matters to be decided at the pleading stage. Accordingly, neither of the two bases of
the original motion warrants dismissal of the complaint.

The application of the PLRA is another story. The statute provides that:

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.
42 U.S.C. § 1997e(a). The parties have not cited and we have not discovered any cases
directly addressing whether the PLRA applies to prison suicides. However, the
Supreme Court has held that the exhaustion requirement applies to “all inmate suits
about prison life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Porter v. Nussle, 122
S. Ct. 983, 992 (2002). In light of this broad holding and the lack of any contrary
authority, we conclude that Mrs. Collins cannot proceed on the present complaint. In
this circuit, failure to allege exhaustion of administrative remedies is grounds for
dismissal under 12(b)(6). Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000).
Therefore, we dismiss the complaint without prejudice. Mrs. Collins is granted leave

to file an amended complaint that alleges exhaustion of remedies if she can do so

within the bounds of Fed. R. Civ. Proc. 11.



Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a
motion to dismiss, a complaint must allege the “operative facts” upon which each claim
is based. Kyle v, Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998). With these
principles in mind, we tum to the motion at hand.

DISCUSSION

Defendants’ initial motion launched two attacks. The first argued that the named
defendants are not responsible for forming policies at Sheridan, so they could not be
sued in their official capacities. While this is true, the language of the complaint is
clearly directed toward Defendants in their individual capacities for specific failures
of their duties on the day of Ricky’s suicide. Defendants concede in their
memorandum in support that the complaint contains individual capacity claims. Defs.’
Memo. in Support, pp. 5-6.

Defendants’ second attack, although framed as addressing a deficiency in
pleading the knowledge of Beethem, actually pertains to the merits of the claim against
her. It is axiomatic that a motion to dismiss examines whether a claim is cognizable,
not whether it is meritorious. When read in the light most favorable to the plaintiff, the
allegations against Beethem aver that she knew that Ricky needed help but delayed in

coming to his aid. The details of why she delayed, how long she delayed, etc., are not



CONCLUSION
Based on the foregoing analysis, the complaint is dismissed, without prejudice.
Mrs. Collins is given leave to file an amended complaint within 30 days of the date of

this decision.

Charles P. Kocoras
Chief Judge
United States District Court

Dated: DEC 24 2003

5.



Minute Order Form (06/97)
s

United States District Court, Northern District of Illinois

Name of Assigned Judj Sitting Judge If Oth
ior Magistrate Judge Charles P. Kocoras than Assigned Sedge
CASE NUMBER 02 C 4493 DATE 12/24/2003
CASE Collins vs. Seeman et al
TITLE

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented,]

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]}

(2) a Brief in support of motion due___.

(3) — Answerbriefto motion due. Reply to answer briefdue___. ‘
(4) o Ruling/Hearingon____setfor__—s ats

(5) a Status hearing set for 2/4/2004 at 9:30 A.M..

(6) o Pretrial conference{held/continued to] [set for/re-set for]on___—ssetfor_— sat.

(7) Oo Trial[set for/re-set for] on__at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to____at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

ao =f (Other docket entry) ENTER MEMORANDUM OPINION: Defendants’ motion (Doc 31-1)
to dismiss is granted. The complaint is dismissed, without prejudice. Mrs. Collins is given leave to file
an amended complaint within 30 days of the date of this decision.

ap 8 [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.
Notified counsel by telephone.

wv | Docketing to mail notices.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DENISE COLLINS, Individually and as Personal )
Representative of the Estate of RICKY COLLINS, )

Deceased, ) DOCKETED

2.9 2003
Plaintiff, nee

)

)

)

vs. ) 02 C 4493
)

CAPT. SEEMAN, SGT. BEETHEM, )

CORRECTIONAL OFCR. STEVEN SCHUCK,  )

CORRECTIONAL OFCR. SAM BUCALO, and)

any other correctional officers presently unknown )

responsible for RICKY COLLINS’ supervision _)

and care, jointly and severally, )
)
)

Defendants.

MEMORANDUM OPINION
CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on the motion of Defendants Deborah
Seeman, Julie Beethem, Steven Schuck, and Sam Bucalo to dismiss the complaint for
failure to state a claim. For the reasons set forth below, the motion is granted but
Plaintiff Denise Collins is given leave to amend her complaint.

BACKGROUND
Plaintiff Denise Collins (“Mrs. Collins”) is the mother of Ricky Collins

(“Ricky”), a former prisoner at the now-defunct Sheridan Correctional Center. While

fo



in custody at Sheridan, Ricky committed suicide by hanging himself with a bed sheet.
Seeman, Beethem, Schuck, and Bucalo were employees of Sheridan who were working
the day that Ricky died. The complaint alleges that each of them were alerted to the
possibility that Ricky would attempt to take his own life, and that each ignored the
danger with deliberate indifference, thus violating Ricky’s Eighth Amendment rights.
Defendants moved to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6).
On November 17, 2003, we requested further briefing by the parties on the application
of the exhaustion requirement of the Prisoner Litigation Reform Act (“PLRA”), 42
U.S.C. §§ 1997e(a), (c). Briefing is now complete.
LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a
complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling
on a motion to dismiss, a court must draw all reasonable inferences in favor of the
plaintiff, construe allegations ofa complaint in the light most favorable to the plaintiff,
and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski
v. First Natl. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein,
939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint “should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.”

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