Manley v. Indiana Department of Correction
OPINION AND ORDER GRANTING 62 MOTION for Summary Judgment by Defendants R Beemer, Kelli Bradley, Robert Eutz, R Hobbs, Koppensparger, J Larimore, Mark Sevier, Thomas. This case is DISMISSED WITHOUT PREJUDICE. Clerk DIRECTED to close this case and enter judgment accordingly. Signed by Judge Jon E DeGuilio on 8/23/17. (Copy mailed to pro se party).(cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES E. MANLEY,
MARK SEVIER, KOPPENSPARGER,
THOMAS, KELLI BRADLEY, R.
HOBBS, J. LARIMORE, R. BEEMER,
and ROBERT EUTZ,
Cause No. 3:13-CV-1308 JD
OPINION AND ORDER
James E. Manley, a prisoner without a lawyer, is suing eight defendants for retaliating
against him in violation of the First Amendment. The defendants filed a motion for summary
judgment arguing that Manley did not exhaust his administrative remedies before filing suit
as required by 42 U.S.C. § 1997e(a) which prohibits prisoners from bringing an action in
federal court with respect to prison conditions “until such administrative remedies as are
available are exhausted.” “Failure to exhaust is an affirmative defense that a defendant
has the burden of proving.” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015).
Manley acknowledges that “A grievance program existed at Miami Correctional
Facility at the time of the events alleged by plaintiff, and complaints regarding actions of
staff could be addressed through that program, including allegations of retaliation by
staff.”1 ECF 71 at 1. The parties do not dispute either the existence nor terms of the
In his sur-reply (ECF 73 at 2), Manley questions whether the copy of the policy filed by the defendants is
authentic because it has 31 pages whereas a copy of the policy filed in Posey v. Scott, 3:13-CV-1033 (N.D. Ind. filed
September 25, 2013), ECF 20-1, only had 30 pages. However, he has not identified any substantive differences
grievance procedure as it existed in 2013 when the relevant events occurred in this case.2
Neither do the parties dispute the relevant facts. Rather, the dispute here is how the law
should be applied to those facts.
In support of the motion for summary judgment, the defendants submitted the
declaration3 of Angela Heishman. She is an administrative assistant at the Miami
Correctional Facility who “reviewed Offender Manley’s records and grievance history.”
ECF 62-1 at 6. She declares that, “IDOC records indicate that Offender Manley has never
filed a grievance concerning his allegations of retaliation by Defendants Sevier, Hobbs,
Eutz, Bradley, Beemer, Kochensparger, Larimore, and Thomas.” Id. In response, Manley
raises four arguments for why summary judgment should not be granted even though
the IDOC does not have a record of him having filed a grievance alleging that any of these
defendants retaliated against him.
First Manley argues, “that Angela Heishman wrote to plaintiff stating that ‘you
have exhausted all of your administrative remedies, and I cannot offer you any other type
of relief.’” ECF 71 at 1 (brackets omitted). However, that statement was not made in
reference to a grievance. It was made in reference to an appeal from a disciplinary hearing
between these two copies. Other than the location of page breaks, the court has not found any differences and has no
reason to question the authenticity of the copy filed in this case.
In his sur-reply (ECF 73 at 2), Manley states that in 2016 he attempted to file a grievance raising a retaliation
claim, but was told by a prison official that retaliation claims could not be addressed by the grievance process in effect
at that time. However, that is not relevant to this case because the grievance policy in effect in 2016 was adopted on
June 1, 2015. See https://in.gov/idoc/files/00-02-301__Grievance_Procedure_1-01-10.pdf. Manley agrees retaliation
claims were grievable in 2013. ECF 71 at 1. Indeed, he filed a grievance in 2013 alleging retaliation which was
accepted and fully processed to the final level. ECF 62-1 at 44. Thus, there is no genuine dispute as to whether
retaliation claims were grievable in 2013.
The document is titled, “Affidavit of Angela Heishman” but it is not an affidavit because it is not notarized.
Rather, it is a declaration pursuant to 28 U.S.C. § 1746.
where Manley was found guilty of unauthorized computer access. ECF 23-2 at 36. Here
is the full response written by Heishman:
The appeal you submitted for case # MCF 13-11-0057 has previously been
addressed. Your response was sent to you on December 17, 2013. Since a
liberty loss is not involved, this was your final level of appeal. You have
exhausted all your administrative remedies, and I cannot offer you any
other type of relief.
ECF 30-3 at 58. Because Heishman did not tell Manley that he had exhausted the
administrative remedies related to a grievance alleging that he had been retaliated
against by any of the defendants, this is not a basis for denying the summary judgment
Second, Manley argues that the grievance process could not provide him with a
meaningful remedy because offenders are not permitted to seek, “staff discipline, job
reassignment, and/or training . . ..”4 ECF 71 at 1. However, there is no futility exception
to the exhaustion requirement. Booth v. Churner, 532 U.S. 731, 741, n.6 (2001). “Exhaustion
is necessary even if the prisoner is requesting relief that the relevant administrative
review board has no power to grant, such as monetary damages, or if the prisoner
believes that exhaustion is futile. The sole objective of [42 U.S.C.] § 1997e(a) is to permit
the prison’s administrative process to run its course before litigation begins.” Dole v.
