Daher v. Sevier et al

Filing 39

OPINION AND ORDER DENYING 24 MOTION for Summary Judgment and DENYING 37 RULE 12(f) MOTION to Strike. Within fourteen (14) days of this order, the defendants are ORDERED to file a notice advising the court whether they elect to waive their exhaustion defense or proceed with a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Signed by Judge Jon E DeGuilio on 8/28/2014. (rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES DAHER, JR.,
Plaintiff,
v.
MARK SEVIER, et al.,
Defendants.

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Case No. 3:13-CV-940 JD

OPINION AND ORDER
James Daher, Jr., a pro se prisoner, is proceeding on claims that Mark Sevier, Laurie
Johnson, and James Csenar (“the defendants”) housed him under substandard conditions at the
Miami Correctional Facility (“Miami”), and retaliated against him for filing grievances. (DE 12.)
The defendants move for summary judgment on the ground that Daher failed to exhaust his
administrative remedies before filing suit. (DE 24.)
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). A genuine
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). 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 all reasonable inferences in that party’s
favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). Nevertheless, a party opposing
summary judgment may not rely on allegations or denials in his or her 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).

As a preliminary matter, Daher moves to strike the defendants’ reply brief. (DE 37.) He
appears to argue that the defendants did not properly obtain an extension to file the brief. (Id. at
1-2.) However, the docket reflects that the defendants properly moved for an extension (DE 31),
and the Magistrate Judge granted that request in an exercise of his discretion. (DE 34.) Daher has
not identified any reason why the order granting the extension was erroneous, nor has he
identified any prejudice he suffered based on the short extension that was granted. Indeed, Daher
himself was granted an extension to file his response brief. (DE 29.) Daher also complains that
the reply was not properly served because “no electronic copy has been received” through the
prison’s electronic filing system. (DE 37 at 2.) It is unclear what he means by this statement. The
reply was filed electronically with the court and is part of the public record. (DE 35.) If there was
an error within the prison’s electronic filing system, this does not making the filing improper.
Furthermore, the defendants submit documentation showing that they served Daher with a copy
of the reply by mail. (DE 38-1, Hear Aff. ¶ 4.) Daher acknowledges receiving a hard copy of
their reply, and has submitted a “surreply” responding to the arguments raised within it. (See DE
36.) Under these circumstances, the court finds no basis to strike the reply brief.
Turning to the merits, the Prison Litigation Reform Act (“PLRA”) prohibits prisoners
from bringing an action in federal court with respect to prison conditions “until such
administrative remedies as are 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.” Id. Thus, “[t]o exhaust remedies, a
prisoner must file complaints and appeals in the place, and at the time, the prison’s

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administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “[A]
prisoner who does not properly take each step within the administrative process has failed to
exhaust state remedies.” Id. at 1024.
Nevertheless, inmates are only required to exhaust administrative remedies that are
“available.” Woodford v. Ngo, 548 U.S. 81, 102 (2006). The availability of a remedy is not a
matter of what appears “on paper,” but rather whether the process was in actuality available for
the prisoner to pursue. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Thus, when prison staff
hinder an inmate’s ability to use the administrative process, such as by failing to provide him
with the necessary forms, administrative remedies are not considered “available.” Id. In essence,
“[p]rison officials may not take unfair advantage of the exhaustion requirement . . . and 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.” Dole, 438 F.3d at
809. When there are disputed issues of fact pertaining to whether the plaintiff exhausted or was
precluded from doing so, the court is required to hold an evidentiary hearing to resolve those
disputes. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008).
Here, the record shows that Daher was an inmate at Miami from February 27, 2002, to
August 5, 2008, and again from July 8, 2010, to February 9, 2012. (DE 35-1, Heishman Suppl.
Aff., ¶ 16.) The events giving rise to this lawsuit occurred in September 2011, when Daher was
classified as a security risk and transferred to the segregation unit. (DE 12.) Daher claims he did
not actually pose a security risk, and that prison officials ordered the transfer in retaliation for
grievances he had filed. He further claims that the conditions of confinement in the segregation
unit were unduly harsh. He asserts that for the first eight days he was denied hygiene products,

