United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PAVEY HEARING REJECTING AFFIRMATIVE DEFENSE
OF FAILURE TO EXHAUST AVAILABLE
J. McKINNEY, JUDGE.
a civil rights action brought pursuant to 42 U.S.C. §
1983 by Jeremiah Farmer, an inmate formerly confined at the
Pendleton Correctional Facility (“Pendleton”).
Mr. Farmer alleges that defendants Gerard Spears, Dr. Ron
Westrate, and Dr. Herb Troyer were deliberately indifferent
to his serious medical needs when they failed to provide
adequate mental health treatment and removed him from the
Insight Mental Health Program.
defendants asserted as an affirmative defense their
contention that Mr. Farmer failed to comply with the
exhaustion requirement of the Prison Litigation Reform Act
(“PLRA”). The burden of proof as to this defense
rests on the defendants. Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006).
summary judgment, the defendants argued that none of the
three relevant grievances filed by Mr. Farmer were properly
filed beyond the second step of the process. They argued that
the informal and formal steps were completed, but no timely
appeal was filed. Genuine issues of fact existed as to the
circumstances surrounding Mr. Farmer's failure to
complete the third step of the process. The defendants'
motion for summary judgment was denied and a hearing in
accordance with Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008) was scheduled. Pro bono counsel was recruited to
assist Mr. Farmer in preparation for and participation in the
Pavey hearing was conducted on December 14, 2016.
The plaintiff participated by telephone, per his request. Mr.
Farmer was ably represented by recruited counsel Mr. Andrew
McNeil. The defendants appeared by counsel.
Documentary evidence was submitted, as well as testimony from
Mr. Farmer and from the defendants' witness, Grievance
Specialist Camay Francum.
reasons explained in this Entry, the Court finds that the
defendants did not meet their burden of proof by showing that
Mr. Farmer failed to exhaust his available administrative
remedies prior to filing this lawsuit.
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).
PLRA does not [ ] demand the impossible.” Pyles v.
Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016).
“Remedies that are genuinely unavailable or nonexistent
need not be exhausted.” Id. “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. (internal quotation omitted). “In such
cases, the prisoner is considered to have exhausted his
administrative remedies.” Id.
Findings of Fact
following facts having either been stipulated by the parties
or found by the Court to be true for purposes of the issue of
exhaustion based on the ...