Harrison v. Martin

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS WILLIE HARRISON, ) ) Plaintiff, ) ) vs. ) No. 3:18-cv-2205-GCS ) VIPIN SHAH, ) ) Defendant. )

ORDER SISON, Magistrate Judge: Pending before the Court is Defendant Martin’s motion to strike Plaintiff’s response to Defendant Martin’s motion to clarify (Doc. 80). Specifically, Defendant argues that Plaintiff filed the response three months after his motion was filed and after the Court entered the Order on the motion to clarify. Defendant also argues that Plaintiff’s response is misplaced. As of this date, Plaintiff has not responded to the motion to strike. The Court agrees with Defendant.

On February 5, 2020, the Court entered a Memorandum and Order granting Defendant’s motion for summary judgment on the issue of exhaustion (Doc. 75).

Thereafter, the Court granted Defendant’s motion to clarify its Memorandum and Order stating in part: “The Court DISMISSES without prejudice Harrison’s claims against Chlebowski, Cummins and Martin in Count 1 and Harrison’s claims against Shah and Martin in Count 2 for failure to exhaust administrative remedies. Thus, the Court Page 1 of 2 dismisses without prejudice Chlebowski, Cummins and Martin. The remaining claim in this case is Harrison’s claim against Shah in Count 1.” (Doc. 78). A review of the record in this case, reveals that there is no evidence that Harrison exhausted his administrative remedies regarding his claims against Defendant Martin prior to filing the complaint.

Specifically, the record reveals that the ARB returned and denied Harrison’s various grievances regarding Martin after Harrison filed suit on December 26, 2018. A prisoner cannot properly exhaust his administrative remedies if he files suit during the pendency of the grievance process; nor can a prisoner file suit and then exhaust administrative remedies while the suit is pending. See Ford v, Johnson, 362 F.3d 395, 398 (7th Cir. 2004).

Accordingly, the Court GRANTS the motion to strike (Doc. 80) and STRIKES Plaintiff's May 21, 2020 response to Defendants’ motion to clarify (Doc. 79).

IT IS SO ORDERED.

Digitally signed Date: June 19, 2020. Attar of oe by Judge Sison Date: 2020.06.19 08:49:01 -05'00' GILBERT C. SISON United States Magistrate Judge Page 2 of 2