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showers, clean clothing, and clean bedding. He remained in the segregation unit for another 32
days, during which time he claims to have been subjected to excessively cold temperatures and
excessive noise. At the end of his time in segregation, he was transferred to Wabash Valley
Correctional Facility (“Wabash Valley”), where he is presently housed. (Id. at 2.)
Since 2005, pursuant to Indiana Department of Correction (“IDOC”) policy, Miami has
had a grievance procedure under which inmates can grieve a broad range of issues, including
their living conditions and the actions of prison staff. (DE 25-1, Heishman Aff. ¶¶ 7-12; IDOC
Manual of Policy & Procedures, No. 00-02-301 § V.) The grievance process has three steps: an
attempt at informal resolution; submission of a formal grievance; and submission of an appeal.
(DE 25-1, Heishman Aff. ¶¶ 13-22.) The first step requires the inmate to try to resolve his
dispute informally by contacting an appropriate staff member within five working days of the
underlying incident. (Id. ¶ 13.) If the issue cannot be resolved informally, the inmate must file a
formal grievance. (Id. ¶ 18.) The formal grievance must be filed no later than 20 working days
from the incident giving rise to his complaint. (Id.) If dissatisfied with the grievance response,
the inmate must submit a formal appeal within 10 working days. (Id. ¶ 22.)
A record is kept of all inmate grievances, and those records reflect that Daher filed
several grievances while he was housed at Miami. (Id. ¶¶ 25-35.) However, none of those
grievances pertain to alleged acts of retaliation or the conditions of confinement in the
segregation unit during September 2011.1 (See DE 25-1 at 7-11.) Based on these records, the
defendants move for summary judgment in their favor. (DE 25.)

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Prison records show Daher filed a grievance in March 2006 about foods served at breakfast; a grievance
in April 2006 regarding a lack of toilet paper; a grievance in October 2006 about the quality of the juices served at
breakfast; a grievance in May 2008 about watered down gravy; and a grievance in February 2011 complaining that
he was given canvas shoes instead of boots. (DE 25-1 at 7-11.)

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Daher filed a response to the motion disputing the defendants’ assertions. (DE 30.) He
claims he did file grievances about the matters raised in his complaint which were mishandled by
prison staff.2 He submits what purports to be a grievance he filed on September 12, 2011, in
which he complained about having been transferred to segregation for retaliatory reasons and
about the harsh conditions in the segregation unit. (DE 30-2 at 6.) He also submits what purports
to be a “Return of Grievance” form given to him by Clair Barnes, the prison’s executive
assistant, on November 7, 2011. (Id. at 7.) This form advised Daher that his grievance was being
rejected for the following reasons: his “complaint seem[ed] to be submitted on behalf of another
person or group”; the form did not contain his IDOC number; and the form was “not completely
filled out.” (Id.) The return of grievance form advised Daher that he had five working days to
correct these issues and resubmit his grievance. (Id.) As Daher points out, the grievance form in
question is fully completed, contains his IDOC number, and was not submitted on behalf of a
group. (See id. at 6.) Daher believes Barnes concocted these reasons to reject his grievance. (DE
30 at 2-3.) He nevertheless claims to have complied with her instructions and resubmitted the
grievance on November 9, 2011. (Id. at 8.) He does not know what happened to this second
grievance, but he claims that prison staff—particularly Barnes—had a practice of failing to
document grievances in order to prevent inmates from exhausting. (DE 30 at 8-10.)

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Daher also argues that he filed classification appeals and sent letters complaining about what occurred,
but actions taken outside the formal grievance process do not satisfy 42 U.S.C. § 1997e(a). Pozo, 286 F.3d at 1025.
Nor do grievances Daher filed at Wabash Valley pertaining to issues occurring at that facility demonstrate
exhaustion as to the claims he is pursuing in this lawsuit. (See DE 30-2 at 26, 29-30.)

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The defendants filed a reply, and they argue that Daher “fabricated” the documents he
submitted to the court.3 (DE 35 at 1.) They assert that no such grievances were ever filed, and
claim that Daher must have drafted them after the fact for purposes of this litigation. They urge
the court to conclude that Daher did not exhaust his available administrative remedies and grant
summary judgment in their favor. (Id. at 4.) The difficulty with the defendants’ argument is that
it requires the court to make a credibility determination. Whether Daher is telling the truth about
submitting these grievances is not a matter that can be determined without an evidentiary
hearing. See Pavey, 544 F.3d at 742; see also Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)
(observing that on summary judgment the court cannot “make credibility determinations, weigh
the evidence, or decide which inferences to draw from the facts”).
Accordingly, summary judgment cannot be granted based on the present record. The
motion will be denied. Unless the defendants elect to withdraw their exhaustion defense, it will
be necessary to hold a hearing pursuant to Pavey to resolve the following issues: (1) whether
Daher submitted a formal grievance on September 11, 2011; (2) whether his grievance was
returned to him unfiled for the reasons listed on the return of grievance form dated November 7,
2011; (3) whether Daher resubmitted the grievance on November 11, 2011; and (4) if so, how
the resubmitted grievance was handled by prison staff.
For these reasons, the plaintiff’s motion to strike (DE 37) is DENIED. The defendants’
motion for summary judgment (DE 24) is DENIED. Within fourteen (14) days of this order, the
defendants are ORDERED to file a notice advising the court whether they elect to waive their

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The defendants do not dispute the authenticity of the return of grievance form authored by Barnes, but in
their view, Daher must have taken the form from a response to another grievance he filed. (DE 35 at 2.)

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exhaustion defense or proceed with a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008).
SO ORDERED.
ENTERED: August 28, 2014

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

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