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Kendrick v. Limburg

United States District Court, S.D. Indiana, Indianapolis Division

March 25, 2019

MARK E. KENDRICK, Plaintiff,
v.
DAVE LIMBURG, Defendant.

          ENTRY REJECTING AFFIRMATIVE DEFENSE OF FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES

          JAMES R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT

         Defendant 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.

         Mr. 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 claims.

         I. Exhaustion of Administrative Remedies

         The 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 (citation omitted).

         “Proper 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 omitted).

         II. Procedural Background

         Mr. 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 him.

         Mr. 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.

         Although 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 PLRA.

         III. Findings of Fact

         An 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.

         After 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. Id.

         Sometime 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.[1] 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.

         There 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 time.

         Mr. 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.

         An 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 ...


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