“imminent danger did not excuse his failure to exhaust his administrative remedies”
How later courts described this case
- “imminent danger did not excuse his failure to exhaust his administrative remedies”
- courts cannot engraft unwritten “special circumstances” exceptions onto the exhaustion requirement in Section 1997e(a)
- “A premature lawsuit must be dismissed without prejudice, and the prisoner must file a new suit after fully exhausting administrative remedies.”
- “[T]he Supreme Court has thrice interpreted and enforced the PLRA’s rule, 42 U.S.C. §1997e(a
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IVAN DAVILA,
Plaintiff,
Case No. 24-cv-01740-SPM
v.
JOHN DOE 1,
JOHN DOE 2,
LT. DUDEK,
SGT. ENGSTROM,
J. CAVINS,
JOHN DOE 3,
JOHN BARWICK, and
DR. NATHAN CHAPMAN,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Plaintiff Ivan Davila, an inmate of the Illinois Department of Corrections housed at
Pinckneyville Correctional Center (Pinckneyville) initiated this civil rights action on July 18, 2024,
pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. (Doc. 1). On
August 28, 2024, the Court directed Plaintiff to show cause why this case should not be dismissed
for failure to exhaust his administrative remedies prior to initiating this lawsuit. (Doc. 36). Plaintiff
has now responded. (Doc. 37).
BACKGROUND
In the Complaint, Plaintiff alleges that on July 8, 2024, he was sent to an outside facility to
have his wisdom tooth surgically removed. (Doc. 1, p. 2). Upon his return to Pinckneyville, he was
not provided proper follow-up care and nutrition, resulting in dizziness, nausea, vomiting, and loss
of consciousness. Additionally, the area where the tooth was removed had become infected and
continued to go untreated.1 Plaintiff also claims that excessive force was used against him in
transporting him to and from the healthcare unit while he was unconscious. He asserts that as of
July 15, 2024, he continues to be in “extreme pain, still vomiting, still passing out, still being force
fed pills on an empty stomach[], and still feeling naus[eous].” (Id. at p. 4). Plaintiff states:
Plaintiff has filed emergency grievances however they are still being processed[.]
Plaintiff is seeking an emergency injunction/Temporary Restraining order due to
the nature of Plaintiff’s factual allegations…Plaintiff fully expects the Court to be
satisfied with this issue.
(Id. at p. 2).
Based on these statements regarding his grievances and the fact that Plaintiff filed this
lawsuit ten days after his tooth extraction, the Court entered an Order to Show Cause, observing
that it seemed unlikely that he had completed every step of the prison grievance process before
initiating this federal case, as is required pursuant to the Prison Litigation Reform Act. (Doc. 36).
The Court noted that Plaintiff admitted that he was “not prevented from or incapable of using the
grievance process; rather, he bypassed internal procedures due to the emergent nature of his
complaint,” which is not an acceptable excuse for failing to exhaust. Thus, Plaintiff was directed
to show cause why this case should not be dismissed for failure to exhaust his administrative
remedies.
In the response to the Order to Show Cause, Plaintiff argues that he is protected by the
Equal Protection Clause of the United States Constitution and the Universal Declaration of Human
Rights, and therefore, he may choose to grieve his issues to and seek relief directly from the courts.
(Doc. 37). He states that as of filing his response on September 18, 2024, his grievances are now
with the Administrative Review Board, who has six months to respond to a grievance. Plaintiff
1 Along with the Complaint, Plaintiff filed a motion for a temporary restraining order and preliminary injunction
requesting to be seen by an oral surgeon. (Doc. 2). After further briefing from the parties, the Court denied the motion.
(Doc. 5, 35).
contends that should not have to wait six months to file a Section 1983 lawsuit while he is being
denied adequate dental and medical treatment because his tooth could become more infected.
DISCUSSION
The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring a lawsuit
about prison conditions unless and until he has exhausted all available administrative remedies.
