Skip navigation
× You have 2 more free articles available this month. Subscribe today.

No Administrative Exhaustion Required for Monetary Claims; No Qualified Immunity for the Malicious Use of Force

Two federal district courts in Illinois held that a state prisoner was not required to exhaust his administrative remedies when filing suit seeking damages if the administrative remedies did not provide for damages. One court also held that prison officials were not entitled to qualified immunity for beating a prisoner and spraying him with chemical agents.

Richard Jackson, an Illinois state prisoner, filed suit claiming prison officials violated his Eighth amendment rights. While in the Statesville Correctional Center segregation unit various guards came to his cell and sprayed him with a chemical agent because other prisoners in the unit were being rebellious. Jackson claimed that when he placed his arms through a chuckhole in his cell door in order to be handcuffed, per the guards' instructions, his arms were twisted. Jackson claims he was then pulled out of his cell by the handcuffs, dragged across a floor and down several flights of stairs while being punched and kicked before being put in a holding cell.

The court noted that whenever prison officials are accused of using excessive force in violation of the Eighth amendment, reviewing courts must determine if force was applied in a good faith effort to maintain order or restore discipline or if it was applied maliciously and sadistically for the purpose of causing harm. See: Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992).

The defendant guards did not deny Jackson's claims of being assaulted nor did they claim that they acted in a good faith effort to maintain prison discipline. Instead, the defendants argued that the case should be dismissed because Jackson failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) and that the defendants were entitled to qualified immunity because they were carrying out "discretionary functions."

The court noted that § 1997e(a) states that prisoners cannot file suit in federal court until "such administrative remedies as are available are exhausted." The Illinois prison grievance procedure does not provide for money damages. Since no available remedy existed through the grievance process the court held Jackson was not required to exhaust administrative remedies before filing suit.

The court held that absent evidence the defendants sought to restore order among prisoners in good faith, there is nothing "discretionary" about spraying a prisoner with a chemical agent and then beating him. The court noted that when prison officials use force maliciously and sadistically they violate the constitution, whether or not significant injury is inflicted. The court denied the defendants' motion to dismiss. See: Jackson v. DeTella, 998 F. Supp. 901 (ND IL 1998).

Another federal district court in Illinois reached the same conclusion regarding the PLRA's administrative exhaustion requirement. An Illinois state prisoner filed suit claiming he was subjected to strip searches solely for the purpose of humiliating him. The court held the non availability of money damages in the Illinois prison grievance system did not require that he exhaust his administrative remedies before filing suit. The court also requested briefing from the parties on the constitutionality of 42 U.S.C. § 1997e(e), the PLRA's physical injury provision. See: Hollimon v. DeTella , 6 F. Supp.2d 968 (ND IL 1998).

Readers should note while some district courts have held that the PLRA's administrative remedies provision does not apply to claims for money damages, the issue is far from settled. The circuit courts to consider the issue in a section 1983 context have adopted bright line rules that prisoners must exhaust their administrative remedies. To avoid dismissal at later stages of the litigation it is prudent to exhaust available administrative remedies before filing suit.

Administrative Exhaustion Doesn't Include Judicial Remedies

The court of appeals for the Third circuit held that the Prison Litigation Reform Act's (PLRA) administrative exhaustion requirement does not include judicial exhaustion as well. Hassan Jenkins, a New Jersey state prisoner, filed suit in federal court claiming his due process rights were violated in a prison disciplinary hearing where sanctions were imposed. Jenkins administratively appealed and the sanction period was reduced but the infraction finding remained. Jenkins did not appeal the reduced sanctions to the superior court of the New Jersey Appellate Division as authorized as of right under New Jersey law.

The district court dismissed the suit, holding Jenkins was required to exhaust all administrative remedies under 42 U.S.C. § 1997e(a) before he filed suit. The court interpreted this to include judicial remedies as well. The court of appeals concluded otherwise and reversed and remanded.

The court of appeals noted there is a well established distinction between administrative and judicial remedies. Section 1997e(a) refers only to administrative remedies. "Thus, the exhaustion requirements in section 1997e(a) run counter to the general rule under 42 U.S.C. 1983. [Editor's Note: Only after the PLRA's enactment do 1983 claims filed by prisoners require administrative exhaustion. § 1983 claims brought by non prisoners do not require administrative exhaustion.] In the circumstances, we naturally are reluctant to apply section 1997e(a) to mean other than what it says: the prisoner must exhaust his 'administrative remedies' as that term is conventionally understood, but need not exhaust state judicial remedies before bringing an action governed by that section." The case was remanded for further proceedings. See: Jenkins v. Morton, 148 F.3d 257 (3rd Cir. 1998).

