United States District Court, N.D. Indiana, South Bend Division
JAMES H. HIGGASON, JR., Plaintiff,
ROBERT CARTER, Defendant.
OPINION AND ORDER
P. SIMON UNITED STATES DISTRICT JUDGE.
H. Higgason, Jr., a prisoner without a lawyer, is proceeding
in this case on an injunctive relief claim that he is in
imminent danger of serious physical injury because he has
been missing a dental crown since March 21, 2017. The
defendant filed a motion for summary judgment, arguing
Higgason failed to exhaust his administrative remedies, as
required by 42 U.S.C. § 1997e(a). (ECF 33.)
“Exhaustion is explicitly required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), and there
is no exception for prisoners who allege ‘imminent
danger' in order to be excused from having to pay the
entire filing fee at the time the suit is brought. Imminent
danger excuses only that, and not the duty to exhaust as
well.” Fletcher v. Menard Corr. Ctr., 623 F.3d
1171, 1173 (7th Cir. 2010) (citations omitted).
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,
I 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). However, a party opposing a properly
supported summary judgment motion may not rely merely on
allegations or denials in its 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).
to the Prison Litigation Reform Act, prisoners are prohibited
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.
support of the summary judgment motion, the defendant
submitted the declaration of Angela Heishman. She declared,
“I have examined a history of grievances for Offender
Higgason and his returned grievances, to determine whether
Offender Higgason filed a formal grievance or formal appeal
regarding Commissioner Carter or his dental crown [and]
Offender Higgason did not file a formal grievance or formal
appeal regarding Commissioner Carter or his dental
crown.” ECF 25-1 at 4.
response, Higgason argues no administrative remedies existed
because “[a]n excessive physical force claim is not a
matter that is appropriate for the Offender Grievance
Process.” ECF 34 at 2. Higgason argues his dental crown
was knocked out by a guard using excessive force. However,
this case is not about excessive force or how he lost his
crown. This case is only about his need for dental treatment.
argues, “[t]he replacement of Higgason's
lost/missing dental crown is not a matter that's
appropriate for the Offender Grievance Process, because the
dental staff that is employed by the Indiana Department of
Corrections (IDOC), is not under contract to provide
prisoners with a dental crown.” ECF 34 at 2. However,
“[e]xhaustion is necessary even if the prisoner is
requesting relief that the relevant administrative review
board has no power to grant, such as monetary damages, or if
the prisoner believes that exhaustion is futile. The sole
objective of [42 U.S.C.] § 1997e(a) is to permit the
prison's administrative process to run its course before
litigation begins.” Dole v. Chandler, 438 F.3d
804, 808-809 (7th Cir. 2006) (citations and quotation marks
Higgason offers a grievance he submitted on February 23,
2018, which was rejected by prison officials for various
reasons. This document is meaningless for two reasons. First,
it is not complaining about a need for dental care related to
the missing crown at issue in this case. Second, it was filed
more than five months after this lawsuit was filed. As the
Seventh Circuit has explained, “[s]ection 1997e(a) says
that exhaustion must precede litigation. Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (emphasis
added). “[A] suit filed by a prisoner before
administrative remedies have been exhausted must be dismissed
. . . even if the prisoner exhausts intra-prison remedies
before judgment.” Perez v. Wisconsin Dep't of
Corr., 182 F.3d 532, 535 (7th Cir. 1999).
summary judgment must be granted and this case closed.
Higgason cannot obtain relief for his dental problem in this
case, but that does not mean he is without any possible
remedy. To the extent he continues to have a dental problem
because he has an exposed, uncrowned tooth, he can file a
grievance about that today. In his grievance he needs to
describe his problem and ask for dental treatment for that
tooth. Hopefully, his grievance will be successful and he
will obtain dental treatment for the uncrowned tooth.
However, if he does not, he may then file another lawsuit
after he has exhausted his administrative remedies by
appealing to the final step.
these reasons, the motion for summary judgment (ECF 23) is
GRANTED. The clerk is DIRECTED to ...