is to curtail lawsuits altogether—particularly frivolous lawsuits—by giving correctional officials
the opportunity to rectify the perceived problem before the courts become involved. Accord, see,
e.g., Smith v. Zachary, 255 F.3d 446, 450-51 (7" Cir. 2001), cert. denied, 535 U.S. 906 (2002);
Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 536-37 (7" Cir. 1999); Owusu,
2003 WL 68031, at *2, In other words, the function of the tort claim administrative process is
essentially to prepare for litigation; the purpose of exhaustion of prison grievance procedures is
to avoid litigation. Thus, “itis entirely possible” for a prisoner plaintiff to exhaust administrative
remedies for purposes of the FTCA without exhausting remedies under the PLRA for purposes
of filing a Bivens claim if the plaintiff fails to avail himself of the four-step grievance process.
Owusu, 2003 WL 68031, at *2, quoting Hylton v. Federal Bureau of Prisons, No. 00 CV 5747,
2002 WL 720605, at *2 (E.D. N.Y. Mar. 11, 2002).

As noted above, the plaintiff never mentioned exhaustion of grievance procedures in
either his original or amended complaint and never corrected the court’s stated assumption that
he had failed to exhaust prison administrative remedies. Only in response to the defendants’
motion to dismiss does the plaintiff now assert for the first time that he filed appeals to both the
administrative remedy officer and general counsel but received no response from either body.
However, the defendants have submitted affidavits from a supervisory attorney and paralegal
specialist with the Bureau of Prisons, both of whom attest that the plaintiff filed a grievance only
at the institutional level and never pursued the appeal process, The Bureau of Prison’s
computerized log reveals that no administrative appeal was received by either the regional or
central offices, notwithstanding the plaintiff's belated assertion to the contrary. The plaintiff
offers no explanation why two offices might have failed to receive his appeals, when the
system’s records reflect receipt of his myriad other grievances and administrative claims under
the Federal Tort Claims Act; nor has he explained why he never before mentioned exhaustion

of administrative remedies in his pleadings or in response to the court’s prior orders. The



notice of appeal with this court within thirty days of the entry of judgment, Fed. R. App. P.
A(a)(4).

If the plaintiff does choose to appeal, he will be liable for the $105 appellate filing fee,
if the motion for leave to appeal in forma pauperis is denied. See Evans v. Illinois Dept. of
Corrections, 150 F.3d 810, 812 (7* Cir. 1998). In addition, the plaintiff is forewarned that, if
a prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious, or
failing to state a claim, he may not file suit in federal court without prepaying the filing fee
unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). This dismissal
on grounds of non-exhaustion will not be counted as a PLRA “strike;” however, if an appeal
were found to be non-meritorious, the plaintiff could be assessed a strike.

Because the plaintiff is proceeding pro se, he will be given the opportunity to seek
reinstatement before deciding whether to seek appellate review. The court will not enter final
judgment at this time. The plaintiff is granted until April 30, 2003, to show proof of exhaustion
of prison grievance procedures [as opposed to administrative exhaustion under the FTCA]. If
the plaintiff can establish that he did properly exhaust the prison administrative process by
pursuing each step of the four-step grievance system, the court will reopen the case. If, on the
other hand, the plaintiff fails to show proof of complete exhaustion by April 30, 2003, the court
will enter final judgment.

IT IS THEREFORE ORDERED that the defendants’ motion to dismiss (docket #23) is
granted. The plaintiff simply has not presented any credible evidence to show that he pursued
his claims through the prison administrative grievance system. For these reasons, the amended
complaint is dismissed pursuant to 42 U.S.C. § 1997e(a) for failure of the plaintiff to exhaust
prison administrative remedies prior to filing suit. Nevertheless, if the plaintiff brings forth, by
April 30, 2003, such evidence to show that he did pursue his claims through the prison

administrative grievance system and completely exhausted his administrative remedies, the case

7



w

filed in this matter was the administrative remedy which the plaintiff was required to seek prior
to filing a civil action.” (See “Response,” docket #5, at p. 1.) The plaintiff never indicated that
he had exhausted available prison grievance procedures; to the contrary, he steadfastly
maintained that he had completed tort claim procedures.