PLRA "3 Strikes" Provision Upheld Discussed

The ostensible purpose of the Prison Litigation Reform Act (PLRA) was to curtail frivolous litigation by prisoners. 28 U.S.C. § 1915(g) was enacted which does not allow In Forma Pauperis (IFP) status for prisoners that have had three or more lawsuits dismissed as frivolous, malicious, for failing to state a claim upon which relief can be granted or suing a defendant for money damages if the defendant is immune from such relief, unless the plaintiff is in imminent danger of serious physical injury.

Since the hallmark of the frivolous litigant is not doing any research whatsoever we won't dwell at length on the topic nor will we cover this aspect of the PLRA in future issues.

While § 1915(g) appeared to be the fee provision of the PLRA most likely to be held unconstitutional because it prevents indigent prisoners from filing suit, the circuit courts have uniformly upheld it. The Sixth, Eighth, Tenth and Eleventh circuits have upheld § 1915(g) against a broad array of constitutional challenges. The courts held the provision does not violate any constitutional rights because frivolous litigants can still file lawsuits, they just have to prepay the filing fee. See: Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998) and White v. State of Colorado, 157 F.3d 1226 (10th Cir. 1998).

Frivolous litigators have been unsuccessful in weaseling around § 1915(g)'s ban on IFP status. The court of appeals for the Fifth circuit held that a frivolous litigant could not use a writ of mandamus to appeal the denial of IFP status by a district court. To appeal the denial of IFP status the prisoner must prepay the filing fee for the appeal. See: In Re Crittendon, 143 F.3d 919 (5th Cir. 1998).

The Tenth circuit has held that when a prisoner was improperly granted IFP status despite having had three previous suits dismissed as frivolous, the remedy was to dismiss the appeal unless the prisoner paid the entire filing fee. See: .Young v. Miller, 144 F.3d 1298 (10th Cir. 1998).

Imminent Danger Exception

Section 1915(g) states prisoners can file suit with IFP status if, despite having had three prior suits dismissed as frivolous, they are in "imminent danger of serious physical injury." The Fifth circuit court of appeals has held this means the prisoner must be in imminent danger at the time they file suit or seek to appeal. Courts in that circuit must determine if danger exists when the prisoner seeks IFP status. See: Banos v. O'Guin , 144 F.3d 883 (5th Cir. 1998). As previously reported in PLN , the third circuit has held the prisoner must have been in "imminent danger" when the incident arose, not when suit is filed.

The Eighth circuit held a frivolous litigator had met the "imminent danger" exception when he was attacked by a prisoner armed with a butcher knife and a year earlier the same assailant had attacked the plaintiff with a sharpened screwdriver. The case was remanded with instructions to allow the plaintiff to proceed IFP. See: Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998).

Listing Required

The court of appeals for the Seventh circuit held that when prisoner litigants are denied IFP status under § 1915(g), district courts must list the dismissed cases. "... we hold that in the order denying leave to proceed in forma pauperis the district court must cite specifically the case names, case docket numbers, districts in which the actions were filed, and the dates of the orders dismissing the actions." Denial of IFP status under § 1915(g) is reviewed de novo on appeal. See: Evans v. Illinois DOC , 150 F.3d 810 (7th Cir. 1998).

PA Consent Decrees Terminated Under PLRA

In two separate rulings, different federal district courts in Pennsylvania held the consent decree termination provisions of the PLRA to be constitutional and dissolved the decrees at issue.

In the July, 1998, issue of PLN we reported Imprisoned Citizens Union v. Shapp, 977 F. Supp. 335 (ED PA 1996) which clarified a 1978 consent decree that governed conditions at six Pennsylvania state prisons. We noted at the time that the ruling did not implicate the Prison Litigation Reform Act (PLRA).

The defendants then filed a motion under 18 U.S.C. § 3626(b)(2) of the PLRA to immediately terminate the consent decree in that case. The court granted the motion.

