Swann v. Wilson et al

Filing 52

OPINION AND ORDER: DENYING with leave to refile 36 MOTION for Summary Judgment by Defendants Christopher Dustin, Thomas Potts, Charles Wilson. Signed by Chief Judge Philip P Simon on 8/21/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TERRANCE D. SWANN,
Plaintiff,
vs.
CHARLES WILSON, et al.,
Defendants.

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CAUSE NO. 3:14-CV-1888 PS

OPINION AND ORDER
In this case, Terrance D. Swann, a pro se prisoner, is suing Sgt. Thomas Potts, Sgt.
Charles Wilson, and Lt. Christopher Dustin for subjecting him to an excessive use of
force and denying him medical treatment on August 22, 2013, at the Indiana State
Prison. Those defendants filed a motion for summary judgment on the ground that
Swann did not properly exhaust his administrative remedies because prisoners are
prohibited 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).
In this case, the grievance at issue is identified as #78331. However, the
defendants have not submitted a copy of either the Level I or Level II grievance form
that Swann filed. Rather, they have merely described it in their brief (DE 37 at 4-5),
argued that it did not exhaust his administrative remedies (DE 37 at 8-9), attached a
declaration from a grievance specialist discussing it (DE 37-2 at 4-5), attached a printout
which lists every grievance Swann has ever filed which includes this one (DE 37-4 at 1),

and attached an Offender Grievance Case Report which details the history of this
grievance (DE 37-5). What is missing is a copy of the grievance1 and appeals that Swann
actually filed. I want to see those original documents, not merely the State’s
interpretations of them.
Pursuant to Federal Rule of Civil Procedure 56(e)(4), the summary judgment
motion (DE 36) is DENIED with leave to re-file. When the defendants re-file, they need
not reprint nor serve all of the materials previously submitted. Rather, they need only
cite to them in the record and provide Swann with the notice as required by N.D. Ind.
L.R. 56-1(f). Swann will then have 28 days to file a response as provided for by L.R. 561(b)(1) or seek an enlargement of time as provided for by L.R. 6-1(a).
SO ORDERED.
ENTERED: August 21, 2015
s/Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

Although the defendants have not filed the original grievance, Swann has filed what appears to be
the original grievance in connection with his response brief. (DE 42 at 7.) If this is the original grievance, then
the defendants need to let me know that this is, indeed, an authentic copy of the original grievance, or they
need to file their own.
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