After conducting a threshold review of the amended complaint, the court tentatively
allowed the plaintiff to proceed on his claims, but specifically questioned whether the
administrative exhaustion process under the Federal Tort Claims Act [hereinafter, “FTCA”]
satisfied the administrative exhaustion requirement of 42 U.S.C. § 1997e(a). See Minute Order
of February 28, 2002. A closer analysis of case law persuades the court that the different
administrative processes serve different functions and thus are not interchangeable.

This court agrees with the recent holding in Owusu v. Federal Bureau of Prisons, No.
02 CV 0915, 2003 WL 68031, at *2 (slip op. S.D. N.Y. Jan. 7, 2003) (fulfillment of the FTCA’s
exhaustion requirement does not constitute satisfaction of the PLRA’s exhaustion requirement
for Bivens actions; an inmate must exhaust the Bureau of Prisons four-step administrative
grievance process before pursuing a civil rights claim in federal court). The Sixth Circuit Court
of Appeals has likewise ruled that a prisoner plaintiff's “attempts to pursue his FTCA claim have
no bearing on whether or not he exhausted his Bivens claim.” Brockett v. Parks, 48 Fed. Appx.
539, 541 (6" Cir. 2002). Also compare Watts v. U.S., 2002 WL 31427395, at *1 (C.A. D.C.
2002) (conversely noting in dicta that exhaustion of prison administrative remedies through the
inmate grievance process would not satisfy FTCA exhaustion requirements).

The main purpose of requiring an administrative claim before bringing suit under the
Federal Tort Claims Actis to provide the government agency with sufficient notice to investigate
the incident resulting in the claim and prepare for settlement negotiations. See Ward v. U.S., 1
Fed. Appx. 511, 514 (7" Cir. 2001); Palay v. U.S., 125 F. Supp. 2d 855, 859 (N.D. III. 2000).

The principal purpose of the administrative exhaustion requirement in prisoner civil rights cases


plaintiffhas failed to show satisfactory proof of exhaustion of the four-step administrative review
process. Under the circumstances of this case, no reasonable person could conclude that the
plaintiff properly exhausted available administrative remedies.

The plaintiff's contention that the exhaustion requirement does not apply because he is
seeking only monetary damages is spurious. See Massey II, 259 F.3d at 645 (“The Supreme
Court’s recent decision in Booth [v. Churner, 532 U.S. 731 (2001)] forecloses this argument”).
If the plaintiff was dissatisfied with the quality of the medical care he was receiving, he could
have attempted to resolve the matter through the grievance process; however, he did not do so.
Instead of making an effort to obtain the medical treatment he believed was necessary, he chose
to sue for money damages. The court accordingly finds as a matter of law that the plaintiff's
pursuit of monetary damages under the Federal Tort Claims Act did not satisfy the PLRA’s
administrative exhaustion requirement.

The cases cited by the plaintiff holding that exhaustion is not required are inapposite.
Massey I and IT, recent decisions by the Seventh Circuit Court of Appeals, are both directly on
point as they relate specifically to a federal prisoner’s civil rights claim brought under Bivens and
concerning deficient medical care. This court is bound by Seventh Circuit precedent. The
contrary holding in Abdul-Khabir v. Lichtenberger, 518 F. Supp. 673 (E.D. Va. 1981) is
irrelevant. Abdul-Khabir is a 1981 case from another district that pre-dates both the PLRA and
the Seventh Circuit’s opinions in the Massey cases. The plaintiff's reliance on McCarthy v.
Madigan, 503 U.S. 140 (1992) is similarly misplaced, as the PLRA statute superseded the
holding in McCarthy. See Booth, 532 U.S. at 740-41 (recognizing Congress’ implicit intent to
override McCarthy).

