United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E.
DEGUILIO JUDGE
Nolan
McDandal, a prisoner without a lawyer, proceeds on a claim
for money damages against Dr. Liaw and Nurse Hanson on an
Eighth Amendment claim of deliberate indifference for
refusing to provide adequate medical treatment for carpal
tunnel syndrome and dry skin and further proceeds on a
related claim for injunctive relief. ECF 17. In the instant
motion, the defendants seek summary judgment, arguing that
McDandal failed to exhaust his administrative remedies
because he did not complete the grievance process with
respect to his claims. In response, McDandal maintains that
he attempted to complete the grievance process with respect
to Dr. Liaw but that the grievance officer prevented him from
doing so. However, he concedes that he never filed a
grievance with respect to Nurse Hanson. ECF 55 at 2.
In a
declaration, John Harvil, grievance specialist at the
Westville Correctional Facility, attested that a grievance
process is available to inmates and is explained to them at
orientation. ECF 52. The grievance policy is also available
to inmates at the law library. Id. This policy sets
forth a four-step grievance process. ECF 52-2 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 8-9. If the
inmate is unable to resolve the complaint informally, he may
file a formal grievance with the grievance specialist.
Id. at 9-11. Among other requirements, a formal
grievance must “relate to only one event or
issue.” Id. at 9. A grievance officer may
reject a grievance as procedurally deficient but must provide
as explanation to the inmate. Id. at 10. In such
cases, the inmate must revise his grievance and resubmit in
within five days. Id. If an inmate is dissatisfied
with the grievance specialist's determination on a formal
grievance, he may file an appeal with the warden or his
designee. Id. at 11-12. Finally, if an inmate is
dissatisfied with the warden's determination, he may file
an appeal with the department grievance manager. Id.
at 12-13.
According
to the grievance records, on August 16, 2018, McDandal
submitted a formal grievance regarding medical treatment for
dry skin and carpal tunnel syndrome. ECF 52-3 at 3. On August
28, the grievance officer rejected the grievance, stating,
“Your complaint or concern contains multiple issues or
events. You may separate the issues and submit a separate
form for each one that you wish to grieve.”
Id. at 1-2. The grievance officer also informed
McDandal that, despite the procedural deficiencies, he had
consulted medical staff, and he relayed the reasoning
underlying McDandal's course of medical treatment.
Id. at 1-2. On September 4, McDandal initiated this
lawsuit by filing a complaint. ECF 1. On January 19, 2019,
McDandal followed the grievance officer's instructions by
submitting a grievance regarding medical treatment for dry
skin and another grievance regarding medical treatment for
carpal tunnel syndrome. Id. at 5, 7. On February 15,
2019, the grievance officer rejected these grievances as
untimely without good cause. Id. at 4, 6.
On June
24, 2019, McDandal asked the grievance officer about informal
grievances submitted in May 2019 regarding the conditions at
the Westville Correctional Facility and that he wanted to
proceed with the grievance process. ECF 56-1 at 3. In
response, the grievance officer stated that it was not his
role to answer informal grievances and that grievances could
only be appealed if inmates provided a grievance log number.
Id.
Summary
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).
Pursuant
to 42 U.S.C. § 1997e(a), prisoners are required to
exhaust available administrative remedies prior to filing
lawsuits in federal court. 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. “[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).
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.
Because
the PLRA requires that prisoners exhaust their administrative
remedies before filing a lawsuit, the court will focus on
McDandal's efforts before he filed this lawsuit on
September 4, 2018. ECF 1. The parties do not dispute that
McDandal did not complete the grievance process with respect
to his claims before filing this lawsuit. Instead, their
dispute focuses on whether the grievance officer prevented
McDandal from completing it at the formal grievance stage.
McDandal maintains that the grievance officer incorrectly
construed the August 2018 grievance as relating to two
separate issues when it pertained to a single medial
appointment with Dr. Liaw. He equates the grievance
officer's response with affirmative misconduct that
prevented him from exhausting his claims.
Courts
have recognized three ways in which a grievance process may
become unavailable. Ross v. Blake, 136 S.Ct. 1850
(2016). “First, an administrative procedure is
unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end-with
officers unable or consistently unwilling to provide any
relief to aggrieved inmates.” Id. at 1859.
“Next, an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use. In this
situation, some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it.”
Id. “And finally, the same is true when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
McDandal's
primary contention is that the grievance officer wrongly
characterized his grievance as containing two separate issues
instead of a singular complaint regarding his medical
treatment. While grievance policy may be ambiguous as to what
constitutes a separate issue, the grievance officer's
interpretations of the grievance and the policy were
reasonable, and the instructions to raise the issues in
separate grievances were straightforward and not onerous. As
a result, even if McDandal's interpretation is correct,
the grievance officer's conduct is not a sufficient basis
to find that the grievance process was unavailable. Moreover,
McDandal offers no explanation as to why he did not comply
with these instructions prior to filing this lawsuit, and
there is no indication that the grievance officer would not
have processed these grievances if McDandal had done so in a
timely manner. To the contrary, the record indicates that the
grievance officer had already partially processed the
grievance by investigating the grievance despite believing
that it was procedurally deficient. Consequently, the court
finds that the grievance process was available to McDandal
but that McDandal did not complete it with respect to his
claims prior to filing this lawsuit.
In sum,
the undisputed evidence demonstrates that McDandal did not
exhaust his available administrative remedies with respect to
his claims. Therefore, the motion for summary judgment is
granted. Because there are no remaining claims, this case is
dismissed without prejudice. See Ford v. Johnson,
362 F.3d 395, 401 (7th Cir. 2004) (“We therefore hold
that all dismissals under § 1997e(a) should be without
prejudice.”).
For
these reasons, the court:
(1)
GRANTS the motion for ...