Davis v. Griffin et al

Filing 72

OPINION AND ORDER: Court CONSTRUES the 70 Motion in opposition as a response to the motions for summary judgment (ECF 60, ECF 64); GRANTS 60 Motion for Summary Judgment filed by Adriana Simpkins and Shalana Seifert; GRANTS 64 Motion for Su mmary Judgment filed by Nicholas Kennell, Danielle Wilson, and Adam Shultz with respect to the Eighth Amendment claim of deliberate indifference to serious medical needs but DENIES the motion in all other respects; DISMISSES Adriana Simpkins, Shalana Seifert, and Danielle Wilson; ORDERS Adam Shultz and Nicholas Kennell to file a notice by 9/7/2018, as to whether they intend to withdraw the exhaustion defense or proceed with a hearing; CAUTIONS Adam Shultz and Nicholas Kennell that, if they do not respond by this deadline, the affirmative defense of failure to exhaust administrative remedies will be waived. Signed by Judge Robert L Miller, Jr on 8/20/2018. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DONALD DAVIS,
Plaintiff,
v.

CAUSE NO.: 3:17-CV-652-RLM-MGG

KATHY GRIFFIN, et al.,
Defendants.
OPINION AND ORDER
Donald Davis, a prisoner without a lawyer, proceeds on an Eighth
Amendment failure to protect claim against Adam Shultz and Nicholas Kennell
and an Eighth Amendment claim of deliberate indifference to serious medical
needs against Nicholas Kennell, Danielle Wilson, Noe Marandet, Kim Myers,
Adriana Simpkins, and Shalana Seifert.1 In the screening order, the court
summarized Mr. Davis’ allegations as follows:
In the amended complaint, Mr. Davis alleges that, on December 2,
2016, he was moved into a cell with Mr. Randall, a fellow inmate.
Mr. Davis and Mr. Randall didn’t get along; the cellmates had several
disagreements, including, who should have gotten the bottom bunk,
when the television should be off or on, and who should be allowed
to visit the cell. Mr. Randall also tried to intimidate Mr. Davis by
staring at Mr. Davis as he slept, complaining about Mr. Davis’ race
and culture, and becoming upset if he heard Mr. Davis urinate in
the cell toilet. Mr. Randall also played chess with himself at night
while speaking strange languages, paced all night, told Mr. Davis
that his mother was suicidal, and sent letters to the White House.
On December 7, Mr. Davis wrote to Counselor Shultz and asked to
be moved. On December 8, Mr. Davis and Counselor Shultz
1 For purposes of this order, the court refers to the defendants by their legal names rather the
names provided in the complaint. Most of these substitutions are self-explanatory, but the court notes
that the defendants have identified “Nurse Abbie” as Adriana Simpkins and “Nurse Shylenia” as Shalana
Seifert.

discussed the issues with Mr. Randall. Counselor Shultz said that
Mr. Davis couldn’t be moved for ninety days and that Mr. Davis had
to find a new cellmate on his own. Mr. Davis tried to discuss his
cellmate issues with Lieutenant Beamer, who supervised the cell
house, but she referred Mr. Davis to the “unit team.”
On June 5, 2017, Mr. Randall attacked Mr. Davis in the cell, causing
third-degree burns on the right side of Mr. Davis’s body with liquid
from a hotpot and tearing a ligament in Mr. Davis’s left hand. For
hours before the attack, Mr. Davis had screamed for Counselor
Shultz, whose office was thirty feet from the cell, and had yelled that
he needed to be moved from the cell. Officer Kennell, who was
working in the cell house, also heard Mr. Davis’ requests for help.
After the attack, Officers Kennell and Wilson took Mr. Davis to
segregation but were later told by a supervisor and a nurse that Mr.
Davis needed immediate medical care.
On June 7 and June 19, Dr. Marandnet examined Mr. Davis’s
injuries and told Mr. Davis that his left hand just needed time to
heal. From June 20 to July 28, Mr. Davis was in segregation and
received little medical care. On July 7, