United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Daher, Jr., a pro se prisoner, was granted leave to
proceed on a First Amendment claim that the defendants placed
him in segregation in retaliation for filing grievances at
the Miami Correctional Facility (Miami). ECF 12. Daher was
also given leave to proceed on an Eighth Amendment claim that
he was purposely housed under substandard conditions while in
segregation. Id. Following a hearing pursuant to
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), the
court found that Daher had not exhausted his administrative
remedies as to these claims and dismissed this case. ECF 80.
However, the Seventh Circuit ruled that a second
Pavey hearing was necessary and the case was
remanded. Daher v. Sevier, 724 Fed.Appx. 461 (7th
Cir. 2018). On March 5, 2018, the court referred this matter
to Magistrate Judge Michael Gotsch for a second
Pavey hearing to resolve the following factual
(1) whether Daher submitted a formal grievance on September
12, 2011; (2) whether his grievance was returned to him
unfiled for the reasons listed on the return of grievance
form dated November 7, 2011; (3) whether Daher resubmitted
the grievance on November 9, 2011; and (4) if so, how the
resubmitted grievance was handled by prison staff.
ECF 50; 108.
a bit of a surprising move, Daher has filed a motion for
summary judgment, arguing that a second Pavey
hearing is unnecessary. ECF 115. Daher argues that evidence
introduced at the first Pavey hearing establishes he
was not required to exhaust his administrative remedies.
Consequently, Daher seeks summary judgment on the issue of
exhaustion and requests to move on to the merits of his case.
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,
the court 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).
Daher alleges that the evidence introduced at the prior
hearing undisputedly shows that his claims in this lawsuit
were not grievable under Miami's policies. ECF 120 at 6.
His argument is premised on the fact that classification,
housing assignment and segregation issues are not grievable
and, therefore, he had no obligation to use the grievance
process prior to filing his lawsuit. ECF 120 at 6. It is true
that the prior hearing established that issues such as
classification, housing assignment and placement in
segregation are not grievable matters; they are
classification matters. ECF 102 at 20, 59. And, at Miami,
classification matters are non-grievable. ECF 120-1 at 2.
Nevertheless, as the court has pointed out before, ECF 80 at
3, fn 1, Daher's claims are not simply that he was
misclassified and erroneously placed into
Daher was given leave to proceed on claims based on the
defendants' alleged misconduct. Daher's First
Amendment claim is that the defendants retaliated against him
for filing grievances. ECF 12 at 2, 3, 8. His Eighth
Amendment claim is that the defendants housed him under
substandard conditions. Id. at 4, 5, 8. The evidence
introduced at the hearing established that both of these
issues were grievable at Miami. Def. Ex. A; Offender
Grievance Process at p. 5; ECF 102 at 16, 60. Thus, contrary
to Daher's belief, evidence from the first Pavey
hearing indicates that Daher was required to exhaust his
available administrative remedies before filing this lawsuit.
ECF 102 at 16, 80. Consequently, Daher has failed to show
that he is entitled to judgment in his favor as a matter of
if Daher still believes that he was not required to exhaust
his available administrative remedies with respect to the
claims he brings in this lawsuit, he can present evidence and
argument on that point at the upcoming Pavey
these reasons, the motion (ECF 115) for summary judgment is
DENIED. The scheduled September 26, 2018, Pavey
hearing before Magistrate Judge Gotsch is REAFFIRMED.
 If they were, then Daher would not
have been required to exhaust his administrative remedies.
But, that would not get Daher very far because simply
challenging the appropriateness of his classification would
not violate the constitution. Sandin v. Connor, 515
U.S. 472, 486 (1995); see also DeTomaso v. McGinnis,
970 F.2d 211, 212 (7th Cir. 1992) (“[P]risoners possess
neither liberty nor property in their classifications and
prison assignments.”). Simply put, while Daher is
correct that he would ...