Bure v. Gann et al
Filing
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OPINION AND ORDER: The motion for counsel #3 is DENIED. This case is DISMISSED under 28 U.S.C. 1915A as legally frivolous. Signed by Judge Joseph S Van Bokkelen on 5/8/2024. (Copy mailed to pro se party)(sej)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN JAMES BURE,
Plaintiff,
v.
C. GANN, et al.,
Defendants.
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CAUSE NO.: 3:24-CV-362-JVB-APR
OPINION AND ORDER
Kevin James Bure, a prisoner without a lawyer, filed a complaint alleging he is not properly
classified by the Indiana Department of Correction. (ECF 1). “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation marks and citations omitted). Nevertheless, under 28 U.S.C. § 1915A, the court
must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant
who is immune from such relief.
Bure alleges he should be classified as Level One. He asks for monetary compensation and
to be reclassified. The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 . . . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Bure says he filed a grievance challenging his classification,
but “Classification actions or decisions” are not grievable because “a separate classification
appeals process is in place for this purpose.” Offender Grievance Process, Policy 00-02-301,
available at: https://www.in.gov/idoc/files/00-02-301-Offender-Grievance-Process-9-1-2020.pdf
Offender-Grievance-Process. Bure did not file a classification appeal as required by the Adult
Offender Classification Policy 01-04-101, available at: https://www.in.gov/idoc/files/policy-andprocedure/policies/programs/classification/01-04-101/4-Function-and-Process-2-1-2024.pdf.
“Failure to exhaust is an affirmative defense that a defendant has the burden of proving.”
King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). Nevertheless, “a plaintiff can plead himself
out of court. If he alleges facts that show he isn’t entitled to a judgment, he’s out of luck.” Early v.
Bankers Life and Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (citations omitted). Such is the case
here. “[A] suit filed by a prisoner before administrative remedies have been exhausted must be
dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner
exhausts intra-prison remedies before judgment.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532,
535 (7th Cir. 1999); see also Chambers v. Sood, 956 F.3d 979, 984-85 (7th Cir. 2020). Therefore,
this case must be dismissed.
“The usual standard in civil cases is to allow defective pleadings to be corrected, especially
in early stages, at least where amendment would not be futile.” Abu-Shawish v. United States, 898
F.3d 726, 738 (7th Cir. 2018). “District courts, however, have broad discretion to deny leave to
amend a complaint where the amendment would be futile.” Russell v. Zimmer, Inc., 82 F.4th 564,
572 (7th Cir. 2023). For the reasons previously explained, such is the case here.
Bure also filed a motion asking to be appointed counsel. (ECF 3). “There is no right to
court-appointed counsel in federal civil litigation.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.
2014) (citing Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007)). However, in some circumstances,
the court may ask counsel to volunteer to represent indigent parties for free.
When confronted with a request under § 1915(e)(1) for pro bono counsel, the
district court is to make the following inquiries: (1) has the indigent plaintiff made
a reasonable attempt to obtain counsel or been effectively precluded from doing so;
and if so, (2) given the difficulty of the case, does the plaintiff appear competent to
litigate it himself?
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Pruitt, 503 F.3d at 654. Here, the complaint must be dismissed because Bure did not exhaust his
administrative remedies before filing it. Filing this case was legally frivolous because it must be
dismissed. A lawyer could not cure this problem and it would be futile to recruit one to represent
Bure in this case. See McCaa v. Hamilton, 959 F.3d 842, 845 (7th Cir. 2020) (“Nothing in Pruitt or
our other cases on recruiting counsel prohibits a judge from using available information and the
judge’s experience to assess the importance and potential merits of the case and to assign priority
accordingly.”).
For these reasons, the motion for counsel (ECF 3) is DENIED. This case is DISMISSED
under 28 U.S.C. § 1915A as legally frivolous.
SO ORDERED on May 8, 2024.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT
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