United States District Court, S.D. Indiana, Indianapolis Division
WENDELL D. BRITT, Plaintiff,
DR. RAHANA, and GARY TINGLE Marion County Jail Commander, Lt. Col., Defendants.
ORDER REGARDING DEFENSE OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
WILLIAM T. LAWRENCE, District Judge.
Wendell D. Britt filed this action alleging that Dr. Rahana and Jail Commander Gary Tingle, in their individual capacities, were deliberately indifferent to Mr. Britt's serious medical needs in violation of his constitutional rights while he was confined at the Marion County Jail. See dkt. 6. Both Dr. Rahana and Mr. Tingle seek resolution of this action on the basis that Mr. Britt failed to exhaust his available administrative remedies prior to filing suit as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA").
For the reasons explained below, the defendants' motions for summary judgment [dkts. 24 and 28] must be denied and the defendants' affirmative defense that Mr. Britt failed to exhaust all available administrative remedies as to his claims prior to filing this lawsuit is rejected.
The defendants contend that Mr. Britt failed to comply with the exhaustion of administrative remedies requirement of the PLRA before filing this lawsuit. This affirmative defense must be resolved before reaching the merits of Mr. Britt's claims. Pavey v. Conley, 528 F.3d 494, 498 (7th Cir. 2008); Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999) ("The statute [requiring administrative exhaustion] can function properly only if the judge resolves disputes about its application before turning to any other issue in the suit.").
The PLRA requires that a prisoner exhaust his available administrative remedies before bringing a suit concerning prison conditions under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524-25 (2002). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 126 S.Ct. 2378, 2385 (2006) (footnote omitted). Strict compliance is required with respect to exhaustion, and a prisoner must properly follow the prescribed administrative procedures in order to exhaust his remedies. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). However, a prisoner is only required to exhaust those remedies that are available to him. Whether Mr. Britt used the grievance process at the Marion County Jail insofar as it was available to him is the relevant point of dispute here. A remedy becomes "unavailable" if prison employees do not respond to a properly filed grievance, Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002), or otherwise use affirmative misconduct to prevent a prisoner from exhausting. Dole, 438 F.3d at 809.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003) ( quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Affidavits or declarations in support of a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. Fed. R. Civ. Proc. 56(c)(4).
The following facts are undisputed. There was an administrative grievance process in effect at the Marion County Jail during the relevant time period and Mr. Britt was acquainted with the process. The grievance process requires a prisoner to first file an informal grievance with the designated Grievance Deputy for review within 48 hours of the incident. See dkt. 26-1 at p. 3. The Grievance Deputy then conducts an investigation and provides a written resolution to the prisoner within fifteen days of the Grievance Deputy's receipt of the informal grievance. Id. If the inmate is dissatisfied with the written resolution he must file a formal grievance within 48 hours of the inmates' receipt of the information resolution on a formal grievance form, which may be requested from the Grievance Deputy. Id. There are no instructions regarding what an inmate is expected to do if he does not receive a written resolution to his informal grievance.
Mr. Britt filed an informal grievance on December 5, 2012. See Dkt. 26-5. He wrote:
I have been moved from a medical dorm 2-Q to 2-U. I have several broken ribs a punctured lung that is still healing I have a very hard time breathing and I believe that I should be in a medical dorm so I can be under the doctor's care. I hurt everyday 24/7. Can you please help me with my situation. Thank you?
A response to the grievance was drafted on December 10, 2012. Mr. Britt testified that he never received an answer to his grievance. Dkt. 32-1.
Availability of Grievance Process
Under these circumstances, the defendants' affirmative defense cannot prevail. Mr. Tingle argues that on December 10, 2012, a written grievance resolution was hand delivered to Mr. Britt via Jail One's mailroom clerk. Dkt. 36 at p. 3. In support of this claim, Mr. Tingle references his own affidavit which states "A written resolution was provided to Plaintiff via hand delivery through the mailroom clerk pursuant to the policies and procedures of the Marion County Jail. The resolution was not returned as undeliverable." Dkt. 36-1 at ¶ 7. But there is no indication that this testimony is based on personal knowledge and it fails to comply with Rule 56(c)(4) of the Federal Rules of Civil Procedure. As Mr. ...