United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING AFFIRMATIVE DEFENSE OF FAILURE TO
EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES
EVANS BARKER, UNITED STATES DISTRICT JUDGE
a civil rights action brought by Terrence Paschall, an inmate
of the Correctional Industrial Facility (“CIF”)
against correctional officer Lester Coats. Coats has
presented as an affirmative defense his contention that
Paschall failed to comply with the exhaustion requirement of
the Prison Litigation Reform Act (“PLRA”) prior
to filing this action.
Court denied Coats's motion for summary judgment based on
Paschall's failure to exhaust his available
Court held a hearing on July 28, 2016, pertaining to the
exhaustion defense. The parameters of the hearing were
established by Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008). The plaintiff was present in person and
represented by counsel. The defendant was present by counsel.
Evidence, including testimony, was submitted. In addition to
evidence presented during the hearing, the Court has
considered the evidence presented in support of and
opposition to the motion for summary judgment.
burden of proof as to this defense rests on the defendant.
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 Coats has not met his burden of proof. His
affirmative defense that Paschall failed to comply with the
exhaustion requirement of the PLRA is therefore overruled.
The Exhaustion Requirement
PLRA requires that a prisoner exhaust his available
administrative remedies before bringing a suit concerning
prison conditions. 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, 90-91 (2006) (footnote
omitted); see also Dale, 376 F.3d at 655 (“In
order to properly exhaust, a prisoner must submit inmate
complaints and appeals ‘in the place, and at the time,
the prison's administrative rules
require.'”)(quoting Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002)).
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, 438 F.3d at 809. “Prison officials may not
take unfair advantage of the exhaustion requirement, however,
and a remedy becomes ‘unavailable' if prison
employees do not respond to a properly filed grievance or
otherwise use affirmative misconduct to prevent a prisoner
from exhausting.” Id.
Paschall's use of the Exhaustion Process
on the evidence and testimony, the Court finds the following
with respect to Paschall's attempt to use the
administrative remedy process.
was incarcerated at CIF on the date of the incident alleged
in the complaint. CIF maintains a grievance process, which
was in place at the time of the incident and permits inmates
to grieve matters involving prison life, including the acts
alleged in the complaint. The grievance process requires an
inmate to attempt to resolve his complaint informally and
then pursue two formal steps. If an inmate cannot resolve his
grievance informally, he can file a Level I grievance. The
Level I grievance must be filed within twenty business days
from the day of the event that is the subject of the
grievance. If the Level I grievance is not resolved in a
manner that satisfies the inmate, or if he does not receive a
response within 25 working days of submitting the grievance,
he may file a Level II appeal to the Indiana Department of
Correction's (“DOC”) Grievance Manager. At
CIF, Level I and Level II grievances are filed by placing
them in a secured box in the dining hall. The grievances are
filed a timely Level I grievance with respect to the acts at
issue, but there is no DOC record that he filed a Level II
appeal to the DOC's Grievance Manager. On February 26,
2015, and again on March 6, 2015, the Indiana DOC Ombudsman
Bureau informed Paschall to file an appeal to Central Office
to exhaust the grievance process. Paschall provides a copy of