Johnson v. Indiana Department of Corrections et al
OPINION AND ORDER: The defendants are ORDERED to SHOW CAUSE by 3/2/2018, as to why the motion for summary judgment on the exhaustion defense should not be denied by addressing the return form attached to the amended complaint and explaining how it re lates to the exhaustion defense. Dedrick Johnson is GRANTED until 3/30/2018, to reply to the defendants' show cause response, and the defendants are CAUTIONED that failure to show cause by 3/2/2018 will result in the denial of the motion for summary judgment. Signed by Judge Philip P Simon on 2/8/2018. (Copy mailed to pro se party)(jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LT. DYKSTRA, et al.,
Cause No. 3:17-CV-71-PPS-MGG
OPINION AND ORDER
Dedrick Johnson, a prisoner without a lawyer, proceeds on an Eighth
Amendment claim regarding the conditions of his confinement in a special
management cell from May 26, 2016, to May 31, 2016. Defendants move for summary
judgment, arguing that Johnson did not exhaust his administrative remedies before
filing this case. ECF 23. Specifically, Defendants argue that the facility records indicate
that the only relevant grievance was the formal grievance submitted by Johnson on June
23, 2016, and that Johnson did not appeal this grievance despite receiving a response on
July 21, 2016. Johnson does not contest that he made no effort to appeal the June 23
grievance. Instead, he responds that he also submitted a formal grievance on June 21,
but correctional staff’s failure to comply with the grievance procedures prevented him
from completing the grievance process with respect to that grievance. Defendants reply
that Johnson has provided no evidence that he submitted a formal grievance on June 21,
2016, but, even if he did, the grievance procedure required Johnson to notify the
grievance officer if he did not receive a response within seven days and allowed
Johnson to appeal without a response after twenty days.
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 issue 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). To determine whether a genuine issue of material
fact exists, the court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Heft v. Moore, 351
F.3d 278, 282 (7th Cir. 2003).
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available
administrative remedies prior to filing lawsuits in federal court. “[A] suit filed by a
prisoner before administrative remedies have been exhausted must be dismissed; the
district court lacks discretion to resolve the claim on the merits, even if the prisoner
exhausts intra-prison remedies before judgment.” Perez v. Wisconsin Dep’t of Corr., 182
F.3d 532, 535 (7th Cir. 1999). “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 Seventh Circuit has taken a “strict compliance approach to exhaustion.” Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). “[A] prisoner who does not properly take
each step within the administrative process has failed to exhaust state remedies.” Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002).
Johnson asserts that he was unable to complete the grievance process with
respect to the formal grievance he submitted on June 21, 2016. ECF 8-1 at 2. In this
grievance, Johnson described the unsanitary conditions of his special management cell
and expressed his medical concerns regarding his jaws. As a remedy, he requested that
his disciplinary write up be thrown out and that he be allowed to return to general
population. Notably, Defendants respond that Johnson offers no proof that he
submitted this grievance.
However, Johnson attached a Return of Grievance form to the amended
complaint, which appears to be a response to the formal grievance Johnson submitted
on June 21, 2016.1 ECF 8-1 at 1. The form states, ”Your complaint concerns a
Classification or Disciplinary Hearing issue or action. These types of issues or actions
are to be appealed through their own appeal process and not through the grievance
process.” Unfortunately, the parties’ arguments do not account for or even mention this
form; they do not address what Johnson did after receiving this form, what Johnson
should have done to exhaust his administrative remedies (for example, by appealing
through the disciplinary or classification process), or whether Johnson was informed
regarding what he should have done to exhaust his administrative remedies.
When ruling on a motion for summary judgment, “[t]he court need consider only the cited materials, but
it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
Because the defendants do not address this return form, I find that they have not
satisfied their burden of proof regarding the exhaustion defense. Further, the
arguments, by omitting any mention of the return form or any subsequent appeal,
present no factual disputes to resolve at a Pavey hearing. See Pavey v. Conley, 544 F.3d
739 (7th Cir. 2008). Though I could deny the defendants’ motion with prejudice and
order the parties to proceed to litigating the merits of Johnson’s claims, I will give the
defendants’ one last opportunity to argue the exhaustion defense and to address the
June 21 grievance.
(1) the defendants are ORDERED to SHOW CAUSE by March 2, 2018, as to why
the motion for summary judgment on the exhaustion defense should not be denied by
addressing the return form attached to the amended complaint and explaining how it
relates to the exhaustion defense;
(2) Dedrick Johnson is GRANTED until March 30, 2018, to reply to the
defendants’ show cause response; and
(3) the defendants are CAUTIONED that failure to show cause by March 2, 2018,
will result in the denial of the motion for summary judgment.
SO ORDERED on February 8, 2018.
/s/ Philip P. Simon
UNITED STATES DISTRICT JUDGE
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