earlier incidents. In his second claim McDonald alleges that on September 29, 2002, defendant
Wilson searched McDonald’s cell and took his watch in retaliation for his obtaining access to the
courts and prison’s grievance process. McDonald also implicates defendant Fredericks in this
action because Fredericks allegedly ordered Wilson to take McDonald’s watch but did not issue a
similar order requiring the removal of watches from any other inmates. Finally, McDonald
maintains that he has exhausted all administrative remedies available to him through Stateville’s
internal procedures and he therefore is entitled to make his case in federal court.
Ill. DISCUSSION

A, Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) requires inmates to exhaust available
administrative remedies prior to their filing suit in federal court under 42 U.S.C. § 1983. See 42
U.S.C. § 1997e(a) (2000); Booth v. Churner, 532 U.S. 734, 735 (2001). This means that a
Prisoner must file any grievances, complaints, and appeals he has concerning his prison
conditions in the time, place, and manner required by the prison’s administrative rules, Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), and must avail himself of “such
administrative remedies as are available” to him, even if the available grievance procedure
cannot afford him the remedy sought, Booth, 532 U.S. at 735. The PLRA’s exhaustion
requirement has been held to be an affirmative defense and not a jurisdictional requirement,
Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535-36 (7th Cir. 1999). Nevertheless, dismissal
under Rule 12(b)(6) may be proper if an inmate fails to plead that he exhausted all available
remedies, Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000). See also Martin v. Snyder, 00

C 983, 2002 U.S. Dist. LEXIS 5402, at *8 (N.D. Ill. Mar. 28, 2002) (stating that although



retaliation against defendants Garcia, Wilson, and Fredericks. It is therefore ordered that

defendants’ motion to dismiss is denied, consistent with this court’s earlier orders.

ENTER:

JQAN B. GOTTSCHALL
ITED STATES DISTRICT COURT

DATED: October 21, 2003



McCormick v. City of Chicago, 230 F.3d 319, 326 (7th Cir. 2000) (finding pleading standard
satisfied where plaintiff alleged conclusions sufficient to put defendant on notice of his claim). If
defendants possess evidence showing that McDonald failed to exhaust his administrative
remedies for any of his claims, they may of course submit such proof in a proper motion for
summary judgment.

B. Statute of Limitations

Defendant Garcia argues that McDonald’s claims against him are time-barred by the two-
year statute of limitations for § 1983 actions arising in Ilinois. See Booker v. Ward, 94 F.3d
1052, 1056 (7th Cir. 1996). This issue has already been ruled upon by the court in its order dated
February 27, 2003, in which all but one of plaintiff's claims against Garcia were dismissed as
untimely. Plaintiff's remaining claim against Garcia, alleging retaliation arising from actions that
occurred on July 7, 2001, was timely filed and is permitted to proceed.

C. Sufficiency of Claims

Invoking the First Amendment, McDonald claims that defendants Garcia, Wilson, and
Fredericks retaliated against him for exercising his constitutional right to file grievances and
obtain access to the courts. In one claim, McDonald states that on July 7, 2001, defendant Garcia
found contraband in a hall and, despite having no evidence that the contraband belonged to him,
charged the violation to McDonald and placed him in segregation for 30 days. Though these
charges were later dismissed, McDonald insists that “the actions of defendant [Garcia] were
retaliatory.” In another claim, McDonald maintains that on September 29, 2002, Wilson and
Fredericks searched his cell and confiscated his watch in retaliation for McDonald’s “obtaining

access to the grievance and court process.”



exhaustion is an affirmative defense, PLRA requires the court to resolve the issue before turning
to other allegations in complaint).

Here, McDonald asserts in his amended complaint that his “grievances were denied, and
or [the grievance officer] refused to acknowledge [his] complaint.” He further claims that the
“Review Board refused to here [sic] complaint until Grievance officer responded. All other
complaints were denied.” McDonald then avers that “the grievance procedure is now complete”
because his “grievance was denied as untimely and not addressed after months of holding
grievance complaint, or denied.” Defendants argue that these assertions are insufficient proof of
exhaustion because they “merely allege[] that he has unsuccessfully attempted to exhaust” his
available remedies. In his response to defendants’ motion to dismiss, McDonald attaches an
affidavit swearing that he has “followed the inmate grievance procedure beganing [sic] at the
institutional level,” thus “exhausting all available remedies.” The court may read McDonald’s
tesponse affidavit as part of his complaint only if it contains facts not contradicted by the
complaint, see Travel All Over the World, 73 F.3d at 1428, a condition which is easily satisfied
here.

