Underwood v. Indiana Department of Corrections et al
OPINION AND ORDER: Court DENIES 38 and 41 Motions for Summary Judgment. The defendants are CAUTIONED that if a Pavey hearing is not requested by 10/5/2017, the affirmative defense of exhaustion of administrative remedies will be waived. Signed by Judge Jon E DeGuilio on 8/30/2017. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
S. AUDRY, et al.,
Cause No. 3:16-CV-034 JD
OPINION AND ORDER
Kelvin Underwood, a prisoner without a lawyer, is proceeding on the two claims that
survived screening. ECF 19 at 6. He is suing Psychiatrist Barbara Eichman for denying him
medical treatment in violation of the Eighth Amendment by re-prescribing medication she knew
was ineffective on March 3, 2014, and continuing it until March 4, 2014. Id. He is also suing
Correctional Officer S. Audry for planting a Remeron pill in his property box so that his medication
would be cancelled when it was found on March 5, 2014, thereby denying him medical treatment
in violation of the Eighth Amendment. Id. Each defendant filed a motion for summary judgment
arguing that Underwood did not exhaust his administrative remedies before filing suit. ECF
37 and 41. 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). “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).
Citing to the grievance policy (ECF 39-2) filed with the summary judgment
motions, Underwood acknowledges that “there is an Offender Grievance Process at
Westville Correctional Facility pursuant to IDOC Policy and Administrative Procedure,
policy # 00-02-301 . . ..” ECF 44 at 3-4. Thus, the parties do not dispute either the existence
or the terms of this grievance policy. Rather, Underwood argues that he either exhausted
his administrative remedies or that they were unavailable. For the reasons explained in
this opinion, he did not exhaust his administrative remedies, but there is a genuine issue
of fact as to whether the grievance process was available to him.
First, Underwood argues that he exhausted his administrative remedies as to his
claim against Psychiatrist Eichman with Grievance #81036. In that grievance, Underwood
wrote, “Dr. Eichman is refusing to refill my medication and see me for no reason. It’s
been (5) months since I seen or talk to her. I been off my meds, the same amount of time.”
ECF 39-3 at 3. The Court notes that this allegation served as the basis for a claim since
dismissed. ECF 19 at 6. Underwood argues this “clearly indicates that there is an issue
with his medication and that he is seeking to speak to Eichman to resolve that matter over
not receiving his medication . . ..” ECF 44 at 7. However, that grievance was filed on
February 25, 2014, more than a week before the events at issue in this case occurred. ECF
39-3 at 3. That grievance states it is grieving an event which occurred on October 24, 2013,
more than four months before the events at issue in this case occurred. Moreover, that
grievance alleges the opposite of the claim he is raising in this case. In this case, he is
alleging that Eichman was re-prescribing ineffective medication, not that she was
denying him medication for five months. Furthermore, on appeal from the denial of
Grievance #81036, he wrote, “The grievance is on Dr. Eichman and Nurse Reed, for the
incident that happen on (10-24-2013) my medication was stop by Nurse Reed and Dr.
Eichman.” ECF 39-3 at 6.
“[A] grievance suffices if it alerts the prison to the nature of the wrong for which
redress is sought. As in a notice-pleading system, the grievant need not lay out the facts,
articulate legal theories, or demand particular relief. All the grievance need do is object
intelligibly to some asserted shortcoming.” Strong v. David, 297 F.3d 646, 650 (7th Cir.
2002). Here, Grievance #81036 did not put prison authorities on notice of the
“shortcoming” he has asserted in his surviving claims. Therefore, even though he
completed the administrative process for Grievance #81036, doing so did not exhaust his
administrative remedies as to any of the surviving claims.
Alternatively, Underwood argues the grievance process was unavailable when he
submitted two grievances related to the claims presented in this case. He declares that
“[o]n March 5, 2014, Offender Banks helped me file a grievance for medical re-ordering
the same medication at the same dosage that I had been complaining about and I placed
a properly filed grievance in the offender mailbox on my dorm C-1 and I received no
response.” ECF 45 at 5. He also declares “[o]n March 5, 2014, Offender Banks helped me
file a grievance against Officer S. Autry for planting a pill in me property box on March
4, 2014. I placed the properly filed grievance in the offender mailbox and I received no
response.” Id. Troy Cambe, a prison official, declares there is no record that either of those
grievances were filed at the prison. ECF 39-1 at 3. The defendants argue that Underwood
has produced no evidence demonstrating that he actually filed either of them. ECF 46 at
4, and ECF 47 at 3. However, that is incorrect. Underwood’s declaration is sufficient
evidence to create a genuine issue of fact as to whether they were filed.
The defendants next argue that even if Underwood filed these two grievances,
when he did “not receive either a receipt or a rejected form from the Executive Assistant
within seven (7) working days of submitting it, [he was required to] immediately notify
the Executive Assistant of that fact . . ..” ECF 39-2 at 17 and ECF 47 at 4-5; see also ECF 46
at 4. 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). It
is undisputed that Underwood did not immediately notify the Executive Assistant
because he waited 15 days when “[o]n March 20, 2014, [he] wrote Timothy Bean
requesting a grievance appeal form.” ECF 45 at 5.
However, Underwood declares that “[no] staff member at Westville Correctional
Facility informed me of the grievance process at Westville Correctional Facility, nor did
any staff member inform where I could find information regarding the grievance
process.” ECF 45 at 4. The defendants are correct that by filing Grievance #81034,
Underwood demonstrated that he knew a grievance process existed and he understood
how to file a grievance and appeal preliminary denials to the final step. However, nothing
about his filing and appeal of Grievance #81034 indicate that he knew anything about
what to do if he did not get a response. “Prisoners are required to exhaust grievance
procedures they have been told about, but not procedures they have not been told about.”
King v. McCarty, 781 F.3d 889, 896 (7th Cir. 2015). “[P]rison officials must inform the
prisoner about the grievance process. The prison cannot shroud the prisoner in a veil of
ignorance and then hide behind a failure to exhaust defense to avoid liability.” Hernandez
v. Dart, 814 F.3d 836, 842 (7th Cir. 2016) (citations omitted). The defendants argue
Underwood “acknowledge[d] that [he was] oriented regarding . . . Grievances [and]
Appeals” (ECF 46-1 at 2) when he signed the Westville Correctional Facility Orientation
form on January 25, 2012. Given Underwood’s contrary declaration above, that form
creates a genuine factual dispute about whether Underwood was informed about what
to do if he did not get a response to his grievance. The Court does not regard the form as
irrefutable evidence of notice.
These factual disputes mean that the defendants have not carried their burden of
proving that Underwood did not exhaust his administrative remedies. Specifically, there
are three disputes:
1. Did Underwood properly file a grievance on March 5, 2014, for medical
re-ordering the same medication at the same dosage which he
complained was ineffective?
2. Did Underwood properly file a grievance on March 5, 2014, against
Officer S. Autry for planting a pill in his property box on March 4,
3. Was Underwood informed what to do if he did not get a response to his
To resolve these disputes will require holding a Pavey Hearing. See Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008). However, the court will not schedule such a hearing unless one
or both of the defendants file a motion requesting it.
For these reasons, the motions for summary judgment (ECF 38 and 41) are
DENIED. The defendants are CAUTIONED that if a Pavey hearing is not requested by
October 5, 2017, the affirmative defense of exhaustion of administrative remedies will be
ENTERED: August 30, 2017
/s/ JON E. DEGUILIO
United States District Judge
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