Finally, the plaintiff is mistaken in his assertion that he is entitled to relief, in the
alternative, under the Federal Tort Claims Act. A plaintiff suing under the FTCA must file suit
in federal court within six months of the agency's final disposition of the plaintiff's claim. See



will be reinstated. If the plaintiff fails to show proper proof of exhaustion by that date, the court
will enter final judgment. The thirty-day time limit to appeal will begin to run after entry of final

judgment. This case is set for a status conference in open court on Tuesday, May 6, 2003, at
9:00 a.m.

It is so ordered.

td, C2

Wayne R. Andersen
United States District Judge

pas: dual, i, 143


& Minute Order Fyym (0697)

United States District Court, Northern District of Illinois

Name of Assigned Jud; Sitting Judge if Oth
vor Magistrate Judge Wayne R. Andersen ‘than Assigned Judge
CASE NUMBER 2C 740 DATE 3/21/2003
CASE Gaughan vs. U.S. Bureau of Prisons
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:
(1) im) Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) aq Answer brief to motion due. . Reply to answer brief due. :
(4) Oo Ruling/Hearing on set for at
(5) im} Status hearing[held/continued to] [set for/re-set for} on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial} [Hearing] held/continued to at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CLocal Rule 41.1 COFRCP41(a\(1) OO FRCP41(a)(2).
ao i [Other docket entry] | Enter MEMORANDUM, OPINION AND ORDER: Defendant’s motion to
dismiss [23-1] is granted. If the plaintiff brings forth, by 4/30/2003 such evidenge to show that he did
pursue his claims through the prison administrative grievance system and completely exhausted his
administrative remedies, the case will be reinstated. If the plaintiff fails to show proper proof of exhaustion
by that date, the court will enter final judgment. The thirty-day time limit to appeal will begin to run after
entry of final judgment. This case is set for a status conference in open court on 5/6/2003 @ 9:00 a.m.
(ll) @ (For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required. umber of notices
Notices mailed by judge's staff.
Notified counset by telephone, MAR 2 5 2003
of | Docketing to mail notices. :
Mail AO 450 form. _ docketing fh iniias
Or wines yno9 Joryisia’sin 19
PEEMn)
courtroom BY 2 MyWEeU ne muted notice
TSA deputy’s ee:
initials - :
ne OTR —



28 U.S.C. § 2675(a). For statute of limitations purposes, the court will deem the complaint in
this case filed on the date it was signed rather than the date it was actually received by the Clerk
of the Court, Under the “mailbox rule,” prisoner pleadings are considered filed when given to
the proper prison authorities for mailing, and not when received by the district court clerk. See,
e.g., Jones v. Bertrand, 171 F.3d 499, 501 (7" Cir. 1999), relying on Houston v. Lack, 487 U.S.
266 (1988) (both habeas cases). The instant complaint is dated January 13, 2002.

The North Central Regional Office rendered its final decision on June 21,2001. Yet the
plaintiff did not initiate this action until, at the earliest, January 13, 2002. Because the plaintiff
waited almost eight months to bring suit, any cause of action under the FTCA is extinguished.
In fact, the court previously ruled in this case that “any FTCA claim against the United States
or the Bureau of Prisons is now time-barred.” See Minute Order of January 31, 2002, citing 28
U.S.C. § 2401(b). The plaintiff's insistence that he has an actionable claim under the FTCA is
frivolous. The plaintiff presumably filed suit under Bivens specifically because he was aware
he had missed the deadline for bringing an FTCA claim.

For the foregoing reasons, this case must be dismissed for failure of the plaintiff to
exhaust prison administrative remedies prior to bringing suit. In light of the dismissal of this
case on exhaustion grounds, the court has no occasion to reach such questions as whether the
court has personal jurisdiction over each of the defendants. See Perez, 182 F.3d at 535.

