Taghon v. Euler et al

Filing 63

OPINION AND ORDER dismissing case due to Plaintiffs failure to exhaust his administrative remedies. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 10/10/2013. (kds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
STEPHEN TAGHON,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
STEVEN EULER, et al.,
Defendants.

NO. 3:11-CV-386

OPINION AND ORDER
This matter is before the Court following a hearing pursuant
to Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) to determine
all factual issues related to Plaintiff’s alleged failure to
exhaust his administrative remedies. For the reasons set forth
below, this case is dismissed due to Plaintiff’s failure to exhaust
his administrative remedies.

BACKGROUND
Plaintiff, Stephen Taghon (“Taghon”), is an inmate in the
Indiana Department of Corrections and is currently housed at the
New Castle Correctional Facility.
action,

alleging

that

while

Taghon filed this civil rights

housed

at

Westville

Correctional

Facility, he warned the Defendants that his life would be in danger
if he was placed in the IC Complex.

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Taghon alleges he was

nevertheless placed in the IC Complex and was assaulted by fellow
inmates.

Taghon argues that Defendants failed to protect him, in

violation of the Eighth Amendment to the U.S. Constitution.

On

February 22, 2012, Defendants filed a motion for summary judgment,
presenting as an affirmative defense their contention that Taghon
failed to comply with the exhaustion requirement of the Prison
Litigation Reform Act (“PLRA”).

Taghon admittedly failed to

exhaust the prison’s grievance process, but argued that he should
be excused from doing so because that process was unavailable to
him.

Taking the facts in a light most favorable to Taghon, this

Court found there was a question of material fact as to whether
Taghon’s failure to exhaust was due to prison officials preventing
him from completing the grievance appeal process.
On April 17, 2003, this Court conducted a hearing pursuant to
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) to determine all
factual issues related to Plaintiff’s alleged failure to exhaust
his administrative remedies.

“A Pavey hearing determines if an

inmate has failed to exhaust all available administrative remedies
and prevents an unnecessary trial if an inmate has failed to
exhaust administrative remedies.” Wade v. Lain, Cause No. 2:11-CV454, *6 (N.D. Ind. July 24, 2012).

Defendants have the burden of

proof as to their affirmative defense.

Dole v. Chandler, 438 F.3d

804, 809 (7th Cir. 2006)(citation omitted).

Thus, Defendants must

show that Taghon has failed to exhaust all available remedies.

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Taghon was present in person and Defendants were present by
counsel. Evidence, including testimony from Taghon and Defendants’
witnesses,

Timothy

Bean,

Grievance

Investigator

at

Westville

Correctional Facility (“Westville”) and James Jenkins, retired
Correctional Counselor at Westville, was presented.

DISCUSSION
Facts
In making the following findings of fact, the Court considered
the credibility of the witnesses.
Timothy Bean was a grievance investigator at Westville in
January 2011.

IDOC Policy and Administrative Procedure 00-02-301,

Offender Grievance Process was the IDOC policy governing the
grievance process at Westville in January 2011. This Policy became
effective as of January 1, 2010.

The grievance process begins

with an offender trying to informally resolve his complaint with a
staff member at Westville. If that does not resolve his issue, the
offender can begin the formal grievance process, which consists of
a formal grievance and a formal appeal.
The formal grievance process begins when an offender submits
a State Form 45471, Offender Grievance, to the grievance officer at
Westville.

The grievance form must be adequate under the Policy.

A grievance form can be rejected and returned to an offender for a
variety of reasons, including that the matter “has been raised and

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addressed

before

or

is

being

addressed

submitted by the same offender.”

in

another

(Ex. A, p. 18).

grievance

If the offender

submits an adequate grievance form, the executive assistant logs
that grievance and assigns a case number.

The grievance officer

investigates allegations of an adequate grievance.

Following his

investigation, the grievance officer formulates and logs a response
to the offender’s grievance and a copy of the grievance response is
sent back to the offender.

If the offender does not agree with the

response given by the grievance officer, the offender has the right
to appeal.
According to Timothy Bean, an offender triggers the appeal
process by checking “disagree” located on the grievance response
and then sending the response back to the grievance officer.

Or,

the offender can inform a counselor or case manager that he
disagrees with the response given or the offender can send a
correspondence to the grievance officer indicating the log number
and that he disagrees with the grievance response. After receiving
notification

that

the

offender

disagrees

with

the

grievance

response, the grievance officer sends the offender a formal appeal
form through the institutional mail.
There is no exact appeal form identified in the Offender
Grievance Process.

