DURKIN, District Judge.
Riding as a prisoner in the back of a patrol van, Roy Fluker was injured when the van stopped short and he tumbled off his seat. Roy and his wife, Debra Fluker, later filed suit against the County of Kankakee, Illinois, and the Kankakee County Sheriff's Office (collectively, the "Defendants"), alleging various injuries resulting from the incident. The Defendants moved for summary judgment after the close of discovery, which the district court granted because Roy failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act (the "PLRA"), 42 U.S.C. § 1997e(a), and alternatively, because
The facts of this case arise out of Roy's time at the Jerome Combs Detention Center (the "Center") in Kankakee, Illinois, between February 11, 2011, and July 9, 2011.
On June 14, 2011, correctional officers were transporting Roy and another inmate in a police van from a doctor's appointment back to the Center when their van was cut off by another vehicle. That van abruptly stopped in front of the van carrying Roy, causing the driver of Roy's van to slam on the breaks. Roy, who was not wearing a seatbelt at the time, flew off his seat and crashed into the metal divider between the front and rear of the van. The transporting officers noticed that Roy may have suffered an injury and returned to the Center shortly thereafter.
The van carrying Roy arrived at the Center approximately 10 minutes after the incident. Officer Marcus Tatum evaluated Roy on arrival, cleaned and bandaged a laceration on Roy's head, and suggested that Roy go to the hospital for stitches. Officers then transported Roy to Provena St. Mary's Hospital, where Roy had an x-ray, a CT scan, and an MRI. Doctors discovered that Roy fractured a vertebra in the crash, and Roy underwent fusion surgery on his back two days later.
As a result of the incident, Roy filed suit against the County of Kankakee and the Kankakee County Sheriff's Office on September 28, 2011. He alleged constitutional violations and a claim for willful and wanton conduct under Illinois state law. On December 5, 2011, Roy amended his complaint and added his wife Debra as a plaintiff; she alleged a loss of consortium under both federal and state law. The magistrate judge set March 9, 2012, as the deadline for adding parties; no other additional parties or claims were added by that date.
The Defendants filed a motion to dismiss Debra's federal loss of consortium claim, which the district court granted on July 25, 2012. On September 6, 2012, the County filed its answer to the amended complaint and an affirmative defense based on the PLRA, claiming that Roy failed to exhaust administrative grievance procedures as required. See 42 U.S.C. § 1997e(a). The Sheriff's Office filed a motion for leave to file the same affirmative defense; the Flukers objected and also moved to strike the County's answer and affirmative defense. Alternatively, the Flukers asked for leave to file a second amended complaint to name additional parties.
The magistrate judge granted the Sheriff's Office's motion for leave to add the PLRA affirmative defense on October 25, 2012, and in turn denied the Fluker's motion to strike the County's PLRA defense. Even though the judge found the County's answer to be untimely, see Fed.R.Civ.P. 12(a)(4)(A), he concluded that the Flukers were not prejudiced by the County's inadvertent late filing or by the Sheriff's Office's assertion of the defense. The judge also denied the Flukers' request to amend
The Defendants moved for summary judgment on November 29, 2012, after the close of fact discovery. The motion was based on the PLRA defense and the merits. In response, on February 4, 2013, the Flukers filed another motion to amend their amended complaint, seeking to add individual defendants and a negligence claim under Illinois state law. They also filed a motion to voluntarily dismiss the case so that Roy could exhaust his administrative remedies and then re-file the case at a later date. These motions were in addition to the Flukers' substantive response to the Defendants' motion for summary judgment.
On April 4, 2013, the magistrate judge denied the Flukers' motion for leave to file a second amended complaint. The judge highlighted the court's March 9, 2012 deadline for adding parties that had long since passed by the time the Flukers' filed their motion on February 4, 2013. Additionally, the judge had previously instructed the Flukers to file a motion to amend in October 2012, yet, the Flukers waited roughly four months to do so.
The Flukers filed a motion for reconsideration with the district court, as well as objections to the magistrate judge's April 4 order, on April 18, 2013.
