Burns v. Buncich et al

Filing 72

OPINION AND ORDER: DENYING 48 MOTION for Summary Judgment by Defendants Larry Chase, Mac McClesky. The court will schedule further proceedings in this case by separate order. Signed by Judge William C Lee on 12/21/2015. (lhc)(cc: Pla)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT BURNS,
Plaintiff,
v.
LAKE COUNTY INDIANA SHERIFF
JOHN BUNCICH, et al.,
Defendants.

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Cause No.: 2:12-CV-034

OPINION AND ORDER
This matter is before the court on the motion for summary judgment and memorandum in
support filed by Defendants Mac McClesky and Larry Chase (DE 48 and 49). Plaintiff Robert
Burns filed a response in opposition to the motion (DE 59) and the Defendants filed a reply brief
(DE 64). For the reasons discussed below, the motion is DENIED. The court will schedule
further proceedings in this case by separate order.
BACKGROUND
Plaintiff Robert Burns initiated this action on September 16, 2014. Amended Complaint
(DE 23).1 Burns, who is incarcerated in the Indiana Department of Corrections, is proceeding pro
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Actually Burns filed his original Complaint in this case on January 20, 2012, naming as
defendants John Buncich, the Sheriff of Lake County, Indiana, the county itself, several Lake
County commissioners, the warden of the Lake County Jail, and numerous other individuals who
worked at the jail in some capacity. The court determined that the original Complaint was too
vague and failed to state a claim, struck the filing, and allowed Burns an opportunity to file an
Amended Complaint. See Court Order (DE 4). This case was later stayed to allow Burns
additional time to gather documents he said he needed to file a proper Amended Complaint.
See Court Order (DE 16). On September 16, 2014, Burns filed his Amended Complaint, which is
the controlling complaint in this case. The court reviewed that Amended Complaint and lifted the
stay so this case could proceed. See Court Order (DE 25). The only defendants remaining in this
case are the movants, McClesky and Chase, both of whom served as chaplains at the Lake
County Jail at the time of the alleged incidents giving rise to this lawsuit.

se. Burns explains in his Amended Complaint that he is a Jehovah’s Witness and that McClesky
and Chase, who served as chaplains in the Lake County Jail, deprived him of his right to practice
his religion while he was incarcerated in the jail. Amended Complaint, p. 3. More specifically,
Burns alleges that McClesky and Chase expressed disagreement or disapproval of Burns’s
religious beliefs (id.); that they ignored his repeated written requests (ten of them, he says,
between January 1, 2011, and July 10, 2011) to be permitted to attend Sunday services with other
Jehovah’s Witnesses (id.); that they forced Burns to practice his religion in a hallway or crowded,
noisy holding cell rather than in the jail’s chapel (id., p. 4); that they denied him “religious visits”
with his minister (id.); and that they maintained a policy that inmates who were Jehovah’s
Witnesses had to be placed on a list to attend services, but that no such requirement was imposed
on inmates of other religions (id., pp. 7-8). Burns states that he “was in Lake County Jail for 94
weeks, but I [was] only allow[ed] to go to service about 20 times, and sometimes we had to have
service through a crack in the door.” Id., p. 6. He also states that he sent numerous letters and
filed numerous prison grievances over this matter, but that the Defendants ignored them. Id.
Burns brings this action under 42 U.S.C. § 1983, asserting that McClesky and Chase’s actions
“violated my 1st and 14th Amendment rights.” Id. Burns seeks compensatory and punitive
damages for the alleged constitutional violations. Id., p. 5.
In an Order issued on April 28, 2015, Magistrate Judge Paul R. Cherry, to whom this case
is on partial referral pursuant to 28 U.S.C. § 636(b)(1)(A), instructed the Defendants to file a
motion for summary judgment on the issue of whether Burns exhausted his administrative
remedies before filing this suit, since this affirmative defense was pled in the Defendants’
Answer. See Court Order (DE 42); Defendants’ Answer (DE 41), p. 8, ¶ 8. The Magistrate
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entered that Order sua sponte after wisely noting that the Defendants’ affirmative defense
(nestled in with many others in the Defendants’ Answer) was a threshold issue that had to be
addressed before the court can address the merits of the Plaintiff’s claims. The Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a), mandates that prisoners exhaust all available
administrative remedies before they can file federal lawsuits alleging the deprivation of their
constitutional rights. So the sole issue presented by the motion for summary judgment is whether
Burns exhausted his administrative remedies. If he did not, this case must be dismissed since the
court would lack the authority to address the merits of Burns’s claims. See Fluker v. Cty. of
Kankakee, 741 F.3d 787, 792 (7th Cir. 2013).
STANDARD OF REVIEW
Summary judgment is appropriate when the record shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most
favorable to the non-moving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255. However, neither the “mere existence of some alleged factual
dispute between the parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt
as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc.,
209 F.3d 687, 692 (7th Cir. 2000).
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Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if
genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,
summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975
F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish
his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S.
at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).
Finally, since Burns is proceeding pro se, the court is required to liberally construe his
complaint. Haines v. Kerner, 404 U.S. 519, 520 (1972). See also, McCormick v. City of Chicago,
230 F.3d 319, 325 (7th Cir. 2000) (“It is well-settled law that pro se complaints are to be liberally
construed and not held to the stringent standards expected of pleadings drafted by lawyers.”).
DISCUSSION
McClesky and Chase argue that they “are entitled to summary judgment, as a matter of
law, because Burns filed his § 1983 action before exhausting all his administrative remedies, as
required by 42 U.S.C. § 1997e.” Defendants’ Memorandum, p. 1. Section 1997e states in
relevant part that “[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a).

