United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING MOTION FOR SUMMARY JUDGMENT
J. McKINNEY, JUDGE
Phillip Littler, who at all relevant times was and remains
incarcerated at Wabash Valley Correctional Facility, brought
this action pro se against several correctional officers and
two Medical Defendants, Nurse Bender and Corizon, Inc. The
plaintiff alleges that the correctional officers used
excessive force against him during a cell extraction on
November 13, 2015, and the Medical Defendants are liable for
their failure to provide medical treatment for his injuries
sustained during that extraction.
the Medical Defendants asserted the affirmative defense that
the plaintiff failed to exhaust his administrative remedies
before filing this action as required by the Prison
Litigation Reform Act (“PLRA”). Before the Court
is the Medical Defendants' motion for summary judgment on
this affirmative defense. The plaintiff has responded. For
the reasons explained below, the Medical Defendants'
motion for summary judgment is denied because there are
issues of material fact that must be resolved at a hearing
pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir.
PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . until
such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e; see Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). The exhaustion
requirement “is an affirmative defense that a defendant
has the burden of proving.” King v. McCarty,
781 F.3d 889, 893 (7th Cir. 2015).
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 (citation omitted). Moreover, the “exhaustion
requirement is strict. A prisoner must comply with the
specific procedures and deadlines established by the
prison's policy.” King, 781 F.3d at 893.
the same time, the [PLRA] requires exhaustion only of
remedies that are ‘available.'” Id.
“Prison officials may not take unfair advantage of the
exhaustion requirement, ” and if they do, their conduct
can make the remedy process “unavailable.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
“Administrative remedies are primarily
‘unavailable' to prisoners where ‘affirmative
misconduct' prevents prisoners from pursuing
administrative remedies.” Hernandez v. Dart,
814 F.3d 836, 842 (7th Cir. 2016); see Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (“[W]hen
prison officials prevent inmates from using the
administrative process . . . the process that exists on paper
becomes unavailable in reality.”).
Grievance Process in effect during the relevant time required
the plaintiff to (1) file an informal grievance; (2) file a
formal grievance; and (3) file a grievance appeal. The
Medical Defendants present evidence that the plaintiff
submitted only one grievance regarding the cell extraction at
issue in this case, and it only complained of excessive force
during the extraction, not deficient medical care. The
plaintiff presents evidence-by way of his own statements
sworn under the penalty of perjury-that the Grievance
Specialist refused to file his grievance regarding his
medical care because he had already filed a grievance
regarding the cell extraction. The plaintiff asserts that the
policy at Wabash Valley is that an inmate can only file one
grievance per occurrence, even if, as here, the inmate wishes
to grieve about entirely different aspects of a single
occurrence. The Grievance Specialist invoked this policy, the
plaintiff says, when she refused to accept his grievance.
short, there is a factual dispute between the parties as to
whether the administrative remedy process was available to
the plaintiff regarding his medical claims stemming from the
November 13, 2015, cell extraction. As noted above, inmates
must only exhaust administrative remedies that are
“available.” King, 781 F.3d at 893. And
administrative remedies are unavailable when “prison
officials prevent inmates from using the administrative
process.” Kaba, 458 F.3d at 684; see
Hernandez, 814 F.3d at 842. If, as the plaintiff
attests, the Grievance Specialist refused to accept his
grievance regarding his medical treatment following the cell
extraction at issue, he was prevented from using the
administrative remedy process, making it unavailable to him.
The parties' dispute regarding the availability of the
administrative remedy process cannot be resolved on summary
judgment; it must instead be resolved at a Pavey
Medical Defendants' motion for summary judgment, dkt.
, is denied for the reasons set forth above. A
Pavey hearing will be set by separate entry. The
action remains stayed except for activities associated with
the development and resolution of the affirmative defense
that the plaintiff failed to exhaust his administrative
remedies as to the Medical Defendants, or any other matter
directed by the Court. If the Medical Defendants wish to
withdraw their affirmative defense in lieu of having a
Pavey hearing, they must do so by April 17, 2017.
Court will attempt to recruit volunteer counsel to assist the
plaintiff with the Pavey hearing. The Magistrate
Judge is requested to hold a pre-Pavey status
conference once the Court has recruited counsel to assist the
plaintiff with the Pavey hearing.
plaintiffs motion to compel discovery regarding the issue of
exhaustion, dkt. , is denied without prejudice. The
plaintiff will be given an opportunity to conduct ...