Instead, the process states that “[a]ppeals

must address the basic issue of grievance.” (Ex. A, p. 23).

And,

any appeal must include “the original grievance, any grievance

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response, and any other information submitted with the original
grievance. . ..”

(Ex. A, p. 23).

Once an appeal is submitted to the grievance officer and
accepted, the officer logs the appeal and sends a receipt back to
the offender.

The appeal is then sent to IDOC’s Central Office,

where an official will investigate and respond to the appeal. Once
the response is completed, the response is sent to the grievance
officer, who takes the response to the offender.

The grievance

process at Westville is considered exhausted upon completion of the
appeal process.
In March 2008, Taghon entered the Reception Diagnostic Center
upon entering the IDOC.

While there, Taghon acknowledged having

the grievance procedure explained to him.

A month later, Taghon

attended orientation at Westville and signed a form acknowledging
the he received orientation in the area of grievances.

James

Jenkins worked as a correctional officer at Westville during this
period of time and he was responsible for conducting orientation to
newly arriving offenders. He provided an overview of the grievance
process,

including

appeals,

to

the

newly

arriving

offenders.

Moreover, a copy of the grievance policy was provided to offenders
during orientation.

Taghon testified that he did not recall

receiving orientation on grievance appeals procedure nor did he
remember receiving any written materials regarding grievances.
While Timothy Bean was unaware of exactly how the 2010 version of

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the grievance policy differed from the 2008 version, the formal
grievance and formal appeal steps have existed in the grievance
policy at Westville since 2005.
A

copy

of

the

grievance

Westville’s law library.

policy

was

also

available

at

The law library would send an offender a

copy of a policy upon the request of an offender.

Offenders were

informed at their orientation that they could request policies from
the law library.

An offender could contact their counselor, case

manager,

unit

and/or

grievance process.

manager

for

more

information

about

the

An offender could also contact Timothy Bean

regarding questions about the grievance process, including how to
appeal.
Following an attack by fellow prisoners in January 2011,
Taghon was in Westville’s infirmary.
visited by Timothy Bean.

While there, Taghon was

Taghon told Timothy Bean that he thought

prison staff were to blame for the attack, and he wanted to file a
grievance.
Ex. D.

On January 11, 2011, Taghon filed a formal grievance.

This grievance was not accepted and logged but, instead,

returned to Taghon requesting additional information. Ex. D.
January

18,

grievance.

2011,
Ex. E.

Taghon

submitted

a

second

formal

On

written

This grievance was accepted and logged by

Timothy Bean as #63572.
Timothy Bean then investigated Taghon’s allegations of staff
misconduct.

On January 24, 2011, Timothy Bean responded to

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Taghon’s grievance by sending him1 an “Offender Grievance Response
Report.”

Ex. F.

Timothy Bean stated that staff members were not

aware of any concerns regarding Taghon’s safety prior to his
assault.
Taghon testified that when he received the response report, he
read it aloud in the presence of fellow prisoners, and one of them
advised him to “appeal that.”

Taghon testified that he completed

an Interview Request form, asking to appeal grievance #63572, and
sent it to Timothy Bean.

Timothy Bean testified that he never

received any such Interview Request form from Taghon.

Thus, there

is a conflict between the testimony of Taghon and Timothy Bean.
Their testimony is at odds as to whether Taghon ever sent him an
Interview Request, asking to appeal grievance #63572.
During and after the April 17, 2013, hearing, the Court
carefully considered the credibility and demeanor of Taghon and
Timothy Bean.

Granted, both Taghon and Timothy Bean arguably have

their own motives to fabricate their testimony. Taghon’s motive is
to proceed with his section 1983 litigation whereas Timothy Bean
likely wishes to avoid being found to have obstructed Taghon’s use
of the prison grievance system.
This Court is not familiar with either Taghon’s or Timothy
Bean’s

demeanor

or

mannerisms.

1

However,

after

careful

At the Pavey hearing, Taghon stated that he received an unsigned
offender grievance response report. At his prior deposition, he admitted
receiving Exhibit F. This Court finds that Taghon did receive Exhibit F.

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consideration, this Court credits Timothy Bean’s testimony and, as
such, finds that Taghon never filled out and sent an Interview
Request form to Timothy Bean. Importantly, there is nothing in the
record to diminish the credibility of Timothy Bean.

