That does not mean that his claims must be dismissed, however. The PLRA requires plaintiff
to exhaust available administrative remedies, and the facts of this case suggest that none were
available here. Plaintiff alleges that he was transferred out of CCDOC custody forty-eight hours
after becoming ill. (Id. 9] 14, 17.) In the very likely event that CCDOC takes more than two days
to resolve grievances, and either dismisses pending grievances when an inmate is transferred or
adjudicates the grievance in his absence but awards no damages, the CCDOC grievance procedure
could have provided him no relief. A grievance procedure that cannot redress or even mitigate
plaintiff's harm is, in effect, no remedy at all. See Muller v. Stinson, No. 99-CV-0624, 2000 WL
1466095, at *2 (N.D.N.Y. Sept. 25, 2000) (stating that there is no available remedy if institution
dismisses pending grievances of transferred inmates).

Defendants urge a different interpretation of the exhaustion requirement. In their view,
plaintiff had to use the grievance process, even ifhis imminent transfer rendered CCDOC powerless
to address his complaints, simply because it was there. That interpretation makes sense if the
exhaustion requirement is simply a docket control device; a meaningless hoop inmates must jump
through on their way to court. If, however, the requirement has a substantive purpose, and our court
of appeals has said that it does, see Pozo v. McCaughtry, 286 F.3d 1022, 1023-24 (7" Cir. 2002)
(stating that “the statutory objective of [the exhaustion requirement is] to give the prison
administration an opportunity to fix the problem”), inmates must initiate grievances only if there is
at least a remote possibility that the process will be useful.

The cases cited by defendants do not dictate a different result. Porter v. Nussle, 534 U.S.
516, 532 (2002) teaches that excessive force cases are subject to the PLRA’s exhaustion requirement,

a principal that has no application to this case. Similarly inapposite is Dixon v. Page, 291 F.3d 485



Conclusion
For all of the reasons stated above, defendants’ motion to dismiss is granted in part and
denied in part. The Eighth Amendment claim asserted against defendant Jenkins is dismissed. In
all other respects, the motion is denied. Plaintiff has fourteen days from the date of this
Memorandum Opinion and Order to amend his complaint in accordance with this Opinion, if he can

do so and remain in compliance with Rule 11.

ENTER:

ITED-STATES DISTRICT JUDGE

DATED: AUG 30 2004



relief could be granted under any set of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Discussion
Exhaustion

Defendants contend that the Prison Litigation Reform Act (“PLRA”) mandates dismissal of
plaintiff's claim. In relevant part, the PLRA provides: “No action shall be brought with respect to
prison conditions under section 1983 of this title . .. 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). Plaintiff has not alleged that he filed a grievance with CCDOC about defendants’
conduct. Thus, defendants say, his claim must be dismissed.

Plaintiff, of course disagrees. In his view, exhaustion is excused because he did not know
he had a grievance until he was diagnosed with a collapsed lung, which occurred when he was no
longer in CCDOC custody.

Plaintiff's allegations do not support his argument. From September 22 through 24, 2002,
while he was in CCDOC custody, plaintiff was in serious physical distress. (Third Am. Compl. §{]
17-23.) Moreover, plaintiff alleges, he reported his condition to each of the defendants who refused
to provide him appropriate medical care. (Id.) Though plaintiff did not discover the source of his
distress, a collapsed lung, until he was in State custody, he did not need the diagnosis to know that
defendants had behaved improperly. Thus, the lack of diagnosis does not excuse him from filing a

grievance.



(7* Cir. 2001), which holds that a litigant who was a prisoner at the time his lawsuit was filed and
“had access to [the institution’s] administrative grievance system” was subject to the PLRA, even
though he was released from prison during the life of the suit. Id. at 488-89. In this case, however,
plaintiff argues that his transfer effectively denied him access to CCDOC’s grievance procedure, a
situation Dixon does not address.

In short, defendants, whose burden it is to prove this affirmative defense, see Massey v.
Helman, 196 F.3d 727, 735 (7" Cir. 2000), have not established that the CCDOC grievance process
was substantively available to plaintiff. Absent that showing, their motion to dismiss for failure to

exhaust is denied.

Sufficiency of the Allegations

To state viable Eighth Amendment claims against defendants, plaintiff must allege that he
had a serious medical need and that defendants were deliberately indifferent to it. Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). A serious medical need “is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Id. (internal quotation marks and
citation omitted). “Deliberate indifference [is] ... more than mere negligence.” Farmer vy. Brennan,
511 U.S. 825, 835 (1994), Defendants were deliberately indifferent only if they were “subjectively
aware of [plaintiff's] serious medical needs and disregarded an excessive risk that a lack of treatment
posed to [his] health or safety.” Wynn, 251 F.3d at 593.

Plaintiff’ s allegations satisfy the serious medical need element of his claims. According to

the complaint, plaintiff was extremely short of breath and unable to speak above a whisper starting



‘Minute Order Fortn (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other
than Assigned Judge

Paul E. Plunkett

CASE NUMBER 02 C 9500 DATE 8/30/2004
CASE John Lofton vs. Cook County Department of Corrections, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) a] Brief in support of motion due

(3) oOo Answer brief to motion due. . Reply to answer brief due.

