the Federal Bureau of Prisons or Department of Justice, but that is not a
sufficient basis for establishing a conspiracy. If this were the only deficiency in Plaintiff’s
Complaint, the Court may have granted him leave to re-plead, but there appear to be a number of
other reasons why this suit does not belong here.
First, Plaintiff’s claims in the McCreary litigation were previously adjudicated on the merits,
barring their consideration here on res judicata grounds. Gleash v. Yuswak, 308 F.3d 758, 760 (7th
Cir. 2002); Hudson v. Hedge, 27 F.3d 274, 276 (7th Cir. 1994). In federal court, res judicata applies
where there is (1) an identity of the parties; (2) a final judgment on the merits; and (3) an identity of
the cause of action. U.S. ex rel. Lusby v. Rolls-Royce Corp. 570 F.3d 849, 851 (7th Cir. 2009). The
identity of the cause of action is determined by looking at the material facts of the lawsuit.
Czarniecki v. City of Chicago, 633 F.3d 545, 549 (7th Cir. 2011).
8

The McCreary litigation proceeded against Bennett-Baker, Robinson, the Warden of
McCreary (here identified as John Doe #2), and the Director of the Federal Bureau of Prisoners
(present in this case as John Doe #1). (McCreary Litigation, Doc. 1). All four of these parties are
present in this litigation. Plaintiff also alleged that the defendants were deliberately indifferent to his
medical needs, failed to provide adequate medical care for his glaucoma, and deliberately transferred
Plaintiff away from his glaucoma care provider. (McCreary Litigation, Doc. 1, p. 2). Plaintiff also
specifically alleged that the conduct of the defendants in the McCreary action was in retaliation for
the grievances Plaintiff filed after Hodges allegedly assaulted him on December 8, 2011. Id. at 4. In
comparison, Plaintiff alleges here that officials at McCreary were deliberately indifferent to his
glaucoma and that they transferred him out of McCreary, despite the fact that he had pending
appointments with a glaucoma specialist—the same factual allegations he made in his earlier suit.
Res judicata bars the claims based on Plaintiff’s time at McCreary in this lawsuit because his prior
case was dismissed on the merits, and Plaintiff has named four of the same parties here and alleged
the same underlying facts.
A court previously found that the McCreary defendants did not violate Plaintiff’s
constitutional rights, and thus this Court will not consider Plaintiff’s allegation that the same conduct
previously found to be constitutional violated Plaintiff’s rights as part of a conspiracy, even if the
conduct is framed as a continuing violation. The doctrine of res judicata applies even when a plaintiff
attempts to re-plead conduct as a continuing violation that was previously brought as claims
regarding discrete events. See Jordan v. O’Neil, 28 F. App’x 548, 552-53 (7th Cir. 2002) (rejecting
plaintiff’s claim that a case involving discrete incidents was distinguishable from a continuing
violation action on res judicata grounds). Accordingly, the Court will not consider claims against
Doe #2, Onucha, Bennett-Baker, or any of Plaintiff’s claims arising out of his time at McCreary
because any legal theory based on their actions should have been brought in Plaintiff’s prior suit.
Palka v. City of Chicago, 662 F.3d 428, 437 (7th Cir. 2011) (“Where it applies, res judicata prevents
9

the relitigation of claims already litigated as well as those that could have been litigated but were
not.”).
Plaintiff also has named Jude Onucha, the clinical director of USP McCreary, who does not
appear to have been a defendant in the McCreary suit. It cannot be said that there is identity of the
parties as to Onucha, strictly speaking. However, “strict identity of the parties is not necessary to
achieve privity. Privity applies to successive parties who adequately represent the same legal
interests.” Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 301 (7th Cir. 1985). Plaintiff’s previous
suit named the chronic care provider (Bennett-Baker) and the prison eye doctor (Robinson), placing
their management and care of Plaintiff’s glaucoma at issue. The district court in the McCreary
litigation ultimately found that Plaintiff’s allegations amounted to a disagreement about the course of
his medical treatment, not deliberate indifference. Now Plaintiff has alleged that Onucha, the clinical
director at McCreary, was also deliberately indifferent to Plaintiff’s medical need for glaucoma
treatment and acquiesced in a retaliatory transfer. Onucha’s interest in Plaintiff’s care is identical to
Bennett-Baker and Robinson’s; they were all responsible for managing and facilitating Plaintiff’s
care. If Bennett-Baker and Robinson’s approval of certain actions was not unconstitutional, as held
by the Kentucky district court, then Plaintiff should not be able to reopen the question as to another
member of the medical supervisory staff, particularly where that staff person could have been joined
in the earlier litigation. For that reason, the Court finds that Onucha’s inclusion in this lawsuit does
not eliminate the res judicata effect of the McCreary litigation.
In the alternative, the Court finds that it does not have jurisdiction over Onucha, who is
located in Eastern District of Kentucky, which is also where the conduct Plaintiff complains of
occurred. Any civil action may be brought “in (1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the district is located, (2) a judicial district in which
a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated, or (3) if there is no district in which an action
10

