Keel v. Corizon Medical Services et al

Filing 48

OPINION AND ORDER: GRANTING 33 MOTION for Summary Judgment Due to Plaintiff's Failure to Exhaust Administrative Remedies by Defendant Michael Mitcheff. Keel's claims against Dr. Mitcheff are dismissed without prejudice. The clerk is directed to close this case. Signed by Judge Rudy Lozano on 8/17/2015. (lhc)(cc: Pla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JASON KEEL,

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Plaintiff,
vs.
CORIZON MEDICAL
SERVICES, et al.,
Defendants.

CAUSE NO. 3:14-CV-1492

OPINION AND ORDER
This matter is before the Court on Defendant Dr. Michael
Mitcheff, M.D.’s Motion for Summary Judgment Due to Plaintiff’s
Failure to Exhaust Administrative Remedies, filed on February 12,
2015.

(DE #33.)

For the reasons set forth below, Defendant’s

motion for summary judgment is GRANTED. Accordingly, Keel’s claims
against Dr. Mitcheff are dismissed without prejudice. The Clerk is
directed to close this case.

BACKGROUND
Jason Keel, a former inmate at the Miami Correctional Facility
(“Miami”), brought this action on May 2, 2014, pursuant to 42
U.S.C. § 1983. (DE #1.) The Court screened the complaint pursuant
to 28 U.S.C. § 1915A, and granted him leave to proceed on a claim
that Dr. Mitcheff, the regional medical director for Corizon

Medical Services1, refused to treat Keel’s hand problems in March
2014.

(DE #6.)

And, because Keel alleged that he is still

receiving inadequate medical care with respect to his hand, he was
also granted leave to proceed on a claim for injunctive relief
against Dr. Mitcheff, pertaining to his current medical needs.
(Id.)
In his motion for summary judgment, Dr. Mitcheff argues that
Keel has failed to exhaust his available administrative remedies
prior to filing suit as required by the Prisoner Litigation Reform
Act (“PLRA”) and, therefore, these claims must be dismissed.

Keel

was provided with a “Notice of Summary Judgment Motion” as required
by N.D. Ind. L.R. 56-1 and a copy of both Federal Rule of Civil
Procedure 56 and Local Rule 56-1.

(DE #36.)

That notice clearly

informed him that unless he disputed the facts presented by the
defendant, the court could accept those facts as true.

Fed. R.

Civ. P. 56(e) (“If a party . . . fails to properly address another
party’s assertion of fact . . . the court may . . . consider the
fact undisputed for purposes of the motion.”).

It also told him

that unless he submitted evidence creating a factual dispute, he
could lose this case.

Fed. R. Civ. P. 56(a) (“The court shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to

1

A private company which provides medical care at Indiana Department of
Correction facilities.

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judgment as a matter of law.”).

Keel has filed his response (DE

#46) and Defendant filed a reply (DE #47). The motion is therefore
fully briefed and ripe for adjudication.

DISCUSSION
Summary Judgment Standard
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

dispute 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).
every

dispute

between

the

parties

makes

summary

Not

judgment

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.”

Id.

In determining whether

summary judgment is appropriate, the deciding 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. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

“However, our favor

toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”

Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

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Facts
At all relevant times, and pursuant to Indiana Department of
Correction (“IDOC”) policy, Miami has an Offender Grievance Process
under which an inmate can grieve a broad range of issues related to
their conditions of confinement.

(DE #34-1, Ex. A ¶ 7; Ex. B.) All

inmates are made aware of the grievance process during orientation
and a copy of the process is available in the law library.
¶ 7; Ex. B.)

(Ex. A

The process begins with the inmate attempting to

resolve the matter informally with staff.

(Ex. A ¶ 9.)

If the

issue cannot be resolved informally, the inmate must file a formal
grievance within 10 days of the underlying incident. (Id. ¶ 9; Ex.
B.) If the grievance is not resolved to the inmate’s satisfaction,
he must file an appeal within 10 working days of the grievance
response.

(Id. ¶ 8; Ex. B.)

The grievance manager reviews the

appeal and submits a response.
not

fully

exhausted

the

(Id. ¶ 7; Ex. B.)

