United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Maymon, a prisoner without a lawyer, was granted leave to
proceed on three claims related to the discontinuation of the
medication Neurontin. Specifically, Maymon asserts that Lisa
Matthews refused to dispense Neurontin to Maymon when it had
been prescribed by a health care provider, and that
Commissioner Robert Carter and Wexford of Indiana medical
supplier implemented a policy prohibiting the use of
Neurontin that resulted in the denial of necessary medication
to treat Maymon's medical conditions since December 6,
2017. The defendants filed the instant motion for summary
judgment arguing that Maymon failed to exhaust his
administrative remedies. Maymon filed several responses to
the motion, a request for appointment of counsel, and other
miscellaneous motions. I will address each pending motion in
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).
to 42 U.S.C. § 1997e(a), prisoners are required to
exhaust available administrative remedies prior to filing
lawsuits in federal court. “[A] suit filed by a
prisoner before administrative remedies have been exhausted
must be dismissed; the district court lacks discretion to
resolve the claim on the merits, 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). “Failure to exhaust is an
affirmative defense that a defendant has the burden of
proving.” King v. McCarty, 781 F.3d 889, 893
(7th Cir. 2015). The Seventh Circuit has taken a
“strict compliance approach to exhaustion.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
“[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state
remedies.” Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002). Nevertheless, inmates are only required
to exhaust administrative remedies that are
“available.” Woodford v. Ngo, 548 U.S.
81, 102 (2006). The availability of a remedy is not a matter
of what appears “on paper, ” but rather whether
the process was actually available for the prisoner to
pursue. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.
2006). Thus, when prison staff hinder an inmate's ability
to use the administrative process, such as by failing to
provide him with the necessary forms, administrative remedies
are not considered “available.” Id. In
essence, “[p]rison officials may not take unfair
advantage of the exhaustion requirement . . . and 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.” Dole, 438 F.3d at 809.
grievance policy for the Indiana Department of Correction
provides that, before filing a grievance, an offender is
required to attempt to resolve a complaint informally. (ECF
34-2 at ¶ 9.) If the inmate is unable to resolve the
complaint informally, he may file a formal grievance with the
grievance specialist utilizing state form 45475.
(Id. at ¶¶ 8, 10.) The grievance
specialist has 15 days to respond. (Id. ¶ 11.)
Upon receipt of the grievance response, the offender is
responsible for reviewing the response and determining
whether the response adequately addresses the matter grieved.
(Id. ¶ 12.) If the offender disagrees with the
formal response to the grievance, he or she may appeal the
response to the facility Warden or the Warden's designee
by submitting State Form 45473, “Grievance
Appeal” to the grievance specialist within five days of
receiving the response. (Id.) Finally, if an inmate
is still dissatisfied with the response to the appeal, he
must check the “disagree” box, sign, and submit
the completed State Form 45473, “Offender Grievance
Appeal” to the Offender Grievance Specialist within
five business days of receipt of the appeal response.
(Id. at ¶ 13.) Each offender is advised of the
grievance procedure and either provided with a copy of the
policy or instructions on how to access it during
orientation. (Id. at ¶ 6.)
to the grievance records, Maymon submitted a formal grievance
using State Form 45471 on December 15, 2017. (Id.
¶ 18.) That grievance was received and accepted by Traci
Riggle and assigned number 100037. (Id. at ¶
19.) Maymon was provided with a receipt showing that the
grievance had been received and that a response would be due
on January 18, 2018. (Id.) Maymon initiated this
case on December 27, 2017. (ECF 1-2.) The grievance was
formally responded to on January 19, 2018). (Id.
¶ 21.) Maymon did not appeal the denial of grievance
100037, and therefore did not complete the grievance process.
(Id. ¶ 22.)
in his numerous response briefs,  lodges a variety of
arguments in response to the defendants' claim that he
did not exhaust his administrative remedies. First, Maymon
argues that he exhausted his administrative remedies because
he filed a grievance and it was denied. (ECF 37 at 1.) Maymon
notes that he received notice that his formal grievance was
denied. (ECF 34-3, ECF 37 at 3, ECF 45 at 1.) He signed this
notice, and checked the box indicating that he disagreed with
the response on January 20, 2018. (ECF 37 at 3.) But, Maymon
clearly did not exhaust his administrative remedies before
initiating this lawsuit on December 27, 2017. In fact, he has
neither argued nor produced any evidence suggesting that he
took any action to appeal the denial of his formal grievance
at any point in time, before or after initiating this
Maymon claims that, because his health and safety were being
threatened, he could seek help outside the grievance system.
(ECF 45 at 2.) He points to a sample letter from the
Department of Administration Ombudsman Bureau in support of
his claim. (ECF 45-1.) But, the letter Maymon relies on makes
clear that he must exhaust the grievance procedures at his
facility. It in no way communicates that he is excused from
exhaustion if his health and safety are being threatened.
also claims that he has been told that complaints about
medical care are not grievable. (ECF 52 at 1.) They are
grievable. (ECF 34-2 at ¶ 7.) But, even if he had been
told otherwise, he did file a grievance, the grievance was
accepted, and he received notice when it was denied, as is
evidenced by his signature on January 20, 2018. Therefore,
the mis-information he received did not prevent him from
filing his grievance.
Maymon asserts that, because he has asserted claims based on
the Eighth Amendment of the United States Constitution, and
not based on the administrative remedies available to him,
the grievance procedure is irrelevant. (ECF 52.) This is
simply inaccurate. See 42 U.S.C. 1997e(a);
Perez, 182 F.3d at 535.
final attempt to explain his failure to exhaust, Maymon notes
that he was a grievance coordinator at Kentucky State Prison
for two years and, based on his knowledge and experience, he
did all that was required of him. Maymon describes the
grievance procedure at Kentucky State Prison, where it
appears that, when an inmate rejects a recommendation on a
grievance at any stage, the grievance is automatically routed
to the next stage. Maymon was, however, required to exhaust
the administrative remedies available to him at the Miami
Correctional Facility, not the remedies available to inmates
at the Kentucky State Prison. See Pozo, 286 F.3d at
1025 (“To exhaust remedies, a prisoner must file
complaints and appeals in the place, and at the time, the
prison's administrative rules require.”).
undisputed evidence shows that Maymon was informed of the
requirements to exhaust his administrative remedies, but he
initiated this lawsuit without exhausting those remedies.
There is no evidence that the grievance process was made
unavailable to Maymon. Therefore, I must grant the
defendants' summary judgment motion.
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