The testimony

and evidence established that Timothy Bean was helpful in assisting
Taghon with filing a grievance. He visited Taghon in the infirmary
without being asked to and assisted Taghon with the grievance
process.

In addition, he promptly responded to every grievance

filing Taghon made (that is in evidence).

There is nothing in the

record that puts Timothy Bean’s credibility in question with regard
to helping assist Taghon in navigating through the grievance
process.

Thus, it is quite unlikely that Timothy Bean would lie

under oath about not receiving an Interview Request form from
Taghon.
There are things in the record that make this Court question
the credibility of Taghon with respect his allegation that he made
and sent an interview request form to Timothy Bean.
while

Taghon

testified

that,

after

receiving

the

To start,
“Return

of

Grievance,” he sent Timothy Bean a “Request for Interview” form
stating that the wanted to appeal that grievance response, this
testimony is vague, lacks any supporting detail, or corroborating
evidence.

Essentially, the only proof of its existence comes from

the testimony of Taghon.

This is troublesome, as every other

grievance filing Taghon made and each response from Timothy Bean is

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documented and in evidence.

It is hard to believe that the one

critical piece of evidence for Taghon is the lone piece of missing
evidence.
Not only is Taghon’s allegation not documented, but another
problem is that it is contradicted by Timothy Bean, who this Court
finds credible and who testified that he never received this form.
This Court has reason to discredit Taghon’s testimony.

While both

Taghon

motive

and

Timothy

Bean

may

both

arguably

have

a

to

fabricate their testimony, Tahgon has a much stronger motive.
Taghon’s failure to assert that he filled out an interview request
form requesting to appeal his grievance would be been fatal to this
case.

Moreover, Taghon provided testimony at the Pavey hearing

about not receiving Exhibit F, that was admittedly a different
story than he gave in his deposition.

Although Taghon’s counsel

asserts mistaken memory is accountable for the change in story,
Taghon still changed his story and diminishes his credibility.
Accordingly, after weighing the credibility and demeanor of
both witnesses, and when forced to reconcile the conflicts between
Taghon’s version of events and Timothy Bean’s version, the Court
credits the testimony of Timothy Bean.

As such, this Court finds

that Taghon never sent Timothy Bean an Interview Request, asking to
appeal grievance #63572.
On January 27, 2011, Taghon submitted another State Form
45471, Offender Grievance, to Timothy Bean.

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(Ex. G).

Taghon did

not include an existing grievance number on the form or provide any
accompanying documents.
Timothy Bean identified this as a third formal grievance
regarding

Taghon’s

January

7,

2011,

assault.

grievance was not accepted and logged.

As

such,

the

Instead, on January 31,

2011, Timothy Bean sent Taghon a “Return of Grievance,” noting that
“[t]he issue in this complaint or concern was addressed previously
in Grievance # 63572.” Ex. H.

Timothy Bean never received any

other documentation from Taghon regarding his grievances.

Taghon

believed that the Return of Grievance was a denial of the his
appeal.

As such, he did nothing further to complete the grievance

process, because he believed the document he received was notice of
the denial of his appeal.

Analysis
The PLRA provides that prisoners are prohibited from bringing
claims about prison conditions under 42 U.S.C. § 1983 until “such
administrative remedies as are available are exhausted.” 42 U.S.C.
§

1997e(a).

An

administrative

remedy

is

“available”

if

the

administrative procedure has “authority to take some action in
response to a complaint.”

Larkin v. Galloway, 266 F.3d 718, 723

(7th Cir. 2001) (quotation omitted).

Thus, a remedy that prison

officials impede a prisoner from using is deemed “unavailable.”
Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).

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For example,

not ruling on a grievance, not providing necessary forms and
otherwise preventing access to administrative remedies have been
found to render administrative remedies unavailable.

Id. at

656(listing cases).
The PLRA’s exhaustion requirement is designed to provide state
corrections officials “time and opportunity to address complaints
internally before allowing the initiation of a federal case.”
Porter v. Nussle, 534 U.S. 516, 525 (2002).

In other words, the

PLRA was enacted to allow prison officials an opportunity to
informally resolve disputes that inmates may have before they are
brought into court, which also helps “reduce the quantity and
improve the quality of prisoner suits.”

Jones v. Bock, 549 U.S.

199, 203-04 (2007) (quoting Porter, 534 U.S. at 524).
The failure to exhaust is an affirmative defense on which the
defendants bear the burden of proof.

