Oliver v. Rensing

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KING MICHAEL OLIVER, )

also known as )

MICHAEL OLIVER, #B89925, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00785-NJR

)

LT. RENSING, )

SGT. RITCHEY, )

and AARON J. CONEY, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL,ChiefJudge:

Plaintiff Michael Oliver, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Shawnee Correctional Center, brings this civil rights action pursuant to 42

U.S.C. § 1983 for constitutional deprivations at Vandalia Correctional Center (“Vandalia”). (Doc. 1,

pp. 1-6). Oliver claims that Defendants retaliated against him for filing a grievance by forcefully

removing him from his cell in handcuffs, attempting to take his legal mail, and placing him in

segregation.(Id.at pp. 1-2).Theyalsodenied medical treatment for his resulting injuries.Oliverseeks

money damagesand emergency relief.1(Id.at pp. 2-3).

The Complaint is subject to screening under 28 U.S.C. §1915A, which requires the Court to

filter out non-meritorious claims. 28U.S.C. §1915A(a). Any portion of a complaint that is legally

frivolousormalicious, fails to state a claim upon which relief may be granted, or seeksmoney damages

from an immune defendant must be dismissed. 28 U.S.C. §1915A(b).

1The Court already considered and denied Oliver’s two requests for emergency relief. (Docs. 4 and 10).

TheComplaint

On July 15, 2019, Oliver filed a grievance against Lieutenant Rensing after he threw Oliver’s

Bible on the floor. (Doc. 1, pp.1-3).The following day, Rensingretaliated against Oliverby forcefully

removing him from his cell. (Id. at pp. 1-2). The officer cuffed Oliver’s wrists tightly, slammed him

intoa wall, andapplied pressure to his neck and back. (Id. at p. 2). Meanwhile, Sergeant Ritchey and

Officer Coneyentered Oliver’s cell and attempted to take his legal mail, but Officer Samson stopped

them.2(Id.).Defendants provided nomedical treatmentfor Oliver’sbruised wrists,sore neck,orback

injury, instead allowing him “wallow in [his] pain and suffering.” (Id.). The incident “landed” Oliver

in segregation on July 22, 2019. (Id. at p. 1). Rather than filing a grievance to address these issues,

Oliverprepared the underlyingComplaint on July 16, 2019. (Id.at p. 4).

Based on the allegations,the Court finds it convenient to divide the pro seComplaint into the

followingCounts:

Count 1: First Amendment retaliation claim against Rensing for responding to

Oliver’s grievance filed July 15, 2019, by tightly cuffing Oliver’s wrists

andforcing him from his cellon July 16, 2019.

Count 2: Eighth Amendment claim against Rensing for using excessive force

against Oliverwhile removing him from his cell on July 16, 2019.

Count 3: First and/or Fourteenth Amendment claim againstRitchey and Coney for

attempting to take Oliver’s legal mail on July 16, 2019.

Count 4: Eighth Amendment deliberate indifference to medical needs claim

against Rensing, Ritchey, and Coney for allowing Oliver to “wallow in

[his] pain and suffering” following the incident on July 16, 2019.

Any claim that is mentioned in the Complaint but not addressed herein isconsidered dismissed

without prejudice as inadequately pled under Twombly.3

2Officer Samson is not named as a defendant, and Oliverbrings no claims against him.

3See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Discussion

Oliver filed his Complaint prematurely. He prepared it on July 16, 2019—before the events

giving rise to Counts 3 and 4 came to passand on the same date the events giving rise to Counts 1 and

2 occurred. (Doc. 1). He admittedly made no effort to address these claims at Vandalia by filing

grievances before filing this action. (Id. at p. 1).This presents two problems: ripeness and exhaustion.

1. Ripeness

A claim is not fit for adjudicationif it “rests upon contingent future events that may not occur

as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998)

(quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580-81 (1985)). Counts

3 and 4 are not yet ripeunder this standard. Both claimshinge on events that have not yet occurredand

may never occur.

With respect tothedenial of access to courts claim inCount 3, Olivercomplains of interference

with his legal mail that was thwarted by Officer Samson on the same date Oliver prepared his

Complaint, i.e., July 16, 2019. As of July 16, 2019, Oliver was not prevented from pursuing a legal

claimbased on the interference with his legal mail;he mailed his Complaint to the Courton that date.

Whether he was prevented from doing so at some later dateor in connection withsome other claimis

unclear and is not the subject of this action.

With respect tothe deliberate indifference to medical needs claim inCount 4, Olivercomplains

of medical treatment he was denied for injuries Rensing inflicted or exacerbated on the same date he

prepared the Complaint, i.e., July 16, 2019. As of July 16, 2019, Oliver claims he was allowed to

“wallow in [his] pain and suffering” but he makesno claim that he actually requestedand was denied

treatment of the injuries that Rensing inflicted.(Doc. 1, p. 2).Whether a denial later occurred—or ever

occurred—is beyond the scope of this suit.

2. Exhaustion

The second problem is posed by the Prison Litigation Reform Act (“PLRA”), 42U.S.C.

