Flores v. Kenosha Visitng Nurse Association

Filing 76

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 6/1/2015. Case DISMISSED without prejudice for failure to exhaust administrative remedies. (cc: all counsel, via mail to Pedro Flores at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PEDRO FLORES,
Plaintiff,
-vs-

Case No. 13-CV-1133

KENOSHA COUNTY, et al.,
Defendants.

DECISION AND ORDER

On January 5, 2015, the Court ordered that this case would be
dismissed for lack of prosecution effective February 6, 2015, unless prior to
that date the plaintiff responded to the defendants’ motions for summary
judgment or established good cause for his failure to respond.

On

February 6, 2015, the plaintiff filed a motion for extension of time to
complete discovery and respond to the defendants’ motions for summary
judgment. The defendants did not file any response(s) to the plaintiff’s
motion.
In his motion, the plaintiff seeks an extension of time because he
was in segregation for a period of time and did not have access to his legal
materials, and because his legal documents were misplaced due to his
November 2014, transfer to another institution.

The plaintiff further

states that he does not understand the summary judgment process and
another inmate is willing to help him but the inmate needs more time.
According to the plaintiff, additional time will permit the inmate assisting
him to seek discovery and respond to the defendants’ motions. Based on
the plaintiff’s February 6, 2015, motion, this case is not subject to
dismissal for failure to prosecute.
However, on March 23, 2015, the plaintiff filed a motion to grant the
defendants’ motions for summary judgment without prejudice because the
plaintiff failed to exhaust administrative remedies. He states that he did
not complete the Kenosha County Jail’s administrative grievance
procedure because, based on his limited English language skills, he did not
understand the procedure. The plaintiff requests that the Court grant
summary judgment without prejudice which will allow the plaintiff to
refile his case after completing the exhaustion of administrative remedies,
if he chooses to do so.
The defendants oppose dismissal of the case without prejudice.
They contend that the Court should address their arguments on the
merits of the plaintiff’s Eighth Amendment claim, grant their motions for

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summary judgment, and dismiss this case with prejudice.1
Exhaustion is a condition precedent to filing a claim in federal
court, so the inmate must exhaust before he commences his federal
litigation. See Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004); Dixon v.
Page, 291 F.3d 485, 488 (7th Cir. 2002); Perez v. Wis. Dep’t of Corr., 182
F.3d 532, 535 (7th Cir. 1999). If the inmate fails to exhaust before filing
suit in federal court, the district court must dismiss the suit (or dismiss
any claims not fully exhausted). See Jones v. Bock, 549 U.S. 199, 223
(2007); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005).
Here, the plaintiff
administrative remedies.

concedes that

he did not exhaust his

Hence, this action is subject to dismissal.

Exhaustion-based dismissals are made without prejudice.

Id. at 285

(citing Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002)
(“Dismissal for failure to exhaust is without prejudice . . .”), and Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“all dismissals under §

Defendants Hallisy, Hansche, Keisher, Kenosha County, Parker, and Rawson’s
summary judgment motion contends that the plaintiff failed to exhaust his
administrative remedies. They also seek dismissal of the plaintiff’s claim on the merits.
Defendant Mrs. Rebecca (Rebecca Swenson) filed a separate motion for summary
judgment. She does not seek dismissal on exhaustion grounds but rather contends that
the plaintiff’s claim should be dismissed because his skin condition did not present a
serious medical need and because there is no evidence that Swenson acted with
deliberate indifference.
1

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1997e(a) should be without prejudice”)).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT this case is DISMISSED WITHOUT
PREJUDICE for failure to exhaust administrative remedies.
Dated at Milwaukee, Wisconsin, this 1st day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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