See Dole v. Chandler, 438

F.3d 804, 809 (7th Cir. 2006); see also Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002) (finding that “[f]ailure to do what
the state requires bars, and does not just postpone, suit under §
1983.”). “To exhaust remedies, a prisoner must file complaints and
appeals in the place, and at the time, the prison’s administrative
rules require.”

Pozo, 286 F.3d at 1025.

His filings also must

contain the “factual particularity” required by prison rules.
Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002).
This Circuit has taken a strict compliance approach with

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respect to exhaustion, and a prisoner must properly follow the
prescribed

administrative

remedies.

procedures

Dole, 438 F.3d at 809.

enough to carry the day.

in

order

to

exhaust

his

Substantial compliance is not

Lewis v. Washington, 300 F.3d 829, 833-34

(7th Cir. 2002). Additionally, an inmate is required to pursue his
claim through the final step of the grievance process.
Churner,

532

U.S.

731,

741

(2001).

When

Booth v.

an

available

administrative remedy has not been exhausted, the claim should be
dismissed without prejudice. See Massey v. Wheeler, 221 F.3d 1030,
1034 (7th Cir. 2000).
In this case, the parties agree that Taghon did not complete
the administrative grievance process at Westville.

Defendants

assert this failure to exhaust as an affirmative defense.
contends

that

the

applicable

2011

grievance

process

Taghon
was

not

provided or accessible to him and also that the prison staff’s
failures caused him to not properly exhaust the grievance process,
rendering the process unavailable.

Surely, “[a]n institution

cannot keep inmates in ignorance of the grievance procedure and
then fault them for not using it.”

Hall v. Sheahan, No. 2000 C

1649, 2001 WL 111019, * 2 (N.D. Ill. Feb. 2, 2001).

However,

“correctional

of

officials

affirmative

defense]

as

reasonable,

good-faith

are

entitled

long

as

effort

to

to

the
make

the

benefit

institution
a

has

grievance

[its

made

a

procedure

available to inmates; an inmate may not close his eyes to what he

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reasonably should have known.”

Id.

This Court finds that the applicable grievance procedure was
available

to

Taghon.

At

the

very

least,

Westville

made

reasonable, good-faith effort to make it available to him.
evidence

at

the

hearing

established

that

Taghon

a

The

received

orientation as to Westville’s grievance process in 2008, and that
the formal grievance process remained unchanged through 2011.
grievance process was also accessible to him.

The

Not only was Taghon

oriented to the grievance process, but there was a copy that was
readily available in the law library.

In the event Taghon wanted

a copy of the grievance process, all he needed to do was request
one from the law library, which he did not do.
Again, as the parties’ concede, Taghon did not properly
exhaust his grievance process.

At most, Taghon filed what Timothy

Bean believed was an initial grievance for a third time, which was
rejected as a duplicate grievance. Even if Taghon desired that his
filing constitute an appeal, that is not the proper way to file an
appeal.

Unfortunately for Taghon, compliance with the grievance

procedure is strictly construed and partial compliance with the
grievance procedure is not enough.

Lewis, 300 F.3d at 833-34.

If

Taghon was confused or otherwise in the dark about the grievance
process, he could have sought out help or advice, which he chose
not to do.
In fact, after Taghon filed his third initial grievance, he

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received a notice from Timothy Bean, informing Taghon that it was
rejected as a duplicate.

Thus, even if Taghon initially believed

that submitting the third initial grievance form constituted an
appeal, Timothy Bean informed him otherwise.

Ex. H.

If Taghon

desired to appeal, he should realized that he needed to do so at
that point.

However, he did nothing.

Taghon did not contact

anyone or make any effort to perfect his appeal. Because no prison
official did anything that caused Taghon to fail to exhaust the
grievance process, this Court can not say the grievance process was
“unavailable” to him.
“The exhaustion requirement is strictly enforced, in part
because it allows prison officials to promptly correct errors
internally and to develop a factual record before a case moves to
federal court.”
2010).

Canady v. Davis, 376 Fed. Appx. 625, 626 (7th Cir.

By not appealing the denial of his grievance, Taghon

deprived Westville of this opportunity, and is foreclosed from
bringing his claim here.

CONCLUSION
For the reasons set forth above, this case is dismissed due to
Plaintiff’s failure to exhaust his administrative remedies.

DATED:

October 10, 2013

/s/RUDY LOZANO, Judge
United States District Court

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