The court rejected numerous challenges to the constitutionality of § 3626(b)(2), which allows for the immediate termination of prison and jail consent decrees. The court held the termination provision did not violate the separation of powers or rule of decision doctrine, or the rights of due process, equal protection and contract. Because it dissolved the decree the court declined to find the defendants in contempt for violating its provisions. The court also declined to transfer the case to state court. See: Imprisoned Citizens Union v. Shapp, 11 F. Supp.2d 586 (ED PA 1998).

The second case involves a consent decree governing numerous conditions of confinement at the Lehigh County Prison in Pennsylvania The defendants filed a motion to terminate the decree arguing, among other things, that § 3626 required its termination. The court agreed and terminated the decree. The court rejected all arguments that § 3626 is unconstitutional. See: Vazquez v. Carver, 18 F.Supp.2d 503 (ED PA 1998).

Readers should note that the First, Fourth, Sixth, Eighth and Eleventh circuits have upheld the constitutionality of § 3626(b)(2). The Second circuit is considering the matter en banc. A panel of the Ninth circuit held § 3626(b)(2) was unconstitutional, but that ruling was vacated and is being reheard en banc. The Third circuit and the U.S. supreme court have yet to consider the issue. A district court in New Jersey, Denike v. Fauver, 3 F. Supp.2d 540 (D NJ 1998) held § 3626(b)(2) was unconstitutional. Thus, there is a split on this issue within the Third circuit.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

Jackson v. DeTella

RICHARD JACKSON, Plaintiff, v. GEORGE E. DETELLA, et al., Defendants.

No. 97 C 258


998 F. Supp. 901; 1998 U.S. Dist. LEXIS 3830

March 16, 1998, Decided

March 16, 1998, Filed; March 26, 1998, Docketed

DISPOSITION: [**1] Defendants' motion to dismiss [23] granted in part and denied in part. Defendants DeTella, Null, Smith, and McBryde dismissed from action.

COUNSEL: RICHARD JACKSON, plaintiff, Pro se, Joliet, IL.

For GEORGE E DETELLA, JOHN J ELLENA, TROY DUNLAP, MARCUS MCBRYDE, defendants: James H. Richards, Attorney General's Office, Chicago, IL.

For GEORGE E DETELLA, JOHN J ELLENA, SGT NULL, TROY DUNLAP, OFFICER RINGHOUSER, OFFICER SMITH, MARCUS MCBRYDE, defendants: Susan Takata O'Leary, Illinois Department of Corrections, Chicago, IL.

JUDGES: Harry D. Leinenweber, United States District Judge.

OPINIONBY: Harry D. Leinenweber



Plaintiff Richard Jackson, an inmate at Stateville Correctional Center, filed this pro se suit under 42 U.S.C. § 1983 against Warden George E. DeTella, Lieutenant John J. Ellena, Sergeants Null and Marcus McBryde, and Officers Ringhouser, Smith, and Troy Dunlap. Jackson claims that Defendants sprayed him with a chemical agent, assaulted him, and took away his bedding and personal hygiene items without provocation. Defendants DeTella, Ellena, Dunlap, and McBryde filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), n1 to [**2] which Jackson filed a response. For the reasons that follow, the court grants in part and denies in part Defendants' motion.

n1 Jackson attempted to serve Defendants Smith, Null, and Ringhouser at Stateville, but since they no longer work at the prison they were not served. In Jackson's response to Defendants' Motion to Dismiss, he claims that the unserved Defendants' worked at Stateville when the alleged incidents occurred. Since Jackson does not state a claim against Smith or Null, those Defendants are dismissed. See Bonny v. The Society of Lloyd's, 3 F.3d 156, 162 (7th Cir. 1993); Rosser v. Chrysler Corp., 864 F.2d 1299, 1304 (7th Cir. 1988). Jackson does, however, sufficiently allege a claim against Ringhouser, warranting a further attempt to serve Ringhouser with process. Process shall be attempted on Ringhouser in accordance with the court's instructions at the conclusion of this opinion.


In considering a motion to dismiss, the court must accept as true all well-pleaded [**3] facts and must draw all reasonable inferences from those allegations in plaintiff's favor; a complaint shall only be dismissed if it is beyond doubt that the plaintiff can prove no facts which would entitle him to relief. MCM Partners, Inc. v. Andrews-Bartlett & Assoc., 62 F.3d 967, 972 (7th Cir. 1995). Furthermore, when confronted with a pro se complaint, the court must employ a more liberal standard of review. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Despite this liberal review of pleadings, federal rules still require that the complaint allege facts which would provide an adequate basis for each claim. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988).