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States may specify the precise administrative remedies that their inmates must exhaust.
King v. McCarty, 781 F.3d 889, 894 (7th Cir. 2015). At the same time, the PLRA “‘requires
exhaustion only of remedies that are available. Prison authorities cannot immunize themselves
from suit by establishing procedures that in practice are not available because they are impossible
to comply with or simply do not exist.’” Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015)
(quoting King, 781 F.3d at 893). Because exhaustion is an affirmative defense, the defendants
must establish that an administrative remedy was available and that Burns failed to pursue it. See
Jones v. Bock, 549 U.S. 199, 216 (2007); Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011).
“When [defendants] assert their rights [to this affirmative defense] . . . then the judge must
address the subject immediately. . . . The statute can function properly only if the judge resolves
disputes about its application before turning to any other issue in the suit.” Perez v. Wisconsin
Dept. of Corrections, 182 F.3d 532, 536 (7th Cir. 1999). “‘[A district] court must not proceed to
render a substantive decision until it has first considered § 1997e(a).’” Fluker v. Cty. of
Kankakee, 741 F.3d at 792 (quoting Perez, 182 F.3d at 536).
“Although not depriving the courts of subject-matter jurisdiction, the comprehensive
administrative exhaustion requirement requires dismissal of any case in which an available
administrative remedy has not been exhausted. Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir.
2000). Because the Defendants are the moving party, and because they bear the burden of
proving the affirmative defense of lack of exhaustion, the court must ‘extract all reasonable
inferences from the evidence in the light most favorable to’ . . . the nonmoving party.” Freed v.
Truax, 2013 WL 2383665, at *1 (N.D. Ind. May 30, 2013) (quoting Matsushita Elec., 475 U.S.
at 586).
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1. The Lake County Jail Grievance Procedures.
The Defendants maintain that the Lake County Jail had an inmate grievance procedure in
place at the time of the incidents giving rise to this lawsuit and that Burns did not complete that
procedure. Defendants’ Memorandum, p. 5. Specifically, the Defendants state that “[t]he Lake
County Jail has a two-stage grievance procedure in place. This consists of an initial or ‘informal
stage’ (here inmates verbally submit a problem a problem to a correctional officer and then the
turn supervisor) followed by a ‘formal stage’ (where inmates submit a written grievance to the
Deputy Warden’s Office followed by an appeal to the Warden and the Sheriff).” Id., p. 7 (citing
Leto Affidavit, ¶¶ 5-8).2 This procedure, the Defendants point out, is clearly stated in the Inmate
Handbook, which was “distributed to Robert Burns, and all other incoming inmates at the time of
initial booking and classification into the Lake County Jail.” Leto Affidavit, ¶ 4.
The Lake County Jail Inmate Grievance Procedure, as set forth in the Inmate Handbook,
reads in its entirety as follows:
XVI. INMATE GRIEVANCE PROCEDURES
A. If you have a complaint or problem, you must make every effort to resolve it
with the Corrections Officer. In other words, you must first discuss it with the
officer assigned to your area. When the Corrections Officer is unable to satisfy the
complaint, the Floor Supervisor will discuss the situation with you and supply you
with the necessary form.
B. If the complaint is not satisfactorily answered by the Turn Supervisor, he will
furnish and instruct the inmate to complete and execute the formal grievance form
within seventy-two (72) hours from the time of the alleged grievance. Give the
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Sargent Phyllis Leto “was assigned the supervision of the inmate grievance procedure;
processing of inmate grievances and appeals filed under the procedures contained in the Lake
County Jail Inmate Handbook; and supervision of keeping of the records of all formal written
grievances filed by inmates with the Deputy Warden’s Office and all appeals thereof that may be
filed with the Warden or the Sheriff.” Defendants’ Exhibit 1, Leto Affidavit, ¶ 2.
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completed form to any officer and he will pass it on to the Deputy Warden’s
Office to be answered within five (5) working days. If you are still dissatisfied,
you may appeal within 72 hours in writing on the proper appeal form to the
Warden. The Warden or Assistant Warden will give his decision within five (5)
working days. If still dissatisfied, you may appeal, in writing, on the appeal form
and direct it to the Sheriff. His decision is final. He has five (5) days to answer.
The appeal form will be supplied by the Deputy Warden’s Office.
NOTE:
1. The use of this procedure does not prevent you from seeking legal remedies.
2. You must sign the grievance form before it will be processed.
3. Use of the Grievance Procedures will not be held against you. Grievance
information will not be put in your file.
4. Disciplinary actions are not grievable. You may appeal decisions to the
Warden. (See Section XVIII.)
Defendants’ Exhibit 2, pp. 17-18.
In her affidavit, Leto makes the following statements:
1. “Copies of all inmate grievances filed with the Deputy Warden’s Office, and
any appeals thereof filed with the Warden or the Sheriff, are preserved and
maintained in the normal course of business in each inmate’s permanent jail
record and/or grievance record.” Leto Affidavit, ¶ 7.
2. “During the week of July 8, 2015, I and members of my staff under my direct
supervision and control, conducted a diligent and thorough search of all jail
records and grievance records to determine what grievances and appeals, if any,
Robert Burns filed with the Deputy Warden’s Office, the Warden or the Sheriff
since January of 2011 to December 2012.” Id., ¶ 8.
3. “Since Burn’s [sic] incarceration at the Lake County Jail, Robert Burns did not
file an appeal to the Warden or Sheriff, as provided for in Section XVI(B) of the
Lake County Jail Inmate Handbook.” Id., ¶ 9.
Due to Burns’s alleged failure to file any appeals, the Defendants maintain that they “are entitled
to summary judgment . . . as no reasonable jury could decide the question of exhaustion of
administrative remedies in Burn’s [sic] favor.” Defendants’ Memorandum, p. 7.

