Wade et al v. Porter County Jail
Filing
41
OPINION AND ORDER: The Court grants in part and denies in part Defendants motion to dismiss Counts I, II, and III of the Amended Complaint 21 . In particular, the Court DENIES Defendants motion regarding Count I and GRANTS Defendants motion regarding Counts II and III. Additionally, the Court DENIES Plaintiff's 36 Motion to Strike. Signed by Judge Joseph S Van Bokkelen on 7/24/2012. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CHARLES WADE, III,
Plaintiff,
v.
Sheriff DAVID LAIN, Individually and in His
Official Capacity as Porter County Sheriff; Warden
JOHN J. WIDUP, Individually and in His Official
Capacity as Warden of the Porter County Jail;
Sergeant DAVID CAVANAUGH, in his Individual
and Official Capacity; Medical Director KIM
HOUSE, Individually in Her Capacity as Medical
Director of the Porter County Jail; JOHN DOE
Correctional Officers and Supervisor, in Their
Individual and Official Capacities; JOHN or JANE
DOE Medical Staff of the Porter County Jail, in
Their Individual Capacities,
Case No. 2:11-CV-454 JVB
Defendants.
OPINION AND ORDER
Plaintiff, Charles Wade III, sued Defendants, who were employed in various capacities at
the Porter County Jail. Plaintiff alleges medical treatment was withheld, improper mail
procedures were employed, and he was denied access to visitors while an inmate at Porter
County Jail. Plaintiff is seeking monetary damages for violations of his Fourteenth Amendment
rights. Plaintiff maintains he filed numerous written grievances while incarcerated relating to
health issues, dental issues, and inmate privileges that were not adequately addressed by
Defendants. Plaintiff further maintains that the grievance appeal process was unavailable to him
because Defendants failed to inform him of the process.
Defendants moved to dismiss the case pursuant to Federal Rule of Civil Procedure
12(b)(6), and, in the alternative, for summary judgment, pursuant to Federal Rule of Civil
Procedure 56(c).1
Defendants’ motion introduces materials outside the pleadings: affidavits of jail officials,
jail standard operating procedures, and copies of Plaintiff’s written grievances. With his
Response, Plaintiff submits his own evidence and treats Defendants’ motion as a motion for
summary judgment. The Court will do likewise.
There is a preliminary matter the Court needs to address. With their Reply, Defendants
introduced evidence not submitted with their original motion: a video that is shown to newly
admitted inmates, an Inmate Guide distributed to newly admitted inmates, an affidavit of a jail
official, and an acknowledgement form signed by Plaintiff. Plaintiff moved to strike the new
evidentiary exhibits. While Plaintiff may be correct that the exhibits should have been submitted
with the original motion, they do not harm Plaintiff’s claims; in fact, they tend to support them.
Accordingly, the Court denies Plaintiff’s motion.
A.
Legal Standards
(1) Summary Judgment
A motion for summary judgment must be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). “Material facts” are those under the applicable substantive
law that “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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Arguing for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) and summary judgment in the
alternative is permitted “if adequate notice is provided when the moving party frames its motion in the alternative as
one for summary judgment.” Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010) (quoting Tri-Gen Inc. v. Int’l
Union of Operating Eng’rs, Local 150, 433 F.3d 1024, 1029 (7th Cir. 2006)).
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248 (1986). A dispute over a “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Rule 56(c) further requires the
entry of summary judgment after adequate time for discovery against a party “who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the
moving party supports its motion for summary judgment with affidavits or other materials, it
thereby shifts to the non-moving party the burden of showing that an issue of material fact exists.
Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
Rule 56(e) specifies that once a properly supported motion for summary judgment is
made, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set
forth specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To
successfully oppose the motion, the non-movant must present “definite, competent evidence in
rebuttal.” Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 996 (7th Cir. 2002). In viewing the
facts presented on a motion for summary judgment, a court must construe all facts in a light most
favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in
favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate the weight of the
evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead
to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249–50.
