United States District Court, N.D. Indiana, South Bend Division
MARIO T. BARDLETTE, Plaintiff,
TIMOTHY REDDEN, Defendant.
OPINION AND ORDER
P. Simon, Judge United States District Court.
T. Bardlette, a pro se prisoner, filed this action
under 42 U.S.C. § 1983 alleging Lt. Timothy Redden used
excessive force against him on April 22, 2016. He claims
that, while being escorted by Redden at the Indiana State
Prison (ISP), Redden pushed him into a glass-pane door,
cutting his hand and requiring medical attention. Based on
this event, I granted Bardlette leave to proceed on his
Eighth Amendment claim against Redden. The parties now filed
cross-motions for summary judgment as to whether Bardlette
exhausted his administrative remedies, as required by 42
U.S.C. § 1997e(a). ECF 23. Because there is a genuine
dispute as to whether the grievance process was available to
Bardlette, the motions will be denied.
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).
the undisputed facts show that Bardlette was housed at ISP
from February 19, 2009, to August 25, 2016, and that ISP has
a formal grievance process in place. ECF 23-1 at 5; ECF 26 at
1, ¶ 2. The grievance process has three steps: an
attempt at informal resolution, submission of a written
grievance and filing an appeal. ECF 23-1 at 2-3. The prison
keeps a record of all filed grievances, and those records do
not show that Bardlette filed a grievance regarding the
events giving rise to this lawsuit while housed at ISP.
Id. at 4. The records reveal that he filed a formal
grievance on March 23, 2017, which was returned to him as
untimely. ECF 23-5 at 4. There is no record that Bardlette
filed an appeal. Id.
on these facts, the Defendant argues that this case should be
dismissed because Bardlette has not exhausted his
administrative remedies as required by 42 U.S.C. §
1997e(a). To 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). The
Seventh Circuit takes a “strict compliance approach to
exhaustion[, ]” which means that a prisoner must take
each of the required steps in the process. Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Failure to
exhaust is an affirmative defense on which the defendant
bears the burden of proof. Id.
does not dispute that he did not go through the prison's
grievance process before he filed this case, but he has
submitted affidavits alleging that the prison's grievance
process was unavailable to him. ECF 18-1; ECF 26. Bardlette
asserts that he filed numerous formal grievances that were
discarded by Redden and other prison officials. ECF 18-1 at
1. He also states that it was physically impossible for him
to follow the grievance process because after the incident he
was “housed in the SMC cell with no writing utensils
and no paper for roughly a week, then moved back to his
original cell location and left with nothing but a mattress
and bedding for 4-5 more days.” ECF 26 at 1.
Additionally, Bardlette claims that he was threatened by
Officer Sayger not to file a prison grievance. ECF 26-3. And,
finally, he sets forth that by the time he received paper and
a pencil, he was informed by a prison guard that it was too
late to file a grievance. Id.
applicable law, a prisoner can be excused from failing to
exhaust if the grievance process was effectively unavailable.
Woodford v. Ngo, 548 U.S. 81, 102 (2006); Kaba
v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006);
Dole, 438 F.3d at 809. An administrative remedy is
unavailable, for example, “if prison employees do not
respond to a properly filed grievance or otherwise use
affirmative misconduct to prevent a prisoner from
exhausting” his remedies. Dole, 438 F.3d at
812. In determining whether an administrative remedy was
effectively unavailable, the question is whether the inmate
did “all that was reasonable to exhaust” under
the circumstances. Id.
the Defendant requests summary judgment, arguing that
Bardlette's version of events is simply implausible in
light of the record. But I will not so readily discount
Bardlette's affidavit. Bardlette's averments create
an issue of fact that need to be sorted out in a hearing.
Though Bardlette's account is in conflict with some
evidence in the record, it is not inherently incredible.
Thus, whether Bardlette's version of events is true or
not is simply a matter of credibility, and to make a
credibility determination without a hearing would amount to
an improper weighing of the evidence. Washington v.
Haupert, 481 F.3d 543, 550 (7th Cir. 2007); Wilson
v. Williams, 997 F.2d 348, 350 (7th Cir. 1993). Unless
the Defendant elects to withdraw his exhaustion defense, it
will be necessary to hold a hearing pursuant to
Pavey to resolve the factual disputes identified in
is true that Bardlette was prevented from exhausting the
grievance process, then his failure to do so does not amount
to a failure to exhaust his administrative remedies. See
Woodford v. Ngo, 548 U.S. 81, 102 (2006) (inmates only
required to exhaust administrative remedies that are
available to them). Summary judgment cannot be granted based
on the present record and the motions will be denied.
parties' motions for summary judgment (ECF 18, 23) are
fourteen (14) days of this order, the Defendant is ORDERED to
file a notice advising whether he elects to withdraw his
exhaustion defense or proceed with a hearing pursuant to
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). If a
hearing is necessary, this matter ...