United States District Court, N.D. Indiana, South Bend Division
CHRISTOPHER L. SCRUGGS, Plaintiff,
SGT. SINCLAIR, et al., Defendants.
OPINION AND ORDER
L. Scruggs, a pro se prisoner, is proceeding on
claims that Sgt. SinClair, Sgt. Miller, Sgt. Penny, Lt.
Creasy, Officer Mahoney, Officer Murray, Officer Finn,
Officer Kearby, Officer Juan, and Officer Szkop (“the
Defendants”) denied him access to water at the
Westville Control Unit between December 5, 2015 and December
11, 2015. The Defendants moved for summary judgment on the
basis that Scruggs failed to exhaust his administrative
remedies before filing suit. ECF 54.
preliminary matter, Scruggs has filed numerous motions
related to Defendants' motion for summary judgment.
Scruggs has filed a motion to strike Defendants' motion
for summary judgment (ECF 71); a motion requesting a hearing
regarding his claim that Defendants submitted altered
documents and perjurious testimony (ECF 72); a motion to
reconsider the court's denial of his motion to strike
(ECF 73); and a motion for sanctions (ECF 79). Each of his
motions are related to his claim that Defendants submitted a
false declaration from the Westville Grievance Specialist,
Troy Cambe, in support of their motion for summary judgment.
In Cambe's declaration, he stated that he never received
an amended formal grievance from Scruggs. ECF 54-1 at ¶
33. According to Scruggs, Cambe's statement is disproved
by the fact that Cambe attached the amended grievance to his
declaration. Defendants contend that “[t]here was a
mix-up in paperwork at the facility and the grievance
submitted was a copy of what plaintiff provided as an
attachment to his Complaint.” ECF 58 at 2. Thus,
defendants claim the document was attached in error and that
Cambe was only in possession of the amended grievance because
it was filed in Scruggs' federal complaint.
motions regarding Cambe's declaration will be denied.
“An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). “Parties cannot
thwart the purposes of Rule 56 by creating ‘sham'
issues of fact with affidavits that contradict prior
depositions.” See Bank of Ill. v. Allied Signal
Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir.
1996); see also Beckel v. Wal-Mart Assocs., Inc.,
301 F.3d 621, 624 (7th Cir. 2012). Motions to strike are
usually only granted in circumstances where the contested
evidence causes prejudice to the moving party. Kuntzman
v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D. Ind. 2009).
That is not the case here. When ruling on the motion for
summary judgment, the court is capable of sifting through the
evidence, arguments and purported disputes under the
applicable federal rules and case law, giving each purported
dispute the credit to which it is due. Therefore, there is no
need to strike the affidavits based on admissibility
concerns. There is, likewise, no need for a hearing on these
issues. As discussed in the body of this opinion, there are
material factual disputes that preclude the entry of summary
judgment in favor of Defendants. Defendants may choose to
pursue their affirmative defense by requesting a hearing on
the issue of exhaustion. If such a hearing is held, Scruggs
is free to raise the issue of Cambe's receipt of the
amended formal grievance. If no hearing is held, and
Defendants withdraw their affirmative defense, this issue
will be rendered moot.
also seeks sanctions against Cambe and Deputy Attorney
General Scheil pursuant to Fed.R.Civ.P. 11. According to
Scruggs, Cambe and Deputy Attorney General Scheil knowingly
submitted false statements in Cambe's declaration in
furtherance of Defendants' motion for summary judgment.
ECF 79 at 1. Defendants argue that “Troy Cambe is not a
party to this lawsuit and therefore does not meet the
requirement of being an attorney or unrepresented party under
[Rule 11].” ECF 82 at 1. Defendants deny that their
motion was submitted in violation of Rule 11 and deny that
Cambe's declaration contains perjury. Id. at 2.
Defendants' responses (ECF 82, 83) leave much to be
desired. In particular, the responses do not explain why the
amended formal grievance attached to Cambe's declaration
does not contain a file stamp demonstrating that it was filed
with Scruggs' complaint, if the only reason Cambe was in
possession of the document was because it was filed as an
exhibit to the complaint. Defendants also do not explain why
Cambe, a non-party, would be in possession of the complaint.
Nevertheless, there is insufficient evidence to substantiate
Scruggs' claim that Cambe and Deputy Attorney General
Scheil acted in bad faith in violation of Rule 11. Thus, the
motion for sanctions will be denied.
Scruggs seeks the appointment of pro bono counsel.
ECF 76, 95. When confronted with a request for pro
bono counsel under § 1915(e)(1), the court is to
make the following inquires: “(1) has the indigent
plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent
to litigate it himself?” Pruitt v. Mote, 503
F.3d 647, 654 (7th Cir. 2007) (en banc). If the litigant has
made no reasonable attempts to secure counsel on his own,
“the court should deny [the request] outright.”