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(2) Prisoner Litigation Reform Act
The Prisoner Litigation Reform Act requires that prisoners exhaust available
administrative remedies before they bring their grievances to the court. 42 USCS § 1997e(a).
“One of the primary purposes of the Prisoner Litigation Reform Act is to enable prison officials
to resolve complaints internally and to limit judicial intervention in the management of state and
federal prisons.” McCoy v. Gilbert, 270 F.3d 503, 509 (7th Cir. 2001).
The Supreme Court has found the “exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 531 (2002).
Additionally, the exhausting of remedies is required even if the inmate feels the administrative
process is futile or will not provide the type of relief sought. See, e.g., Booth v. Churner, 532
U.S. 731, 740 (2001); and Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005). Finally, the
failure to exhaust is an affirmative defense on which the defendant bears the burden of proof.
Dole v. Chandler, 438 F.3d 84, 809 (7th Cir. 2006).
Prison administrators are responsible for making inmates aware of the grievance process
before they may employ the PLRA as a defense. Correction officials may offer reasonable notice
by simply providing inmates with an informational handbook outlining the grievance procedure.
Russell v. Unknown Cook Cnty. Sheriff’s Officer, 2004 U.S. Dist. LEXIS 25882, at *10 (N.D. Ill.
Dec. 22, 2004) (citing Boyd v. Corr. Corp. of Am., 380 F.3d 989, 999 (6th Cir. 2004) (rejecting
inmate’s lack of notice claim where grievance policy was set forth in handbook provided to
inmates at intake; and where inmate did not allege that he never received handbook or that prison
officials denied him access to it.)). Lacking awareness of a grievance procedure, so long as no
fault can be attributed to the inmate, excuses an inmate’s failure to exhaust administrative
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remedies: “an institution cannot keep inmates in ignorance of [a] grievance procedure and then
fault them for not using it. A grievance procedure that is not made known to inmates is not an
available administrative remedy.” Hall v. Sheahan, 2001 U.S. Dist. LEXIS 1194, at *2 (N.D. Ill.
Feb. 2, 2001) (internal citation omitted).
Defendant prison officials bear the burden of establishing that administrative remedies
were available to the prisoner. See Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir. 2006). “To be
entitled to judgment on grounds of non-exhaustion, defendants would need to establish that the
grievance procedure was posted in such a manner that [plaintiff] could reasonably be expected to
see it, or that Jail employees explained the procedure to him.” Hall v. Sheahan, 2001 U.S. Dist.
LEXIS 1194, at *2 (N.D. Ill. Feb. 2, 2001).
The distinction between available and unavailable administrative remedies is critical in a
court’s analysis of the exhaustion requirement. For example, a prison employee who prevents
access to a remedy can render that remedy unavailable; in such circumstances, a failure to
exhaust would not bar filing suit. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
Additionally, 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.”
Roy v. Dominguez, 2010 U.S. Dist. LEXIS 38253, at *10-11 (N.D. Ind. Apr. 16, 2010) (quoting
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)). If an inmate fails to exhaust available
administrative remedies, and it is too late to go back and utilize an administrative remedy due to
a lapse of time, dismissal of an inmate’s claims are with prejudice. Stevenson v. Dart, 2012 U.S.
Dist. LEXIS 39226, at *15 (N.D. Ill. Mar. 22, 2012). However, if the judge determines all
administrative remedies have been exhausted, the case will proceed to pretrial discovery, and if
necessary a trial on the merits. Id.
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A Pavey evidentiary hearing is the Seventh Circuit’s method for resolving a dispute
between inmates and prison officials regarding the exhaustion of remedies. When exhaustion is
contested, the district court orders discovery solely on the matter of exhaustion. Pavey v. Conley,
544 F.3d at 742. Following discovery, a Pavey hearing determines if an inmate has failed to
exhaust all available administrative remedies and prevents an unnecessary trial if an inmate has
failed to exhaust available remedies.
B.
