administrative remedies, as required by 42 U.S.C. § 1997e(a). Johnson y. Rivera, 272 F.3d 519
(7th Cir. 2001). If a grievance with respect to this claim had been pending on May 18, 2000, the
claim could be timely.

The complaint is unclear as to when Juresic exhausted administrative remedies with respect
to this claim, but even the most favorable reading of his allegations will not save it. On the third
page of the complaint form, Juresic states that "Cook County refused to give medication &
denied my grievance. Don't have copy Cook County has copy May 99 Sept. 99,” and checked
the box indicating that the grievance process was completed. On the other hand, Juresic states
on the sixth page of the complaint that he filed three grievances -- in April of 1998, September of
1998, and June of 1999 -- and received no response to any of them. (Juresic does not allege
which, if any, addressed the denial of Depo-Provera; from the context, it is more likely that they
related to Juresic's second claim, discussed below.)

When a prisoner receives no response to a grievance, he is deemed to have exhausted
administrative remedies when the time prescribed for a response has expired. Powe v. Ennis,
177 F.3d 393, 394 (5th Cir. 1999); Goodman v. Carter, No. 2000 C 948, 2001 WL 755137
(N.D. Ill 2001) (Lindberg, J.); Jones v. DeTella, 12 F.Supp.2d 824, 826 (N.D.IIl. 1998)(Alesia,
J.). In the cited cases the rule was invoked to protect the prisoner, holding that the state could
not thwart prisoners' claims by failing to process grievances, then asserting that the prisoner had
failed to exhaust administrative remedies. But the rule should also protect defendants against
stale claims. Once the institution has failed to respond within the time prescribed by regulation
(or, if no time is prescribed, within a reasonable time), the limitations clock should start to run.

Accepting Juresic's first account, he exhausted his administrative remedies in September of
1999. Accepting his second account, that he received no response from a grievance filed in June
of 1999, the time for response would have passed well before May 18, 2000, and this claim

would still be untimely. Accordingly, it is clear from the complaint that this claim is untimely,


done so with respect to a claim against officials at WICC, and it does not appear possible for him
to have done so in the two months between his arrival at WICC and the filing of this action.”
This action is accordingly dismissed pursuant to 28 U.S.C. § 1915A, and this dismissal
counts as one of plaintiff's three allotted dismissals under 28 U.S.C. § 1915(g). If Juresic
believes the court has misunderstood the facts alleged in the complaint, and that the true facts
would change the court's conclusions, he may file a motion to reconsider within thirty days of
the date of this order, explaining how he believes the court has misunderstood the complaint. If

no such motion is received, the court's judgment will become final on the next court day.
IT IS SO ORDERED.
JN, A IN
Marvin E. Aspen, Chief Judge
United States District Court

DATED: ¢ ou

®' Juresic has attached to the complaint copies of grievances he filed in 2000 and 2001 while incarcerated at
Shawnee Correctional Center regarding both his tumor and denial of Depo-Provera, and a copy of the final denial
of the former grievance by IDOC's Administrative Review Board on February 5, 2001. No official at Shawnee is
named as a defendant in this action. Further, this district would not be an appropriate venue for a suit arising
from occurrences at Shawnee Correctional Center, or at WICC for that matter, Neither institution is located in
this district and it is virtually certain that no potential defendant working at either institution resides in this district.
See 28 U.S.C. § 1391(b).


Juresic's first claim is for refusing to give him "Depo-Provera," a medication he had been
taking for a sexual disorder before his confinement in the Jail. Juresic alleges that he had been
required to take Depo-Provera since December 1989, and his taking it was a condition of his
release from Elgin Mental Health Center. Juresic provides a copy of an order entered in the
Circuit Court of Will County in Case No. 83 CF 146 dated May 8, 1996, stating that Juresic's
taking Depo-Provera is a condition of his release from the custody of the Illinois Department of
Mental Health and Developmental Disabilities, and that the court is to be notified every 60 days
that he is continuing to take it. Juresic alleges that after he was confined at the Jail he was
denied Depo-Provera, despite contrary orders entered by the Circuit Court of Cook County on
December 6, 1996, February 19, 1997, and April 28, 1997, directing that he receive it. Juresic
alleges that denial of Depo-Provera caused him to be in violation of his conditional release from
the Illinois Department of Mental Health and consequently to lose his Social Security disability
payments in February of 1998.7

Illinois' two-year statute of limitations for personal injury claims, 735 ILCS 5/13-202,
governs claims under 42 U.S.C. § 1983 arising in Illinois. Henderson v. Bolanda, 253 F.3d
928, 931 (7th Cir. 2001). A claim under 42 U.S.C. § 1983 accrues at the time the plaintiff
knows, or reasonably should know, of his injury and its cause. Wilson v. Giesen, 956 F.2d 738,
740 (7th Cir. 1992). Juresic knew of the denial of Depo-Provera and the consequences of that
denial in February of 1998, while this suit would be deemed filed, at the earliest, on May 18,
2002, two years beyond the limitations period.”

