United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Burch, a prisoner without a lawyer, was granted leave to
proceed on a claim against Sergeant Austin Sulich for using
excessive force against Burch in the cafeteria on July 3,
2016, in violation of the Eighth Amendment. He was also
granted leave to proceed against Sergeant Sulich, Officer
Brad Case, Officer Sharon Lee, Officer D. Pomeroy, and
Officer B. Zambrana for using excessive force against Burch
in the secluded holding cell on July 3, 2016, in violation of
the Eighth Amendment. Burch alleges that the defendants
assaulted him twice on July 3, 2016. The first assault
occurred in the cafeteria when Sergeant Sulich punched him in
the head and face and tried to poke out his eyeball. The
second assault occurred in a secluded holding cell where all
five defendants attacked and beat him for approximately one
and one-half hours. The defendants filed the instant motion
for summary judgment arguing that Burch failed to exhaust his
administrative remedies. Burch did not file a response,
although he was warned of the consequences of failing to
respond. (ECF 37.)
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).
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 in actuality 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.
was incarcerated at the Westville Correctional Facility from
October 6, 2016, until February 6, 2019. (ECF 35-1 at ¶
15.) The grievance policy for the Indiana Department of
Correction (IDOC) in effect when Burch was housed at the
Westville Correctional Facility consisted of three stages: an
informal complaint, a formal complaint, and a formal appeal.
(Id. at ¶10; ECF 35-2 at 3.) Complaints that
involve actions of individual staff, like the actions alleged
in Burch's complaint, are issues that may be grieved.
(Id. at ¶¶ 13, 18; ECF 35-2 at 4.) To
exhaust the grievance procedure, an offender must pursue an
appeal to the final step and must complete each step within
the timeframe outlined in the Offender Grievance Process.
(Id. at ¶¶ 11-12, ECF 35-2 at 20-21.) The
process must be completed before filing a lawsuit. 42 U.S.C.
to IDOC's grievance records, Burch did not submit a
formal grievance that relates to the claims of this lawsuit.
(Id. at ¶ 22.) IDOC records show that Burch did
not file any formal grievance between August 28, 2011, and
June 18, 2018, and has never once properly exhausted the
Offender Grievance Process during his time in IDOC custody.
(Id. at ¶¶ 20, 23; ECF 35-3.)
has attached copies of his informal complaint (ECF 2-1 at 4)
and formal complaint (ECF 2-1 at 5) as exhibits to his
prisoner complaint; however, even if those documents were
properly submitted in accordance with the Offender Grievance
Process, he has not produced documentation that shows he also
filed a formal appeal. While the court may consider these
records, here doing so would not change the outcome.
See Fed. R. Civ. P. 56(c)(3) (stating that
“[t]he court need consider only the cited materials,
but it may consider other materials in the record.”)
While Burch noted on his informal and formal complaint forms
that he had not received responses to either complaint, the
Offender Grievance Process mandates that “[i]f the
offender receives no grievance response within twenty (20)
business days of being investigated by the facility Offender
Grievance Specialist, the offender may appeal as though the
grievance had been denied.” ECF 35-2 at 21. In other
words, when Burch did not receive a response to his formal
complaint, he was required to take the next step and file an
appeal. While Burch attached copies of his first and second
level appeal documents in his prison disciplinary case, WCC
16-07-10 (ECF 2-1 at 7, 8) to his complaint, those documents
have no relevance to whether he exhausted his administrative
remedies as to the claims raised in this lawsuit.
Furthermore, while Burch claims a prison officer told him
that others had tampered with his mail (ECF 43 at 2), he has
produced no evidence to support that allegation.
undisputed evidence shows that Burch initiated this lawsuit
without exhausting his administrative remedies because he did
not file a formal appeal as required by the Offender
Grievance Process. There is no evidence that the grievance
process was made unavailable to him. Therefore, the court
must grant the defendants' summary judgment motion.
these reasons, the court GRANTS the defendants' motion
for summary judgment (ECF 35). This case is DISMISSED without