Jones v. Bates et al

Filing 50

OPINION AND ORDER: GRANTING 38 MOTION for Summary Judgment in favor of defendant Bruce Lemon and; DENYING 38 Motion for Summary Judgment as to Sgt Wardlow; LIFTING the stay on discovery. Party Bruce Lemmon terminated.. Signed by Judge Theresa L Springmann on 1/6/12. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID MICHAEL JONES,
Plaintiff,
v.
BATES, et al.,
Defendants.

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CAUSE NO.: 3:08-CV-545-TLS

OPINION AND ORDER
The Plaintiff, David Michael Jones, a prisoner proceeding pro se in this matter, is
litigating two claims in this case: a claim against Sergeant Douglas Wardlow in his individual
capacity for monetary damages for denying him medical treatment following an attack by other
inmates on January 29, 2008; and a claim against Commissioner Bruce Lemmon in his official
capacity for injunctive relief to prevent his transfer back to the Indiana State Prison where he
was attacked. Those two defendants have filed a Motion for Summary Judgment [ECF No. 38]
asserting that Jones did not exhaust his administrative remedies as required by 42 U.S.C.
§ 1997e(a). For the reasons stated below, the Court will grant summary judgment in favor of
Commissioner Lemmon, on the Plaintiff’s claim against him, and will deny summary judgment
to Sergeant Wardlow, allowing the Plaintiff to move forward on his claim against Sergeant
Wardlow.
BACKGROUND
The Plaintiff’s allegations in this case are more fully developed in the Screening Order
[ECF No. 27] issued in this case on April 5, 2011. A brief summary of the facts relevant to this
Motion follows. In 2008, the Plaintiff was being held at the Indiana State Prison in Michigan
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City, Indiana. He had been threatened by other inmates and was housed in segregation to protect
him. On January 29, 2008, the Plaintiff was attacked by other inmates. The inmates who attacked
the Plaintiff used a knife to stab him in the stomach and slash his face.
On January 30, 2008, the Plaintiff filed an Offender Informal Grievance with his
Counselor, D. Bates. He wrote, “This is bullshit Mr. Bates. I am still having problem with these
dudes. I was jumped on last night by dudes who were let out of their cells on my shower time
and I haven’t even been taken to medical or any thing. They shouldn’t of been let out of their
cells.” (Offender Informal Grievance, ECF No. 48-1 at 2.) The remedy he suggested was: “Still
need protective custody to be kept away from these people.” Id. Counselor Bates responded,
“Placed on single man rec. The medical saw you on 1-31-08[.] ISSUE RESOLVED[.]” Id.
LEGAL STANDARD
The Federal Rules of Civil Procedure state that a “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.” Fed. R. Civ. P. 56(a). The motion should be granted so
long as no rational fact finder could return a verdict in favor of the party opposing the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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. Id. at 249–50;
Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). According to Rule 56:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
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(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1).
Although a bare contention that an issue of fact exists is insufficient to create a factual
dispute, the court must construe all facts in a light most favorable to the nonmoving party, view
all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485,
491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is
more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A material fact must be
outcome determinative under the governing law. Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008). “Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute.” Id.
DISCUSSION
Failure to exhaust is an affirmative defense on which the defendants bear the burden of
proof. Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011).
The [Prison Litigation Reform Act of 1995] provides that no action shall
be brought with respect to prison conditions under section 1983 until such
administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a) . . .
requires proper exhaustion; that is, the inmate must file a timely grievance
utilizing the procedures and rules of the state’s prison grievance process. The
applicable procedural rules that a prisoner must properly exhaust are defined not
by the PLRA, but by the prison grievance process itself. We have taken a strict
compliance approach to exhaustion. Thus, a prisoner must properly use the
prison’s grievance process. If he or she fails to do so, the prison administrative
authority can refuse to hear the case, and the prisoner’s claim can be indefinitely
unexhausted.
Id. at 720–721 (quotation marks, brackets, ellipsis, and citations omitted).
Neither party disputes that the prison has a grievance system. Nor are there any genuine
issues of material fact about the procedures to be followed for filing a grievance. The Defendants
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do not dispute that the Plaintiff submitted an Offender Informal Grievance form on January 30,
2008, and received a response from Counselor Bates. Simlarly, the Plaintiff does not dispute that
he did not appeal the response he received to his informal grievance by filing a formal grievance.
Rather, the parties contest the legal consequences of these events.
A.

