United States District Court, S.D. Indiana, Indianapolis Division
MARK E. KENDRICK, Plaintiff,
DAVE LIMBURG, Defendant.
ENTRY REJECTING AFFIRMATIVE DEFENSE OF FAILURE TO
EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES
R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT
Dave Limburg has asserted the affirmative defense that
Plaintiff Mark Kendrick failed to exhaust his available
administrative remedies before initiating this civil rights
action as required by the Prison Litigation Reform Act
(PLRA). On November 14, 2018, this matter came before the
Court for a hearing pursuant to Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008), to determine whether the Court
should credit the exhaustion defense and enter judgment in
Mr. Limburg's favor. The Court has reviewed the
documentary evidence presented at the hearing, the testimony
presented by Mr. Kendrick and Jail Commander Andrew
Abney-Brotz, and the parties' proposed findings of fact
and conclusions of law.
Limburg has not carried his burden of proving that Mr.
Kendrick failed to exhaust an administrative remedy that was
available to him. Therefore, Mr. Limburg's affirmative
defense is rejected, and this action will
proceed to resolution on the merits of Mr. Kendrick's
Exhaustion of Administrative Remedies
PLRA requires that a prisoner exhaust his available
administrative remedies before bringing a suit concerning
prison conditions. 42 U.S.C. § 1997e(a); see Porter
v. Nussle, 534 U.S. 516, 524-25 (2002). “[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.” Id. 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 Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006) (“‘To exhaust remedies, a
prisoner must file complaints and appeals in the place, and
at the time, the prison's administrative rules
require.'”) (quoting Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002)). “State law
establishes the administrative remedies that a state prisoner
must exhaust for purposes of the PLRA.” Lanaghan v.
Koch, 902 F.3d 683, 687 (7th Cir. 2018). “[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.” Ross v.
Blake, 136 S.Ct. 1850, 1859 (2016) (internal quotation
Kendrick is a prisoner committed to the custody of the Ohio
Department of Rehabilitation and Correction and currently
confined at the Ohio State Penitentiary at Youngstown. In the
summer or 2017, Mr. Kendrick was confined at the Wayne County
Jail in Indiana. This action is based on Mr. Kendrick's
allegation that he was assaulted by other inmates at the Jail
on June 26, 2017, and that Mr. Limburg, a Sheriff's
Deputy employed at the Jail, failed to intervene to protect
Limburg asserted the affirmative defense that Mr.
Kendrick's claims were barred under the PLRA because he
failed to exhaust administrative remedies available through
the Jail before filing suit. On May 25, 2018, the Court
denied Mr. Limburg's motion for summary judgment on the
exhaustion defense, setting the stage for the Pavey
hearing. See dkt. 58.
insufficient to resolve the exhaustion issue entirely, the
evidence the parties presented at summary judgment
substantially narrowed the questions left to be answered at
the Pavey hearing. The parties agreed that, in June
and July of 2017, the Jail maintained a grievance procedure
that provided administrative remedies for Mr. Kendrick's
failure-to-protect claim. The procedure required Mr. Kendrick
to present a written grievance using an electronic kiosk no
later than July 3-seven days after the assault-and he failed
to do so. However, the record before the Court at summary
judgment left open the question of whether Mr. Kendrick had
access to the kiosk during that time. Accordingly, a
Pavey hearing was necessary to determine whether the
Jail's grievance procedure was truly
“available” to Mr. Kendrick for purposes of the
Findings of Fact
incident report by Mr. Limburg documents that Mr. Kendrick
became involved in a physical altercation with two fellow
inmates at approximately 2:30 P.M. on June 26, 2017. Stip.
Ex. 1 at 1. During this altercation, Mr. Kendrick attempted
to crawl under a table when another inmate grabbed him
“by the right leg and started pulling it up and hitting
on the under side of the bench.” Id.
this incident, Mr. Kendrick “was limping” and
“looked pretty roughed up.” Id. When Mr.
Kendrick saw a doctor on July 3, he still had numerous
abrasions on his back, an open wound on his finger, and two
bumps on his head from the assault. Stip. Ex. 7 at 2. An
x-ray showed no fractures or dislocations but did show a
small parapatellar effusion, or excessive fluid, which can
indicate a ligament injury. Id. Mr. Kendrick
reported during the July 3 examination that, shortly after
the assault, he saw white spots and experienced dizziness.
after the incident, Mr. Kendrick was taken to the Jail's
receiving area, where he received medical treatment. Dkt. 111
at 14:23-15:7. It is not clear what that treatment entailed,
but notes from the July 3 medical examination indicate that
Mr. Kendrick's knee was x-rayed on June 26. Stip. Ex. 7
at 2. At approximately 4:55 P.M., Mr. Kendrick
was moved to a padded cell in the receiving area. Stip. Ex.
3; dkt. 111 at 15:11-14.
is a kiosk in the receiving area that inmates may use to file
written grievances. Dkt. 111 at 11:8-11. There is no evidence
that Mr. Kendrick attempted or asked permission to access the
kiosk during the time he was in the receiving area. However,
there also is no evidence showing how long Mr. Kendrick was
in the receiving area, how much of that time he was receiving
medical treatment, or whether he was even capable (due to his
injuries) of using the kiosk to write a grievance at that
Kendrick remained in the padded cell from approximately 4:55
P.M. on June 26 until approximately 8:44 A.M. on June 28.
Stip. Ex. 3. For the entire time Mr. Kendrick was confined to
the padded cell, he was “administratively locked
down.” Dkt. 111 at 42:21-22.
inmate on administrative lockdown is confined to his cell 23
hours per day and may leave his cell only when called by Jail
staff for recreation time. Id. at 30:22-31:12.
Recreation is available to administratively locked down
inmates only between 11:00 P.M. and 4:00 A.M. Id. at
31:8-12. Jail staff call inmates for recreation through the
intercoms in their cells. Id. at 31:13-22. If an
inmate does not respond to the staff's call for
recreation time-for example, if the inmate sleeps through the
call-the inmate misses his chance. Id. at
31-23-32:1. Jail staff takes ...