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2. Plaintiff’s Compliance With Grievance Procedures.
The Defendants argue that “[a]s evidenced by the Affidavit signed by Sargent Phyllis
Leto, keeper of the records of all inmate grievances, Burns has failed to exhaust his
administrative remedies, as he never filed an appeal of any grievance with the Warden or the
Sheriff as provided for in Section XVI (B) of the jail’s grievance procedure.” Defendants’
Memorandum, p. 5 (citing Defendants’ Exhibit 2, pp. 17-18 (Inmate Handbook) and Defendants’
Exhibit 1, ¶¶ 5-9 (Leto Affidavit)). In his response in opposition to the motion, Burns readily
concedes that he was aware of and familiar with “the Lake County Jail grievance and appeal
form[.]” Plaintiff’s Response, p. 1. But while he does not dispute that the grievance procedure
was in place and that he was aware of it, he argues that he did, in fact, submit verbal and written
grievances, as well as appeals. Id. He claims, however, that for many reasons his grievances were
improperly handled or ignored altogether. Id., generally. In support of his position, Burns makes
the following statements:
1. Many of his grievance papers were lost or missing following “shake downs” at
the Jail. According to Burns, “[w]hen a shake down is going on inmates are not
[allowed] to be in the cells and we can’t see what’s going on, so I didn’t know
Lake County Jail staff was removing my legal papers.” Id., p. 1.
2. “I was denied grievance reports over and over[.]” Id.
3. He tried to give a grievance form to a Corrections Officer on November 5,
2012, but was unable to get any officer to accept the form until two days later. Id.,
p. 2. Even then, he claims, he never received a response. Id.
4. He had difficulty even obtaining grievance forms, and once had to give another
inmate his lunch in exchange for a grievance form (which the other inmate had
not yet filled out). Id.
5. He submitted grievances and appeals “and some [were] maliciously confiscated
by jail staff.” Plaintiff’s Statement of Material Facts (DE 59-1), p. 1.
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6. He does not deny that a grievance procedure was in place, but “[t]he procedure
was not followed” and “the Turn Supervisor never came to see me about my
complaints[.]” Id., p. 2.
At another point in his supporting documents, Burns states that “Sgt. Leto refused to give me any
grievances or respond to my letters or grievances. . . . I asked the mail lady to give Sgt. Leto,
Warden Gore, Warden Ivetic, the Sheriff, and the two Chaplains McClesky and Larry Chase. All
did not respond.” Plaintiff’s Affidavit (DE 59-2), p. 2, ¶ 5.
In addition to these statements, Burns submitted documents in support of his position.
These include the following:
1) a sworn and notarized letter from Burns addressed to “Dep[uty] Warden Gore and Dep[uty]
Warden Ivetic and also the Warden and Sheriff[]” dated October 11, 2011 (DE 59-6, p. 38);
2) a grievance form signed by Burns and dated November 16, 2011 (Id., p. 53);
3) a grievance form signed by Burns and dated November 6, 2012 (Id., p. 54);
4) a grievance form signed by Burns and dated April 1, 2012 (Id., p. 55); and
5) a grievance form signed by Burns and dated March 24, 2012 (Id., p. 56).
In the first document listed, Burns complains in his letter about his “7 or 8 grievances and
appeals because I’m being denied the right to go to church with the Jehovah’s [Witnesses].” (Id.,
p. 38.) Also in that letter, he complained about being denied copies of his grievances and appeals,
and voiced concern that his grievances were being ignored. The copies of grievance forms Burns
provided indicate that he did, as he claims, submit grievances concerning, among other things,
the alleged deprivation of his religious rights. On two of those forms, Burns checked a box near
the top indicating that the grievance was intended as an appeal. (Id., pp. 55 and 56.) In a nutshell,
Burns’s opposition to the Defendants’ motion is based on what he characterizes as a mishandled