Background
Plaintiff alleges that while incarcerated in the Porter County Jail he became gravely ill.
He was vomiting blood for over three weeks and was subsequently diagnosed with tuberculosis.
(DE 12, Compl. ¶ 16-17.) Plaintiff claims that during this time period, from November 1, 2010,
to November 24, 2010, he was denied medical care and lost over thirty pounds due to his illness.
(Id. at ¶ 18.) Plaintiff also contends that Defendants failed to employ proper mail handling
procedures and unlawfully denied him access to visitors. (Id. at ¶¶ 40-41; 46-48.)
Defendants maintain the Porter County Jail has a grievance process that “provides
procedures and . . . an administrative forum to deal with inmate grievances in a fair, timely, and
effective way.” (DE 22-2, Defs.’ Ex. B at 1.) This standard operating procedure allows inmates
to alert jail administrators to grievances involving jail policies, living conditions, health care, and
inmate services. (Id. at 2.) Inmates may file an appeal if they are not satisfied with a response to
a written grievance. (Id. at 7.) Defendants do not claim to have provided Plaintiff with a copy of
the standard operating procedure.
Sergeant Cavanaugh, an employee of the Porter County Jail, informed Plaintiff how to
file a formal written grievance, but the materials used did not address the grievance appeal
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process. Inmates are provided the Porter County Jail Inmate Guide when admitted to the jail.
(DE 34-1, Defs.’ Ex. A at ¶¶ 4–6.) The Inmate Guide explains how to file a formal written
grievance. (DE 34-2, Defs.’ Reply, Ex. B at 4.) Defendants also showed Plaintiff the Porter
County Jail orientation video during his in-processing. (DE 34-1, Defs.’ Ex. A at ¶ 7.) Neither
the orientation video nor the Inmate Guide mention or explain how to appeal an unfavorable
response to a grievance.
Plaintiff was aware of the initial step of the grievance process as evidenced by the nine
formal grievances he filed. Plaintiff signed an acknowledgement form attesting that he
understood the Inmate Guide and orientation video, which adequately explained the initial
written grievance procedure. (DE 34, Defs.’ Reply, Ex. A, B and C.) However, the Inmate
Guide, orientation video, and affidavits provided by Defendants do not address how an inmate is
informed of his ability to appeal an unfavorable response to an initial written grievance.
Plaintiff’s affidavit maintains that he was not given the grievance standard operating procedure
or made aware of the grievance appeal process. (DE 30-1, Pl.’s Aff. at 1-2.)
Plaintiff filed nine written grievances between November 17, 2010, and March 7, 2012.
(DE 22, Mot. To Dismiss at 5-7.) Two of these grievances correspond to Plaintiff’s § 1983
complaint. One was a grievance filed November 17, 2010, where Plaintiff complained of a
significant stomach ailment. (Id. at 5.) The second was a grievance filed November 19, 2010,
where Plaintiff requested assistance with his medical issues. (Id.) None of Plaintiff’s written
grievances dealt with mail procedures or a denial of access to visitors. Jail administrators
responded to all of Plaintiff’s written grievances as required by the standard operating procedure.
(Id.) The responses to the medical grievances were “to see MD” and “Doctors List.” (DE 22,
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Mot. To Dismiss, Ex. D at 1–2.) Plaintiff claimed to have continuing medical issues after these
initial written grievances, but did not file a grievance appeal to this response. (Id. at 7.)
C.
Discussion
Plaintiff alleges that Defendants failed to provide adequate medical care, did not follow
proper mail procedures, and improperly denied him access to visitors. Plaintiff maintains that he
exhausted all available administrative remedies and Defendants’ conduct entitles him to
monetary damages. Defendants maintain Plaintiff was aware of the entire grievance process,
failed to exhaust available administrative remedies, and is barred by the PLRA from bringing
suit in federal court under 42 U.S.C. § 1983. The main issue the Court must address is if
Plaintiff’s lack of awareness of the grievance appeals process makes that remedy unavailable.
