United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
T. MOODY JUDGE UNITED STATES DISTRICT COURT
Allen Huff, a pro se prisoner, filed a complaint
under 42 U.S.C. § 1983. (DE # 1.) Pursuant to 28 U.S.C.
§ 1915A, the court must review the complaint and dismiss
it if the action is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915A(a-b). Federal Rule of Civil Procedure
12(b)(6) provides for the dismissal of a complaint, or any
portion of a complaint, for failure to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). Courts
apply the same standard under Section 1915A as when
addressing a motion under Rule 12(b)(6). Lagerstrom v.
Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain enough facts to state a claim for relief that is
plausible on its face and to raise the right to relief above
the speculative level. Bissessur v. Indiana Univ. Bd. of
Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). In deciding
whether the complaint states a claim, the court must bear in
mind that “[a] document filed pro se is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007).
Huff alleges that Correctional Officer Benjamin Beers
assaulted him on February 25, 2017. He also alleges that
Officer Beers has continually harassed him while he has been
housed at the Pulaski County Justice Center. In addition,
Huff complains that Jail Commander Stephen Tabler does not do
anything to curb Officer Beers' conduct. It is apparent
from the complaint that Huff did not exhaust his
administrative remedies with respect to these claims before
to the Prison Litigation Reform Act (“PLRA”),
prisoners are prohibited from bringing an action in federal
court with respect to prison conditions until “such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Although the
failure to exhaust is an affirmative defense, dismissal at
this stage is appropriate if the defense is
“unmistakable” and “apparent from the
complaint itself.” Walker v. Thompson, 288
F.3d 1005, 1010 (7th Cir. 2002); see also Cancer Found.,
Inc. v. Cerberus Cap. Mgmt., LP, 559 F.3d 671, 674 (7th
Cir. 2009) (dismissal on the basis of an affirmative defense
is appropriate when the plaintiff pleads himself out of
court). Huff's complaint meets this standard.
satisfy the exhaustion requirement, “a 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). “[U]nless the prisoner completes the
administrative process by following the rules the state has
established for that process, exhaustion has not
occurred.” Id. at 1023. Here, Huff admits that
he could have used the jail's grievance system, but
states that he did not do so because:
All grievances no matter who addressed to, go through J.C.
Stephen Tabler, who is going along with these activities, and
doing them himself.
(DE # 1 at 5.) This allegation makes clear that there is a
grievance process available at the jail, but that Huff opted
not to seek relief through this process.
U.S. Supreme Court has made clear that exhaustion is not
optional but is instead a mandatory prerequisite to filing
suit over prison conditions. Woodford v. Ngo, 548
U.S. 81, 85 (2006). “Section 1997e(a) says that
exhaustion must precede litigation. ‘No action shall be
brought' until exhaustion has been completed [and] . . .
it is essential to keep the courthouse doors closed until
those efforts have run their course.” Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004). Huff does
not allege, nor can it reasonably be inferred, that jail
staff made the grievance process unavailable to him by
failing to provide the necessary forms or otherwise hindering
his efforts to file a grievance. See Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir. 2004). Instead, Huff
chose not to file a grievance because he believed it would be
decided by Stephen Tabler. He does not have a right to
dictate who decides his grievance, however, and is instead
required to follow the grievance process established by the
facility. Pozo, 286 F.3d at 1023. Because it is
apparent from the complaint that Huff has not exhausted his
administrative remedies, Section 1997e(a) requires that this
suit be dismissed without prejudice. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
these reasons, the complaint is DISMISSED WITHOUT PREJUDICE