United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING AFFIRMATIVE DEFENSE OF FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES
WILLIAM T. LAWRENCE, District Judge.
This is a civil rights action brought by Aaron Isby-Israel, an inmate incarcerated at the Wabash Valley Correctional Facility ("Wabash Valley"), against Indiana Department of Correction ("IDOC") employees Bruce Lemmon, Stephen Hall, and R. Nemergut. He alleges that the defendants denied him a Kosher diet in violation of his First Amendment rights and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). The defendants have presented as an affirmative defense their contention that Mr. Isby-Israel failed to comply with the exhaustion requirement of the Prison Litigation Reform Act ("PLRA") prior to filing this action.
On January 21, 2015, a hearing was held on the defendants' exhaustion defense. The parameters of the hearing were established by Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Counsel was recruited to represent Mr. Isby-Israel for the purpose of resolving this affirmative defense. All parties appeared at the hearing by counsel. Evidence, including testimony from grievance specialist Teresa Littlejohn and plaintiff Aaron Isby-Israel was introduced. In addition to evidence presented during the hearing, the Court considered the evidence presented in support of and opposition to the motion for summary judgment.
The burden of proof as to this defense rests on the defendants. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)). For the reasons explained in this Entry, the Court finds that the defendants have failed to meet their burden of proof. The affirmative defense that Mr. Isby-Israel failed to comply with the exhaustion requirement of the PLRA is therefore rejected and this action will proceed to the merits.
A. The Exhaustion Requirement
The PLRA requires that a prisoner exhaust his available administrative remedies before bringing a suit concerning prison conditions under 42 U.S.C. § 1983, or any other federal law. 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, 548 U.S. 81 (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. Isby-Israel used the grievance process at Wabash Valley Correctional Facility ("Wabash Valley") 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.
B. Mr. Isby-Israel's Use of the Exhaustion Process
Based on the evidence and testimony, the Court finds the following with respect to Mr. Isby-Israel's attempt to use the administrative remedy process.
There was an administrative grievance process in effect at Wabash Valley during the relevant time period and Mr. Isby-Israel was acquainted with the process. The grievance process includes an attempt to resolve the complaint informally, as well as two formal steps: a formal written grievance, and then an appeal of the response to the formal grievance. An offender wishing to file a formal grievance must submit a completed grievance form no later than twenty working days from the date of the incident giving rise to the complaint or concern. Exhaustion of the grievance procedure requires pursuing an appeal to the final step of the grievance process.
Mr. Isby-Israel completed the informal grievance step by requesting conversations with Chaplain Nemergut and writing letters to Teresa Littlejohn, the Grievance Specialist at Wabash Valley Correctional Facility, regarding being denied a kosher diet.
Mr. Isby-Israel failed to submit a formal grievance or a formal appeal regarding his allegations that the defendants failed to provide him with a kosher diet ...