Roy Fluker v. County of Kankakee

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2247
R OY FLUKER , et al.,
Plaintiffs‐Appellants,
v.
C OUNTY OF KANKAKEE , et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:11‐cv‐02254‐MPM‐DGB — Michael P. McCuskey, Judge.
____________________
A RGUED D ECEMBER 6, 2013 — D ECIDED D ECEMBER 20, 2013
____________________
Before KANNE and R OVNER , Circuit Judges, and D URKIN,
District Judge.
D URKIN, 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
 Of the United States District Court for the Northern District of Illinois,
sitting by designation.

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2 No. 13‐2247
Fluker, later filed suit against the County of Kankakee, Illi‐
nois, 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 Flukers’ suit
could not succeed on the merits. The Flukers contend the
district court made several errors in dismissing their suit
with prejudice, but for the following reasons, we affirm.
BACKGROUND
The facts of this case arise out of Roy’s time at the Jerome
Combs Detention Center (the “Center”) in Kankakee, Illi‐
nois, between February 11, 2011, and July 9, 2011. 1 Roy was
at the Center after being convicted in May 2010 of federal
charges related to a fraudulent scheme that he devised with
his son and daughter. See United States v. Fluker, 698 F.3d 988
(7th Cir. 2012).
On June 14, 2011, correctional officers were transporting
Roy and another inmate in a police van from a doctor’s ap‐
pointment 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,
1 The Jerome Combs Detention Center is one of a number of county jails
that have contracted with the Federal Bureau of Prisons to provide hous‐
ing for prisoners who are unable to stay at the Metropolitan Correctional
Center because of overcrowding.

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No. 13‐2247 3
flew off his seat and crashed into the metal divider between
the front and rear of the van. The transporting officers no‐
ticed that Roy may have suffered an injury and returned to
the Center shortly thereafter.
The van carrying Roy arrived at the Center approximate‐
ly 10 minutes after the incident. Officer Marcus Tatum eval‐
uated 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 Of‐
fice on September 28, 2011. He alleged constitutional viola‐
tions and a claim for willful and wanton conduct under Illi‐
nois state law. On December 5, 2011, Roy amended his com‐
plaint 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 add‐
ing 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 an‐
swer to the amended complaint and an affirmative defense
based on the PLRA, claiming that Roy failed to exhaust ad‐
ministrative 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

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4 No. 13‐2247
moved to strike the County’s answer and affirmative de‐
fense. Alternatively, the Flukers asked for leave to file a sec‐
ond amended complaint to name additional parties.
The magistrate judge granted the Sheriff’s Office’s mo‐
tion for leave to add the PLRA affirmative defense on Octo‐
ber 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 preju‐
diced by the County’s inadvertent late filing or by the Sher‐
iff’s Office’s assertion of the defense. The judge also denied
the Flukers’ request to amend their amended complaint but
stated that they “may file a motion for leave to amend that
better explains why they seek to add additional defendants
and allegations, and why they should be granted leave to do
so.” He did not, however, articulate a specific time limit or
deadline for seeking leave to amend.
The Defendants moved for summary judgment on No‐
vember 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 addi‐
tion 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 com‐
plaint. The judge highlighted the court’s March 9, 2012 dead‐

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No. 13‐2247 5
line for adding parties that had long since passed by the time
the Flukers’ filed their motion on February 4, 2013. Addi‐
tionally, 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 com‐
plaint 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 dis‐
miss 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 adminis‐
trative remedies by filing a grievance.”2 Accordingly, the
2 The Center’s Inmate Handbook states that an inmate may “submit
grievances or complaints regarding any incident, condition, treatment, or
(…) other matters pertaining to the facility rules and regulations.” Any
grievance, however, “must be written on an Inmate Grievance Form and
submitted to a staff member for proper delivery.” The parties agree that
(continued…)

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6 No. 13‐2247
court noted that “summary judgment must be granted to
[the] Defendants on this ground alone”—and the dismissal
would have been without prejudice. See Ford v. Johnson, 362
F.3d 395, 400–01 (7th Cir. 2004). The court next moved to the
merits of the Flukers’ claims. In doing so, it concluded that
(1) the undisputed material facts did not support a § 1983
deliberate indifference claim or a willful and wanton claim
under Illinois law, and (2) Debra’s claim was derivative of
Roy’s claims. As such, summary judgment in favor of the
Defendants was entered, and the case was dismissed with
prejudice.
DISCUSSION
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.
I.
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
Roy did not submit a grievance or complaint to the Center regarding any
aspect of the June 14, 2011 incident before Roy was transferred from the
Center to a new prisoner‐housing location on July 9, 2011.

