Ashlock v. Myers et al

Filing 30

OPINION AND ORDER denying 14 Motion for Summary Judgment. Signed by Judge Jon E DeGuilio on 9/12/2012. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHRISTOPHER E. ASHLOCK,
Plaintiff,
v.
GERALD MYERS, M.D.
Defendant.

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Cause No. 3:11-CV-00204-JD-CAN

OPINION AND ORDER
Christopher Ashlock, a prisoner formerly confined at the Indiana State Prison, filed a pro se
complaint pursuant to 42 U.S.C. § 1983, alleging that Dr. Gerald Myers, a physician previously
employed by the Indiana Department of Corrections, violated his Eighth Amendment right to be free
of cruel and unusual punishment. [DE 1 at 3]. Ashlock asserts that Dr. Myers was deliberately
indifferent towards his need for reasonable medical care and exposed him to unnecessary and
wanton infliction of pain. [DE 1 at 3-4]. Dr. Myers has moved for summary judgment, pursuant to
FED. R. CIV. P. 56, on the question of whether Ashlock exhausted his available administrative
remedies as required by 42 U.S.C. § 1997e(a). [DE 14 at 1]. Despite several extensions of time,
Ashlock, now represented by counsel, has chosen not to respond. [DE 28]. The court now denies the
motion.
Material Facts Not in Dispute
Ashlock was incarcerated at the Indiana State Prison on May 15, 2010. [DE 17-2 at 1]. He
was confined there until his transfer to the Wabash Valley Correctional Facility on June 25, 2010.
[DE 17-2 at 1]. Both the Indiana State Prison and the Wabash Valley Correctional Facility have the

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same Offender Grievance Program. Id. The program requires inmates to file a grievance within
twenty (20) working days from the date of the alleged incident. Id.. Ashlock did not file a grievance
through the Offender Grievance Program at any time when he was confined at Indiana State Prison.
[DE 17-2 at 2]. He did, however, file an unrelated grievance while he was incarcerated at Wabash
Valley Correctional Facility on September 27, 2010, concerning the handling of his personal
property. Id.
In his verified complaint, however, Ashlock alleged that, while he was at the Indiana State
Prison, he did submit a “request slip” to his Case Manager in order to receive a “grievance form.”
[DE 1 at 2]. He maintains that he had a conversation with his Case Manager, named Robertson, in
which he was informed that “when filing a law suit for damages, there’s no longer a reason to file
a grievance, you have to file a tort claim, which [Ashlock] did.” [DE 1 at 2-3]. Ashlock asserts that
this conversation was the reason he did not file the grievance. [DE 1 at 2].
Standard of Review
Failure to exhaust available administrative remedies is an affirmative defense. Jones v. Bock,
549 U.S. 199, 216 (2007). Therefore, at summary judgment the burden is on the defendant to
establish that no material disputes exist concerning that defense. Pavey v. Conley, 663 F.3d 899, 903
(7th Cir. 2011). Summary judgment is only appropriate if “there are no genuine issues of material
fact and judgment as a matter of law is warranted for the moving party.” Gross v. PPG Indus., Inc.,
636 F.3d 884, 888 (7th Cir. 2011). All facts and reasonable inferences are to be construed in favor
of the nonmoving party. Nation v. Am. Capital, Ltd., 682 F.3d 648, 651 (7th Cir. 2012). The
nonmoving party may not “rest on mere allegations or denials in its pleadings.” Serednyj v. Beverly
Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011). However, when a party with personal

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knowledge makes specific factual assertions in its pleadings, declares under penalty of perjury that
the pleading is true, and signs the pleading, the factual assertions may be weighed as evidence just
as if they were contained in an affidavit. Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996). That is
the case with respect to the complaint Ashlock filed here. [DE 1]. Finally, a pro se complaint is to
be liberally construed and held to less stringent standards than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Discussion
Pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), prisoners must
exhaust all available administrative remedies before they may file a § 1983 claim regarding the
conditions of confinement. Jones , 549 U.S. at 204. Exhaustion of remedies is required, “regardless
of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741
(2001). For the purposes of § 1997e(a), grievances regarding medical treatment in prison are
complaints about “prison conditions.” Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004). When
faced with a question of exhaustion under the PLRA, “[t]he court must not proceed to render a
substantive decision until it has first considered § 1997e(a).” Perez v. Wisconsin Dep’t of Corr., 182
F.3d 532, 534 (7th Cir. 1999).
The Seventh Circuit has taken a “strict compliance approach” to the exhaustion requirement.
Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011). However, while “there is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court,”
Jones, 549 U.S. at 210, a prisoner “is required to exhaust only ‘available’ administrative remedies.”
Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011) (emphasis added). An administrative remedy is
unavailable to a prisoner under § 1997e(a), and therefore need not be exhausted, if prison officials

