United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Cleveland, a prisoner without a lawyer, initiated this case
by signing and mailing a complaint on July 11, 2019 (ECF 1 at
5), complaining about events that took place on July 3, 2019,
and July 4, 2019. “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)
(quotation marks and citations omitted). Nevertheless,
pursuant to 28 U.S.C. § 1915A, the court must review the
merits of a prisoner 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.
Cleveland is suing eight defendants alleging a laundry-list
of alleged wrongs occurring at the Indiana State Prison on
July 3, 2019, and July 4, 2019. His medication was delayed,
an officer twisted his arm while he was in cuffs, spat upon
him, and used mace on him when he knew he had breathing
problems. His mat was taken from him. A group of officers
assaulted him. An officer took his inhaler away from him.
Some of his claims appear to be duplicative of those raised
in other cases. See Cleveland v. Warden,
3:19-CV-550-JD-MGG (N.D. Ind. filed July 5, 2019)(asserting a
claim based on his mat being removed from his cell on July 4,
2019). See Pittman v. Moore, 980 F.2d 994, 994-95
(5th Cir. 1993) (it is malicious for a plaintiff with in
forma pauperis status to file a lawsuit that duplicates
allegations of another lawsuit brought by the same plaintiff)
and Lindell v. McCallum, 352 F.3d 1107, 1109 (7th
Cir. 2003) (suit is “malicious” for purposes of
Section 1915A if it is intended to harass the defendant or is
otherwise abusive of the judicial process).
aside whether Cleveland’s complaint is duplicative,
this action must be dismissed because Cleveland has not
exhausted his administrative remedies. Cleveland acknowledges
that his claims were grievable, and indicates that he filed a
grievance but that he had not received a response at the time
he filed his complaint. He explains that he filed a
grievance, but he is waiting for a response. (ECF 1 at 5.)
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). Even when a prisoner “seeks relief not
available in grievance proceedings, notably money damages,
exhaustion is a prerequisite to suit.” Porter v.
Nussle, 534 U.S. at 524, citing Booth v.
Churner, 532 U.S. at 741.
The PLRA provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 . . .
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is
necessary even if the prisoner is requesting relief that the
relevant administrative review board has no power to grant,
such as monetary damages, or if the prisoner believes that
exhaustion is futile.
Dole v. Chandler, 438 F.3d 804, 808-809 (7th Cir.
2006) (citations omitted). The Seventh Circuit held in
Dole that a prisoner must file a grievance because
responding to his grievance might satisfy him and avoid
litigation or the grievance could “alert prison
authorities to an ongoing problem that they can
correct.” Id. at 809, citing Porter v.
Nussle, 534 U.S. at 525.
to exhaust is an affirmative defense that a defendant has the
burden of proving.” King v. McCarty, 781 F.3d
889, 893 (7th Cir. 2015). Nevertheless, “a plaintiff
can plead himself out of court. If he alleges facts 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). Such is the
case here. “[A] suit filed by a prisoner before
administrative remedies have been exhausted must be
dismissed; the district court lacks discretion to resolve the
claim on the merits, even if the prisoner exhausts
intra-prison remedies before judgment.” Perez v.
Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th
Cir. 1999). Cleveland admits that he did not exhaust his
administrative remedies prior to filing suit. He filed this
action just one week after the alleged events occurred, and
before he either received a response or filed an appeal.
Therefore, this case cannot proceed. If Cleveland can exhaust
his administrative remedies, he may file a new lawsuit.
these reasons, this case is ...