Claim Against Defendant Sergeant Wardlow
Counselor Bates, in his response to the Plaintiff’s informal grievance, stated correctly

that the Plaintiff’s medical treatment problem had been resolved. The Plaintiff needed medical
treatment. He filed a grievance. He received medical treatment. Thus, “he exhausted all the
remedies that were available to him . . . as he filed [a] grievance[] and then received exactly what
he had requested.” Thornton v. Snyder, 428 F.3d 690, 694–695 (7th Cir. 2005). In Thornton, the
inmate did not appeal grievance responses after obtaining relief at an initial stage of the
grievance process. Thornton filed a grievance about dangerous conditions in his cell and asked to
be moved. In response, he was moved. Thornton filed a grievance about the mattress in his new
cell and asked for a clean mattress. In response, he was given another mattress. The court in
Thornton explained that “[p]risoners are not required to file additional complaints or appeal
favorable decisions in such cases.” Id. at 696 (quoting Ross v. Cnty. of Bernalillo, 365 F.3d
1181, 1187 (10th Cir. 2004) (abrogated on other grounds by Jones v. Bock, 549 U.S. 199
(2007)). As a result, the Seventh Circuit reversed the district court’s grant of summary judgment
and held that Thornton had exhausted his administrative remedies.
Here, there is no indication that the Plaintiff was denied medical treatment after he was
seen on January 31, 2008. Because his medical issue was resolved, he had no need to appeal that
portion of the response to his informal grievance. Therefore, as in Thornton, the Plaintiff
exhausted his remedies against Sergeant Wardlow for a denial of medical treatment and the
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Motion for Summary Judgment as to this claim, on the basis of a failure to exhaust
administrative remedies, must be denied.
B.

Claim Against Defendant Commissioner Lemmon
Unlike his conclusion on the request for medical treatment, Counselor Bates’s response

stated incorrectly that the Plaintiff’s request for protection had been resolved. The Plaintiff asked
for protective custody so that he could be assigned to a different housing unit (or even a different
prison) than those who wanted to harm him. He did not get what he requested. Instead he was
kept in the same segregation cell DW-406. (See Offender Informal Greivance, ECF No. 48-1 at
2; Report of Classification Hearing, Id. at 6.) His placement on single man recreation was not a
meaningful change (if it was a change at all) because it was during recreation on January 29,
2008, that he was attacked by other inmates who were mistakenly released from their cells at the
same time that he was. Furthermore, it is clear that the Plaintiff did not believe that he had
received a favorable result because he continued to seek protective custody. (Report of
Classification Hearing, ECF No. 48-1 at 6.) The Plaintiff, however, failed to appeal the adverse
response he received to his informal grievance as to his request for protection. The Plaintiff
argues that the grievance policy does not require that he appeal. It is true that the grievance
policy does not require the filing of an appeal; it only makes that opportunity available.
However, 42 U.S.C. § 1997e(a) requires prisoners to exhaust all available administrative
remedies—including appeals. Because the Plaintiff did not exhaust his administrative remedies
against Commissioner Lemmon as to his request for protection, the Motion for Summary
Judgment must be granted on this claim.
Finally, although the Plaintiff does not argue that he should be exempted from the
requirement that he exhaust his administrative remedies because he was in imminent danger, the
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Court notes that such an argument would have been unavailing because even imminent danger
does not excuse the failure to exhaust administrative “remedies tailored to imminent dangers.”
Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1175 (7th Cir. 2010). Here, where the Plaintiff
waited more than nine months to file this lawsuit, imminent danger would not be a justification
for failing to appeal the unfavorable response he received to his informal grievance. As the court
in Fletcher observed, there was “no reason to think that the prison’s grievance procedure would
take longer than judicial procedure.” Id. at 1175.

CONCLUSION
For the foregoing reasons, the Court:
(1) GRANTS the Motion for Summary Judgment [ECF No. 38] in favor of
Commissioner Bruce Lemmon and against the Plaintiff, David Michael Jones, and dismisses the
injunctive relief claim seeking to prevent his transfer back to the Indiana State Prison;
(2) DENIES the Motion for Summary Judgment [ECF No. 38] by Sergeant Wardlow
regarding the denial of medical treatment at the Indiana State Prison on January 29, 2008, and
the days following; and
(3) LIFTS the discovery stay.
SO ORDERED on January 6, 2012.
s/Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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