United States District Court, S.D. Indiana, Indianapolis Division
RICHARD L. KELLY, Plaintiff,
MIKE PERSON, MANDIP BARTELS, MIKE MITCHEFF, DUSHAN ZATECKY, Defendants.
DEFENSE OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
SARAH EVANS BARKER, District Judge.
Plaintiff Richard L. Kelly, an inmate at Pendleton Correctional Facility, filed this civil rights action alleging that the defendants are deliberately indifferent to his serious medical needs (specifically, his lumbar and cervical spine damage) in violation of the Eighth Amendment. Superintendent Zatecky seeks resolution of the claims against him on the basis that Mr. Kelly 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, Superintendent Zatecky's motion for summary judgment [dkt. 33] must be denied and his affirmative defense that Mr. Kelly failed to exhaust administrative remedies as to his claims prior to filing this lawsuit is rejected.
Superintendent Zatecky contends that Mr. Kelly 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. Kelly'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. 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 matters stated. Fed. R. Civ. Proc. 56(c)(4).
The following facts are undisputed.
Mr. Kelly is currently incarcerated at Pendleton and was at Pendleton at the time of the incident. A grievance program was in place at Pendleton during all relevant times. The purposes, rules, and procedures of this grievance program are set forth in the Offender Grievance Process, Policy and Administrative Procedure XX-XX-XXX ("Offender Grievance Process"). Offenders can grieve matters that involve actions of individual correction officers, and issues relating to the conditions of care or supervision. The formal grievance must identify the issue that the offender is trying to resolve.
Mr. Kelly filed several grievances arising from events alleged to have occurred between February 3, 2014 and July 14, 2014, which are the dates relevant to the matters before this Court. In the formal grievances, which are Formal Grievance No. 82102, No. 82103 and 82104, Mr. Kelly's complaints or issues concerned the actions of medical providers who allegedly denied him medical treatment. The grievance made no reference to Superintendent Zatecky.
Exhaustion of Administrative Remedies
Superintendent Zatecky argues that he is entitle to judgment as a matter of law because Offender Kelly did not exhaust all available administrative remedies before filing this lawsuit against Superintendent Zatecky. But this argument is inconsistent with the record. The complaint alleges that the defendants (including Superintendent Zatecky) were deliberately indifferent to his serious medical needs (specifically, his lumbar and cervical spine damage) in violation of the Eighth Amendment. The record reflects that Mr. Kelly filed formal grievances which complained of the issues present in this lawsuit, namely the treatment of back. See dkts. 34-4, 34-5, 34-6. Nothing more was required.
Perhaps the Superintendent's argument is that exhaustion was not achieved because the Superintendent was not named in the grievances. But, no support for this position has been provided and Seventh ...