Offender

Grievance

An inmate has

Process

until

he

completes all three steps of the process and receives a response
from the Department’s Offender Grievance Manager.
B.)

(Id. ¶ 10; Ex.

Moreover, exhausting the grievance procedure requires timely

pursuing each step of the informal and formal process.
On

October

21,

2013,

Keel

filed

Grievance

(Id.)
No.

79052,

complaining about the medical care he received from Dr. Kream, Dr.
Loveridge and Nurse Shalala.

(DE #46 at 11.)

He fully exhausted

that grievance on December 18, 2013. (Id. at 6.)

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According to the grievance records kept and maintained at
Miami, Keel has initiated three (3) grievances in 2014 that have
been fully exhausted: Grievance Numbers 81396, 81760 and 82172 (Ex.
A, ¶ 11; Ex. C.)

In Grievance No. 81396, Keel complained about

prison staff losing his property in conjunction with a move to the
infirmary.

(Ex. A ¶ 12; Ex. C.)

exhausted until May 22, 2014.

This grievance was not fully

(Id.)

In Grievance No. 81760, he

complained about his medical care, including being in continuous
pain and not being able to exercise.

(Id.)

Notably, this

grievance complained about Dr. Mandaret, not Dr. Mitcheff.
not fully exhausted until June 3, 2014.

(Id.)

It was

In Grievance No.

82172, he complained about not being able to obtain information
from the state medical licensing board.
not fully exhausted until May 29, 2014.
Pursuant

to

the

Prison

(Id.)

This grievance was

(Id.)

Litigation

Reform

Act

(“PLRA”),

prisoners are prohibited from bringing an action in federal court
with

respect

to

prison

conditions

“until

remedies as are available are exhausted.”

such

administrative

42 U.S.C. § 1997e(a).

An inmate must exhaust before bringing his lawsuit, and efforts to
exhaust

while

§ 1997e(a).
(“exhaustion

the

case

is

pending

do

not

satisfy

42

U.S.C.

Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004)
must

precede

litigation”);

Perez

v.

Wisconsin

Department of Corrections, 182 F.3d 532, 535 (7th Cir. 1999)
(compliance with 42 U.S.C. § 1997e(a) is a “precondition to suit”).

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For exhaustion purposes, an inmate is deemed to have “brought” the
action on the date when his complaint is tendered for mailing.
Ford, 362 F.3d at 400.
The failure to exhaust is an affirmative defense on which the
defendant bears the burden of proof.

See Jones v. Bock, 549 U.S.

199, 216 (2007); 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.” Dole, 438 F.3d at
809. Thus, “[t]o exhaust remedies, a prisoner must file complaints
and

appeals

in

the

place,

administrative rules require.”
1025 (7th Cir. 2002).

and

at

the

time,

the

prison’s

Pozo v. McCaughtry, 286 F.3d 1022,

“[A] prisoner who does not properly take

each step within the administrative process has failed to exhaust
state remedies.”

Id. at 1024.

Here, Dr. Mitcheff argues that Keel did not properly exhaust
his administrative remedies before filing suit. As outlined above,
the record reflects that Keel exhausted three grievances in 2014
and none were related to Mr. Mitcheff’s March 2014 treatment of his
hand.
Keel

nevertheless

maintains

that

he

exhausted

his

administrative remedies by pointing to a grievance he filed on
October 21, 2013.

(DE #46 at 6.)

However, that grievance was

filed four months before Dr. Mitcheff allegedly denied him medical
treatment for his hand.

In addition, that October 2013 grievance

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did not relate to Dr. Mitcheff’s treatment of Keel’s hand.

Thus,

the October 2013 grievance is insufficient to demonstrate that Keel
exhausted his administrative remedies for his claims against Dr.
Mitcheff in this case.

Therefore, the undisputed facts show that

Keel did not exhaust his administrative remedies regarding his
claims that Dr. Mitcheff denied him medical treatment for his hand
in March 2014 and beyond.

CONCLUSION
For the reasons set forth above, Defendant’s motion for
summary judgment (DE #33) is GRANTED.

Accordingly, Keel’s claims

against Dr. Mitcheff are dismissed without prejudice. The clerk is
directed to close this case.

DATED:

August 17, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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