JOE MISHANEC v. THE STATE OF ILLINOIS (1999)

Court of Claims of Illinois.

JOE MISHANEC, Claimant, v. THE STATE OF ILLINOIS, Respondent.

(No. 95-CC-1432 Respondent's motion to dismiss is denied and cause remanded for evidentiary hearing.)

Decided: December 15, 1999

VERTICCHIO & VERTICCHIO (RICK VERTICCHIO, of counsel), for Claimant. JAMES E. RYAN, Attorney General (MARK McCULLOUGH, Assistant Attorney General, of counsel), for Respondent.

ORDER

THIS CAUSE is before the Court on Respondent's motion to dismiss and Claimant's response thereto.

First, Respondent argues that Claimant has failed to comply with the pleading requirements of the Rules of the Court of Claims. Specifically, Respondent argues that Claimant failed to comply with 74 Ill Admin. Code 790.50 (a)(3), (a)(4), (a)(5), (a)(6), (a)(8), (a)(9) and (b)(2).

The Court notes that this claim was filed nearly five years ago. Respondent had five years to object to Claimant's pleadings and did nothing. Furthermore, Respondent has not alleged that these pleading deficiencies have hindered its investigation of this claim in any way. Even if the Court were to grant this motion, it would grant Claimant leave to file an amended complaint to correct the deficiencies. At this late stage, such an order would merely delay a claim that should have been resolved long ago.

Second, Respondent argues that Claimant has failed to exhaust his administrative remedies by filing a grievance or appealing the denial of his grievance to the Administrative Review Board. Based upon the record presently before the Court, the Court is unable to determine whether Claimant filed grievances concerning this claim. Respondent has provided no affidavit or other competent evidence that Claimant filed no grievances, even though Respondent has access to the Claimant's prison records.

Furthermore, the personal injury suffered by Claimant, falling down stairs, does not appear to have an administrative remedy available within the Illinois Department of Corrections. Unless and until a party demonstrates to the Court's satisfaction that the Department of Corrections can award money damages to inmates who suffer personal injuries, the Court will not require inmates to file grievances about such injuries.

IT IS HEREBY ORDERED that Respondent's motion to dismiss is denied. This cause is remanded to the assigned Commissioner with directions to conduct an evidentiary hearing within six months.

MITCHELL, J.

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