As discussed above, this appears to be a case of first impression in this circuit; the court
can find no Seventh Circuit precedent deciding whether completion of the administrative process
under the Federal Tort Claims Act satisfies the PLRA’s exhaustion requirement. Therefore, the
court would be inclined to look favorably on a motion for leave to appeal in forma pauperis
should the plaintiff decide to appeal. See Fed. R. App. P. 24(a)(1)(C); Hyche v. Christensen, 170
F.3d 769, 771 (7" Cir. 1999). If the plaintiff does wish to appeal this dismissal, he may file a



IN THE UNITED STATES DISTRICT COURT

. FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT GAUGHAN (#05336-027), )
)
Plaintiff, )
) Judge Wayne R. Andersen
y. )
A OF PRISO. ) No. 02 C 0740

U.S. BUREAU OF P! INS, et al., )

) DOG:

Defendants. ) Map “agi

252

ME PL IN.

The plaintiff, a federal prisoner, has brought this pro se civil rights action pursuant to 42
U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). The plaintiff claims that the defendants, four physicians employed by the
Federal Bureau of Prisons, violated the plaintiff's constitutional rights by acting with deliberate
indifference to his serious medical needs. More specifically, the plaintiff alleges that after he
injured his knee during recreation while confined at the Metropolitan Correctional Center (he
tore tendons and ligaments), the defendants provided deficient care for his injured knee. By
Minute Order of February 28, 2002, the court dismissed the amended complaint as to all other
claims and defendants pursuant to 28 U.S.C. § 1915(e)(2)(B). This matter is before the court for
consideration of the defendants’ motion to dismiss. For the reasons set forth in this order, the
motion will be granted. The amended complaint must be dismissed in light of the plaintiff's
failure to show that he exhausted prison administrative remedies before filing suit.

The Prison Litigation Reform Act of 1995 [hereinafter, “PLRA”] provides, in relevant
part: “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); Massey v. Helman, 259 F.3d 641, 645 (7" Cir. 2001) (“Massey IT”). In this case, the

24



record establishes that the plaintiff failed to exhaust prison administrative remedies prior to
bringing suit. The plaintiff's pursuit of an administrative claim under the Federal Tort Claims
Act did not satisfy the PLRA’s exhaustion requirement.

“{I}f a prison has an internal administrative grievance system through which a prisoner
can seek to correct a problem, then the prisoner must utilize that administrative system before
filing a claim [in court].” Massey v. Helman, 196 F.3d 727, 733 (7" Cir. 1999), cert. denied, 532
USS. 1065 (2001) (“Massey I”). Such an administrative process was available to the plaintiff in
this case. The Bureau of Prisons “maintains an administrative review procedure through which
inmates can present grievances regarding the conditions of their confinement, including their
medical care.” Massey II, 259 F.3d at 643; see also Massey I, 196 F.3d at 734. The procedure
Tequires the sequential filing of four forms. First, an inmate must file a grievance form called
a BP-8 with the prison staff. See 28 C.F.R. § 542.13(a). If the inmate is dissatisfied with the
tesponse he receives, he must file a BP-9 seeking administrative review with the warden. 28
C.F.R. § 542.14(a). If the inmate is dissatisfied with the warden’s resolution of his grievance,
he has twenty days to file a BP-10 with the Bureau of Prisons’ regional director. 28 C.F.R. §
542,15(a). If the inmate is dissatisfied with the regional director’s disposition, his fourth and
final appeal must be made to the Bureau of Prisons’ general counsel by filing a BP-11 within
thirty days. Id.

In this case, there is no genuine issue as to whether the plaintiff completed the four-step
exhaustion process. In both his original and amended complaint, on the section of the complaint
form eliciting information about exhaustion, the plaintiff indicated that he had pursued the
administrative process for filing suit under the Federal Tort Claims Act rather than availing
himself of institutional remedies. The body of the complaint (p. 3) and amended complaint (p.
6) correspondingly refer only to the plaintiff having filed a “tort claim.” Moreover, the plaintiff

stated in his response to the court’s deficiency order of January 31, 2002, that “[tJhe Tort Claim