Quarles v. Sevier et al
OPINION AND ORDER GRANTING 24 MOTION for Summary Judgment filed by Doree Yocum, Sherry Townsend; and the claims against Party Sherry Townsend (LPN Corizon Health Care) and Doree Yocum (LPN Corizon Health Care) are DISMISSED WITHOUT PREJUDICE. Attorney Carol A Dillon terminated. Further proceedings as to the two remaining defendants will be directed by the assigned Magistrate Judge. Signed by Judge Rudy Lozano on 4/14/14. (smp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK SEVIER, et al.,
CAUSE NO. 3:13-CV-843
OPINION AND ORDER
This matter is before the Court on the “Defendants Dorie
Yocum, LPN and Sherry Townsend, LPN’s Motion for Summary Judgment
based on Plaintiff’s Failure to Exhaust Administrative Remedies,”
filed by Defendants, Dori Yocum and Sherry Townsend, on December
19, 2013 (DE #24). Damon Quarles, a pro se prisoner, is proceeding
on a claim that staff at Miami Correctional Facility (“Miami”)
failed to protect him from an attack by another inmate, and then
provided him inadequate medical care following the attack.
Two of the defendants, Sherry Townsend and Dorie Yocum, move
for summary judgment on the ground that Quarles did not properly
exhaust his administrative remedies as to the claims raised against
For the reasons set forth below, Defendants’
motion for summary judgment (DE #24) is GRANTED, and the claims
against Defendants, Sherry Townsend and Dorie Yocum, are DISMISSED
WITHOUT PREJUDICE pursuant to 42 U.S.C. § 1997e(a).
REMAIN PENDING against Defendants, Sgt Kochensparger and Sgt Oaks.
Quarles was granted leave to proceed on a claim that two
correctional officers, Jason Kochensparger and Danny Oaks, failed
to separate him from another inmate, who attacked him on October
12, 2012, by striking him in the head with a “lock in a sock.”
was also granted leave to proceed on a claim that Townsend and
Yocum, nurses at Miami, provided him inadequate medical care
immediately following the attack, by failing to send him to an
outside medical facility for a neurological evaluation.
At all relevant times, and pursuant to Indiana Department of
Correction (“IDOC”) policy, Miami had a grievance process under
which an inmate could grieve a broad range of issues, including
actions by prison staff.
(DE #25-1, Valdez Aff. ¶ 3; DE #25-2,
IDOC Manual of Policies and Procedures (“Grievance Policy”) §
The process begins with the inmate attempting to resolve
the matter informally with staff within five working days of the
(DE #25-2, Grievance Policy § XIII©).)
Working days are defined as Monday through Friday, excluding any
(Id. § III(N).)
If the issue cannot be resolved
informally, the inmate must file a formal grievance after: (1) he
is informed there will be no informal resolution; (2) he refuses an
offered informal resolution; or (3) the informal grievance has been
pending 10 working days and he has received no response.
1, Valdez Aff. ¶¶ 5-7; DE #25-2, Grievance Policy § XIII(c).)
inmate has five working days to submit a formal grievance following
one of these precipitating events.
(DE #25-2, Grievance Policy §
In any event, the inmate must submit a formal grievance
no later than 20 working days from the incident giving rise to his
(Id. § XIV(A).)
The grievance must describe the
incident or problem at issue, and must explain how it personally
affected the inmate.
If the grievance is not resolved to
the inmate’s satisfaction, he must file an appeal within 10 working
(Id. § XIV(E).) Appeals must address the same issue raised
in the grievance, and cannot raise new or unrelated issues.
A record is kept of all inmate grievances, and those records
reflect that on October 18, 2012, Quarles submitted a grievance
regarding the attack by the other inmate.1
(DE #25-1 at 4.)
However, he only mentioned Kochensparger and Oaks, and complained
that they failed to separate him from the other inmate.
(Id. at 4-
He did not mention Yocum or Townsend, nor did he complain
about any improper medical care.
His grievance was denied,
and on November 29, 2012, he filed an appeal.
(DE #23 at 7.)
the appeal, he complained for the first time about the medical care
It appears from the record that the grievance was originally submitted
on this date, but was returned to Quarles for minor corrections. (See DE #23
at 5.) He then resubmitted it on November 13, 2012, with the corrections, and
it was processed by the grievance specialist. (Id. at 6, 9.)
he received following the attack, stating “[t]he doctor and nurses
did not treat me properly causing negligence to my injuries as
He further asserted that Townsend acted improperly
by failing to send him to a hospital for evaluation.
appeal was denied in March 2013.
initiated the present action.
