United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. Leichty Judge
Michael Orr, a prisoner without a lawyer, was granted leave
to proceed on an Eighth Amendment claim against Officer
Daniel Brown for using excessive force against him at the
Westville Correctional Facility on August 19, 2016. Mr. Orr
alleges that, as he handed his empty lunch tray to Officer
Brown through the cuff port of his cell door, Officer Brown
“smashed, twisted, grinded, cut, and sliced [his] arm
against the cuff-port's sharp metal edges.” ECF 6
at 1-2. Mr. Orr says Officer Brown bragged that he was about
to break Mr. Orr's arm when another guard arrived on the
scene and stopped Officer Brown from doing any more harm.
Id. Officer Brown filed the instant motion for
summary judgment (ECF 23) arguing that Mr. Orr failed to
exhaust his administrative remedies.
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
triable issue 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). The court must construe all facts and
draw all reasonable inferences in the non-moving party's
favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir.
to 42 U.S.C. § 1997e(a), prisoners must exhaust
available administrative remedies before 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 Dept. 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).
a “strict compliance approach to exhaustion, ”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006),
as the court must, 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). That
said, prisoners need only exhaust “available”
administrative remedies. Woodford v. Ngo, 548 U.S.
81, 102 (2006). A remedy's availability is not a matter
of what appears “on paper, ” but what process in
actuality was available for the prisoner to pursue. Kaba
v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Thus, for
example, when prison staff hinder an inmate's ability to
use the administrative process, such as refusing him
necessary forms, failing to respond to a properly filed
grievance, or using “affirmative misconduct to prevent
a prisoner from exhausting, ” administrative remedies
are not considered “available.” Dole,
438 F.3d at 809; see also Kaba, 458 F.3d at 684. In
short, “[p]rison officials may not take unfair
advantage of the exhaustion requirement.”
Dole, 438 F.3d at 809.
Brown claims Mr. Orr failed to exhaust his administrative
remedies as required by 42 U.S.C. § 1997e(a). ECF 23;
25. Officer Brown relies on the Offender Grievance Process,
IDOC Policy No. 00-02-301, which became effective on October
1, 2017. ECF 25-1 at 1-15. He argues that Mr. Orr failed to
appeal the Offender Grievance Response Report (ECF 2-2 at 7)
denying his formal appeal as required by this policy. ECF 25
at 4; 25-1 at 12-13. Furthermore, Officer Brown asserts that
Mr. Orr did not comply with this 2017 policy because he used
the wrong form when he filed his informal complaint and
because his formal appeal was not timely filed. ECF 25 at 4.
contends that the 2017 version of the Offender Grievance
Process, IDOC Policy No. 00-02-301, was not yet in effect at
the time he filed his grievance. ECF 31 at 1-3; 32-1 at 3-5,
8-10. Indeed, the policy has an effective date of October 1,
2017, but Mr. Orr's grievance was initiated on August 25,
2016. It seems that Mr. Orr is right that the Offender
Grievance Process policy, IDOC No. 00-02-301, with an
effective date of April 5, 2015, governs here. ECF 32-2 at
12-22. Officer Brown has not filed a reply to demonstrate
this position is erroneous. Under the 2015 version, Mr. Orr
needed to file an informal complaint, a formal complaint, and
a formal appeal under procedures different than Officer Brown
has argued in his motion.
instance, on August 25, 2016, IDOC grievance records show
that Mr. Orr filed an informal complaint using State Form
52897, the same form identified in the 2015 policy. ECF 2-2
at 3; 32-2 at 13. Thus, Officer Brown's argument that Mr.
Orr should have used State Form 36935 (found in the 2017
policy but seemingly not in the 2015 policy) is of no moment;
in fact, it was not the “available” process. In
addition, Mr. Orr's informal grievance was accepted and
considered on its merits, not rejected because of any
improper form. ECF 2-2 at 3.
the issues raised in the informal complaint were not resolved
to his satisfaction, on September 14, 2016, Mr. Orr filed a
formal complaint or offender grievance using State Form
45471. ECF 2-2 at 4; see also ECF 32-2 at 15. On
October 4, 2016, Mr. Orr received an Offender Grievance
Response Report to his formal complaint from the prison's
grievance specialist. ECF 2-2 at 5. After reviewing the
response, Mr. Orr placed a checkmark on the line marked
“Disagree” on the Offender Grievance Response
Report to indicate he intended to file a formal appeal.
October 21, 2016, Mr. Orr filed a formal appeal using State
Form 45473. ECF 2-2 at 6. The defendant contends that Mr.
Orr's appeal was untimely, albeit based on the wrong
policy, but his appeal was not rejected for that reason. ECF
2-2 at 7. Instead, on November 30, 2016, Mr. Orr received an
Offender Grievance Response Report from the grievance manager
denying his formal appeal, which constituted the final step
of the grievance process. ECF 2-2 at 7; 32-2 at 21.
Officer Brown contends that Mr. Orr had a further obligation
to appeal the denial of his formal appeal under the Offender
Grievance Process effective October 1, 2017, that policy
varies from the 2015 version of the policy, which does not
require anything beyond the filing of an appeal of the denial
of a formal grievance. Cf. ECF 32-2 at 19-22; ECF
25-1 at 12.
record, Mr. Orr completed each step required by the Offender
Grievance Process policy in effect at the time he initiated
his grievance, and thus initiated this lawsuit after he
exhausted his administrative remedies under 42 U.S.C. §
1997e(a). If there were any lateness in initiating his formal
appeal based on the 2015 policy actually in effect, the IDOC
never treated it as such and instead accepted the appeal and
permitted Mr. Orr to exhaust his administrative remedies.
See, e.g., Pozo, 286 F.3d at 1025. His