may otherwise be brought as provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b).
Plaintiff’s claims against Onucha could not proceed in this Court in any event because Plaintiff has
not alleged that Onucha resides here, and the events and omissions of which he complains occurred
in the Eastern District of Kentucky. The Court therefore lacks personal jurisdiction over Onucha, and
venue is improper here. For all of the above reasons, the Court will not consider any claims arising
out of USP McCreary.
Plaintiff’s claims arising out of his time in South Carolina also must be dismissed. In the
Complaint, Plaintiff made claims against Doe #1, Meeks, Lorna, and Massa. Meeks, Lorna, and
Massa were not listed among Plaintiff’s defendants in Doc. 1-3. Failure to include parties in the case
caption or among a list of defendants is grounds for dismissal. FED. R. CIV. P. 10; see also Myles v.
United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (to be properly considered a party a defendant
must be “specif[ied] in the caption”).
Even if Plaintiff had listed Doe #1, Meeks, Lorna, and Massa properly, the Court would still
be inclined to dismiss them because this claim is duplicative of litigation proceeding in South
Carolina. Federal courts may dismiss a suit “for reasons of wise judicial administration whenever it is
duplicative of a parallel action already pending in . . . federal court.” Serlin v. Arthur Andersen &
Co., 3 F.3d 221, 223 (7th Cir. 1993) (quoting Colorado River Water Conservation District v. United
States, 424 U.S. 800, 817 (1976)). The determination is discretionary, and district courts are given
latitude to exercise that discretion, but generally, a suit will be considered duplicative if the claims,
parties, and relief requested do not significantly vary between the actions. McReynolds v. Merrill
Lynch Co. Inc., 694 F.3d 873, 888-89 (7th Cir. 2012). Here, Plaintiff submitted identical complaints
(at least initially) in both suits against the same parties. The Court therefore finds that the claims
against the South Carolina individuals, even if the Court construes them as part of this suit, are

11

duplicative of the pending South Carolina suit raising the same conduct against the same people. The
Court will not consider those claims further.
That leaves the claims arising out of Plaintiff’s time at Greenville. These claims were all
previously adjudged to be unexhausted. Specifically, in Case No. 12-854, Plaintiff raised claims (1)
against Margaret Hodges for deliberate indifference to Plaintiff’s serious medical needs from
exposing Plaintiff to a cold van on December 8, 2011; (2) against Margaret Hodges for
assault/excessive force for kicking Plaintiff in the leg on December 8, 2011; and (3) against Cooper
and Hutchcraft for placing Plaintiff in the Special Housing Unit on December 20, 2011 in retaliation
for pursuing grievances and evidence regarding the December 8th incident. (Case No. 12-854, Doc.
66, p. 2). The Court found that Plaintiff had not exhausted his remedies as to these claims and
specifically rejected Plaintiff’s contention that the grievance process was unavailable to him. Id. at 9.
The case was dismissed without prejudice. Id.
Plaintiff also included claims against Greenville employees in Case No. 13-613. Specifically,
the claims in that lawsuit were: (1) a retaliation claim against Goldsborough, Hoffimerr, Fester, and
Jones related to events occurring March 16-22, 2012, while Plaintiff was hospitalized following
glaucoma surgery; (2) a First Amendment claim against Goldsborough, Hoffimerr, and Jones for
interfering with Plaintiff’s First Amendment right to correspond with friends and family by
confiscating written materials, paper, pens and envelopes; (3) a claim for deliberate indifferent to a
serious medical condition against Goldsborough, Hoffimerr, Jones and Fester for confiscating
Plaintiff’s eyepatch and subjecting him to excessive air conditioning; (4) an excessive force claim
against Fester for striking Plaintiff on the back of the head; (5) a retaliation claim against
Goldsborough for filing a false disciplinary charge after Plaintiff showed correspondence to his
doctor; and (6) a retaliation claim against Auterson for finding Plaintiff guilty of the false
disciplinary charge resulting from the incident where Plaintiff showed correspondence to his doctor.
(Case. No. 13-613, Doc. 66, p. 2). The Court adopted the Report and Recommendation of the
12