On April 19, 1995, an "incident" occurred between prison officials and inmates in Stateville's segregation unit, where Jackson was confined. Jackson claims that even though he was not involved in the "incident," Defendants went to Jackson's cell and Lieutenant Ellena sprayed him with a chemical agent. Jackson alleges that he put his arm through the "chuck hole" and Lieutenant Ellena twisted it and then put handcuffs on Jackson. Lieutenant Ellena then pulled Jackson [**4] from [*904] his cell by the handcuffs and Officers Ringhouser and Dunlap dragged Jackson to a stairwell and punched him in the head and body. Jackson was dragged down the stairs and put in a "cage," where he remained in pain for one hour. Afterward, he was taken to the prison hospital where a doctor examined him. Jackson had an X-ray taken of his left shoulder and the doctor entered a finding of "Neg" on an X-ray report. When Jackson returned to the segregation unit, his bedding and personal hygiene items were removed from his cell. Jackson claims that he remained in his cell "without anything" for eight days.


A. Assault on Jackson

Jackson sues all Defendants in their individual and official capacities, but he names only Ellena, Dunlap, and Ringhouser as participants in the alleged unconstitutional acts. In order to state a claim for personal liability under § 1983, Jackson must allege that Defendants were personally involved in the deprivation of his constitutional rights. Whitford v. Boglino, 63 F.3d 527, 530-31 (7th Cir. 1995). Individual liability under § 1983 cannot be based on a theory of respondeat superior; instead, allegations of personal wrongdoing [**5] are essential to maintain such a claim. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). The personal responsibility requirement is satisfied if the conduct causing the constitutional deprivation occurs at the direction of a defendant in a supervisory position or with his knowledge and consent. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (citing Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)).

Whenever prison officials stand accused of using excessive physical force in violation of the Eighth Amendment, the issue is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). Jackson claims that, without provocation, Ellena sprayed him with a chemical agent and dragged him from his cell, and that Dunlap and Ringhouser beat him. Since Jackson makes no allegations about any involvement by DeTella, Null, Smith, or McBryde in the assault, nor any knowledge or consent on their part to the unconstitutional acts, they cannot be liable in their individual capacities. Therefore, Jackson's individual capacity [**6] claims against DeTella, Null, Smith, and McBryde are dismissed.

Defendants do not, however, deny Jackson's allegations of assault by Ellena, Dunlap, and Ringhouser, nor do they assert that they acted out of a good-faith effort to maintain prison discipline. Defendants instead make two arguments: (1) that Jackson failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), (Mot. Dismiss, p. 2), and (2) that Defendants are entitled to qualified immunity because they "performed discretionary functions" (Mot. Dismiss, p. 4). Concerning Defendants' first argument, the PLRA states that no action shall be brought until "such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). That passage has been interpreted to mean that a prisoner can only exhaust administrative remedies that are actually available. See Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997) ( § 1997e(a) did not bar Bivens claim for monetary damages because no administrative remedies exist to be exhausted in such claims).

The grievance procedures in Illinois do not allow for the recovery of monetary [**7] damages, and no non-monetary relief was available for Jackson after the April 19, 1995 assault. Any grievance that Jackson might have filed after that date would have been futile; he had already been beaten. Since no available remedy existed through the grievance process, Jackson was not required to exhaust his administrative remedies before filing the case at bar. Jackson's claim for injunctive relief to prevent future assaults by Defendants is dismissed, however, as he has alleged no facts to suggest that he is in danger of imminent injury and thus his fear is too speculative to warrant injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 111, [*905] 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983).

With respect to Defendants' second argument, they cannot find refuge in qualified immunity. Absent evidence that Defendants sought to establish order among inmates in good faith, there is nothing "discretionary" about spraying a prisoner with a chemical agent or punching him in the head and body. Furthermore, when prison officials maliciously and sadistically use force to cause harm, they violate the Constitution, whether or not significant injury is evident. Hudson, 503 U.S. [**8] at 9. A de minimus use of force, such as a push or shove, may not contravene constitutional standards. Id. However, Jackson alleges significantly more than such a minimal use of force. Therefore, the court denies Defendants' motion to dismiss Jackson's excessive force claim.

