Fluker v. Cnty. of Kankakee, 13–2247.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation741 F.3d 787
Docket NumberNo. 13–2247.,13–2247.
PartiesRoy FLUKER, et al., Plaintiffs–Appellants, v. COUNTY OF KANKAKEE, et al., Defendants–Appellees.
Decision Date20 December 2013

741 F.3d 787

Roy FLUKER, et al., Plaintiffs–Appellants,
COUNTY OF KANKAKEE, et al., Defendants–Appellees.

No. 13–2247.

United States Court of Appeals,
Seventh Circuit.

Argued Dec. 6, 2013.
Decided Dec. 20, 2013.

[741 F.3d 788]

Gregory Olmstead, Deratany Firm, Chicago, IL, for Plaintiffs–Appellants.

Michael D. Bersani, Hervas, Condon & Bersani, Itasca, IL, for Defendants–Appellees.

Before KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge. *

DURKIN, District Judge.

Riding as a prisoner in the back of a patrol van, Roy Fluker was injured when the van stopped short and he tumbled off his seat. Roy and his wife, Debra Fluker, later filed suit against the County of Kankakee, Illinois, and the Kankakee County Sheriff's Office (collectively, the “Defendants”), alleging various injuries resulting from the incident. The Defendants moved for summary judgment after the close of discovery, which the district court granted because Roy failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act (the “PLRA”), 42 U.S.C. § 1997e(a), and alternatively, because

[741 F.3d 789]

the Flukers' suit could not succeed on the merits. The Flukers contend the district court made several errors in dismissing their suit with prejudice, but for the following reasons, we affirm.


The facts of this case arise out of Roy's time at the Jerome Combs Detention Center (the “Center”) in Kankakee, Illinois, between February 11, 2011, and July 9, 2011.1 Roy was at the Center after being convicted in May 2010 of federal charges related to a fraudulent scheme that he devised with his son and daughter. See United States v. Fluker, 698 F.3d 988 (7th Cir.2012).

On June 14, 2011, correctional officers were transporting Roy and another inmate in a police van from a doctor's appointment back to the Center when their van was cut off by another vehicle. That van abruptly stopped in front of the van carrying Roy, causing the driver of Roy's van to slam on the breaks. Roy, who was not wearing a seatbelt at the time, flew off his seat and crashed into the metal divider between the front and rear of the van. The transporting officers noticed that Roy may have suffered an injury and returned to the Center shortly thereafter.

The van carrying Roy arrived at the Center approximately 10 minutes after the incident. Officer Marcus Tatum evaluated Roy on arrival, cleaned and bandaged a laceration on Roy's head, and suggested that Roy go to the hospital for stitches. Officers then transported Roy to Provena St. Mary's Hospital, where Roy had an x-ray, a CT scan, and an MRI. Doctors discovered that Roy fractured a vertebra in the crash, and Roy underwent fusion surgery on his back two days later.

As a result of the incident, Roy filed suit against the County of Kankakee and the Kankakee County Sheriff's Office on September 28, 2011. He alleged constitutional violations and a claim for willful and wanton conduct under Illinois state law. On December 5, 2011, Roy amended his complaint and added his wife Debra as a plaintiff; she alleged a loss of consortium under both federal and state law. The magistrate judge set March 9, 2012, as the deadline for adding parties; no other additional parties or claims were added by that date.

The Defendants filed a motion to dismiss Debra's federal loss of consortium claim, which the district court granted on July 25, 2012. On September 6, 2012, the County filed its answer to the amended complaint and an affirmative defense based on the PLRA, claiming that Roy failed to exhaust administrative grievance procedures as required. See42 U.S.C. § 1997e(a). The Sheriff's Office filed a motion for leave to file the same affirmative defense; the Flukers objected and also moved to strike the County's answer and affirmative defense. Alternatively, the Flukers asked for leave to file a second amended complaint to name additional parties.