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or faulty or corrupt jail grievance procedure–a procedure he claims he diligently attempted to
follow, to no avail.
In their reply brief, McClesky and Chase reiterate their position that Burns failed to file
appeals of his grievances according to Section XVI(B) of the jail’s grievance procedure.
Defendants’ Reply, pp. 6-9. Obviously, this is the dispositive issue and the court will return to it
shortly. But the Defendants’ reply also raises a second issue, which will be addressed first. The
Defendants maintain that the documents Burns submitted in support of his opposition to the
motion for summary judgment are “improper[]” and “non-authenticated.” Defendants’ Reply, p.
3. The documents Burns submitted included, in addition to his own sworn statement and copies
of his own grievance reports, copies of grievance forms and letters prepared by other inmates.
See Plaintiff’s Response (DE 59-1 through 59-6). Those documents include complaints by other
inmates, who are also Jehovah’s Witnesses, about problems they allegedly encountered at the Jail
regarding their religious beliefs and practices. The Defendants contend (in a rather grammatically
confusing sentence) that “the documents submitted by Burns fails to submit any are not
admissible in a Court of Law and have not been authenticated. . . . Burns relies on documents
that for all intents and purposes could have been created out of thin air.” Defendants’ Reply, p. 5.
Finally, the Defendants state that they “are filing a separate motion to strike all or parts of Burn’s
[sic] Exhibits along with supporting brief.” Id., p. 1, n. 1. Indeed, the Defendants did just
that–filing a motion to strike simultaneously with their reply brief. (DE 62.) Magistrate Judge
Cherry denied the motion. (DE 65.) In his Order, the Magistrate held that the Defendants “do not
argue that [Plaintiff’s] documents ‘cannot be presented in a form that is admissible in
evidence’–only that they have not now been presented in such a form.” Id., p. 1 (quoting
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Fed.R.Civ.P. 56(c)(2)) (italics added). Accordingly, the Magistrate denied the Defendants’
motion to strike and left it to this court to determine whether the documents Burns submitted
should be considered in the context of summary judgment. Id. This is now a moot point,
however, since the court did not consider any of these documents while evaluating the motion for
summary judgment. The court’s conclusion is based solely on the parties’ pleadings and
affidavits, and on exhibits submitted by Burns that are not contested–i.e., those documents that
he prepared himself and which are based on his personal knowledge. The many pages of
documents prepared by other inmates (or, in some instances, by unknown preparers) that Burns
included in his submission of materials, which were clearly intended to bolster his arguments by
showing that other inmates had complained about similar mistreatment, are not relevant at this
point. The court concludes that Burns has raised a genuine issue of material fact regarding
whether he complied (or was effectively prevented from complying) with the Lake County Jail
grievance procedure, and that conclusion is reached without considering the documents about
which the Defendants complain.
Returning to the issue at hand, the Defendants’ reply brief adds nothing new to the mix.
The Defendants merely reiterate their position that Burns failed to exhaust his administrative
remedies, although they do throw in some general language referring to Burns’s arguments as
“unsupported bald assertions, . . . conclusory, speculative and self-serving statements[.]”
Defendants’ Reply, p. 5. This characterization of Burns’s summary judgment evidence is
misplaced and does not warrant a lengthy discussion. It is true that some of Burns’s allegations
are speculative or conclusory, such as his claim that McClesky and Chase harbored animosity
