Scroggin v. Dawson et al
OPINION AND ORDER: Court GRANTS 30 Motion for Summary Judgment and this case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Rudy Lozano on 10/12/2016. cc: Scroggin (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
BRANDON LEE SCROGGIN,
PEGGY DAWSON, et al.,
CAUSE NO. 2:15-CV-432
OPINION AND ORDER
This matter is before the Court on Defendants’ Dr. Vickie
Burdine, Ann Ivers, and Margaret Dawson’s Motion for Summary
Judgment Due to Plaintiff’s Failure to Exhaust Administrative
Remedies, filed by the Defendants on August 19, 2016 (DE #30). For
the reasons set forth below, this motion is GRANTED and the case is
DISMISSED without prejudice.
In this case, Scroggin alleges that psychiatrists Peggy Dawson
administering crushed time-released Wellbutrin, even though they
were told it made his condition worse.
He also asserts that
Nursing Director Lee Ann Ivers ignored his requests to be seen by
medical professionals for his injured taste buds suffered as a
result of taking crushed Wellbutrin.
Brandon Lee Scroggin was
granted leave to proceed on Eighth Amendment claims against Peggy
Dawson, Victoria Burdine and Lee Ann Ivers.
These defendants move
for summary judgment, arguing that Scroggin failed to properly
exhaust his administrative remedies, as required by 42 U.S.C. §
Scroggin was provided with a “Notice of Summary-Judgment
Motion” as required by N.D. Ind. L.R. 56-1 and a copy of both
Federal Rule of Civil Procedure 56 and Local Rule 56-1.
That notice clearly informed him that unless he disputed the facts
presented by the defendant, the court could accept those facts as
Fed. R. Civ. P. 56(e) (“If a party . . . fails to properly
address another party’s assertion of fact . . . the court may . .
. consider the fact undisputed for purposes of the motion.”).
also told him that unless he submitted evidence creating a factual
dispute, he could lose this case. Fed. R. Civ. P. 56(a) (“The court
shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”). Despite being given proper
notice of the motion for summary judgment, Scroggin has not
Summary Judgment Standard
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).
dispute 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).
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.”
In determining whether
summary judgment is appropriate, the deciding 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.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
Scroggin Failed to Exhaust His Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), prisoners are
prohibited from bringing an action in federal court with respect to
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 Cir.
The United States Court of Appeals for the Seventh Circuit
Therefore, “[t]o exhaust remedies, a prisoner must file complaints
administrative rules require.”
Pozo v. McCaughtry, 286 F.3d 1022,
established for that process, exhaustion has not occurred.” Id. at
Notably, there was an inmate grievance process in place while
Scroggin was housed at the Miami Correctional Facility (“Miami”).
(Ex. A, Decl. Sgt. Bowman ¶ 7; Ex. B, IDOC Offender Grievance
All inmates go through an orientation and are provided
with a copy of the Department’s Orientation Handbook, which details
the grievance process.
(Ex. A ¶ 7.)
The grievance process has
three steps: (1) an informal attempt to solve a problem; (2)
submission of a written grievance; and (3) a written appeal. (Id.
at ¶ 8.)
The process begins with the inmate attempting to resolve
the matter informally with staff.
(Id. at ¶ 9.)
If the issue
cannot be resolved informally, the inmate must file a formal
grievance within 20 working days of the underlying incident.
at ¶ 10.)
If the grievance is not resolved to the inmate’s
satisfaction, he must file an appeal of the grievance response.
(Id. at ¶ 11.)
If the inmate does not receive any response to his
grievance within 20 days of being investigated, the grievance is
deemed denied and he may proceed to the next step.
(Id. at ¶ 13.)
While housed at Miami, Scroggin submitted three (3) formal
(Id. at ¶ 15; Ex. C, Scroggin’s Inmate Grievance
Thus, Scroggin clearly understood the grievance
process and it was available to him.
Two of those grievances
involved complaints regarding Wellbutrin administration.
Scroggin submitted Formal Grievance 89588 on October 29, 2015.
(Ex. A at ¶ 16; Ex. D, Grievance 89588.)
That grievance was denied
on December 1, 2015. (Ex. A at ¶ 16.)
Scroggin never notified
Sergeant Brenda Bowman, the Offender Grievance Specialist at Miami,
that he wished to appeal the denial of that grievance.
(Id. at ¶
17.) Nor did Scroggin ever submit a written appeal. (Id.)
Scroggin submitted Formal Grievance 89686 on November 4, 2015.
(Id. at ¶ 19; Ex. F, Grievance 89686.)
on January 12, 2016.1 (Ex. A at¶ ¶ 19.)
(Id. at 20.)
That grievance was denied
Scroggin never notified
Nor did Scroggin ever complete a written
appeal for this grievance either. (Id.)
The undisputed facts show that Miami had a grievance process
in place at the time of these events, but Scroggin failed to
Though this response is untimely, that is of no matter. Under the
grievance policy, a grievance is deemed denied after 20 days if no response is
received. (Ex A at ¶ 13.) Scroggin could have proceeded to the next step at
that point, but he failed to avail himself of this available remedy.
complete that process as to either of his grievances regarding the
administration of Wellbutrin because he failed to submit a written
administrative remedies before bringing this lawsuit, see Pozo, 286
F.3d at 1025, and the case must be dismissed pursuant to 42 U.S.C.
It is not clear that Scroggin still has the ability to
exhaust, but because the IDOC could allow him to cure his omission,
the dismissal will be without prejudice.
Ford, 362 F.3d at 401
(“[A]ll dismissals under § 1997e(a) should be without prejudice.”).
For the reasons set forth above, the motion for summary
judgment (DE #30) is GRANTED and this case is DISMISSED without
prejudice pursuant to 42 U.S.C. § 1997e(a).
DATED: October 12, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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