The court now turns to Jackson's official capacity claims. Claims against government officers in their official capacities are actually claims against the government entity for which the officers work. Kentucky v. Graham, 473 U.S. 159, 167, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Because § 1983 does not recognize a theory of respondeat superior as a basis for liability, in order to succeed on an official capacity claim, a plaintiff must allege that he or she suffered injuries of a constitutional magnitude as the result of an official policy, custom, or practice. Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Since Jackson has not alleged that he was injured as a result of a policy, custom, or practice, his official capacity claim fails.

B. Depriving Jackson of his Bedding and Personal Hygiene Items

To prove that conditions of confinement [**9] amount to a constitutional violation, Jackson must satisfy a test that involves both a subjective and objective component. Wilson v. Seiter, 501 U.S. 294, 298-99, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The objective prong concerns whether the conditions exceeded contemporary bounds of decency of a mature, civilized society. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The subjective component is met if a prison official acts with deliberate indifference, i.e., the official knows of and disregards an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). If either the objective or subjective prong is not satisfied, Jackson cannot make out a conditions claim. Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir. 1994).

An eight-day deprivation of personal hygiene items is not unconstitutional if the deprivation was unintentional or resulted in no harm to the prisoner. See Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988) (five-day neglect of prisoner's need for toilet paper, soap, tooth brush and tooth paste was not unconstitutional). Since Jackson alleges no harm as a result of the [**10] deprivation of his personal items, his claim must fail. Similarly, Jackson's allegation of lacking bedding for eight days does not rise to the level of a constitutional violation. See Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir. 1989) (two and a half days sleeping on a "slab of metal" not unconstitutional). Consequently, Jackson's claims concerning his bedding and personal hygiene items are dismissed.


For the foregoing reasons, the court grants in part and denies in part Defendants' motion to dismiss [23]. Defendants DeTella, Null, Smith, and McBryde are dismissed from this action. Pursuant to this order, the issue that remains in this case is Jackson's Eighth Amendment claim of excessive force by Ellena, Dunlap, and Ringhouser. The Clerk is directed to issue alias summons for service on Defendant Ringhouser. The Clerk shall forward the alias summons and a copy of Jackson's USM-285 form and complaint to the United States Marshal, who shall make reasonable efforts to obtain Ringhouser's new address from Stateville and serve Ringhouser, without prepayment of costs. See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995). Statements from Stateville officials [**11] that Ringhouser no longer works at Stateville does not excuse the Marshal from obtaining information in order to effect service. Id. Defendants Ellena and [*906] Dunlap are given 20 days to answer or otherwise plead.


Harry D. Leinenweber

United States District Judge

DATED: March 16, 1998

Holliman v. DeTella


No. 96 C 3452


6 F. Supp. 2d 968; 1998 U.S. Dist. LEXIS 8460

May 19, 1998, Decided

May 20, 1998, Docketed

DISPOSITION: [**1] Defendants' motion to dismiss [21-1] denied.

COUNSEL: WILLIE HOLLIMON, plaintiff, Pro se, Menard, IL.

For GEORGE E DETELLA, JAMES M SCHUMIG, UNKNOWN CURRY, UNKNOWN FLEMING, J DAY, UNKNOWN IMAN, HAYES, defendants: Charles Andrew Wallace, Illinois Attorney General's Office, Susan Takata O'Leary, Illinois Department of Corrections, Chicago, IL.

For JANE DOE, defendant: Susan Takata O'Leary, Illinois Department of Corrections, Chicago, IL.


OPINIONBY: William T. Hart



Plaintiff Willie Hollimon, a male who was formerly incarcerated in Stateville Correctional Center, n1 brings suit against various Stateville employees complaining that he was subjected to a strip search for the purpose of humiliating him, not for a penological purpose. He complains that he was subjected to ribald comments during the strip search and that, to further humiliate him, it was purposefully done with female guards present. The alleged incident occurred on May 10, 1996. Hollimon was granted leave to proceed in forma pauperis, with it being left open whether his claim was subject to dismissal because he claims only psychological [**2] injury and no physical injury. See Hollimon v. DeTella, 1997 U.S. Dist. LEXIS 1083, 1997 WL 45309 (N.D. Ill. Jan. 30, 1997).

n1 At the time he filed this action in June 1996, plaintiff was still incarcerated at Stateville. He was later transferred to Menard Correctional Center where he is presently incarcerated.