toward all inmates who were Jehovah’s Witnesses, or that they “acted with deliberate
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indifference in regards to my religious freedom.” Plaintiff’s Statement of Genuine Issues (DE
59), p. 4. But this doesn’t matter, because the court is not assessing the merits of Burns’s
substantive claims at this juncture. The only issue before the court, as already stated several
times, is whether Burns complied with the Lake County Jail grievance procedure. This is a very
narrow inquiry and Burns’s “bald assertions” and “conclusory, speculative and self-serving
statements” are irrelevant to that inquiry. So what if Burns believes McClesky and Chase are
biased against Jehovah’s Witnesses? That has nothing to do with the issue at hand, and Burns
presents plenty of admissible evidence (such as his own sworn affidavit and copies of documents
he prepared himself) on the specific issue of compliance with the grievance procedure to survive
summary judgment, notwithstanding occasional conclusory or speculative statements imbedded
in his pleadings.
As the Seventh Circuit recently explained, Section 1997e(a) mandates exhaustion of
administrative remedies only when such remedies “are available.” White v. Bukowski, 800 F.3d
392, 394 (7th Cir. 2015) (italics in original). If compliance with a jail’s grievance procedure is
futile or impossible, then administrative remedies are not “available” to the inmate and cannot
form the basis for an affirmative defense. As stated above, the Defendants “cannot immunize
themselves from suit by establishing procedures that in practice are not available because they
are impossible to comply with or simply do not exist.’” Thomas v. Reese, 787 F.3d at 847
(quoting King, 781 F.3d at 893). In Thomas, the court of appeals–focusing on the issue of the
“availability” of administrative remedies–explained as follows:
“[W]hen prison officials prevent inmates from using the administrative process . .
. the process that exists on paper becomes unavailable in reality.” Kaba v. Stepp,
458 F.3d 678, 684 (7th Cir. 2006); see also Dole v. Chandler, 438 F.3d 804, 809
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(7th Cir. 2006) (remedy is unavailable when prison employees “use affirmative
misconduct to prevent a prisoner from exhausting”); Dale v. Lappin, 376 F.3d
652, 656 (7th Cir. 2004) (remedy is unavailable when officials refuse to give
prisoner the form required to file grievance).
Thomas, 787 F.3d at 847-48; see also, Turley v. Maue, 2015 WL 6098912, at *3 (S.D. Ill. Oct.
16, 2015) (“If the administrative grievance process is rendered unavailable by prison officials . . .
the exhaustion requirement is satisfied and there is no impediment to filing suit.”) (citing
Thomas, 787 F.3d at 847).
In the present case, the Defendants raised the affirmative defense of failure to exhaust
administrative remedies, and it was their burden to prove this defense. Freed, 2013 WL
2383665, at *1. They have failed to do so in light of the evidence presented by Burns supporting
his allegations that he attempted to comply with the grievance procedure and that his efforts to do
so were impeded by jail employees or officials. Perhaps the Defendants ultimately can convince a
jury that they did not interfere with Burns’s access to the grievance procedure. But such a
conclusion can only be reached after a credibility determination, which of course is the exclusive
province of the jury. Anderson v. Liberty Lobby, 477 U.S. at 255 (weighing evidence and making
credibility decisions are jury functions, and it is not appropriate for a judge to assume those
functions when ruling on a motion for summary judgment). After considering the parties’
pleadings and admissible evidence, and drawing all reasonable inferences in favor of the
nonmovant, the court concludes that Burns has raised a genuine issue of material fact concerning
whether he exhausted his administrative remedies.3 Therefore, the Defendants’ motion for
3