(Id. at 16.)
In June 2013, he
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).
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).
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.”
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
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
A party opposing a
allegations or denials in its own pleading, but rather must
“marshal and present the court with the evidence she contends will
prove her case.”
Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651,
654 (7th Cir. 2010).
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.
2006). The U.S. Court of Appeals for the Seventh Circuit has taken
a “strict compliance approach to exhaustion.”
“[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).
“[U]nless the prisoner completes the administrative process by
following the rules the state has established for that process,
exhaustion has not occurred.”
Id. at 1023.
Here, it is apparent that Quarles did not exhaust his claim
regarding medical care at all levels of administrative review,
because he did not raise this issue in his initial grievance.
grievance is not necessarily inadequate because it fails to name a
(7th Cir. 2011).
See Maddox v. Love, 655 F.3d 709, 721-22
However, it must at a minimum “alert the prison
to the nature of the wrong for which redress is sought[.]” Westefer
v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005); see also Turley v.
Rednour, 729 F.3d 645, 649 (7th Cir. 2013) (observing that primary
purpose of exhaustion requirement “is to alert the state to the
problem and invite corrective action”) (internal quote marks and
Quarles’s grievance failed in this regard,
because he did not adequately alert prison officials to the two
types of wrongdoing he is now suing about: the failure of staff to
protect him from attack by another inmate and the denial of medical
See Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006)
(inmate did not properly exhaust claim pertaining to improper
confiscation of his crutch by filing a grievance complaining that
he had fallen in the shower), overruled on other grounds by Hill v.
Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013); see also Bouman
v. Robinson, 324 Fed. Appx. 523 (7th Cir. May 11, 2009) (inmate
failed to exhaust his claim pertaining to placement in segregation
because his grievance only addressed his suspension from prison
In his responsive documents,2 Quarles argues that he properly
exhausted his administrative remedies because he wrote a letter in
Quarles preemptively filed a response before the motion for summary
judgment was filed, apparently when he realized the defendants intended to
assert exhaustion as an affirmative defense. (DE #23.) He also filed a
response to the motion for summary judgment, but it only addresses the merits
of his claims and not the exhaustion issue. (DE #27.) The court cannot reach
arguments pertaining to the merits at this stage. See Perez v. Wisconsin
Department of Corrections, 182 F.3d 532, 536 (7th Cir. 1999) (district court
“must not proceed to render a substantive decision until it has first
considered § 1997e(a)”).
April 2013 to the IDOC ombudsman complaining about his medical care
following the attack.
(DE #23 at 10-15.)
However, the Seventh
Circuit takes a “strict compliance approach to exhaustion,” see
Dole, 438 F.3d at 809, and letter-writing or other actions taken
outside the grievance process are no substitute for compliance with
the prison’s formal grievance process.
Pozo, 286 F.3d at 1025.
Nor would a letter written in April 2013 be timely as a grievance,
since IDOC policy requires the initial grievance to be filed no
later than 20 days after the underlying incident.
Grievance Policy § XIV(A).) Therefore, this argument is unavailing.
Quarles also appears to argue that he satisfied the exhaustion
requirement by mentioning his medical care in the appeal he filed
on November 29, 2012.
(DE #23 at 1.)
He refers to his filing as
“another grievance,” but in fact this was an appeal filed on the
(Id. at 7.)
As previously stated, Quarles did not
properly present a medical care claim in his initial grievance, and
IDOC policy did not permit him to raise a new issue on appeal.
grievance filed on November 29, 2012, would not have been timely in
any event, since this was more than 20 working days after the
(See 25-2, Grievance Policy § XIV(A).)
Accordingly, the claims raised against Townsend and Yocum
asserting the denial of medical care must be dismissed pursuant to
42 U.S.C. § 1997e(a).
It is not clear that Quarles still has the
ability to exhaust at this stage, but because it is possible IDOC
staff might allow him to cure his omission, the dismissal will be
Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
For the reasons set forth above, the motion for summary
judgment (DE #24) is GRANTED, and the claims against Defendants,
Sherry Townsend and Dorie Yocum, are DISMISSED WITHOUT PREJUDICE
pursuant to 42 U.S.C. § 1997e(a).
Further proceedings as to the
DATED: April 14, 2014
/s/ RUDY LOZANO, Judge
United States District Court
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