Opinion
No. 98 C 352
March 21, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff, Patrick Tullis, brings this pro se complaint pursuant to 42 U.S.C. § 1983 alleging that then Warden George E. DeTella of Stateville Correctional Center retaliated against him for filing grievances. DeTella has filed a motion for summary judgment, asserting among other arguments, that Tullis did not exhaust his administrative remedies. Tullis has filed a cross-motion for summary judgment, which appears to be more in the nature of a response to DeTella's motion. DeTella has filed a reply. Because, as will be discussed below, the court finds that Tullis did not exhaust his administrative remedies in regard to his claim against DeTella, this action was filed prematurely and must be dismissed.
I. Standard of Review
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325(1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249(1986). Once the moving party has sustained the initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
II. Facts
On January 28, 1998, Tullis lodged a multi-count, sprawling complaint replete with numerous exhibits. On March 17, 1998, the court dismissed the complaint without prejudice and gave Tullis an opportunity to submit an amended complaint. On May 5, 1998, Tullis was granted leave to proceed on his amended complaint. On February 9, 1999, the court granted defendants' motion to dismiss as to all counts except a portion of count ten and gave Tullis an opportunity to submit a seconded amended complaint conforming to the court's opinion. On May 11, 1999, the court struck Tullis's second amended complaint because it did not conform with Rule 8(a) of the Federal Rules of Civil Procedure, discussed many matters that exceeded the scope of his sole remaining retaliation claim, referred to claims that were dismissed by the court in its February 9, 1999, order, and attempted to raise new claims that were either unrelated to the original complaint or barred by the statute of limitations. The court gave Tullis yet another chance to submit an acceptable amended complaint, which he did on June 7, 1999. On August 26, 1999, the court denied DeTella's motion to dismiss, finding that although Tullis's third amended complaint was inartfully pleaded, it met the basic requirements of Rule 8(a) and set forth a chronology of events from which retaliation could be inferred.
Tullis alleges that at some point in 1997, he filed a grievance or multiple grievances concerning disciplinary proceedings against him. The disciplinary conviction was ultimately expunged; lost good time credits were accordingly restored and his grade status was adjusted. However, he was not allowed to return to his previous work or housing assignments.
Tullis met with Warden DeTella on December 22, 1997, who allegedly told him that since he like filing grievances, he had "nothing coming in G-dorm: no school, no job, no transfer." Tullis in fact remained without a job or school assignment, and a previously-approved transfer to another facility was rescinded by DeTella's order. Despite persistent efforts, Tullis was not transferred to another prison until May 13, 1998.
III. Analysis
DeTella avers that Tullis has not exhausted his administrative remedies as required by 42 U.S.C. § 1997e of the Prison Litigation Reform Act. In his response, Tullis admits that he did not exhaust administrative remedies in regard to his claim of retaliation against DeTella because retaliation is not a grievable issue.
Under 42 U.S.C. § 1997e(a), the court is directed to dismiss a suit brought with respect to prison conditions if the court determines that plaintiff has failed to exhaust his administrative remedies. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir. 1999). The exhaustion requirement was further explained in Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999), which stated:
42 U.S.C. § 1997e(a) provides:
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States ( 42 U.S.C. § 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
[I]f a prison has an internal administrative grievance system though which a prisoner can seek to correct a problem, then the prisoner must utilize that administrative system before filing a claim. The potential effectiveness of an administrative response bears no relationship to the statutory requirement that prisoners first attempt to obtain relief through administrative procedures.
The internal administrative grievance system of the Illinois Department of Corrections is set out in the Illinois Administrative Code (20 Ill. Admin. Code § 504). Inmates must follow these procedures: (1) The inmate must first attempt to resolve the situation through his counselor; (2) If the situation remains unresolved, a written grievance must be submitted to the facility's grievance officer. Upon completion of an investigation by the grievance officer, the conclusions, and, if necessary, recommendations, are forwarded to the Chief Administrative Officer; (3) If the inmate does not believe the situation is resolved, he may appeal to the Director of the IDOC. The Administrative Review Board as the Director's designee reviews the appeal of the grievance and determines whether a hearing is necessary; (4) The Administrative Review Board forwards its decision and any recommendations to the Director or other designee, who makes a final determination.
Tullis did not follow these procedures, claiming that retaliation is not a grievable issue. However, the grievance procedure in effect when Tullis filed his action made specific provisions for those situations in which an inmate claimed that he had been subjected to retaliation. Section 504.810(e) provides:
e) Disciplinary action or reprisals may not be taken against a committed person solely for using the grievance procedure. A committed person may submit a grievance alleging that a reprisal has been made against him.20 Ill. Admin. Code § 504.810(e)(1992).
This language could not be any clearer in giving an inmate the right to submit a grievance if he feels that a reprisal (or retaliation) has been made against him. Tullis has proffered no legitimate reason as to why he did not exhaust his administrative remedies before lodging his action barely a month after the alleged retaliation took place. See also White v. McGinnis, 131 F.3d 593 (6th Cir. 1997) (dismissal without prejudice of prisoner's § 1983 action against state prison officials for alleged retaliation was proper, given that prisoner had not exhausted administrative remedies).
It is most unfortunate that more than two years have passed before DeTella brought to the court's attention that Tullis had not exhausted his administrative remedies in regard to this claim. This, however, is not the fault of either DeTella or the court who were faced with an original complaint asserting at least 15 separate counts and several hundred pages of exhibits of grievances and Administrative Review Board determinations. Tullis also asserted on his complaint that he had exhausted his administrative remedies. If Tullis chooses to file another action in federal court, he should be sure first that each of his allegations is fully exhausted. The court also notes that pursuant to the teachings of Perez, this court lacks discretion to resolve this remaining claim on the merits, despite the fully-briefed posture of both parties. 182 F.3d at 535.
IV. Conclusion
For the foregoing reasons, this suit is dismissed without prejudice for failure to exhaust administrative remedies. DeTella's motion for summary judgment and Tullis's cross-motion for summary judgment are denied as moot.
If, after he exhausts his administrative remedies, Tullis decides to file another action in regard to these claims, he should consider carefully the merits of his claim and whether his action against DeTella would now be barred by the statute of limitations. If his claim is found to be frivolous, malicious, or fail to state a claim, the action will be counted as one of Tullis's three allotted dismissals under 28 U.S.C. § 1915(g). Tullis is warned that if a prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious, or failing to state a claim, he may not file suit in federal court without prepaying the filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
If Tullis wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed.R.App.P. Rule 4(a)(4). If he does so, he will be liable for the $105 appellate filing fee. Unless he is granted leave to proceed in forma pauperis, he will have to pay the fee immediately. If he cannot do so, the appeal will be dismissed, but he will remain liable for the fee and it will be deducted from his inmate trust fund account in installments. Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997). If this court finds that the appeal is not taken in good faith, and the Court of Appeals agrees, he will not be permitted to proceed in forma pauperis and pay the fee in installments, but will have to pay the fee immediately or the appeal will be dismissed. 28 U.S.C. § 1915(a)(3); Newlin, 123 F.3d at 433-34. To avoid a finding that the appeal is not taken in good faith, a motion to proceed in forma pauperis on appeal should explain the grounds for the appeal. See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999); Newlin, 123 F.3d at 433; Fed.R.App.P. 24(a)(1)(C).
IT IS HEREBY ORDERED AND ADJUDGED that this suit is dismissed without prejudice for failure to exhaust administrative remedies. The cross motions for summary judgment are moot.