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either intentionally or accidentally misrepresent the grievance procedures or otherwise prevent the
prisoner from utilizing them. See Pavey, 663 F.3d at 906 (administrative remedies are unavailable
if “prison officials erroneously inform an inmate that the remedy does not exist or inaccurately
describe the steps he needs to take...”); Hurst, 634 F.3d at 411 (“a remedy is not available if essential
elements of the procedure for obtaining it are concealed.”); Dole v. Chandler, 438 F.3d 804, 809 (7th
Cir. 2006) (“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.”); Curtis
v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (prison officials who “encourage, or even invite
noncompliance” with grievance procedures render those remedies unavailable).
Ashlock brings an Eighth Amendment claim against Dr. Myers, alleging that Dr. Meyers
failed to ensure Ashlock received prompt medical treatment after Ashlock was attacked by other
inmates. [DE 1 at 2-3]. He claims the delay in receiving treatment resulted in serious pain and
disfigurement. [DE 1 at 3]. Dr. Myers asserts that he is entitled to summary judgment on Ashlock’s
Eighth Amendment claim because Ashlock failed to file a grievance with the Indiana State Prison
prior to filing his action in court and therefore did not exhaust available administrative remedies.
[DE 14 at 1].
Ashlock filed his complaint in this action on May 13, 2011. [DE 1 at 1]. At no time did
Ashlock file a grievance at the Indiana State Prison regarding the subject matter of this lawsuit. [DE
16 at 2]. However, Ashlock claims that he was told by his Case Manager that there was “no longer
a reason to file a grievance” since he wanted to pursue a medical lawsuit and that he would “have
to file a tort claim” instead. [DE 1 at 2-3]. He also maintains this conversation was the reason he did
not proceed any further with a formal grievance. [DE 1 at 2]. Ashlock has declared under the penalty

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of perjury that the factual assertions contained in his complaint were true, and he signed the
complaint to that effect. [DE 1 at 5]. Therefore, for the purposes of summary judgement, any specific
factual assertions in his complaint may be weighed as evidence just as if they were contained in an
affidavit. Ford, 90 F.3d at 246. If the conversation between Ashlock and his Case Manager occurred
as Ashlock has claimed, it could render the administrative remedies at Indiana State Prison
“unavailable” for purposes of 42 U.S.C. § 1997e(a). Assuming that Ashlock’s Case Manager advised
him that there was “no longer a reason to file a grievance” and that he “had to file a tort claim”, the
Case Manager’s instructions could be considered an erroneous or inaccurate misrepresentation that
precluded Ashlock from properly following grievance procedures, rendering those remedies
unavailable. Pavey, 663 F.3d at 906. That is an acceptable defense to his failure to exhaust.
In Dr. Myers’ Answer to the Complaint, he merely stated that he “lacks sufficient
information at this time to admit or deny whether Plaintiff has exhausted the grievance procedure
prior to filing suit.” [DE 12 at 2]. Further, at no point in his Brief in Support of the Motion for
Summary Judgment does Dr. Myers deny the substance of the conversation recounted in the
complaint, or deny that it took place. Nor does Dr. Myers provide any evidence to weigh against
Ashlock’s account of the conversation. For that reason, the ordinary rule – that facts included in a
summary judgment motion which are not responded to are deemed admitted – is irrelevant. Ashlock
can admit all of the facts alleged by the defendant, including that he failed to file a grievance, etc.,
without contradicting any of the factual assertions contained in his verified complaint that defeat the
non-exhaustion defense.
On summary judgment, “the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.” Shaffer

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v. AMA, 662 F.3d 439, 443 (7th Cir. 2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Where “competing reasonable inferences” can be drawn, the court is “obligated to view
the record in the light most favorable to [the nonmoving party] and to refrain from weighing the
evidence or deciding which inferences to draw[.]” Id. at 446. In order to prevail on his Motion for
Summary Judgment, Dr. Myers has the burden of showing that no material disputes exist concerning
his defense of non-exhaustion. Id. at 903. Viewing all facts and reasonable inferences in favor of
Ashlock, see Nation, 682 F.3d at 651, and liberally construing Ashlock’s pro se complaint, see
Erickson, 551 U.S. at 94, a genuine issue of material fact does exist that makes judgment as a matter
of law on non-exhaustion grounds unwarranted. Gross, 636 F.3d at 888.
Conclusion
For the foregoing reasons, the court DENIES the Defendants’ Motion for Summary
Judgment. [DE 14].
SO ORDERED.
ENTERED: September 12, 2012

/s/ JON E. DEGUILIO
Judge
United States District Court

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