Magistrate Judge, finding that Plaintiff failed to exhaust his administrative remedies and dismissed
that case without prejudice. (Case No. 13-613, Doc. 67).
Case No. 13-614 completes the triad of cases addressing Plaintiff’s claims at Greenville. That
case contained the following claims: (1) Baugh, Cross, Kruse, and Pollman retaliated against Plaintiff
and showed deliberate indifference to his need for a replacement eye patch and post-surgical medical
appointments between March 22, 2012 and April 20, 2012; (2) Gillian, Pollman, and Kruse were
deliberately indifferent to Plaintiff’s medical needs during January through April 2012; (3) Cross,
Lyons, and Robinson arranged a retaliatory transfer of Plaintiff on April 30, 2012; (4) Pollman,
Kruse, and Cross were deliberately indifferent to Plaintiff’s glaucoma when they failed to provide
him with his glaucoma medications at the time of his transfer; and (5) Tonaselke, Spence, Cross, and
Jane Doe withheld Plaintiff’s property in retaliation for his past grievances. (Case No. 13-614, Doc.
64, p. 2). Once again, the Court dismissed that case because it found that Plaintiff had failed to
exhaust his administrative remedies. (Case No. 13-614, Doc. 66).
That raises the question of whether Plaintiff has now exhausted his administrative remedies
with respect to the Greenville claims. Plaintiff attempts to put forth a slightly different legal theory in
this case in comparison to his earlier filings, but the underlying facts are clearly the same—Plaintiff
continues to allege that he was not provided adequate treatment for his glaucoma out of retaliation
and ultimately transferred, as he did in his prior cases. The fact that Plaintiff is bringing a different
legal theory does not restart the time for Plaintiff to exhaust his administrative remedies. Legal
theories are not pertinent to the exhaustion analysis. Strong v. David, 297 F.3d 646, 650 (7th Cir.
2002) (“[T]he grievant need not . . . articulate legal theories.”); Watford v. Ellis, 16-cv-582-NJRDGW, 2017 WL 2645628 at *2 (S.D. Ill. June 20, 2017) (rejecting defendants’ contention that
grievances had to address precise legal theory at issue in present suit). There is no case law that
suggests that pleading a new legal theory restarts the time for a federal prisoner to exhaust his
remedies.
13

Plaintiff also has not alleged that he exhausted his remedies during the time between the end
of his previous suits and the present suit with respect to the Greenville allegations. In the section of
the form complaint that asks about Plaintiff’s attempts to exhaust his remedies, Plaintiff refers to
“Attachment #4.” (Doc. 1, p. 8). When asked where relevant grievances were filed, Plaintiff lists
South Carolina, FCI Williamsburg, FCI Estill, and the South regional office. Id. Greenville is notably
absent. Moreover, Plaintiff’s Attachment #4 does not refer to any Greenville defendants or any of the
events that occurred at Greenville. (Doc. 1-4, pp. 4, 6, 8). It specifically references surgeries
scheduled for December 23, 2014 and June 10, 2015, both more than two years after Plaintiff left
Greenville. Id. In short, the exhibits do not show that the Greenville claims were properly exhausted
since the end of Plaintiff’s prior lawsuits.
There is also reason to consider the dismissals without prejudice as final orders, at least in
part. Although all three of Plaintiff’s prior cases in this Court were dismissed without prejudice, the
orders consistently noted that Plaintiff had not completed key steps of the grievance process within
the appropriate time period with respect to certain claims. The Seventh Circuit has said that although
the “without prejudice” language is the correct language for a dismissal on exhaustion grounds, the
unavailability of administrative remedies effectively converts the judgment to a final judgment.
Hernandez v. Dart, 814 F.3d 836, 841 (7th Cir. 2016).
There is some indication that many, but not all, of Plaintiff’s administrative remedies were
unavailable at the end of his prior Greenville cases, and that the unavailability was attributable to
Plaintiff, foreclosing any future action. A federal prisoner has twenty days from the date of the
subject incident to initiate the grievance process. 28 C.F.R. § 542.14. Therefore, any grievances
initiated as to the events of 2011 and 2012 at Greenville after the dismissal of Plaintiff’s prior cases
would be untimely. Furthermore, the dismissal of Case No. 12-cv-854 was in part based on
Plaintiff’s failure to resubmit rejected grievances or appeal decisions within the extended deadline