Reading McDonald’s complaint and affidavit in the light most favorable to him and
considering his factual allegations as true, the court finds that McDonald has sufficiently pleaded
exhaustion of his administrative remedies to avoid having his claims barred by § 1997e(a) of the
PLRA. McDonald stated in his original complaint that he had exhausted the prison’s grievance
process, reiterated this claim in his amended complaint, and then swore to it in an affidavit
responding to defendants’ motion to dismiss, Notwithstanding defendants’ challenge to the

factual specificity of McDonald’s pleadings on this issue, he is not required to do more. See



for retaliation. See McCormick, 230 F.3d at 325. McDonald alleges that Garcia charged him with
possession of contraband and sent him to segregation in retaliation for McDonald engaging in the
protected act of filing grievances. Not only does McDonald’s complaint contain enough
information to put Garcia on notice of his claim against him, it also broadly describes a set of
facts which, if proven, might allow McDonald to obtain relief under federal law; as such, it
satisfies the pleading requirements set forth in Fed. R. Civ. P. 8(a) and cannot be dismissed
pursuant to Rule 12(b)(6).

Likewise, McDonald’s allegations against defendants Wilson and Fredericks suffice to
state a claim for retaliation. McDonald claims that defendant Wilson searched his cell and took
his watch in retaliation for his obtaining access to the prison’s grievance process and the courts.
McDonald also alleges that when he challenged the taking of his watch, Wilson told McDonald
“to sue him since that’s what he does.” McDonald further claims that defendant Fredericks gave
Wilson the direct order to take his watch, but not similar watches owned by other inmates, in
Tetaliation for McDonald’s exercising his First Amendment rights. As discussed above, a
complaint need only plead enough facts to put defendants on notice of the charges against them
and show the court why plaintiff may be entitled to relief under federal law. McCormick, 230
F.3d at 325. The court believes that in this case McDonald’s retaliation claims against Wilson
and Fredericks meet that minimum standard.

IV. CONCLUSION

Plaintiff's second amended complaint sufficiently pleads exhaustion of administrative

remedies for the purpose of satisfying § 1997e(a) of the PLRA, contains a timely charge against

defendant Garcia based on conduct that occurred in July of 2001, and states colorable claims for



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

if Ass! ju Oth
vor Magirate Judge Joan B. Gottschall “than Asigned Judge
CASE NUMBER 02 C 8581 DATE 10/21/2003
CASE Donald McDonald vs. Donald Snyder, et al.
TITLE
[In the following box (2) 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:
(i) im} Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer brief due. .
(4) Qo Ruling/Hearing on set for at :
(5) i | Status hearing set for 11/13/2003 at 9:30 A.M..
(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__—_—ssetfor__—ssat__—
(7) Oo Trial[set for/re-set for] on at
(8) Qo {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) OLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

(0) of [Other docket entry] | Enter Memorandum Opinion and Order. Defendants’ motion to dismiss

plaintiff's second amended complaint [15-1] is denied. Status hearing is set for November 13, 2003 at

9:30 A.M.
ai) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices maited by judge’s staff.

(tified counsel by telephone.
Docketing to mail notices,
Mail AO 450 form.

guna Lords

Copy to judge/magistrate judge.

Leak Wd 22 10069
Thao
i tn Chen's Office



An act that would otherwise not be actionable under § 1983 may give rise to liability if it
is taken “in retaliation for the exercise of a constitutionally protected right.” Abrams v. Walker,
307 F.3d 650, 654 (7th Cir. 2002); Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir. 1984).
Relevant to this case, the First Amendment protects an inmate’s right to file grievances and
lawsuits, and prison officers may not retaliate against him for exercising that right. See Abrams,
307 F.3d at 654. A colorable claim for retaliation is one that “sets forth a chronology of events
from which retaliation may plausibly be inferred.” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th
Cir. 2000). Here, McDonald claims that Garcia’s levying of unfounded charges against him for
possession of contraband and sending him to segregation in July of 2001 were the latest in a
string of retaliatory actions taken against McDonald for exercising his First Amendment rights.
In particular, McDonald alleges that he filed numerous grievances against Garcia beginning in
February of 2000, and that after McDonald filed each grievance Garcia took retaliatory action
against him.' McDonald’s complaint describes a pattern wherein Garcia takes action against
McDonald, McDonald files a grievance about the act, Garcia retaliates, and McDonald files a
grievance about the retaliation. According to McDonald’s complaint, the cycle ends with Garcia
charging McDonald with possession of contraband in July of 2001, and McDonald filing a
grievance and exhausting available administrative procedures before filing this lawsuit.