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No. 13‐2247 7
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 re‐
quires the complaining prisoner to “compl[y] with the sys‐
tem’s critical procedural rules.” Woodford v. Ngo, 548 U.S. 81,
95 (2006). The Flukers have not challenged the district
court’s conclusion that Roy did not exhaust his administra‐
tive remedies (or even attempt to) and conceded as such in
their brief, stating that “[i]t was undisputed from the incep‐
tion of this case that Roy Fluker had not exhausted his ad‐
ministrative remedies with the Defendants.” There is also no
evidence that the Center misled Roy or caused his noncom‐
pliance with the administrative remedies.3 Cf. Curtis v. Tim‐
3 At oral argument, the Flukers’ counsel suggested that the Defendants’
conduct made the Center’s administrative remedies unavailable to Roy
because Roy was in the hospital receiving treatment during much of the
time he was in the Defendants’ custody after the incident and the De‐
fendants transferred him to a new location shortly after he was dis‐
charged from the hospital. This contention was not raised or developed
in the Flukers’ brief, so it is waived. See Puffer v. Allstate Ins. Co., 675 F.3d
709, 718 (7th Cir. 2012). Nonetheless, this contention is puzzling because
it is at odds with what the Flukers are asking us to do. They want us to,
first, find that the district court improperly addressed the merits on
summary judgment after concluding that dismissal pursuant to §
1997e(a) was appropriate; and second, remand with instructions to dis‐
miss the case without prejudice. But if we were to determine that the De‐
fendants prevented Roy from exhausting his administrative remedies so
no remedies were actually “available,” as the Flukers’ counsel suggested,
that would seemingly result in a conclusion that Roy actually complied
(…) with the requirements of § 1997e(a), despite his admitted inaction.
See Dole v. Chandler, 438 F.3d 804, 809–13 (7th Cir. 2007). The exhaustion
affirmative defense would not be available to the Defendants in that sit‐
uation, and the Flukers’ desired remedy of “dismissal without prejudice”
pursuant to § 1997e(a) would likewise be unavailable. We would then be
(continued…)

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8 No. 13‐2247
berlake, 436 F.3d 709, 711–12 (7th Cir. 2006). Summary judg‐
ment on the PLRA ground alone was therefore warranted.
II.
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 reme‐
dies will prove to be impossible, as the Defendants contend
is true here. 4 See id. (“The district court dismissed Ford’s §
1983 suit without prejudice … so that he could exhaust
whatever remedies remain under state practice and try
again. (If it is too late to pursue administrative remedies,
then exhaustion will prove impossible and § 1997e(a) will
permanently block litigation.)” (citing Pozo v. McCaughtry,
286 F.3d 1022 (7th Cir. 2002))). Thus, to the extent the Flukers
contend their case should have been dismissed without
prejudice if it was dismissed solely on the PLRA ground,
they are correct. But that is inconsequential here, as is the
parties’ dispute as to whether it is still possible for Roy to
exhaust his remedies at the Center now that he is no longer
housed there. The real concern is whether the district court
had the ability to address the merits of the suit once it de‐
termined that Roy failed to exhaust his remedies. If the dis‐
trict court had that ability, there was nothing prohibiting it
required to affirm on the merits because the Flukers have not challenged
the lower court’s dismissal on that ground.
4 The parties dispute whether the language of the Center’s Inmate
Handbook prohibits prisoners who are no longer housed at the Center
from exhausting the grievance procedures outlined in the handbook.
This case does not require us to address or resolve this issue.

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No. 13‐2247 9
from dismissing the suit with prejudice after deciding the
merits on summary judgment.
The Flukers, directing us to Perez v. Wisconsin Department
of Corrections, 182 F.3d 532 (7th Cir. 1999), contend the dis‐
trict court was precluded from rendering a decision on the
merits once the Defendants raised § 1997e(a) as an affirma‐
tive defense and the court chose to grant summary judgment
on that ground. In Perez, we explained that “[f]ailure to ex‐
haust 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,
must not proceed to render a substantive deci‐
sion until it has first considered § 1997e(a). …
Defendants may waive or forfeit reliance on §
1997e(a), just as they may waive or forfeit the
benefit of a statute of limitations. [But] [w]hen
they assert their rights—as the defendants in
this case did—then the judge must address the
subject immediately.”
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. (“Examin‐
ing 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

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10 No. 13‐2247
attempt to exhaust remedies and later re‐file the case. 5 Con‐
versely, the Defendants contend the district court followed
the quoted language and the requirements of Perez: the court
first addressed the PLRA defense, as required, and then
moved to the merits of 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. Rather,
we simply said that § 1997e(a) “can function properly only if
the judge resolves disputes about its application before turn‐
ing to any other issue in the suit.” Perez, 182 F.3d at 536 (em‐
phasis added). The district court below did just that. And
nothing in Perez, or any other case in this Circuit dealing
with the PLRA or § 1997e(a), prohibits a district court’s pro‐
gression from the PLRA defense to the merits if the situation
properly calls for it.
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
5 The parties agree that the Illinois statute of limitations has passed. The
Flukers, however, acknowledge that they have an ongoing action in Illi‐
nois state court for negligent driving against Officer Matthew Meehan,
who was not a party to the case below. Accordingly, the dismissal on the
merits of the Flukers’ federal claims and their willful and wanton con‐
duct state law claims has not prevented them from maintaining a state
law action based on a lower negligence standard. And contrary to the
Flukers’ contention at oral argument, res judicata might not apply to that
claim. See Bernstein v. Bankert, 702 F.3d 964, 993 (7th Cir. 2012) (“[R]es
judicata only bars an action if there was a final judgment on the merits
and both the parties and claims in the two lawsuits are the same.”).