Defendants move to dismiss the action on the ground that plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). It is expressly alleged in plaintiff's complaint that there was a grievance procedure available at Stateville and that he did not file a grievance. He states in his complaint that he did not file a grievance because "prisoners' grievances are not honored by the Federal courts." In answer to the motion to dismiss, plaintiff contends there is no remedy for the allegation contained in his complaint; that grievance forms are not provided so he complained about the incident in the form of a letter; and that he was transferred out of Stateville in July 1996.

As amended effective [**3] April 26, 1996 by the Prison Litigation Reform Act ("PLRA"), § 1997e(a) provides: "No action shall be brought with respect to prison conditions under section 1983 of this title, 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." It has been questioned whether plaintiff's type of claim would be one "with respect to prison conditions," as is necessary for § 1997e(a) to be applicable. Williams v. Washington, 1997 U.S. Dist. LEXIS 5256, 1997 WL 201579 *2 (N.D. Ill. April 16, 1997) (dictum). For purposes of another provision of the PLRA,

the term "civil action with respect to prison conditions" means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.

18 U.S.C. § 3626(g)(2). Courts have adopted this definition as applicable to § 1997e(a), Evans v. Allen, 981 F. Supp. 1102, 1105-06 (N.D. Ill. 1997); Morgan v. Arizona Department of [**4] Corrections, 976 F. Supp. 892, 895-96 (D. Ariz. 1997); Martin v. Eneix, 1997 U.S. Dist. LEXIS 1227, 1997 WL 55961 *1 (N.D. Ill. Feb. 3, 1997), or have otherwise reached holdings that would support finding § 1997e(a) to be applicable to plaintiff's type of claim, see Graves v. DeTella, 1997 U.S. Dist. LEXIS 1636, 1997 WL 72080 *2 (N.D. Ill. Feb. 13, 1997) (assault by other prisoners; deliberate indifference to medical care); Hitchcock v. Nelson, 1997 U.S. Dist. LEXIS 11487, 1997 WL 433668 *1 (N.D. Ill. July 28, 1997) (failure to protect) (dictum). Since plaintiff's claim is based on the effect of actions by state officials on his life as a prisoner, his claim falls within the purview of § 1997e(a).

The Illinois Department of Corrections has a grievance procedure which requires an inmate to first discuss the incident or complaint with his counselor. If an inmate is unable to resolve the complaint informally, the inmate may file a written grievance on a grievance form within six months after the discovery of the incident, occurrence, or problem giving rise to the grievance. Each institution has one or more designated Grievance Officers who review such grievances. The Grievance Officer reports his or her findings and recommendations to the Chief Administrative [**5] Officer, i.e., the Warden, within fifteen days, "whenever possible," and the warden is to advise the inmate of the decision within ten days after receipt of the Grievance Officer's report. In an emergency, an inmate may send the grievance directly to the Warden. If the Warden determines [*970] that there is a substantial risk of imminent personal injury to the inmate, the grievance is to be decided within three days. The inmate may appeal the Warden's disposition of the grievance in writing to the Director of the Department of Corrections within 30 days of the Warden's decision. The Director reviews the grievance and the responses of the Grievance Officer and Warden, and determines whether the grievance requires a hearing before the Administrative Review Board. If it is determined that the grievance is meritless or can be resolved without a hearing, the inmate is to be advised of this disposition within 30 working days of receipt of the grievance. Otherwise, the grievance is referred to the Administrative Review Board, which may hold hearings and examine witnesses. The Board is supposed to submit a written report of its findings and recommendations to the Director within 30 working days [**6] of receipt of the grievance, "whenever possible." The Director then has ten days to make a final determination, again "whenever possible." 20 Ill. Adm. Code § § 504.810-850; Sanders v. Elyea, 1998 U.S. Dist. LEXIS 1705, 1998 WL 67615 *3 (N.D. Ill. Feb. 10, 1998).

