United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
T. MOODY JUDGE
Alfred Vela, a prisoner represented by counsel in this
matter, sued Corizon Health Inc. and Joseph Thompson,
claiming that he received inadequate medical care while
incarcerated which lead to paraplegia. (DE # 1.) Defendants
have moved for summary judgment on plaintiff's claims,
solely on the basis that plaintiff has failed to exhaust his
available administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a). (DE # 18.) Specifically, defendants point to
plaintiff's failure to file a formal grievance with the
prison before filing suit, a fact which is undisputed.
preliminary matter, the Seventh Circuit has clearly stated a
preference for separating exhaustion inquiries from summary
judgment proceedings. Wagoner v. Lemmon, 778 F.3d
586, 592 (7th Cir. 2015). As the Wagoner court
explained, summary judgment is designed to determine whether
any issues of fact must be resolved by a jury, while the
issue of exhaustion is not a question for the jury, but
instead is a preliminary issue for the court. Id.
Accordingly, though defendants styled their motion as one
seeking “summary judgment, ” the court construes
it as a motion for dismissal given plaintiff's failure to
exhaust administrative remedies.
is an affirmative defense, and consequently the burden of
proof is on defendants. Kaba v. Stepp, 458 F.3d 678,
681 (7th Cir. 2006). When there are no disputed facts
regarding exhaustion, only a legal question, the court may
resolve the issue without a hearing. Brown v. Korte,
No. 15-CV-3288, 2016 WL 3556992, at *2 (C.D. Ill. June 24,
2016); Doss v. Gilkey, 649 F.Supp.2d 905, 912 (S.D.
Ill. 2009). However, when factual disputes exist, district
courts should hold a hearing to determine whether a plaintiff
has exhausted his remedies. Pavey v.Conley, 544 F.3d
739, 742 (7th Cir. 2008).
Pavey the Seventh Circuit set forth the following
sequence to be followed when the question of exhaustion
requires a hearing:
(1) The district judge conducts a hearing on exhaustion and
permits whatever discovery relating to exhaustion he deems
(2) If the judge determines that the prisoner did not exhaust
his administrative remedies, the judge will then determine
whether (a) the plaintiff has failed to exhaust his
administrative remedies, and so he must go back and exhaust;
(b) or, although he has no unexhausted administrative
remedies, the failure to exhaust was innocent (as where
prison officials prevent a prisoner from exhausting his
remedies), and so he must be given another chance to exhaust
(provided that there exist remedies that he will be permitted
by the prison authorities to exhaust, so that he's not
just being given a runaround); or (c) the failure to exhaust
was the prisoner's fault, in which event the case is
(3) If and when the judge determines that the prisoner has
properly exhausted his administrative remedies, the case will
proceed to pretrial discovery, and if necessary a trial, on
the merits; and if there is a jury trial, the jury will make
all necessary findings of fact without being bound by (or
even informed of) any of the findings made by the district
judge in determining that the prisoner had exhausted his
Id. at 742.
case, there are several issues which the court can resolve
based on undisputed facts as a matter of law, and one that
warrants further exploration and a hearing, as explained
Effective Compliance Via Medical Requests
plaintiff argues that he effectively complied with the
prison's formal grievance procedure by submitting several
requests for medical treatment on a separate type of form.
However, these medical requests are not grievances within the
meaning of § 1997e(a). The Seventh Circuit has held:
“For a prisoner to exhaust his remedies within the
meaning of § 1997e(a), he must ‘file complaints
and appeals in the place, and at the time, the prison's
administrative rules require.'” Burrell v.
Powers,431 F.3d 282, 285 (7th Cir. 2005) (quoting
Pozo v. McCaughtry,286 F.3d 1022, 1025 (7th Cir.
2002)). Neither the Supreme Court nor the Seventh Circuit has
held that actions other than filing a formal grievance can
constitute the functional equivalent of filing a grievance,
and it is undisputed that the prison in which plaintiff was
housed did not allow for medical requests to substitute as
grievances. Accordingly, plaintiff's argument fails.
Smith v. Wilson, No. 3:07-CV-338-TS, 2009 WL 395187,
at *3 (N.D. Ind. Feb. 13, 2009) (health ...