One last point bears mentioning. Section XVI(B) of the Lake County Jail grievance
procedure, on which the Defendants base their failure to exhaust argument, states that an inmate
who is dissatisfied with a response to a grievance “may appeal . . . in writing on the proper appeal
form to the Warden[.]” and, “[i]f still dissatisfied, you may appeal, in writing, on the appeal form
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summary judgment on this issue must be denied.
CONCLUSION
For the reasons discussed above, the motion for summary judgment (DE 48) filed by
Defendants Mac McClesky and Larry Chase is DENIED. The court will schedule further
proceedings in this case by separate order.

Dated: December 21, 2015.

/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana

and direct it to the Sheriff.” Defendants’ Exhibit 2, pp. 17-18 (italics added). The use of the
permissive word “may” (as opposed to a mandatory word, such as “shall” or “must”) makes it
appear as though an appeal is optional, which begs the question of whether an inmate who fails
to file an optional administrative appeal has failed to exhaust his administrative remedies. If an
inmate is dissatisfied with the response to his grievance but decides not to file an appeal with the
Warden or the Sheriff, has he waived his rights under the procedure, i.e., failed to exhaust them?
Or has he fulfilled the requirements of Section XVI(B), making him eligible to bring suit in
federal court notwithstanding the fact that he did not pursue his (arguably optional) right to
appeal? Perhaps this is nothing more than a matter of semantics, given that Section XVI(B)
seems to imply that an appeal is mandatory if an inmate wishes to pursue the grievance procedure
to its ultimate conclusion. But that’s not clear from the express language of the Jail’s rule. In this
case it doesn’t matter, since the court concludes that Burns has presented sufficient evidence of
his compliance (or at least his attempts to comply) with the Jail’s grievance procedure to survive
the motion for summary judgment.
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