United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON PAVEY HEARING DENYING AFFIRMATIVE DEFENSE OF
FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES
William T. Lawrence, Judge
a civil rights action brought pursuant to 42 U.S.C. §
1983 by Samuel Davis, who was formerly confined at Wabash
Valley Correctional Facility (“Wabash Valley”).
Mr. Davis alleges that, while he was incarcerated at Wabash
Valley, the defendants violated his Eighth Amendment rights
when they used excessive force against him on July 6, 2016,
by closing his cell door, pinning him between the door and
defendants asserted as an affirmative defense their
contention that Mr. Davis failed to comply with the
exhaustion requirement of the Prison Litigation Reform Act
(“PLRA”). The burden of proof as to this defense
rests on the defendants. Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006).
summary judgment, the Court determined that there was a
genuine issue of material fact as to whether Mr. Davis
submitted a second level appeal of grievance #92992 relating
to the July 6, 2016 Incident.
the defendants' motion for summary judgment was denied, a
hearing in accordance with Pavey v. Conley, 544 F.3d
739 (7th Cir. 2008) was scheduled. Pro bono counsel was
recruited to assist Mr. Davis in preparation for and
participation in the hearing.
Pavey hearing was conducted on March 27, 2018. Mr.
Davis was present. He was ably represented by recruited
counsel Mr. Daniel Bowman. The defendants appeared by counsel.
Documentary evidence was submitted, as well as testimony from
Grievance Specialist Teresa Littlejohn and Law Librarian
reasons explained in this Entry, the Court finds that the
defendants failed to meet their burden of proof and
therefore, failed to show that Mr. Davis failed to exhaust
his available administrative remedies with respect to the
July 6, 2016 Incident 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).
noted, it is the burden of the defendants to establish that
the administrative process was available to Mr. Davis.
See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir.
2015) (“Because exhaustion is an affirmative defense,
the defendants must establish that an administrative remedy
was available and that [the plaintiff] failed to pursue
it.”). “[T]he ordinary meaning of the word
‘available' is ‘capable of use for the
accomplishment of a purpose, ' and that which ‘is
accessible or may be obtained.'” Ross v.
Blake, 136 S.Ct. 1850, 1858 (2016) (internal quotation
omitted). “[A]n inmate is required to exhaust those,
but only those, grievance procedures that are capable of use
to obtain some relief for the action complained of.”
Id. at 1859 (internal quotation omitted).
circuit has taken a strict approach to exhaustion.”
Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir.
2018). “An inmate must comply with the administrative
grievance process that the State establishes, at least ...