United States District Court, S.D. Indiana, Indianapolis Division
ENTRY SUSTAINING DEFENSE OF FAILURE TO EXHAUST
AVAILABLE ADMINISTRATIVE REMEDIES AND DIRECTING ENTRY OF
William T. Lawrence, Judge
civil rights action brought by Mr. Neely-Bey Tarik-El, he
alleges his rights under the First Amendment were violated by
the defendants when they allegedly enforced a restriction
placed on him by the Moorish Science Temple of America that
suspended him from participating in religious services. His
claims are brought pursuant to 42 U.S.C. § 1983. He
seeks injunctive relief.
defendants have presented as an affirmative defense their
contention that Mr. Neely-Bey Tarik-El failed to comply with
the exhaustion requirement of the Prison Litigation Reform
Act (PLRA) prior to filing this action. Specifically, the
defendants argue that Mr. Neely-Bey Tarik-El failed to file
an appeal of the denial of his formal grievance.
Court denied the defendants' motion for summary judgment.
The Court held a hearing on June 29, 2016, pertaining to the
exhaustion defense. The parameters of the hearing were
established by Pavey v. Conley, 544 F.3d 739, (7th
Cir. 2008). Mr. Neely-Bey Tarik-El was present in person and
represented by Mr. Nicholas Baker. The defendants were
represented by counsel. Documentary evidence was submitted,
as well as testimony from the plaintiff, plaintiff's
witness James Clemens, and from defendants' witness,
grievance administrator Robert Stafford. The Court has
considered the evidence presented in support of and in
opposition to the motion for summary judgment.
burden of proof as to the 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 set forth in this Entry, the Court
finds that Mr. Neely-Bey Tarik-El did not exhaust his
administrative remedies as required by the PLRA.
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). The statutory
exhaustion requirement is that “[n]o action shall be
brought with respect to prison conditions…by a
prisoner…until such administrative remedies as are
available are exhausted.” 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.” Porter,
534 U.S. at 532.
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 v. Lappin, 376 F.3d 652, 655
(7th Cir. 2004) (“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.”) (internal quotation omitted). “In
order to exhaust administrative remedies, a prisoner must
take all steps prescribed by the prison's grievance
system.” Ford v. Johnson, 362 F.3d 395, 397
(7th Cir. 2004).
Undisputed Findings of Fact
considered the evidence presented at the hearing, the Court
makes the following findings of fact:
Neely-Bey Tarik-El was incarcerated at the Pendleton
Correctional Industrial Facility (“CIF”) at all
time relevant to this action. The Indiana Department of
Correction (“IDOC”) has a three step
administrative remedy process for inmates which is set forth
in the “Offender Grievance Process” policy No.
00-02-301 (“Grievance Policy”). First, an inmate
must attempt to resolve the grievance informally by
communicating with prison staff. Second, if the informal
grievance is not successful, the inmate can file a written
formal grievance with the Executive Assistant. Third, if not
satisfied with the Executive Assistant's response, the
inmate may file an appeal. An appeal must be submitted to the
person, or in the manner, or both, as designated by the
facility for persons living in the offender's housing
unit, within ten working days from the date of the grievance
response. If the offender receives no grievance response
within twenty-five working days of the day he submitted the
grievance, he may appeal as though the grievance had been
denied. In that event, the time to appeal begins on the 26th
working day after the grievance was submitted and ends ten
working days later. (Defendants' Ex. 1, pp. 14-25).
Stafford is the grievance administrator at CIF. He is
responsible for the grievance process at CIF. His
responsibilities as grievance administrator include
collecting grievances and grievance appeals, logging the
grievances and grievance appeals into the Offender Grievance
Review and Evaluation System (“OGRE”),