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Taylor v. Gilbert

United States District Court, S.D. Indiana, Terre Haute Division

August 31, 2017

ROBERT TAYLOR, Plaintiff,
v.
OFFICER GILBERT, et al., Defendants.

          ENTRY ON PAVEY HEARING REJECTING AFFIRMATIVE DEFENSE OF FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT

         I. Background

         The plaintiff, Robert Taylor (“Mr. Taylor”), is a federal prisoner incarcerated at the United States Penitentiary - Terre Haute (“USP - Terre Haute”). He brings this lawsuit under the theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He alleges violations of his Eighth Amendment rights. Specifically, he alleges that four officers assaulted him on November 12, 2014, while he was housed in the Special Housing Unit (“SHU”) of the USP-Terre Haute. The defendants are: 1) Correctional Officer Gilbert; 2) Correctional Officer Griffen; 3) Correctional Officer Lotz (incorrectly spelled “Lutz” in the complaint); and 4) Correctional Officer Tarrh.

         The defendants asserted the affirmative defense of failure to exhaust administrative remedies. The defendants' motion for summary judgment on exhaustion was denied on October 13, 2016, but on reconsideration, the Court set the matter for a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).

         The Pavey hearing was conducted on May 8, 2017. Mr. Taylor was present and was ably represented by recruited counsel Nancy Menard Riddle and Mary Nold Larimore.[1] Defendant Lotz was present. All defendants appeared by counsel. Documentary evidence was submitted, as well as testimony from Mr. Taylor and from the defendants' witnesses: Melinda Caulton, Mary Noland, James Lotz, Edward Joslyn, and Stuart Williams.

         For the reasons explained in this Entry, the Court finds that the defendants did not meet their burden of proof by showing that Mr. Taylor failed to exhaust his available administrative remedies prior to filing this lawsuit.

         II. Discussion

         A. Legal Standards

         The 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.

         “Proper 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).

         “The 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.

         B. Findings of Fact

         The following facts have been found by the Court to be true for purposes of the issue of exhaustion based on the testimony and documents presented during the hearing.

         The Bureau of Prisons has promulgated an administrative remedy system which appears at 28 C.F.R. § 542.10, et seq., BOP Program Statement 1330.18, Administrative Remedy Program, and the ...


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