The magistrate judge granted the Sheriff's Office's motion for leave to add the PLRA affirmative defense on October 25, 2012, and in turn denied the Fluker's motion to strike the County's PLRA defense. Even though the judge found the County's answer to be untimely, seeFed.R.Civ.P. 12(a)(4)(A), he concluded that the Flukers were not prejudiced by the County's inadvertent late filing or by the Sheriff's Office's assertion of the defense. The judge also denied the Flukers' request to amend

[741 F.3d 790]

their amended complaint but stated that they “may file a motion for leave to amend that better explains why they seek to add additional defendants and allegations, and why they should be granted leave to do so.” He did not, however, articulate a specific time limit or deadline for seeking leave to amend.

The Defendants moved for summary judgment on November 29, 2012, after the close of fact discovery. The motion was based on the PLRA defense and the merits. In response, on February 4, 2013, the Flukers filed another motion to amend their amended complaint, seeking to add individual defendants and a negligence claim under Illinois state law. They also filed a motion to voluntarily dismiss the case so that Roy could exhaust his administrative remedies and then re-file the case at a later date. These motions were in addition to the Flukers' substantive response to the Defendants' motion for summary judgment.

On April 4, 2013, the magistrate judge denied the Flukers' motion for leave to file a second amended complaint. The judge highlighted the court's March 9, 2012 deadline for adding parties that had long since passed by the time the Flukers' filed their motion on February 4, 2013. Additionally, the judge had previously instructed the Flukers to file a motion to amend in October 2012, yet, the Flukers waited roughly four months to do so.

The Flukers filed a motion for reconsideration with the district court, as well as objections to the magistrate judge's April 4 order, on April 18, 2013.

On May 10, 2013, the district court denied the Flukers' objections and motion for reconsideration. The district court determined that the magistrate judge's order denying the Flukers' motion for leave to file a second amended complaint was “neither clearly erroneous nor contrary to law” and that the Flukers failed to demonstrate good cause for modifying a judge's scheduling order as required under Federal Rule of Civil Procedure 16(b)(4). The district court also denied the Flukers' motion for voluntary dismissal, finding the Flukers' reasons to be unpersuasive, though he also stated that a decision on the voluntary motion to dismiss was “incidental to the ultimate outcome of [the] case.” The district court then looked to the Defendants' summary judgment motion. The court first determined that the PLRA was applicable to the Flukers' claims and that the Flukers “provided no evidence that they ... exhausted their administrative remedies by filing a grievance.” 2 Accordingly, the court noted that “summary judgment must be granted to [the] Defendants on this ground alone”—and the dismissal would have been without prejudice. See Ford v. Johnson, 362 F.3d 395, 400–01 (7th Cir.2004). The court next moved to the merits of the Flukers' claims. In doing so, it concluded that (1) the undisputed material facts did not support a § 1983 deliberate indifference claim or a willful and wanton claim under Illinois law, and (2) Debra's claim was derivative of Roy's claims. As such, summary judgment in favor of the Defendants was entered, and the case was dismissed with prejudice.

[741 F.3d 791]


As this appeal arises out of the district court's grant of summary judgment in favor of the Defendants, we review the decision de novo. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir.2013). The Flukers challenge a number of the lower court judges' rulings, but the crux of this case comes down to one main question: whether the district court could consider the merits of the Flukers' suit after it concluded that summary judgment in favor of the Defendants was appropriate due to the Flukers' failure to satisfy § 1997e(a). We believe so.


We begin our analysis by looking to the PLRA. Under the PLRA, “[n]o action shall be brought with respect to prison conditions ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means the prisoner must give the prison's grievance system “a fair opportunity to consider the grievance,” which requires the complaining prisoner to “compl[y] with the system's critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Flukers have not challenged the district court's conclusion that Roy did not exhaust his administrative remedies (or even attempt to) and conceded as such in their brief, stating that “[i]t was undisputed from the inception of this case that Roy Fluker had not exhausted his administrative remedies with the Defendants.” There is also no evidence that the Center misled Roy or caused his noncompliance with the administrative remedies.3Cf. Curtis v. Timberlake, 436 F.3d 709, 711–12 (7th Cir.2006). Summary judgment on the PLRA ground alone was therefore warranted.


We have held that dismissals under § 1997e(a) for failure to exhaust must be without prejudice. See Ford, 362 F.3d at 400–01. This is true even if exhausting administrative remedies will prove to be impossible, as...

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