Given federal notice pleading standards and this circuit’s rule that pro se pleadings must

be construed liberally, the court concludes that McDonald’s complaint suffices to state a claim

‘Though the court has already ruled that all of McDonald’s claims arising from incidents
that occurred before November 25, 2000, are barred by the statute of limitations, those earlier
incidents are relevant to the extent that they explain the chronology of retaliatory conduct leading
up to the timely claim based on Garcia’s conduct in July of 2001.

7



adequate basis for each claim. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 1988).
Additionally, a party may assert additional facts in his or her response to a motion to dismiss,
provided those facts are consistent with the allegations in the complaint. Travel All Over the
World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir.1996); Highsmith v.
Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir.1994). Furthermore, the court can take
judicial notice of matters of public record without converting a motion to dismiss into one for
summary judgment. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1984).
I. BACKGROUND

On January 14, 2003, the court dismissed McDonald’s original complaint for failure to
state a claim but granted McDonald leave to file an amended complaint elaborating on his charge
that defendants had not permitted him to wear his prayer cap during Ramadan. McDonald,
however, failed to assert the prayer cap allegation in his second amended complaint, and instead
introduced new retaliation claims against defendants Garcia, Wilson, and Fredericks and repeated
many of the previously dismissed allegations from his original complaint. In its order of February
27, 2003, the court dismissed many of McDonald’s allegations in the second amended complaint
as time-barred or otherwise disposed of by the earlier order, but permitted two of the claims to
proceed as timely. In both of the remaining claims, McDonald contends that defendants retaliated
against his exercise of his First Amendment right to access the courts and the prison’s
institutional grievance process. First, McDonald claims that on July 7, 2001, defendant Garcia
found contraband in a hall near McDonald’s cell and, despite having no evidence that the
contraband belonged to McDonald, placed him in segregation for 30 days. McDonald alleges that

Garcia’s action was taken in retaliation for McDonald’s having filed grievances concerning


exhaust administrative remedies as required by 42 U.S.C. § 1997e(a), and (2) for failure to state a
claim upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6). Additionally,
defendant Garcia moves separately to dismiss the claims against him on the ground that they are
barred by the applicable statute of limitations.

It appears to the court from reading defendants’ motion to dismiss that defendants filed
their motion based on McDonald’s original complaint rather than his second amended complaint,
and did not heed the court’s prior rulings on certain matters. To the extent that defendants’
motion raises issues already decided by the court in this case, the court denies it as moot and
reaffirms its earlier orders. Similarly, to the extent that McDonald’s second amended complaint
restates claims which the court had previously dismissed, it too is dismissed. The court now tums
to McDonald’s two remaining claims alleging that defendants retaliated against McDonald

because he exercised his First Amendment rights in “obtaining access to the grievance and court

process,”
L STANDARD OF REVIEW

In considering a motion to dismiss, the court must accept as true all well-pleaded facts
and must draw all reasonable inferences from those allegations in plaintiff's favor; a complaint
will only be dismissed if it is beyond doubt that the plaintiff can prove no set of facts which
would entitle him to relief. Hernandez v. City of Goshen, 324 F.3d 535, 547 (7th Cir. 2003).
When confronted with a pro se complaint, the court employs a more liberal standard of review
than would be used when an attorney prepared the complaint. Haines v. Kerner, 404 U.S. 519
(1972); Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995). Despite this liberal review of

pleadings, federal rules still require that the complaint allege some facts which would provide an



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DONALD MCDONALD, plaintft ) E 3s { it :
"Case No. 02 € 8581 OCT 2 3 2003

v. )

) Judge Joan B. Gottschall
DONALD SNYDER, et al., )
Defendants. )
iD 1 E

Plaintiff Donald Lee McDonald, #N23082, an inmate at Stateville Correctional Center,
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. McDonald’s original
complaint alleged that defendants, employees of Stateville Correctional Center, violated his
constitutional rights by taking away or stepping on certain of his religious items and by
wrongfully disciplining him. On January 16, 2003, the court dismissed McDonald’s action for
failure to state a claim but granted him leave to file an amended complaint based on the
allegation that defendants violated his rights by refusing to allow him to wear a prayer cap during
Ramadan. McDonald filed an amended complaint on January 24, 2003, but failed to include the
prayer cap issue among his several allegations; instead, he asserted retaliation claims against
three of the original defendants arising from incidents occurring on July 7, 2001, and September
29, 2002, and repeated many other allegations from the original complaint.

Now before the court is defendants’ motion to dismiss McDonald’s second amended
complaint for failure to state a claim and McDonald’s response to defendant’s motion; since
defendants failed to file a reply by the court’s deadline, the court deems it waived. Defendants

move to dismiss McDonald’s second amended complaint on two grounds: (1) for failure to