On May 10, 2013, the district court denied the Flukers' objections and motion for reconsideration. The district court determined that the magistrate judge's order denying the Flukers' motion for leave to file a second amended complaint was "neither clearly erroneous nor contrary to law" and that the Flukers failed to demonstrate good cause for modifying a judge's scheduling order as required under Federal Rule of Civil Procedure 16(b)(4). The district court also denied the Flukers' motion for voluntary dismissal, finding the Flukers' reasons to be unpersuasive, though he also stated that a decision on the voluntary motion to dismiss was "incidental to the ultimate outcome of [the] case." The district court then looked to the Defendants' summary judgment motion. The court first determined that the PLRA was applicable to the Flukers' claims and that the Flukers "provided no evidence that they ... exhausted their administrative remedies by filing a grievance."
As this appeal arises out of the district court's grant of summary judgment in favor of the Defendants, we review the decision de novo. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir.2013). The Flukers challenge a number of the lower court judges' rulings, but the crux of this case comes down to one main question: whether the district court could consider the merits of the Flukers' suit after it concluded that summary judgment in favor of the Defendants was appropriate due to the Flukers' failure to satisfy § 1997e(a). We believe so.
We begin our analysis by looking to the PLRA. Under the PLRA, "[n]o action shall be brought with respect to prison conditions ... 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). This means the prisoner must give the prison's grievance system "a fair opportunity to consider the grievance," which requires the complaining prisoner to "compl[y] with the system's critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Flukers have not challenged the district court's conclusion that Roy did not exhaust his administrative remedies (or even attempt to) and conceded as such in their brief, stating that "[i]t was undisputed from the inception of this case that Roy Fluker had not exhausted his administrative remedies with the Defendants." There is also no evidence that the Center misled Roy or caused his noncompliance with the administrative remedies.
We have held that dismissals under § 1997e(a) for failure to exhaust must be without prejudice. See Ford, 362 F.3d at 400-01. This is true even if exhausting administrative remedies will prove to be impossible, as the Defendants contend is true here.
The Flukers, directing us to Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir.1999), contend the district court was precluded from rendering a decision on the merits once the Defendants raised § 1997e(a) as an affirmative defense and the court chose to grant summary judgment on that ground. In Perez, we explained that "[f]ailure to exhaust administrative remedies does not deprive a court of jurisdiction." Id. at 535. A district court can therefore decide a suit on the merits if a defendant does not raise failure to exhaust as an affirmative defense, even if the defense could have been asserted. See id. at 536. Both parties agree with that statement. A district court, however,
Id. (emphasis added). The Flukers argue that this language establishes that the district court's opinion on the merits was an improper "advisory opinion." See generally id. ("Examining the merits first and then ordering a case dismissed on exhaustion grounds only if the plaintiff is apt to prevail ... would border on (if it would not transgress) the rule against issuing advisory opinions."). If their contention is true, the court should not have addressed the merits, the suit should have been dismissed without prejudice, and Roy could still attempt to exhaust remedies and later re-file the case.
As an initial matter, our holding in Perez was not that a court is always prohibited from addressing the merits of a suit if § 1997e(a) is raised as an affirmative defense.
Here, the Defendants' summary judgment motion was fully briefed on the merits, and the Flukers had a full and fair opportunity to respond to the substance of the motions. At the time of dismissal, discovery was closed, and the court had a complete factual record and all the information needed to resolve the case on the merits. This is different than cases we have encountered where the district court did not consider the PLRA defense first or where the parties had not yet completed discovery when judgment on the merits was entered. Cf. Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir.2005); Delgado-Brunett v. Lappin, 32 Fed.Appx. 766, 766-67 (7th Cir.2003) (unpublished).
