Freeman v. Indiana Department of Corrections Commissioner et al

Filing 76

OPINION AND ORDER denying 57 Motion for Summary Judgment; denying 62 Plaintiff's Motion to Deny Defendants Summary Judgment. Signed by Senior Judge James T Moody on 2/16/17. (Copy mailed to pro se party)(ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
de’CARLOS FREEMAN,
Plaintiff,
vs.
M. RISNER and C. McKINNEY,
Defendants.

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No. 3:14 CV 1987

OPINION AND ORDER
de’Carlos Freeman, a pro se prisoner, is suing Internal Affairs Officer C.
McKinney and Sgt. M. Risner for strip searching him in violation of the Eighth
Amendment. Defendants move for summary judgment (DE # 57) on the ground that
Freeman failed to exhaust his administrative remedies before filing suit as required by
42 U.S.C. § 1997e(a). “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).
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 parties dispute
neither the existence nor terms of the grievance procedure. What is at issue here is
whether the process became unavailable when Freeman’s grievance was rejected.
Freeman argues that he submitted a grievance (DE # 64-1) on December 15, 2013,
which was rejected because it was related to the “Disciplinary Appeal Process.” That

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grievance is stamped “Grievance Office JAN 22 2014” and was signed by a prison
official the same day. Id. Defendants argue that the grievance was untimely and
improperly raised multiple issues. Pursuant to the grievance policy, it could have been
rejected for either or both of those reasons. However, defendants have not produced
any evidence showing that it was rejected for any reason other than being non-grievable
because it was related to the disciplinary appeal process. In the absence of any evidence
to the contrary, it is an undisputed fact that the grievance was rejected as attempting to
grieve a non-grievable event.
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,
administrative remedies are not considered “available.” Id. This grievance was rejected
as not grievable and Freeman was entitled to rely on that contemporaneous
determination. Defendants have not cited to any authority demonstrating that
alternative, after-the-fact reasons for rejecting a grievance are a basis for finding that a
prisoner did not properly exhaust his administrative remedies.
Defendants also argue that the grievance might have been altered. However they
have not presented any evidence in support of this argument. They have not produced
a copy of the grievance they claim was actually stamped and signed on January 22,

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2014. Neither have they produced a declaration by the grievance officer saying that the
grievance did not originally contain any reference to being strip searched. The only
basis for this argument is the fact that part of the grievance is printed and the rest is
written in cursive. Though true, that alone is insufficient to create a genuine issue of
disputed fact because “inferences relying on mere speculation or conjecture will not
suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009). Even if
switching to cursive were proof (which it is not) that the grievance was not entirely
written at one time, this still provides no evidence that the strip search references were
added after the grievance was returned.
Where there are disputed facts about whether a prisoner properly exhausted his
administrative remedies, the court can hold a hearing to resolve those disputes. See
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). However that is not the case here. The
undisputed evidence shows that Freeman filed a grievance related to the strip search
which was rejected as not grievable. As such, he exhausted all of the administrative
remedies that were available to him. Therefore this summary judgment motion must be
denied so that the case can proceed with discovery related to the merits.
As a part of that discovery process, the parties need to clarify precisely what they
mean when they use the words “strip search.” When the court screened this case, it
understood a “strip search” to mean that Freeman was forced to remove his underwear
and expose his genitals in public at the Indiana Dunes State Park. (See DE # 16 at 3.)
However, because the Defendants allegedly found contraband only in Freeman’s boot,

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it is possible that the words “strip search” are mistakenly being used by either or both
parties to mean that Freeman was forced to remove his boots. That would not properly
be called a “strip search;” it would not violate the Eighth Amendment; it would not
state a claim. As this case proceeds, the parties need to clarify in discovery precisely
what events they believe constitute the “strip search” which allegedly occurred in this
case.
Finally, Freeman’s response was erroneously titled “Plaintiff’s Motion to Deny
Defendants Summary Judgment.” (DE # 62.) It was improper to title that filing a
motion. It was merely a response to defendants’ motion. Therefore, even though
defendants’ motion for summary judgment will be denied, Freeman’s erroneously titled
“motion” will also be denied.
For these reasons, the court DENIES defendants’ motion for summary judgment
(DE # 57) and plaintiff’s motion to deny the motion for summary judgment (DE # 62).
SO ORDERED.
Dated: February 16, 2017
s/ James T. Moody
JAMES T. MOODY, JUDGE
UNITED STATES DISTRICT COURT

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