United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
T. MOODY JUDGE
Hunter Haury, a pro se prisoner, is proceeding in
this case against Chaplain Phillip Leslie in his individual
capacity for monetary damages for interfering with his right
to worship as a Reform Jew by forcing him to sign a form, on
or around January 24, 2012, asserting that he was
Russian/Greek Orthodox in violation of the First Amendment.
He is also proceeding against Executive Assistant Clair E.
Barnes in her individual capacity for monetary damages for
denying him access to prescribed medication for two weeks in
March 2013 in violation of the Eighth Amendment and for
retaliating against him, on or around March 15, 2013, by
placing him in segregation because he sought legal assistance
to practice his religion.
defendants have filed a summary judgment motion arguing that
Haury did not exhaust his administrative remedies as required
by 42 U.S.C. § 1997e(a). (DE # 50.) With their motion,
they filed the notice required by N.D. Ind. L.R. 56-1(f)
which advised him of the importance of responding to the
motion. (DE # 52.) It included a copy of Federal Rule 56 and
Local Rule 56-1. He was told that if he did not respond he
might not have a trial and he could lose this case. It
informed him that “If you do not agree with the facts
in the motion, you must submit affidavits or other evidence
to dispute those facts.” After receiving the motion and
notice, he has not responded and the time for doing so has
expired. However, before defendants filed their motion, Haury
submitted a statement with exhibits which the court will
consider in resolving the summary judgment motion. (DE # 49.)
to exhaust is an affirmative defense that a defendant has the
burden of proving.” King v. McCarty, 781 F.3d
889, 893 (7th Cir. 2015). In ruling on a summary judgment
motion, the court views all of the facts in the light most
favorable to the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). It cannot
“make credibility determinations, weigh the evidence,
or decide which inferences to draw from the facts; these are
jobs for a factfinder.” Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003). Summary judgment is not a
substitute for a trial on the merits or a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead, the
sole task in ruling on a motion for summary judgment is
“to decide, based on the evidence of record, whether
there is any material dispute of fact that requires a
trial.” Payne, 337 F.3d at 770. If a
reasonable factfinder could find in favor of the nonmoving
party, summary judgment may not be granted. Id.
Nevertheless, summary judgment “is the put up or shut
up moment in a lawsuit . . ..” Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).
it is undisputed that there was a grievance system and that
Haury was obligated to use it before filing suit. (DE # 50-1
and DE # 49.) Haury has presented a number of grievances that
he filed or attempted to file, but none of them are related
to his claim that Chaplain Phillip Leslie interfered with his
right to worship as a Reform Jew by forcing him to sign a
form, on or around January 24, 2012, asserting that he was
Russian/Greek Orthodox. (See DE # 49 at ¶ 7.)
Therefore summary judgment will be granted in favor of
Chaplain Phillip Leslie.
has presented three grievances he attempted to file in
relation to his claim that Executive Assistant Clair E.
Barnes denied him access to prescribed medication for two
weeks in March 2013 and retaliated against him, on or around
March 15, 2013, by placing him in segregation because he
sought legal assistance to practice his religion. (DE # 24 at
79, 84, and 87.) Each of them were rejected because they did
not comply with the prison's grievance policy.
(Id. at 78, 83, and 86.) The rejection of a
grievance must explain “what correction he needed to
make to have the grievance processed.” Hill v.
Snyder, 817 F.3d 1037, 1040 (7th Cir. 2016).
In each of these three rejections, Haury was given specific
instructions as to how he could cure the deficiencies. In all
three cases he was informed:
There is no indication that you tried to resolve this
complaint informally. If you have tried to resolve it
informally, please fill out the grievance form to indicate
that. If you have not tried to resolve it informally, you
have five days to begin that process. (This error is NOT
subject to the 5 day return notice at the bottom of this
(DE # 24 at 78, 83, and 86.) All three rejections notified
him to “Contact Ms. Ivers in the medical department to
attempt an informal resolution. Use the space provided on the
grievance form and attach additional pages if
necessary.” (Id.) One of them also explained
that “There is not enough information in this form to
warrant an investigation. Names of the staff members
involved.” (Id. at 86.) Despite these specific
instructions, Haury makes no mention of having contacted Ms.
Ivers nor of filing another grievance.
United States Court of Appeals for the Seventh Circuit takes
a “strict compliance approach to exhaustion.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
“To exhaust remedies, a prisoner must file complaints
and appeals in the place, and at the time, the prison's
administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
“[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state
remedies.” Id. at 1024. Because Haury did not
do so, summary judgment will be granted in favor of Executive
Assistant Clair E. Barnes.
to McCarthy v. Madigan, 503 U.S. 140 (1992), Haury
argues that exhaustion is unnecessary under several
circumstances including futility. However, McCarthy
predates the Prisoner Litigation Reform Act (PLRA) and the
United States Supreme Court has acknowledged that the PLRA
“strengthened th[e] exhaustion provision in several
ways.” Woodford v. Ngo, 548 U.S. 81, 85
(2006). The Supreme Court has also explained that there is no
futility exception to the PLRA's exhaustion requirements.
Booth v. Churner, 532 U.S. 731, 741, n.6 (2001).
“Exhaustion is necessary even if the prisoner is
requesting relief that the relevant administrative review
board has no power to grant, such as monetary damages, or if
the prisoner believes that exhaustion is futile. The sole
objective of [42 U.S.C.] § 1997e(a) is to permit the
prison's administrative process to run its course before
litigation begins.” Dole v. Chandler, 438 F.3d
804, 808-809 (7th Cir. 2006) (citations and quotation marks
omitted). Because Haury did not exhaust in this case, summary
judgment will be granted for the defendants.
these reasons, the defendants' motion for summary
judgment (DE # 50) is GRANTED and this case is DISMISSED