§1997e(a). The PLRArequires a prisoner to exhaust all available administrative remedies before filing

suit under Section 1983. Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001). Unexhausted claims

may not be brought to court. Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534

U.S. 516, 524 (2002)). The exhaustion requirement depends on the procedures established by the State

in which the prison is located. Jones, 549 U.S. at 218. And, unless a plaintiff has properly complied

with that State’s administrative process, exhaustion has not occurred. Pozo v. McCaughtry, 286 F.3d

1022, 1025 (7th Cir. 2002).

Illinois inmates must adhere to the IDOC’s Grievance Procedures for Offenders in order to

properly exhaust their claims.See20ILL.ADM.CODE§ 504.810.4In the first sentence of his Complaint,

Oliver proclaims he has made no attempt to exhaust his claims at Vandalia because “[t]he Grievance

Procedure here is totally FUTILE!” (Doc. 1, p. 1). Oliver is an experienced litigant. He is well aware

of the PLRA’s requirement that he exhaust all available administrative remedies beforefiling suit under

Section 1983.Johnson, 272 F.3d at 521.He should also be aware that there is no futility exception to

the requirement.Fletcher v. Menard Corr. Ctr., 623 F.3d 1171 (7thCir. 2010) (citingBooth v. Churner,

532 U.S. 731 (2001)).

4Pursuant to the IDOC’s Grievance Procedures, prisoners must first speak with their counselor about the issues

they raise, and if unresolved, then file a formal grievance within 60 days of the events or occurrence with the

grievance officer. 20 ILL.ADM.CODE § 504.810(a). The grievance officer must review the grievance and report

findings and recommendations to the Chief Administrative Officer (“CAO”). 20 ILL.ADM.CODE§ 504.830(e).

The prisoner then has the opportunity to review the CAO’s response, and if unsatisfied, appeal to the IDOC

Director through the Administrative Review Board (“ARB”)within 30days 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 IDOC 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).

And, although he offers anecdotal evidence to support his futility argument, it cannot save his

claims. (Doc. 1, pp. 1-2, 6-7). Oliver explains that he was unable to use the prison grievance process

to obtain necessary medical care foraprior and mostly unrelatedneck and back injuryhe sustainedon

July 2, 2019, when an unknown officer attacked him in his sleep and tried to “paral[y]ze [him] from

the neck down.” (Id. at p. 2). Oliversought treatment for his injuries, but claims that it was “constantly

refused.” (Id.). Oliver provides a copy of one grievance he filed with Warden Waggoner on July 6,

2019 (i.e.,Exhibit 10). (Id. at pp. 2, 5-6). There, he acknowledges treatment with Motrin,but complains

that it contained “[r]ed (dye) 40.” (Id. at pp.5-6). He claims that this treatment with toxic medicine

amounts to nontreatment. (Id.). Exhibit 10 does not demonstrate the ineffectiveness of the grievance

process in resolving Counts 1, 2, 3, and 4; it reflects Oliver’s disagreement with a treatment decision

that is not at issue here.5

Because Oliver admittedly made no effort to exhaust his claims before filing suit, this case

shall be dismissed. Although aplaintiff’s failure to exhaust is usually an affirmative defense,dismissal

of a case is appropriate “when the existence of a valid affirmative defense is so plain from the face of

the complaint that the suit can be regarded as frivolous.” Walker v. Thompson, 288 F.3d 1005, 1009-

10 (7th Cir. 2002); Jones, 549 U.S. at214-15.Oliver’s admission,combined withthetimeline of events

giving rise to this action, demonstrate his clear failure to exhaust administrative remedies. Therefore,

this case shall be dismissed without prejudice. Walker, 288 F.3d at 1009 (citing cases). Once he

properly exhausts his administrative remedies, Oliver may file a new action, subject to the statute of

limitations and payment of a newfiling fee.

5Oliver does not name the unknown officer or Warden Waggoner as defendants in this action, and he brings no

claim against them for the attack and injuries he sustained on July 2, 2019, or the denial of medical care

thereafter.

Disposition

IT IS ORDERED that the Complaint (Doc. 1) and this entire action are DISMISSED without

prejudice based on Oliver’s failure to exhaust his administrative remedies before filing suit. 42 U.S.C.

§ 1997e(a). This includes COUNTS 1, 2, 3, and 4, which are DISMISSED without prejudice against

Defendants RENSING, RITCHEY, and CONEY.

Oliver is ADVISED that this dismissal does not count as a “strike” under 28 U.S.C. § 1915(g).

Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010) (dismissal of action for failure to exhaust does

not incur “strike” under PLRA). Oliver’s obligation to pay the filing fee for this action was incurred at

the time the action was filed, thus the filing fee of $350.00 remains due and payable. See 28 U.S.C.

§ 1915(b)(1).

If Oliver wishes to appeal this Order, he may file a notice of appeal with this Court within

thirty days of the entry of judgment. FED. R. App. 4(A)(4). If Oliver does choose to appeal, he will be

liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal. FED. R. APP. 3(e);

28 U.S.C. § 1915(e)(2). Moreover, if the appeal is found to be nonmeritorious, Oliver 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 judgment, and this 28-day deadline cannot be

extended.

The Clerk shall CLOSE THIS CASE and enter judgment accordingly.

IT IS SO ORDERED.

DATED: September 27, 2019 7 g G2 7

NANCY ORT

Chief U.S. District Judge