(4) oO Ruling/Hearing on set for at

(5) Qo Status hearing[held/continued to] [set for/re-set for] on set for at _

(6) a Pretrial conference[held/continued to] (set for/re-set for] on set for at

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

(8) a [Bench/Jury trial] [Hearing] held/continued to at

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

CUFRCP4(m) ClLocal Rule 41.1 COFRCP41(a\(1) C FRCP41(a)(2).

(0) = (Other docket entry) | Enter Memorandum Opinion and Order. Ruling date on motion to dismiss
is stricken. Defendants’ motion to dismiss (42-1) is granted in part and denied in part. Accordingly, the
Eight Amendment claim asserted against defendant Jenkins is dismissed. Plaintiffhas fourteen days from
the date of this order to amend his complaint in accordance with the Memorandum Opinion and Order,
if he can do so and remain in compliance with Rule 11. Status hearing previously set for 9/30/04 at
11:00 a.m. stands.

al) [For further detail see order attached to the original minute order.]

No notices required.

No notices required, advised in open court.

Notices mailed by judge’s staff.

Notified counsel by telephone.

CW6

, Document
~ «Number, “.-
sumber of notices :

AUG 31 2004

daze docketes
oY | Docketing to mail notices.
Mail AO 450 form. te ,
" rm. ara | sn docketing dgpyif pitials i
Copy to judge/magistrate judge. AMAL

courtroom ai ld ge on yg? ate sited novice
deputy’s. GFT We
initials a

Date/time recoivad'in tt =
central Clétk’s Office

‘ailing deputy initials



the morning of September 22, 2002. (Third Am. Compl. { 17.) Those symptoms should have
alerted each of the defendants, regardless of their medical training, to his need for medical attention.

Plaintiff's allegations also support the inference that defendants Tapia and Jones acted with
deliberate indifference. Rather than summoning medical attention for him, when he was
complaining of chest pain and visibly struggling for breath, plaintiff says Tapia gave him Tylenol
and Jones forced him to perform manual labor. (Id. ff 18, 23.) Those allegations are sufficient to
support the inference that Tapia and Jones knew of and disregarded the excessive risk that a lack of
treatment posed to plaintiff's health.

The situation is different for defendant Jenkins. Unlike Tapia and Jones, Jenkins is alleged
to have examined plaintiff in response to his complaints. (Id. § 19.) Though the examination is
described as “cursory,” plaintiff does not allege, and we cannot infer, that it was so brief or otherwise
outside the realm of accepted medical practice as to constitute no examination at all. Absent such
allegations, plaintiff has not stated a viable Eighth Amendment claim against Jenkins. Estate of Cole
y. Fromm, 94 F.3d 254, 261-62 (7" Cir. 1996) (“[D]eliberate indifference may be inferred based
upon a medical professional’s erroneous treatment decision only when the medical professional’s
decision is such a substantial departure from accepted professional judgment, practice, or standards

as to demonstrate that the person responsible did not base the decision on such a judgment.”).



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOHN LOFTON, )
)
Plaintiff, )
)
v. ) No. 02 € 9500

) Paul E. Plunkett, Senior Judge
MICHAEL F. SHEAHAN, DORA TAPIA, )
CARLA JENKINS and JOHN JONES, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

John Lofton has sued defendants for their alleged violation of his Eighth Amendment rights.
Defendants Dora Tapia, Carla Jenkins and John Jones (“defendants”) have filed a Federal Rule of
Civil Procedure (“Rule”) 12(b)(6) motion to dismiss the third amended complaint.’ For the reasons

set forth below, the motion is granted in part and denied in part.

Facts

On September 22, 2002, while he was in the custody of the Cook County Department of
Corrections (“CCDOC”), John Lofton had sharp pains in his side and chest, was extremely short of
breath and was unable to speak above a whisper. (Third Am. Compl. § 17.) He reported his

symptoms to defendant Tapia, who was responsible for dispensing medication to inmates on

*Defendant Sheahan has answered the complaint.

1

Wp


Lofton’s tier. (Id. 18.) Tapia told Lofton he was not sick, refused to let him see a doctor and gave
him Tylenol. (Id.)

When he was feeling no better the following afternoon, Lofton asked a CCDOC guard to take
him to the dispensary. (Id. J 19.) Defendant Jenkins, who was the nurse on duty at the time,
performed a cursory examination of Lofton and told him he was not sick. (Id.) Tapia was also in
the dispensary at the time, and both she and Jenkins belittled Lofton’s complaints and sent him back
to his tier. (Id. ] 21.)

The next day, September 24, 2002, Lofton was transferred from CCDOC custody to the
custody of the Illinois Department of Corrections. (Id. ] 14.) Lofton reported his symptoms to
defendant Jones, the CCDOC guard responsible for escorting Lofton from his cell as part of the
transfer. (Id. § 23.) Jones ignored his complaints and, despite Lofton’s obvious distress, forced him
to remove his mattress and personal belongings from his cell. (Id.)

On September 25, 2002, while in State custody, Lofton was diagnosed as having a collapsed
right lung. (Id. 16.) He had surgery two days later. (Id.)

Plaintiff alleges that defendants’ failure to provide him with medical treatment aggravated
his condition, caused him additional pain and suffering and prevented him from recovering fully

from his illness. (Id. f{] 25-26.)

The Legal Standard

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Forseth v. Village

of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless “it is clear that no