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Dailey v. Francum

United States District Court, S.D. Indiana, Indianapolis Division

June 24, 2015

ROBERT G. DAILEY III, Plaintiff,
v.
TOM FRANCUM, SGT. MASON, SUPT. FINNAN, and DONNA CARNAGE, Defendants.

ENTRY ON DEFENDANTS' AFFIRMATIVE DEFENSE

RICHARD L. YOUNG, Chief District Judge.

I. Background

Plaintiff, Robert G. Dailey III, brought this civil rights action pro se pursuant to 42 U.S.C. § 1983, against defendant prison officials, Tom Francum, David Mason, Alan Finnan, and Donna Carneygee. While a prisoner at the Pendleton Correctional Facility ("Pendleton"), Mr. Dailey sustained serious injuries when another prisoner stabbed him with a homemade weapon. Mr. Dailey alleges Defendants violated his Eighth and Fourteenth Amendment rights when they denied his repeated requests for protective custody made in response to threats by gang members.

Defendants asserted the affirmative defense that Mr. Dailey failed to comply with the exhaustion requirement set forth in the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The court held an evidentiary Pavey hearing on February 11, 2015, to determine whether, prior to filing this lawsuit, Mr. Dailey exhausted his administrative remedies as prescribed by the Indiana Department of Corrections ("IDOC"). See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Mr. Dailey attended the hearing in person and by counsel. Defendants were present by counsel. In addition to documentary evidence, the court heard testimony from Mr. Dailey and prison staff, Wayne Scaife and Danny Fountain.

The Defendants bear the burden of proof as to this defense. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). For reasons set forth below, the court finds that Defendants did not meet their burden of showing that Mr. Dailey failed to exhaust his administrative remedies.

II. Discussion

A. Legal Standards

The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust his available administrative remedies before filing a lawsuit concerning prison conditions. 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Cottman v. Richardson, 1:13cv-01793-JMS-DML, 2014 WL 3846051, at *1 (S.D. Ind. Aug. 5, 2014) (quoting Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). To exhaust available remedies, the prisoner must adhere fully to the prescribed steps until the administrative authority cannot take any further action. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).

The Seventh Circuit requires strict adherence to the PLRA's exhaustion requirement. Id. Although exhaustion must occur before the prisoner files the lawsuit, Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004), the prisoner need only exhaust those remedies available to him. § 1997e(a); Dole, 438 F.3d at 809. If prison staff fail to respond to a properly filed grievance or take affirmative steps to obstruct the grievance process, that remedy becomes unavailable to the prisoner. Id .; see also Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) ("[W]hen prison officials prevent inmates from using the administrative process..., the process that exists on paper becomes unavailable in reality.").

B. Findings of Fact

Having considered the evidence presented at the hearing, the court makes the following findings of fact:

1. The Grievance Process

The IDOC's administrative Grievance Policy consists of three mandatory steps set forth in the Offender Grievance Process, effective as of January 1, 2010. ( See Ind. Dep't of Corr. Manual of Policies and Procedures No. 00-02-301 ("Grievance Policy"), at 14-26). First, the prisoner must attempt to resolve the issue informally with either the staff person responsible for the situation or the person in charge of the area where the situation occurred. ( Id. at 14). Second, if the prisoner finds no informal resolution, he may submit a formal grievance form to the executive assistant. ( Id. at 16). The executive assistant must, within seven days, provide the prisoner a receipt of submission unless the grievance form is deemed unacceptable. ( Id. at 17). A rejected grievance form must be returned to the prisoner with an explanation of how to remedy any deficiencies. ( Id. at 19). If the prisoner does not receive either a receipt or a rejected form within seven days, the prisoner must notify the executive assistant of that fact. ( Id. at 17). Third, if the response from the executive assistant does not satisfy the prisoner, he may formally appeal the response to the Department Offender Grievance Manager, whose decision constitutes the final administrative disposition. ( Id. at 23, 26). Notably, nowhere in the written Grievance Policy does it warn that failure to adhere to the procedures set forth therein will preclude a civil rights lawsuit.

Wayne Scaife, the executive assistant at Pendleton, is responsible for receiving, processing, and investigating all prisoner grievances at that facility.[1] When Mr. Scaife receives a grievance form, he date stamps it and makes a facial determination of whether the prisoner properly completed the form. For example, Mr. Scaife rejects and returns any grievance form that contains missing information, such as a description of the prisoner's informal attempts to resolve the issue. In such a case, the grieving prisoner receives the rejected grievance form and an accompanying "return of grievance" form that explains how the prisoner can remedy the deficiencies. If, and only if, Mr. Scaife finds the grievance form acceptable, he logs it into the offender ...


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