Plaintiff filed this lawsuit less than one month after the incident of which he complains. Therefore, at the time he filed this lawsuit, there was still time to file a written grievance which need only be filed within six months of the incident. Although the six-month period for filing a grievance has since run, it had not been exhausted by the time plaintiff filed this lawsuit. n2 Therefore, if there was an administrative remedy for plaintiff's present claim, his action would have to be dismissed without prejudice for failure to exhaust even if he could immediately file a new action because any available remedies are presently exhausted.

n2 Since the time for filing a grievance had not yet run, it need not be decided if § 1997e(a), like the exhaustion provision for habeas corpus relief, treats a claim as waived if the claimant has procedurally defaulted before completing all steps of the administrative grievance procedure. Some courts have held that it contains no such provision. See Graves v. DeTella, 1998 U.S. Dist. LEXIS 5517, 1998 WL 196459 *3 (N.D. Ill. April 17, 1998); Mitchell v. Shomig, 969 F. Supp. 487, 492 (N.D. Ill. 1997).


In his complaint, plaintiff requests monetary relief as well as "an injunction ordering that defendants or their agents refrain from committing such practices as alleged in this complaint." Plaintiff, however, only alleges a single incident. There are no allegations indicating that plaintiff is likely to again face the same treatment. Therefore, plaintiff lacked standing to seek an injunction and this case must be viewed simply as a claim for damages, even when first filed. n3 Jackson v. DeTella, 998 F. Supp. 901, 1998 U.S. Dist. LEXIS 3830, 1998 WL 142418 *2 (N.D. Ill. 1998).

n3 Once plaintiff was transferred to another correctional facility, any possible claim for injunctive relief was clearly moot. The question presently before the court, though, is whether plaintiff's administrative remedies were unexhausted at the time he filed this suit. At that time, plaintiff was still incarcerated at Stateville.

The grievance procedure that was available to plaintiff does not allow the recovery of monetary damages. Id. [**8] Cases that consider the issue have consistently held that, where a prisoner is pursuing only monetary damages and the prison grievance procedure does not provide for monetary relief, the exhaustion requirement of § 1997e(a) does not apply. Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997); Lunsford v. Jumao-As, 139 F.3d 1233, 1998 WL 125090 (9th Cir. 1998); Jackson, 998 F. Supp. at , 1998 WL 142418 at *2; Sanders, 1998 WL 67615 at *5-6; Russo v. Palmer, 990 F. Supp. 1047, 1050 (N.D. Ill. 1998); Polite v. Barbarin, 1998 U.S. Dist. LEXIS 3600, 1998 WL 146687 *2 (S.D.N.Y. March 25, 1998). Those cases will be followed, making the exhaustion requirement inapplicable to plaintiff's complaint which seeks only monetary damages. The exhaustion issue raised by defendants in their motion to dismiss is not a basis for dismissing plaintiff's cause of action.

In holding a Spears hearing and thereafter ruling on plaintiff's motion to proceed in forma pauperis, Magistrate Judge Pallmeyer indicated that 42 U.S.C. § 1997e(e)'s requirement that there be physical injury might be unenforceable because unconstitutional. On the motion for leave to proceed in forma [**9] pauperis, Judge Pallmeyer assumed § 1997e(e) would not bar plaintiff's [*971] claim, but also declined to resolve, on an unbriefed motion, the issue of the statute's constitutionality on an unbriefed motion. Defendants do not raise the § 1997e(e) issue in their present motion. However, after defendants filed their present motion and brief, the Seventh Circuit rejected certain constitutional challenges to § 1997e(e). See Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997). There would be no point in proceeding further if § 1997e(e) precludes any possible success. Defendants will be required to file a brief addressing whether this case is subject to dismissal based on § 1997e(e). That brief shall address the question of constitutionality discussed in Judge Pallmeyer's ruling. At the time that brief is filed, defendants shall send copies of that brief, Judge Pallmeyer's opinion, and today's opinion to the Attorney General of the United States and the United States Attorney for the Northern District of Illinois. See 28 U.S.C. § 2403(a); Fed. R. Civ. P. 24(c). Defendants shall also forward copies of any further briefs on this issue, including plaintiff's answer brief, to the Attorney [**10] General and United States Attorney.

IT IS THEREFORE ORDERED that defendants' motion to dismiss [21-1] is denied. By June 8, 1998, defendants shall file a brief addressing the § 1997e(e) question. Plaintiff's answer brief shall be filed by June 29, 1998. Ruling will be by mail.


William T. Hart


DATED: MAY 19, 1998