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No. 13‐2247 11
had a complete factual record and all the information need‐
ed 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); Brunnet v. Lappin, 32 Fed. Appx. 766, 766–67 (7th Cir.
2003) (unpublished).
Accordingly, in the interests of judicial economy and fi‐
nality, 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 considera‐
tions 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 comprehen‐
sive opportunity to address the merits of the case. That situa‐
tion would not have done justice to any of the parties, espe‐
cially 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 proce‐
durally barred, not that the dismissal on the merits was sub‐
stantively incorrect.

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12 No. 13‐2247
We are not alone in the approach taken here; other Cir‐
cuits have utilized a similar approach. See generally Thorson v.
Epps, 701 F.3d 444, 445–46 (5th Cir. 2012) cert denied 124 S. Ct.
53 (2013) (affirming a district court’s grant of summary
judgment on the merits even though the defendant also in‐
voked the PLRA exhaustion defense in the district court);
Ramos v. Patnaude, 640 F.3d 485, 487–91 (1st Cir. 2011) (af‐
firming 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) (un‐
published) (affirming on the merits a district court’s grant of
summary judgment in favor of the defendant without ad‐
dressing whether the plaintiff properly exhausted his griev‐
ances); 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 al‐
ternatively dismissing because the claim failed on the merits,
this court should not affirm the merits determination if [the
plaintiff] in fact failed to exhaust administrative remedies.”).
This is not surprising given that the primary purpose of re‐
quiring an inmate to exhaust his administrative remedies “is
to ‘alert[] the state’ to the problem ‘and invit[e] corrective
action.’” Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013)
(quoting Jones v. Bock, 549 U.S. 199, 219 (2007) (alterations in
Turley)). In cases like this, it is doubtful whether the econom‐
ics and benefits of § 1997e(a) could be recognized. Roy has
long since been transferred out of the Center and into the
custody of the federal prison system, and the case has like‐
wise reached its final destination—a dismissal on the merits.
Section 1997e(a) helps “reduce the quantity and improve the

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No. 13‐2247 13
quality of prisoner suits” by providing prison officials with
the time and opportunity to address and rectify any com‐
plaints without the need for court intervention, Begolli v.
Home Depot U.S.A., Inc., 701 F.3d 1158, 1161 (7th Cir. 2012)
(quoting Alexander v. Gardner‐Denver Co., 415 U.S. 36, 47–49
(1974)), rather than having a jail matter potentially resolved
by a fact finder who is unfamiliar with prison practices and
procedures. But the opportunity for that to apply here has
passed, and it is impossible to reset the case to its starting
point. As such, to dismiss the case without prejudice now,
only to provide Roy with an opportunity to exhaust his rem‐
edies (which might not even be possible), would contravene
the purpose of § 1997e(a).
We find no error in the district court’s decision to move
to the merits after making a determination on the PLRA de‐
fense. 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.6 And because the
Flukers have not challenged the district court’s decision on
6 As a side matter, the Flukers claim that it was somehow unfair for the
Defendants to raise the § 1997e(a) defense almost a year after they filed
this suit. It was no secret, however, that in prisoner suits, administrative
(…) remedies must be exhausted before a prisoner may bring a cause of
action regarding prison conditions. See 42 U.S.C. § 1997e(a). The Flukers
knew that the Defendants could assert the defense if they wanted, and
we cannot say that the lower courts erred in allowing the Defendants to
raise the § 1997e(a) defense when they did, especially considering the
Flukers concede in their brief that they knew “from the inception of this
case” that Roy had not complied with the exhaustion requirement.

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14 No. 13‐2247
the merits, that decision—and the corresponding dismissal
with prejudice—must stand.
III.
The Flukers elucidate two additional arguments regard‐
ing errors made below; neither is persuasive.
The Flukers contend the district court erred under Feder‐
al 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., 477 F.3d 924, 927 (7th Cir. 2007), we cannot fault the dis‐
trict 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 plaintiff’s mo‐
tion 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 throughout the duration
of the case and discovery, the Flukers’ filing of six motions
for an extension of time, and the Flukers’ failure to even at‐
tempt to satisfy the § 1997e(a) requirements until late in the
game. Based on this information, the district court was well
within its discretion to deny the Flukers’ backdoor attempt
to avoid the impending summary judgment decision on the
merits. See Pace, 409 F.2d at 334–35.
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

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No. 13‐2247 15
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 vol‐
untarily 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. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991))).
CONCLUSION
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 Defend‐
ants’ 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.

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