Jackson v. County of McLean, 953 F.2d 1070, 1073
(7th Cir. 1992). While Scruggs claims that he has contacted
20 attorneys for representation in his various cases (ECF 76
at 1), he presents no evidence of more than one of these
requests (see ECF 93), and no evidence that he
sought representation for this case in particular.
claims that he needs counsel in order to adequately respond
to Defendants' motion for summary judgment. The court
disagrees. “The decision whether to recruit pro
bono counsel is grounded in a two-fold inquiry into both
the difficulty of the plaintiff's claims and the
plaintiff's competence to litigate those claims
himself.” Pruitt, 503 F.3d at 655. The record
in this case demonstrates that Scruggs is more than capable
of presenting arguments in furtherance of his lawsuit and in
opposition to Defendants' motion. His filings have all
demonstrated a good grasp of the facts and basic legal
principles applicable to his claims. Moreover, the motion is
moot at this time, as Defendants' motion for summary
judgment is already fully briefed, and will be denied. There
is, therefore, no need for the appointment of counsel to
assist Scruggs in opposing the motion.
to the merits, summary judgment must be granted when
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A genuine issue of material
fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). To determine whether a genuine issue of
material fact exists, the court must construe all facts in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Heft v.
Moore, 351 F.3d 278, 282 (7th Cir. 2003). Nevertheless,
a party opposing summary judgment may not rely on allegations
or denials in his or her own pleading, but rather must
“marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat'l
Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
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 failure to exhaust is an affirmative
defense on which the defendant bears the burden of proof.
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
The U.S. Court of Appeals for the Seventh Circuit has taken a
“strict compliance approach to exhaustion.”
Id. Thus, “[t]o exhaust remedies, a prisoner
must file complaints and appeals in the place, and at the
time, the prison's administrative rules require.”
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002). “[A] prisoner who does not properly take each
step within the administrative process has failed to exhaust
state remedies.” Id. at 1024.
inmates 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, such
as by failing to provide him with the necessary forms,
administrative remedies are not considered
“available.” Id. In essence,
“[p]rison officials may not take unfair advantage of
the exhaustion requirement . . . and 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.”
Dole, 438 F.3d at 809. When there are disputed
issues of fact pertaining to whether the plaintiff exhausted
or was precluded from doing so, the court is required to hold
an evidentiary hearing to resolve those disputes. Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
Scruggs was incarcerated at Westville Correctional Facility
(Westville) during all times relevant. ECF 55 at 3. Pursuant
to Indiana Department of Correction (IDOC) policy, Westville
has a grievance procedure in place for inmates to grieve a
broad range of issues, including their living conditions and
actions of prison staff. ECF 54-1 at 2-7; Offender Grievance
Process, § 00-02-301. The grievance process has three
steps: an attempt at informal resolution; submission of a
formal grievance; and submission of an appeal. ECF 54-1. The
first step requires the inmate to try to resolve his dispute
informally by contacting an appropriate staff member within
five working days of the underlying incident. ECF 54-1 at 2.
If the issue cannot be resolved informally, the inmate may
file a formal grievance. ECF 54-1 at 3. The formal grievance
must be filed within five business days of the date the
offender (i) received notice that there would not be an
informal resolution to his grievance; (ii) within five
business days of the date the offender refused the informal
resolution offered by prison staff; or (iii) by the tenth
business day after the offender first sought relief through
the informal grievance process. Id. A formal
grievance must be submitted within 20 business days from the
incident giving rise to the prisoner's complaint.
Id. If the grievance submitted by the offender is
rejected during the screening process, it is returned to the
offender, along with a form explaining why the formal
grievance was rejected and permitting the offender to
properly resubmit his grievance within five business days.
Id. On the other hand, if the grievance has been
properly submitted and passed through the screening process,
it is logged, assigned a case number, and the offender is
provided with a notice of receipt. Id. If
dissatisfied with the grievance response, or if he did not
receive a response within 20 business days of submission, the
offender may file an appeal to IDOC's central office.
Id. at 4.
parties agree that Scruggs filed a formal grievance
concerning the allegations at issue in this lawsuit on
December 21, 2015. ECF 55 at 3; ECF 57 at 2. The parties
further agree that the Grievance Specialist, Troy Cambe,
returned Scruggs' formal grievance to him because Scruggs
had not yet utilized the informal grievance process, as
required by IDOC policy. ECF 57 at 2. Cambe instructed
Scruggs that in order to file a proper formal grievance, he
could not request staff discipline, and he would have to
utilize the informal grievance process. ECF 54-1 at 36-39.
The parties also agree that Scruggs never submitted an appeal
to the IDOC's central office. ECF 57. Scruggs admits that
he did not complete the grievance process, but claims that it
was due to Cambe's interference. ECF 57 at 1.
are two material facts in dispute, and both center on
Cambe's interactions with Scruggs. First, the parties
contest whether Scruggs ever resubmitted his formal grievance
to Cambe after his December 21, 2015 grievance was returned
to him. Scruggs claims that he resubmitted his formal
grievance to Cambe on January 7, 2016, but that he never
received a response. ECF 57 at 2.Defendants argue that Cambe
never received a resubmitted formal grievance.
the parties dispute whether the grievance appeal process was
available to Scruggs. According to Scruggs, he informed Cambe
on several occasions that he wished to submit an appeal. ECF
57 at 8. Scruggs argues that Cambe prevented him from filing
his grievance appeal because he failed to address the
resubmitted formal grievance. He claims that because Cambe
refused to review the resubmitted grievance, his grievance
was not assigned a case number. He claims that he could not
submit an appeal without a case number. ECF 57 at 3. ...