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provided. Once the deadlines have passed, Plaintiff can no longer exhaust those remedies, and a
dismissal for failure to exhaust effectively terminates the case.
Likewise, it appears as if there are no further administrative remedies for Plaintiff to pursue
with regard to some of Plaintiff’s other claims in cases No. 13-613 and No. 13-614. 6 In case No. 13613, the Court found that grievances Nos. 682036, 685752, and 686319 did not exhaust Plaintiff’s
remedies because there was no evidence that Plaintiff resubmitted the grievances through the regular
procedure after they were rejected as not “sensitive” by the Central Office. (Case No. 13-613, Doc.
66, pp. 13-16). The time to invoke the regular procedure has long passed, so to the extent that any of
the claims in this lawsuit are contained in those grievances, the Court’s prior decision that the
grievances were not exhausted is a final decision, precluding proceeding in this case on those claims.
The Court also found that grievance 684572 was never exhausted because there was no evidence that
Plaintiff ever appealed to the Central Office. (Case No. 13-613, Doc. 66, p. 14). Any appeal would
have had to be submitted to the Central Office within 30 days of the date of the Regional Director’s
signature, which in this case was May 24, 2012. Id. See 28 C.F.R. § 542.15. As that time had lapsed
by the time that Plaintiff brought this suit, for all intents and purposes, the Court’s prior decision
regarding grievance 684572 was final.
With respect to Plaintiff’s other claims in case No. 13-613, however, the claims were
dismissed because the grievance process was still in progress at the time Plaintiff filed suit. Plaintiff
filed suit in that case on July 30, 2012. The Court specifically found that grievance 681576, which
addressed some events at Barnes-Jewish Hospital during the relevant time period, was still in
progress at the time Plaintiff filed suit because his appeal was not received by the Central Office until
August 7, 2012. (Case No. 13-613, Doc. 66, p. 13). Plaintiff received a response on the merits to that

6
The Court adopted the Report and Recommendation of the Magistrate Judge and fully agreed with his
“findings, analysis, and conclusions” in both cases. Because neither Report and Recommendation was objected to or
modified by the District Judge, all citations here are directly to the relevant Report and Recommendation itself and not to
the order adopting same.

