Burns v. Apollo et al

Filing 98

OPINION AND ORDER, DENYING 80 MOTION for Summary Judgment filed by Mrs Maria, Mr Apollo, Mr Cantle, Mr Ivetic, Mrs Gore, Mrs Leto. Signed by Judge Rudy Lozano on 2/27/14. cc:pltf(kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT L. BURNS,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
MR. APOLLO, et al.,
Defendants.

CAUSE NO. 2:12-CV-158

OPINION AND ORDER
Robert L. Burns, a pro se prisoner, challenges the conditions
of his confinement at the Lake County Jail (“the jail”) in this
case brought under 42 U.S.C. § 1983. (DE 8.) The Defendants move
for summary judgment on the ground that Burns failed to exhaust his
administrative remedies before filing suit. (DE 80.) For the
reasons set forth below, the motion for summary judgment (DE 80) is
DENIED.

BACKGROUND
Burns filed this action on April 24, 2012. (DE 1.) He was
granted leave to proceed on a claim that jail staff served him food
on trays that were excessively dirty, causing him to contract a
stomach

infection.

judgment,

arguing

(DE
that

8.)
Burns

The

Defendants

failed

to

move

properly

for

summary

exhaust

his

administrative remedies in accordance with 42 U.S.C. § 1997e(a).
(DE 80.) Burns objects to the entry of summary judgment. (DE 84.)

The parties have filed numerous documents in support of their
respective positions. (See DE 80, 82-85, 87, 88, 91, 93, 94, 97.)

DISCUSSION
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). Not
every

dispute

between

the

parties

makes

summary

judgment

inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Id. 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. Ogden v. Atterholt,
606 F.3d 355, 358 (7th Cir. 2010).
Pursuant

to

the

Prison

Litigation

Reform

Act

(“PLRA”),

prisoners 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). The
failure to exhaust is an affirmative defense on which the Defendant
bears the burden of proof. Dole v. Chandler, 438 F.3d 804, 809 (7th

2

Cir. 2006). The U.S. Court of Appeals for the Seventh Circuit has
taken a “strict compliance approach to exhaustion.” Id.

Thus,

“[t]o 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.
Nevertheless,

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 form or mishandling a
grievance, 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.

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Burns was an inmate at the jail during 2011 and 2012.1 (DE 82
at 2.) During that time, the jail had a grievance procedure in
place.

(DE

83-1,

Lake

County

Jail

Prisoners

Manual

§

XVI

(“Grievance Policy”); DE 83-2, Leto Aff. ¶ 3.) The policy involves
several steps: the initial step is to try to informally resolve the
issue with staff; thereafter, the inmate must initiate the formal
grievance process by submitting a written grievance to the deputy
warden’s office; if dissatisfied, the inmate must appeal to the
warden; and the final step is an appeal to the Sheriff of Lake
County. (DE 83-1, Grievance Policy § XVI(A)-(B).)
In their motion, the Defendants argue that Burns failed to
properly exhaust each step of this process. They do not dispute
that Burns filed multiple grievances about the food trays over a
period of several months, but they argue that he failed to appeal
after his grievances were not resolved to his satisfaction. (DE 82
at 7.) However, in support of this argument, they do not submit an
official copy of Burns’s grievance records or an affidavit from the
records custodian at the jail. (See DE 82, 83.) Instead, they point
to documents Burns attached to his complaint, and argue that the
absence of any appeal documents demonstrates that Burns did not
properly exhaust. (See DE 82 at 3-4.) This argument misses the

1

For unknown reasons, Defendants did not provide official documentation
showing the exact dates of Burns’s detention at the jail, and instead assert that
he was there “during late 2011 and 2012” based on the dates of grievances he
submitted along with his complaint. (DE 82 at 2) (citing DE 1 at 7-27.) For
completeness, this information would have been useful, but there is no dispute
Burns was at the jail during the dates relevant to the present motion.

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mark. Exhaustion is an affirmative defense, and the burden of proof
is on the Defendants. See Dole, 438 F.3d at 809. Thus, the absence
of appeal documents attached to Burns’s complaint does not entitle
the Defendants to summary judgment.
Furthermore, the Defendants’ argument is actually refuted by
the documents they reference. There are several documents attached
to the complaint (which Burns resubmitted in response to the
summary judgment motion), indicating that Burns filed multiple
appeals when his grievances were not resolved to his satisfaction.
These documents show that the grievance and appeal are the same
form;

to

submit

an

appeal

the

inmate

need

only

check

the

appropriate box when asked, “Is this an appeal? ____ Yes ____ No.”
(See DE 91 at 4-5.) Burns submitted forms in January 2012, March
2012, and early April 2012, checking “yes” when asked whether the
document was an appeal, and listing the grievances he wished to
appeal. (Id.; DE 85 at 2; see also DE 1 at 11, 16, 17.) However,
each time prison staff simply routed his appeals back to the
grievance officer who had denied his original grievances. (DE 91 at
4-5; DE 85 at 2.) In doing so, prison staff essentially prevented
Burns from proceeding to the next step. See Kaba, 458 F.3d at 684;
Dole, 438 F.3d at 809.
The Defendants argue in response that Burns did not use the
correct appeal form, and in support they submit a copy of a
different form Burns used to appeal an unrelated grievance in 2011.

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(DE 88-1.) However, they do not submit any evidence to prove this
form was in use in 2012 when Burns submitted the appeals relevant
to this case. Burns asserts (without contradiction) that this form
is outdated.2 (DE 91 at 1.) In any event, the Defendants do not
dispute the authenticity of the forms Burns has submitted, and
those forms clearly indicate that they may be used to appeal a
grievance. If Defendants are now trying to claim that some other
form is required, at best this is misleading to inmates trying to
use the grievance process, and at worst it constitutes the type of
affirmative misconduct referenced by the Circuit in Dole.
Based on the record, the Defendants have not demonstrated that
Burns failed to exhaust administrative remedies that were available
to him. See Kaba, 458 F.3d at 684-86 (summary judgment was not
appropriate when the plaintiff was denied forms and otherwise
prevented from pursuing a formal grievance); Dale v. Lappin, 376
F.3d 652, 656 (7th Cir. 2004) (summary judgment on exhaustion
grounds was improper where the defendants’ actions prevented the
inmate from properly exhausting). Accordingly, their motion will be
denied.

2

Indeed, the Defendants appear to have submitted an outdated copy of the
grievance policy itself. In another case involving food trays at the Lake County
Jail during the same time period, the Defendants (two of whom are also sued in
this case) submitted a copy of a grievance policy which took effect in 1999. See
Garrett v. Apollo, No. 2:12-CV-443-RL (N.D. Ind. filed Oct. 26, 2012), DE 47-2,
Lake County Jail Inmate Handbook, Revised 2-24-99. This would appear to post-date
the policy submitted here, which took effect in 1994. (DE 83-1.) The grievance
policies are the same in material respects, so the Court need not pursue this
matter further.

6

CONCLUSION
For the reasons set forth above, the Defendants’ motion for
summary judgment (DE 80) is DENIED.

DATED: February 27, 2014

/s/RUDY LOZANO, Judge
United States District Court

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