CLINTON v. MARBERRY et al

Filing 27

ENTRY denying 24 Plaintiff's Motion for Summary Judgment - Consistent with the foregoing (SEE ENTRY), therefore, and noting that the defendants' motion for summary judgment is not even fully briefed at this point, the plaintiff's motion for summary judgment 24 is DENIED without prejudice. (copy to Plaintiff via US Mail). Signed by Judge Jane Magnus-Stinson on 12/6/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

JACQUES CLINTON,
Plaintiff,
vs.
LT. BRACE, et al.,
Defendants.

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No. 2:11-cv-104-JMS-MJD

ENTRY
This is an action brought pursuant to the theory recognized in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 38 (1971). Each party has filed a motion for
summary judgment.
The defendants’ motion for summary judgment is based on the argument that the
plaintiff failed to exhaust his available administrative remedies prior to filing this action.
The plaintiff’s motion for summary judgment is on his view of the merits of his claim
pursuant to the Eighth Amendment’s proscription against the imposition of cruel and
unusual punishment.
Circuit precedent dictates that a failure-to-exhaust defense be resolved prior to the
merits of a claim being addressed. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th
Cir. 1999) ("The statute [requiring administrative exhaustion] can function properly only if
the judge resolves disputes about its application before turning to any other issue in the
suit.").
Consistent with the foregoing, therefore, and noting that the defendants’ motion for
summary judgment is not even fully briefed at this point, the plaintiff’s motion for summary
judgment [24] is denied without prejudice.
IT IS SO ORDERED.

12/06/2011
Date: _________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Jacques Clinton
No. 40758-004
Edgefield - FCI
Inmate Mail/Parcels
P.O. Box 725
Edgefield, SC 29824
Jeffrey L. Hunter
United States Attorney’s Office
[e-mail]