It is not quite so simple, however. The Seventh Circuit recently held that the limitations

period is tolled (at least for Illinois prisoners) while a prisoner-plaintiff exhausts available

2 The Illinois Supreme Court recently reversed the order revoking Juresic's conditional release and remanded
for further consideration. People v. Jurisec [sic], 199 Ill.2d 108, 766 N.E.2d 648 (2002).

¥ Applying the "mailbox rule," see Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001), papers

filed by a prisoner are deemed filed on the date they are given to prison authorities for mailing. The complaint
was signed May 18, 2002 and was received May 23, 2002.

3


and it is dismissed as frivolous. See Walker v. Thompson, 288 F.3d 1005, 109-10 (7th Cir.
2002).

Juresic's second claim is for failure to treat a tumor in his abdomen that he first noticed in
February of 1997. At that time an unnamed doctor diagnosed it as a herniated muscle and
refused to order a biopsy. The tumor grew, and in March and April of 1998 plaintiff was seen at
Cermak Hospital and was examined with X-rays and ultrasound at Fantus Clinic at Cook County
Hospital. The tumor was again misdiagnosed as either a herniated muscle or fatty tissue. He
states that in May of 2000 the lump was finally diagnosed as a tumor and he was scheduled for
surgery, but did not have the surgery before he was transferred to [DOC on May 28, 2000.
The tumor has still not been removed; Juresic alleges that IDOC officials have refused to order
surgery because the tumor is not life-threatening.

Deliberate indifference to a prisoner's serious medical needs is a form of cruel and unusual
punishment that will support a claim under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97,
104 (1976); Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). The law is clear that
indifference to a prisoner's serious medical need violates the Constitution, and "serious"
conditions are not limited to life-threatening ones. Gutierrez v. Peters, 111 F.3d 1364, 1370-71
(7th Cir. 1997).

Nevertheless, although Juresic may have a claim against officials who have refused to treat
him after his transfer to IDOC, he does not have a claim based on failure to treat him at the Jail.
A mistaken diagnosis, even amounting to medical malpractice, is not a constitutional violation.
To be liable, a defendant must act or fail to act despite actual knowledge of a substantial risk of
serious harm. Walker v. Peters, 233 F.3d 494, 499 (7th Cir. 2000). According to the

complaint, the jump in Juresic's tumor had been diagnosed more than once as herniated muscle,

“ In his "Notice of Intention to Commence Action in the Court of Claims," Juresic states that the lump was
first diagnosed as a tumor in April of 2000 rather than May. Since Juresic alleged in the complaint that the
diagnosis was made in May, we will use that date, although it is not material.

5


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge 1 Sitting Judge if Other
or Magistrate Judge Marvin Aspen than Assigned Judge
CASE NUMBER 02 C 3707 DATE 6/28/2002
CASE Thomas Juresic vs. Cook County Medical Service
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) im Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) Qa Ruling/Hearing on set for at
(5) a 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) Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OC General Rule 21 C) FRCP41(a)(1) (1 FRCP41(a)(2).
ao) [Other docket entry] Enter Memorandum Opinion and Order: This action is accordingly dismissed
pursuant to 28 USC 1915(A), and this dismissal counts as one of plaintiff's three allotted dismissals under
28 USC 1915(g).
di) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required. Namba
ov | Notices mailed by judge’s staff.

Notified counsel by telephone.

|Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

LUNG LAYLSIOPStF
\

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courtroom
GL deputy’s
initials

G2: Kd Bei
Date/time reoeigain g3- a34

central Clerk's

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mailing deputy initials

4
5



a diagnosis other trained professionals found plausible. Juresic does not allege that herniated
muscle is considered a serious condition requiring treatment.

A tumor, of course, can be a serious condition requiring treatment, but the lump was not
diagnosed as a tumor until May of 2000, a few weeks at most before Juresic was transferred out
of the Jail. Juresic alleges he was scheduled for surgery, which undermines any claim of
deliberate indifference.’ The tumor was obviously not life-threatening at the time, and Juresic
does not allege it was causing him serious discomfort. Under the circumstances, the failure to
perform the surgery during Juresic's remaining weeks in the Jail cannot support a constitutional
claim against anyone involved with Juresic's care while he was confined at the Jail.

