United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
T. MOODY, JUDGE
Freeman, a pro se prisoner, is suing Internal
Affairs Officer C. McKinney and Sgt. M. Risner for strip
searching him in violation of the Eighth Amendment.
Defendants move for summary judgment (DE # 57) on the ground
that Freeman failed to exhaust his administrative remedies
before filing suit as required by 42 U.S.C. § 1997e(a).
“Failure 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).
Prison Litigation Reform Act (PLRA) prohibits prisoners from
bringing an action in federal court with respect to prison
conditions “until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).
The parties dispute neither the existence nor terms of the
grievance procedure. What is at issue here is whether the
process became unavailable when Freeman's grievance was
argues that he submitted a grievance (DE # 64-1) on December
15, 2013, which was rejected because it was related to the
“Disciplinary Appeal Process.” That grievance is
stamped “Grievance Office JAN 22 2014” and was
signed by a prison official the same day. Id.
Defendants argue that the grievance was untimely and
improperly raised multiple issues. Pursuant to the grievance
policy, it could have been rejected for either or
both of those reasons. However, defendants have not produced
any evidence showing that it was rejected for any
reason other than being non-grievable because it was related
to the disciplinary appeal process. In the absence of any
evidence to the contrary, it is an undisputed fact that the
grievance was rejected as attempting to grieve a
are only required to exhaust administrative remedies that are
“available.” Woodford v. Ngo, 548 U.S.
81, 102 (2006). The availability of a remedy is not a matter
of what appears “on paper, ” but rather whether
the process was in actuality available for the prisoner to
pursue. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.
2006). Thus, when prison staff hinder an inmate's ability
to use the administrative process, administrative remedies
are not considered “available.” Id. This
grievance was rejected as not grievable and Freeman was
entitled to rely on that contemporaneous determination.
Defendants have not cited to any authority demonstrating that
alternative, after-the-fact reasons for rejecting a grievance
are a basis for finding that a prisoner did not properly
exhaust his administrative remedies.
also argue that the grievance might have been
altered. However they have not presented any evidence in
support of this argument. They have not produced a copy of
the grievance they claim was actually stamped and Dated:
January 22, 2014. Neither have they produced a declaration by
the grievance officer saying that the grievance did not
originally contain any reference to being strip searched. The
only basis for this argument is the fact that part of the
grievance is printed and the rest is written in cursive.
Though true, that alone is insufficient to create a genuine
issue of disputed fact because “inferences relying on
mere speculation or conjecture will not suffice.”
Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401,
407 (7th Cir. 2009). Even if switching to cursive were proof
(which it is not) that the grievance was not entirely written
at one time, this still provides no evidence that the strip
search references were added after the grievance was
there are disputed facts about whether a prisoner properly
exhausted his administrative remedies, the court can hold a
hearing to resolve those disputes. See Pavey v.
Conley, 544 F.3d 739, 742 (7th Cir. 2008). However that
is not the case here. The undisputed evidence shows that
Freeman filed a grievance related to the strip search which
was rejected as not grievable. As such, he exhausted all of
the administrative remedies that were available to him.
Therefore this summary judgment motion must be denied so that
the case can proceed with discovery related to the merits.
part of that discovery process, the parties need to clarify
precisely what they mean when they use the words “strip
search.” When the court screened this case, it
understood a “strip search” to mean that Freeman
was forced to remove his underwear and expose his genitals in
public at the Indiana Dunes State Park. (See DE # 16
at 3.) However, because the Defendants allegedly found
contraband only in Freeman's boot, it is possible that
the words “strip search” are mistakenly being
used by either or both parties to mean that Freeman was
forced to remove his boots. That would not properly be called
a “strip search;” it would not violate the Eighth
Amendment; it would not state a claim. As this case proceeds,
the parties need to clarify in discovery precisely what
events they believe constitute the “strip search”
which allegedly occurred in this case.
Freeman's response was erroneously titled
“Plaintiff's Motion to Deny Defendants Summary
Judgment.” (DE # 62.) It was improper to title that
filing a motion. It was merely a response to defendants'
motion. Therefore, even though defendants' motion for
summary judgment will be denied, Freeman's erroneously
titled “motion” will also be denied.
these reasons, the court DENIES defendants' motion for
summary judgment (DE # 57) and plaintiff's motion to deny