United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY JUDGE
Jerome Derrell Robertson, a prisoner without a lawyer, is
proceeding in this case “against Captain Todd Fleece in
his individual capacity for compensatory damages for denying
him medical care from July 27, 2018, to July 30, 2018, by
removing him from suicide observation and putting him in cell
1-C”-a “‘drunk tank' with other
mentally ill inmates in violation of the Eighth
Amendment.” ECF 28 at 1-2. Captain Fleece filed a
summary judgment motion arguing Mr. Robertson failed to
exhaust his administrative remedies. ECF 23. Mr. Robertson
filed a response. ECF 32.
are prohibited from bringing an action in federal court with
respect to prison conditions “until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). 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). The Seventh Circuit has taken a “strict
compliance approach to exhaustion.” 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.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). A
“prisoner who does not properly take each step within
the administrative process has failed to exhaust state
remedies.” Id. at 1024. “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).
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 [factfinder] could [find]
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
light most favorable to the non-moving party. Heft v.
Moore, 351 F.3d 278, 282 (7th Cir. 2003). Still, a party
opposing a properly supported summary judgment motion cannot
rely merely on allegations or denials in its own pleading,
but rather must “marshal and present the court with the
evidence [he] contends will prove [his] case.”
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
651, 654 (7th Cir. 2010). “[I]nferences relying on mere
speculation or conjecture will not suffice.” Trade
Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th
the parties do not dispute either the existence or terms of
the grievance policy at the Grant County Jail. Neither do
they dispute that Mr. Robertson did not file a grievance
related to the claims raised in this lawsuit. The dispute
here is whether Mr. Robertson knew about the grievance policy
while he was at the Grant County Jail. Typically, “when
administrative procedures are clearly laid out . . . an
inmate must comply with them in order to exhaust his
remedies.” Pavey v. Conley, 663 F.3d 899, 905
(7th Cir. 2011).
prisoner can be excused from failing to exhaust if the
grievance process was effectively unavailable. Woodford
v. Ngo, 548 U.S. 81, 102 (2006). “A prisoner is
required to exhaust only available administrative remedies
and a remedy is not available if essential elements of the
procedure for obtaining it are concealed.” Hurst v.
Hantke, 634 F.3d 409, 411 (7th Cir. 2011) (quotation
marks and citation omitted). “When jail personnel
mislead inmates about how to invoke the procedure the inmates
can't be blamed for failing to invoke it.”
Swisher v. Porter Cty. Sheriff's Dept., 769 F.3d
553, 555 (7th Cir. 2014). So too if jail personnel do not
tell an inmate about the grievance process.
declaration, Captain Fleece states, “Plaintiff Jerome
Derrell Robertson was given a copy of this grievance policy
upon being booked into the Grant County Jail.” ECF 23-1
at 1. In his affidavit, Mr. Robertson states, “never
was I issued jail rules my entire time of being at the Grant
County Jail.” ECF 32 at 7. There appears to be no other
information that would establish the grievance's
availability to Mr. Robertson; indeed, Mr. Robertson adds
alternatively that he was “unable to access a grievance
on the Kiosk.” ECF 32 at 8. Filing a grievance on the
Kiosk was a necessary part of completing the grievance
process, were it available. See ECF 32-1 at 7.
contradictory statements create a genuine triable dispute as
to whether Mr. Robertson was informed of the rules for filing
a grievance. Based on the record before the court, the
summary judgment motion must be denied. Resolving whether Mr.
Robertson knew about the Grant County grievance procedures
will require a hearing as explained in Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008). If Captain Fleece
wants to continue to pursue the affirmative defense of
failure to exhaust administrative remedies, he must ask for a
these reasons, the court:
DENIES the motion for summary judgment (ECF 22), and
ORDERS Captain Fleece to file a notice within fourteen (14)
days of this order either withdrawing the exhaustion defense
or asking for a hearing pursuant to Pavey v. Conley,
544 F.3d 739 (7th Cir. 2008).