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grievance on November 27, 2012 from the Central Office. (Case No. 13-613, Doc. 66, p. 4).
Grievance 683634 was also still in progress at the time Plaintiff filed No. 13-613. (Case No. 13-613,
Doc. 66, p. 14). The Central Office issued a response to that grievance on April 25, 2013. (Case No.
13-613, Doc. 66, p. 5).
In Case No. 13-614, the Court also determined that grievance 694011 did not adequately
exhaust Plaintiff’s complaints against Cross, Lyons, and Robinson for transferring Plaintiff in
retaliation because the grievance process did not end until March 25, 2013, nine months after
Plaintiff filed suit. (Case No. 13-614, Doc. 64, p. 18). Although Plaintiff filed other grievances in
reference to his claims in case No. 13-614, there was substantial overlap with the grievance set in
case No. 13-613, so the Court will not discuss them further here.
There were three grievances in progress at the time Plaintiff filed his 2012 and 2013 suits:
681576, 683634, and 694011. Those grievances represent the only claims that Plaintiff could have
pursued in a subsequent suit because the only bar to their litigation was that Plaintiff filed suit
prematurely, a problem remedied by filing a new suit in a timely manner. The Court found that
Plaintiff’s other grievances failed to exhaust his remedies because Plaintiff had not completed the
process or not adhered to the requirements of the process. By the time the Court made that
determination, it was too late for Plaintiff to correct those errors. So to the extent that Plaintiff’s
claims here were grieved in any grievance besides 681576, 683634, or 694011, the decision finding
those claims were not exhausted was a final decision.
Despite the fact that Plaintiff could have potentially brought suit on certain claims once he
exhausted grievances 681576, 683634, and 694011, he had a narrow window of time to do so, and
that window had closed prior to this suit. Plaintiff’s Greenville claims are barred by the statute of
limitations. Although typically affirmative defenses such filing after the statute of limitations are
litigated by the parties after service, see Jones v. Bock, 549 U.S. 199, 212 (2007), a Court may invoke
these defenses on § 1915A review when the availability of the defense is apparent on the face of the
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Complaint. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash v. Yuswak, 308 F.3d
758, 760 (7th Cir. 2002); Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992).
Bivens actions are considered personal injury claims and are governed by the statute of
limitations of the state in which the injury occurred, in this case, Illinois. Delgado-Brunet v. Clark,
93 F.3d 339, 342 (7th Cir. 1996). In Illinois, personal injury claims are governed by a two year
statute of limitations. Id.; 735 ILCS 5/13-202 (personal injury actions “shall be commenced within
two years next after the cause of action accrued”).
Plaintiff’s claims arise out of his time at Greenville, and as discussed above, the Court will
not consider any claims outside of that facility because Plaintiff has pursued suits involving that
conduct in other jurisdictions, and it is dubious whether venue and jurisdiction are proper as to those
claims. Plaintiff left Greenville on April 30, 2012, and so any claim he had arising out of his time
there would have started accruing as of that date at the very latest. While there is some indication that
Plaintiff’s grievance activity related to those claims extended into 2013, there is no evidence that any
grievances related to these events progressed beyond that time. Plaintiff brought this action on
October 25, 2017, more than five years after the events at issue. Even assuming that Plaintiff’s
grievance activity tolled the statute of limitations, and tolling the time to the last possible date, the
claims would still be untimely. Plaintiff’s last grievance regarding the Greenville events received a
response on April 25, 2013. If the statute of limitations began running on that date, Plaintiff would
have had to file suit no later than April 25, 2015. He is approximately two and a half years late. By
waiting more than three years after the last reported incident of grievance activity, Plaintiff is clearly
beyond the statute of limitations.
The Court has rejected Plaintiff’s attempts to frame his claims as a conspiracy based on
vagueness, principles of res judicata, and case administration, but even if had not, framing his
allegation as a conspiracy does not enable Plaintiff to avoid the statute of limitations problem
discussed above. A civil conspiracy challenged in a Bivens action accrues at the time of each overt
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act in furtherance of the conspiracy; it does not accrue in its entirety upon the last act. Scherer v.
Balkema, 840 F.2d 437, 439 (7th Cir. 1988). Plaintiff could not bring claims against any Greenville
defendant, even as part of a conspiracy, because the last act that he alleges the Greenville defendants
were involved in took place on April 30, 2012, and the statute of limitations has expired as to claims
arising out of that date, even if the Court tolls the statute of limitations to the end of Plaintiff’s
grievance activity.
Plaintiff has filed a sprawling Complaint involving dozens of defendants and non-parties.
The Court finds that Plaintiff cannot bring some of his claims in this Court because they are barred
by res judicata. The Court further finds that Plaintiff has a pending lawsuit in South Carolina that is
duplicative of some of his other claims. Venue and jurisdiction is likely improper here as to both of
those groups in any event. As to the events that actually occurred in this district and were previously
dismissed without prejudice, the Court finds that Plaintiff has not exhausted his administrative
remedies as to some of them, and the remainder are barred by the statute of limitations. According,
this entire case will be dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that this entire action is DISMISSED with prejudice. This
dismissal will not count as a strike for the purposes of 28 U.S.C. 1915(g). The Clerk of Court is
directed to enter judgment accordingly.
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
18

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.
IT IS SO ORDERED.
DATED: January 30, 2018
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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