United States District Court, N.D. Indiana, South Bend Division
CHRISTOPHER J. DIRIG, Plaintiff,
RON NEAL, Defendant.
OPINION AND ORDER
J. Dirig, a prisoner without a lawyer, proceeds on a claim
for injunctive relief against the Warden of the Indiana State
Prison in his official capacity for medical care and
accommodations for his leg injury as required by the Eighth
Amendment. ECF 14. He alleges that, after his transfer to the
Indiana State Prison in May 2018, medical staff determined
that a wheelchair for Dirig was medically unnecessary and
confiscated his wheelchair. As a result, he is at a greater
risk of falling and incurring injury, which is exacerbated by
seizures, dizziness, and a history of head injuries. He also
alleges that he experiences extreme pain on a daily basis and
has had life-threatening blood clots due to his lack of
instant motion, the Warden seeks summary judgment, arguing
that Dirig has not exhausted his administrative remedies
because he has not completed the grievance process with
respect to his claim. In response, Dirig maintains that the
Warden is not entitled to summary judgment for several
reasons, including his numerous requests to correctional
staff and that he did not file a grievance because it would
have been untimely under the grievance policy.
declaration, Joshua Wallen, grievance specialist at the
Indiana State Prison, attested that a grievance process is
available to inmates and is explained to them at orientation.
ECF 85 at 7. The grievance policy is also available to
inmates at the law library. Id. This policy sets
forth a four-step grievance process. First, an inmate must
attempt to informally resolve a complaint, typically by
speaking to the staff member most directly associated with
the complaint. Id. at 16-17. If the inmate is unable
to resolve the complaint informally, he may file a formal
grievance with the grievance specialist. Id. at
17-19. If an inmate is dissatisfied with the grievance
specialist’s determination, he may file an appeal with
the warden or his designee. Id. at 19-20. Finally,
if an inmate is dissatisfied with the warden’s
determination, he may file an appeal with the department
grievance manager. Id. at 20-21.
to the grievance records, Dirig filed two grievances at the
Westville Correctional Facility in August 2017 and January
2018 asking for assistance devices, such as a wheelchair or a
cane. Id. at 33-46. Though Dirig completed the
appeal process with respect to these grievances, they were
filed prior to his transfer to the Indiana State Prison and
were denied on both occasions because Dirig had received
assistive devices during the course of the grievance process.
Id. On August 13, 2018, Dirig filed a grievance
regarding the failure to address the side effects of his
prescribed blood pressure medication. Id. at 47-57.
On December 17, 2018, Dirig filed a grievance regarding the
failure to treat constipation and his inability to urinate.
Id. at 58-63.
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).
defendants moved for summary judgment, arguing that Dirig has
not exhausted his administrative remedies because he has not
completed the grievance process with respect to his claim.
Dirig does not contest that he did not complete the grievance
process but raises several arguments to dispute the
availability of the grievance process. To start, Dirig argues
that he exhausted his administrative remedies by requesting
assistance from correctional staff for medical treatment and
accommodations for his leg injury on numerous occasions.
However, these requests for assistance are insufficient to
show exhaustion because the Seventh Circuit has taken a
“strict compliance approach to exhaustion.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
In other words, “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). “To exhaust
remedies, a prisoner must file complaints and appeals in the
place, and at the time, the prison’s administrative
rules require.” Id. at 1025.
also represents that he was unaware of the revised grievance
policy and that the grievance policy did not apply to him
because he is disabled. He refers to a separate departmental
policy that directs physically disabled inmates to seek
accommodations from an ADA Coordinator. Indiana Department of
Correction, Offenders/Youth with Physical Disabilities,
available at https://www.in.gov/idoc/
Disabilities%203-1-2019.pdf. While the ADA Coordinator may be
the primary contact for inmates seeking disability
accommodations, there is nothing in the disability policy or
the grievance policy to suggest that the grievance policy
does not apply to the denial of a request for an
accommodation. To the contrary, the grievance policy broadly
applies to “[t]he manner in which staff members
interpret and apply the policies, procedures, or rules of the
Department or of the facility.” ECF 85 at 11. Further,
the record indicates that Dirig had submitted and appealed
grievances with respect to medical issues and disability
accommodations both before and after his transfer to the
Indiana State Prison, which demonstrates that Dirig knew how
to complete the grievance process with respect to his claim.
Moreover, even if he was unfamiliar with the grievance
process, the policy was available upon request at the
facility law library.
Dirig argues that the defendants are not entitled to summary
judgment because he submitted a grievance but never received
a response from the grievance officer. ECF 95 at 12. While
correctional staff are not allowed to unfairly prevent
inmates from exhausting their remedies, Dole, 438
F.3d at 809, Dirig’s description of his attempt to
complete the grievance process is too vague to defeat summary
judgment. He has not attached any documentation regarding
this attempt, and he offers no description of what the
grievance said or when he submitted it.
another filing,  Dirig represents that, when he contacted
Counselor Hale, she told him not to file a grievance until
she was able to contact the medical unit and her supervisor.
ECF 103 at 2. He states that they did not respond and that he
never submitted a grievance because it would have been
untimely according to the grievance policy, which requires
inmates to submit grievances within ten days of the
underlying incident. Id. To support this argument,
he asks to subpoena a written statement from Counselor
Hale. The court cannot grant this request
because the Federal Rules of Civil Procedure do not authorize
the court to subpoena written statements or answers to
interrogatories from non-parties. See Fed. R. Civ.
P. 33 (interrogatories may be served on “any other
party”); Fed.R.Civ.P. 45 (omitting interrogatories or
written statements from the list of the types of discovery
the court may subpoena from non-parties). Nor is it clear why
Dirig needs a written statement from Counselor Hale given his
personal knowledge of his efforts to exhaust his claim and
the court’s obligation to construe all facts in the
light most favorable to him in resolving the instant motion
for summary judgment.
even if Dirig reasonably refrained from filing a grievance at
Counselor Hale’s direction for some time, it would not
excuse him from filing a grievance entirely. While the
grievance policy generally requires inmates to submit
grievances within ten days of an incident, it also allows for
extensions of time for good cause. ECF 85 at 21. As a result,
it is unclear that Dirig’s grievance would have been
deemed untimely under the policy if he had filed it. Further,
even if there was a reasonable likelihood that filing a
grievance would have been denied as untimely, “he had
to give the system a chance.” Flournoy v.
Schomig, 152 Fed.App’x 535, 538 (7th Cir. 2005);
Perez v. Wisconsin Dep’t of Corr., 182 F.3d
532, 536 (7th Cir. 1999) (“No one can know whether
administrative requests will be futile; the only way to find
out is to try.”).
the undisputed evidence demonstrates that Dirig did not
exhaust his available administrative remedies with respect to
his claim regarding medical care and accommodations for his
leg injury. Therefore, the motion for summary ...