Accordingly, in the interests of judicial economy and finality, it made perfect sense for the district court to address the merits of the case here. See RWJ Mgmt. Co. v. BP Prods. N. Am., 672 F.3d 476, 481 (7th Cir.2012) ("Evaluating considerations of judicial efficiency and duplication of judicial effort is not just a matter of toting up months or motions or the page counts of judicial orders. Rather, concerns about judicial economy have their greatest force when significant federal judicial resources have already been expended to decide the... claims, or when there is no doubt about how those claims should be decided."). Dismissing the case without prejudice on the PLRA ground alone would have put the Defendants in a holding pattern, left to wait on the Flukers' next move without knowing if or when the suit might be reinstated — this, after almost two years of litigation and a comprehensive opportunity to address the merits of the case. That situation would not have done justice to any of the parties, especially considering that the Flukers have not (1) demonstrated that they possess additional information the district court did not consider that might support their claims, or (2) even challenged the propriety of the district court's conclusion. They only argue that the district court's decision was procedurally barred, not that the dismissal on the merits was substantively incorrect.
We are not alone in the approach taken here; other Circuits have utilized a similar approach. See generally Thorson v. Epps, 701 F.3d 444, 445-46 (5th Cir.2012) cert denied ___ U.S. ___, 134 S.Ct. 53, 187 L.Ed.2d 24 (2013) (affirming a district court's grant of summary judgment on the merits even though the defendant also invoked the PLRA exhaustion defense in the district court); Ramos v. Patnaude, 640 F.3d 485, 487-91 (1st Cir.2011) (affirming the district court's grant of summary judgment on the merits in favor of the defendant without delving into whether the district court's alternative decision to dismiss the case on § 1997e(a) grounds was proper); Wishnefsky v. Salameh, 445 Fed. Appx. 545, 549-50 (3rd Cir.2011) (unpublished) (affirming on the merits a district court's grant of summary judgment in favor of the defendant without addressing whether the plaintiff properly exhausted his grievances); but see Snyder v. Harris, 406 Fed.Appx. 313, 316 (10th Cir.2011) (unpublished) ("[E]ven if the district court could enter a disposition dismissing for lack of exhaustion and alternatively dismissing because the claim failed on the merits, this court should not affirm the merits determination if [the plaintiff] in
We find no error in the district court's decision to move to the merits after making a determination on the PLRA defense. The case was ripe for final adjudication at the time of judgment, and the district court properly rejected the Flukers' bid to use § 1997e(a) for their own benefit by having the case dismissed without prejudice.
The Flukers elucidate two additional arguments regarding errors made below; neither is persuasive.
The Flukers contend the district court erred under Federal Rule of Civil Procedure 41(a) in prohibiting them from voluntarily dismissing their case. Reviewing this ruling for an abuse of discretion, see Wojtas v. Capital Guardian Trust Co., 411 F.3d 924, 927 (7th Cir.2007), we cannot fault the district court for denying the Flukers' motion. The district court explained the factors we outlined in Pace v. Southern Express Company, 409 F.2d 331, 334 (7th Cir.1969), that a court should consider when determining whether a plaintiffs motion to dismiss without prejudice should be granted — i.e., in determining whether a defendant "will suffer some plain legal prejudice other than the mere prospect of a second lawsuit." Stern v. Barnett, 452 F.2d 211, 213 (7th Cir.1971). The court described the time spent
The Flukers also challenge the district court's denial of their attempt to file a second amended complaint, which we also review for an abuse of discretion. See Gandhi v. Sitara Capital Mgmt, LLC, 721 F.3d 865, 868 (7th Cir.2013). Their brief, however, does not contain a legal argument as to how the judge abused his discretion. They simply argue that they "should not have been put in the position of seeking to voluntarily dismiss" and "were cornered into doing so." Any argument on this ground is thus waived. See United States v. Hassebrock, 663 F.3d 906, 914 (7th Cir.2011) (explaining that "perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived" (quoting United States v. Berkoivitz, 927 F.2d 1376, 1384 (7th Cir.1991))).
The district court did not err by addressing the merits of the Flukers' suit after making an initial determination on the § 1997e(a) failure to exhaust defense, and the Flukers have not challenged the district court's granting of the Defendants' motion for summary judgment on the merits. Thus, having considered all the issues on appeal, we affirm the dismissal of the Flukers' suit with prejudice.