Chandler, 438 F.3d 804, 808-809 (7th Cir. 2006) (citations and quotation marks omitted).
Despite arguing that the grievance system was inadequate because it did not permit him to ask for staff
discipline, job reassignment, and/or training, Manley did not seek injunctive relief asking for any of those things when
he filed his original complaint nor any of his amended complaints. See ECF 7 at 24, ECF 15 at 13-14, ECF 23 at 1415, and ECF 30 at 11.
Because it is not relevant what relief Manley was seeking, this is not a basis for denying
the summary judgment motion.
Third, Manley argues that “in his grievance appeal concerning retaliation by Lt.
Sterling, the plaintiff did state that defendants Sevier, Hobbs, and Bradley were involved
in retaliatory conduct against plaintiff and those claims of retaliation were ignored by the
final reviewing authority.” ECF 71 at 2 (footnote omitted). On October 3, 2013, Manley
filed a grievance (#78741) alleging that Lt. Sterling retaliated against him by filing a false
conduct report on September 27, 2013, because Manley had filed a grievance against him.
ECF 62-1 at 48. Grievance 78741 makes no mention of any of the eight defendants named
in this lawsuit. Neither did it (nor could it) make any mention of their alleged acts of
retaliation which had not yet occurred. Neither did it allege that he was being retaliated
against for any of the reasons these eight defendants are alleged to have retaliated against
him.5 Nevertheless, in his appeal from the denial of grievance 78741, Manley named three
of the defendants (Superintendent Mark Sevier, Internal Affairs Investigator R. Hobbs,
Manley is proceeding against:
Superintendent Mark Sevier, Program Director Robert Eutz, Sergeant Kopensparger, and Officer Thomas for
retaliating against him by firing him from his job on October 22, 2013, because he wrote three complaint letters to
Internal Affairs Investigator R. Hobbs for retaliating against him by writing a conduct report on November
5, 2013, which falsely accused Manley of using a computer in an unauthorized manner, because he had written six
complaint letters to public officials and filed four lawsuits in the Miami Circuit Court;
Officer J. Larimore for retaliating against him by screening him on November 12, 2013, on a conduct report
which he knew falsely accused Manley of using a computer in an unauthorized manner because he had written six
complaint letters to public officials and filed four lawsuits in the Miami Circuit Court;
Sergeant R. Beemer for retaliating against him by denying him due process during a disciplinary hearing on
November 19, 2013, on a conduct report which he knew falsely accused Manley of using a computer in an
unauthorized manner because he had written six complaint letters to public officials and filed four lawsuits in the
Miami Circuit Court; and
Classification Supervisor Kelli Bradley for retaliating against him on November 25, 2013, by transferring
him to the L Housing Unit which she knew to be a more dangerous environment because he had sought a restraining
order from the Miami Circuit Court on November 6, 2013, and filed a grievance appeal. ECF 31 at 7-8.
and Classification Supervisor Kelli Bradley) and alleged they retaliated against him. ECF
62-1 at 45. Manley argues this was permissible because an “[a]ppeal may contain
additional facts or information regarding the original issue and may raise concerns
regarding the response from the previous level . . ..” ECF 71 at 2 (quotation mark omitted).
That is true, but an appeal may “not raise new or unrelated concerns.” ECF 62-1 at 30.
Manley believes it is enough that he was alleging other instances of retaliation. However,
the added retaliatory acts were done on different days by different people for different
reasons. As such, they were new and unrelated to his original grievance against Lt.
Sterling. “For a prisoner to exhaust his remedies within the meaning of § 1997e(a), he
must file complaints and appeals in the place, and at the time, the prison’s administrative
rules require.” Burrell v. Powers, 431 F.3d. 282, 285 (7th Cir. 2005) (quotation marks and
citation omitted). Because Manley did not do so, his inclusion of these claims in the
unrelated appeal of grievance 78741 is not a basis for denying the summary judgment
Fourth, Manley argues “[t]he PLRA does not limit exhaustion to grievance
processes. By alerting prison officials to the problem through the classification and
disciplinary processes, plaintiff satisfied the exhaustion requirement (see: Turley v.
Rednour, 729 F.3d 645, 649 (7th Cir. 2013)).” ECF 71 at 2. In Turley, the Seventh Circuit
explained that, “Turley's February 2009 grievance, which was pursued to a final decision
by the Director, suffices to exhaust the claims challenging lockdown policy.” Turley v.
Rednour, 729 F.3d 645, 650 (7th Cir. 2013). Turley makes no mention of the plaintiff in that
case having used either the classification or disciplinary processes to alert prison officials.
Turley makes no mention of classification or disciplinary proceedings substituting for the
grievance process. Turley is not a basis for denying the summary judgment motion.
Moreover, the Seventh Circuit has taken a “strict compliance approach to exhaustion.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus, “unless the prisoner completes
the administrative process by following the rules the state has established for that
process, exhaustion has not occurred.” Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir.
2002). Because Manley did not do so, the summary judgment motion must be granted.
For these reasons, motion for summary judgment (ECF 62) is GRANTED and this
case is DISMISSED WITHOUT PREJUDICE. The clerk is DIRECTED to close this case
and enter judgment accordingly.
ENTERED: August 23, 2017
/s/ JON E. DEGUILIO
United States District Judge
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