A Pavey hearing is unnecessary in this case because there are no disputed issues of fact
which would require further inquiry. Defendant may not employ PLRA as a defense regarding
Plaintiff’s medical claims. Plaintiff attested in his affidavit that he was not informed that he
could appeal an unfavorable response to a grievance and the in-processing materials do not
address the grievance appeals process. Although the Court of Appeals for the Seventh Circuit has
not articulated a standard, district courts routinely find that an inmate must be aware of or must
have been informed of the grievance process if the PLRA is employed as a defense. An
institution may not keep inmates unaware of a grievance procedure and then fault them for not
using it. Arreola v. Choudry, 2004 U.S. Dist. LEXIS 6917, at *8 (N.D. Ill Apr. 22, 2004). If
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administrative remedies are “made unavailable by the actions of prison officials, the prisoner
may file suit without pursuing those unavailable remedies to conclusion.” Id. at 2–3.
Defendants’ argument to the contrary is unpersuasive. Defendants rely on two cases. In
Twitty v. McCloskey, 226 Fed. Appx. 594, 596 (7th Cir. 2007) (unpublished), the inmate plaintiff
also sued jail administrators for the denial of medical treatment. In an unpublished opinion the
Court of Appeals affirmed the district court’s ruling that an inmate’s lack of awareness of a
grievance process does not excuse non-compliance. Id. However, Twitty can be distinguished
from the present case. In Twitty the jail had no formal notice of plaintiff’s complaints. Id.
Additionally, the plaintiff in Twitty did not contest the availability of administrative remedies; he
only claimed he was unaware of them. Id.
Defendants, to a lesser extent, also rely on Stevenson v. Dart, 2012 U.S. Dist. LEXIS
39226 (N.D. Ill. Mar. 22, 2012). In Stevenson the plaintiff also contended he was unaware of the
grievance appeals process after filing an initial written grievance but the district court ruled he
had not exhausted available administrative remedies. Id. at 12–13, 17. Stevenson is also
distinguishable. The plaintiff in Stevenson was aware of the appeals process because directly
underneath his signature on the initial grievance form was the language, “APPEALS MUST BE
MADE WITHIN 14 DAYS OF THE DATE THE DETAINEE RECEIVED THE RESPONSE.”
Id. at 13. No similar notice of appeal was provided to Plaintiff in this case.
Plaintiff has exhausted available administrative remedies regarding his claim for denial of
medical care. Defendants concede that Plaintiff filed a written grievance regarding his health
care on November 17, 2010. (DE 22, Mot. To Dismiss at 5–7.) Though Plaintiff knew how to file
an initial grievance, there is no evidence he knew, or should have known, of the grievance appeal
process. Accordingly, Defendants may not invoke the PLRA as a defense to this claim.
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However, Plaintiff did not exhaust available administrative remedies regarding
Defendants alleged improper mail procedures and unlawful denial of visitor access. Plaintiff’s
nine written grievances prove he understood that a written grievance was an available
administrative remedy. None of Plaintiff’s grievances address mail procedures or visitor access.
As stated previously, a “prisoner must complete the administrative remedy procedure before suit
is filed.” Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). By foregoing the written grievance
process Plaintiff has failed to exhaust available administrative remedies as required by the
PLRA.
D. Conclusion
The Court finds that Plaintiff has exhausted all available remedies in the grievance
process regarding his health related concerns and may proceed with those claims in this Court.
However, Plaintiff has failed to exhaust available remedies regarding alleged improper mail
procedures and unlawful denial of visitor access. Those claims must be dismissed.
Accordingly, the Court grants in part and denies in part Defendants’ motion to dismiss
Counts I, II, and III of the Amended Complaint (DE 21). In particular, the Court --
DENIES Defendants’ motion regarding Count I;
GRANTS Defendants’ motion regarding Counts II and III.
Additionally, the Court denies Plaintiff’s motion to strike (DE 36).
SO ORDERED on July 24, 2012.
S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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