United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON PAVEY HEARING REJECTING AFFIRMATIVE DEFENSE
OF FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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).
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. 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.
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.
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.
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).
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.
Findings of Fact
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.
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 ...