Juresic also attempts to sue the medical administrator of his present institution, Western
Iinois Correctional Center (WICC). According to Juresic's application for leave to proceed
without prepayment, he arrived at WICC from Menard Correctional Center on March 18, 2002.
Because Juresic does not state what attempts, if any, he made to obtain treatment at WICC and
what response he received, the complaint cannot be construed as alleging that the medical
director, or anyone else at WICC, was indifferent to his medical needs.

Further, the court notes that exhaustion of administrative remedies is a prerequisite to
prisoner suits concerning their conditions of confinement. 42 U.S.C. § 1997e(a). Although it
appears from exhibits to the complaint that Juresic exhausted his administrative remedies with

respect to a claim against officials at Shawnee Correctional Center, he does not allege that he has

¥ In the "Notice of Intention to Commence Action in the Court of Claims," Juresic states that "I was finally
scheduled to have surgery in April of 2000. But the hospital staff didn't contact the correct people as instructed.
And I missed my surgery."

6


IN THE UNITED STATES DISTRICT COURT DOCKETED

FOR THE NORTHERN DISTRICT OF ILLINOIS JUN
EASTERN DIVISION “8 2002
THOMAS JURESIC (IDOC No. K82580) )
)
Plaintiff, )
) No. 02 C 3707
vy. )
) Chief Judge Marvin E. Aspen
COOK COUNTY MEDICAL SERVICE )
DIRECTOR, et al., ) ae
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Thomas Juresic, a prisoner in the custody of the Illinois Department of
Corrections (DOC), filed this pro se action under 42 U.S.C. § 1983 complaining that he was
denied medical care, beginning during his confinement at Cook County Jail and continuing after
his transfer to the custody of IDOC in May of 2000. The court grants Juresic’s motion to
proceed without prepayment of the filing fee and summarily dismisses the suit.”

Under 28 U.S.C. § 1915A, the court is required to review complaints filed by prisoners
against officers or employees of governmental entities and dismiss any portion of the complaint it
finds frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant immune from such relief. The court reviews everything the
plaintiff has filed with the court, see Gutierrez v. Peters, 111 F.3d 1364, 1367 & n. 2 (7th Cir.
1997), and takes as true ail allegations of the complaint, viewing them in the light most favorable

to the plaintiff. Zimmerman vy. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).

As Juresic filed this suit while imprisoned, he must pay the filing fee in installments. Pursuant to 28
U.S.C. § 1915(b)(1), the court assesses an initial partial filing fee of $16.89. The trust fund officer at Juresic's
current place of incarceration is ordered to collect, when funds exist, the partial filing fee from his trust fund
account and pay it directly to the clerk of court. After payment of the initial partial filing fee, the trust fund
officer at the correctional facility where Juresic is confined shall collect monthly payments from his trust fund
account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments
shall be forwarded to the clerk of court each time the amount in the account exceeds $10 until the full $150 filing
fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago,
H. 60604, attn: Fiscal Dept., and shall identify Juresic's name and the case number of this action.


The complaint is disorganized and appears to have been pasted together; pages are not
numbered consecutively and events are recounted out of order, mingling occurrences at one
institution with occurrences at another. Juresic names four defendants in his complaint,
designating them as "Cook County Medical Service Director," "Medical Services (Cermak)"
(Cermak Hospital is a public health facility serving inmates at the Cook County Jail), "Jonathan
Kelly, Isaac Ray Admin." (The Isaac Ray Center is a private mental health center in Chicago
primarily engaged in forensic psychiatry) and "Dept. of Corr. (Medical Service Dir.)." The last-
named defendant appears to be the medical administrator at plaintiff's present institution, rather
than the medical director of IDOC, since plaintiff states that this defendant is employed at
Western Illinois Correctional Center.

None of these defendants are properly named, and probably none of the individuals or
entities Juresic intended to name are proper defendants. Juresic appears to have named the
defendants on the basis of their supervisory positions rather than their personal actions. But
liability under § 1983 cannot be based on supervisory responsibility alone, or even negligent
supervision of the person who actually violated the plaintiff's rights; the supervisor must have
known about the conduct and facilitated it, condoned it, or recklessly closed his eyes to it.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).

Failure to name a defendant correctly, or even name the right defendant, is not necessarily
fatal. Where the plaintiff is a prisoner and it appears that he has suffered a violation of his
constitutional rights, the court should assist him in identifying the proper defendant or
defendants, commonly by appointing counsel to investigate and conduct discovery, if necessary.
See Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 555-56 (7th Cir. 1996); Billman v.
Indiana Dept. of Corrections, 56 F.3d 785, 789-90 (7th Cir. 1995). Nevertheless, because
Juresic's claims cannot proceed, as explained below, it is unnecessary to identify the particular

individuals involved.