42 U.S.C. § 1997e(a); Pavey, 544 F.3d 739, 740 (7th Cir. 2008). For a prisoner to properly exhaust
his administrative remedies, the prisoner must “file complaints and appeals in the place, and at the
time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th
Cir. 2002). “[A] prisoner who does not properly take each step within the administrative process
has failed to exhaust state remedies.” Id. at 1024. Although it is generally appropriate to wait for
a defendant to raise an affirmative defense, the Seventh Circuit has noted that “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, the district judge need not wait for an answer before dismissing the suit.” Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). A plaintiff can plead himself out of court, and if
he includes allegations “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).
Here, it is obvious from the Complaint that Plaintiff has failed to comply with the PLRA
and fully exhaust his administrative remedies prior to filing this lawsuit. His alleged constitutional
violations began on July 8, 2024, when he returned to Pinckneyville from his oral procedure, and
continued as he was denied adequate medical care for a developing infection. Eight days later, he
signed and dated his Complaint on July 16, 2024, and the Complaint was received by the Court on
July 18, 2024. Plaintiff states in the Complaint that his emergency grievances were still being
processed at the time of initiating this lawsuit.2
The Court does not find Plaintiff’s argument that he is exempt from exhausting under the
Universal Declaration of Human Rights and the Equal Protection Clause of the Fourteenth
Amendment well taken. The Universal Declaration of Human Rights does not “create obligations
enforceable in the federal courts.” Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004). Neither is
requiring him to exhaust under the PLRA a violation of the Equal Protection Clause. See B. v.
Duff, No. 06 C4912, 2009 WL 2147936, at *11 (N.D. Ill. July 17, 2009) (“[T]he Supreme Court
has thrice interpreted and enforced the PLRA’s rule, 42 U.S.C. §1997e(a), that prisoners (and only
prisoners) must exhaust administrative remedies prior to bringing suit under §1983.” (citing
Woodford v. Ngo, 548 U.S. 81, 93-94 (2006); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth
v. Churner, 532 U.S. 731,741 (2001))).
Furthermore, an emergency or imminent danger does not automatically exempt an inmate
from exhausting his administrative remedies. See Fletcher v. Menard Corr. Ctr., 623 F. 3d 1171,
1173 (7th Cir. 2010) (“imminent danger did not excuse his failure to exhaust his administrative
remedies”). The only exception to the exhaustion requirement is when the administrative remedies
are “unavailable.” Ross v. Blake, 578 U.S. 632, 643 (2016) (courts cannot engraft unwritten
“special circumstances” exceptions onto the exhaustion requirement in Section 1997e(a)). Plaintiff
does not argue that his administrative remedies were unavailable or that he was thwarted from
using the administrative grievance process in anyway. Because there is no imminent danger
exception, his general argument of potential harm to his health if he waited to file a lawsuit before
he completed the grievance process does not excuse his lack of exhaustion. Plaintiff cannot sue
2 The grievance records Plaintiff submitted after he filed his response to the Order to Show Cause demonstrates that
his emergency grievances dated July 11, 2024, and July 16, 2024, regarding “medical treatment for pain in mouth
after wisdom tooth removal” did not receive responses from the Administrative Review Board until October 1, 2024,
a few months after initiating this suit. (Doc. 42, p. 4).
first and exhaust later. Accordingly, this case is dismissed with prejudice for failure to exhaust
administrative remedies. See Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020) (“A premature
lawsuit must be dismissed without prejudice, and the prisoner must file a new suit after fully
exhausting administrative remedies.”). Plaintiff may refile this lawsuit, once he has fully
exhausted.
DISPOSITION
Plaintiff’s Complaint (Doc. 1) and this entire case are DISMISSED without prejudice for
failure to exhaust administrative remedies. In light of this Order, all pending motions are DENIED
as moot. (See Doc. 44). The Clerk of Court is DIRECTED to enter judgment and to close this
case.
IT IS SO ORDERED.
DATED: January 14, 2025
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge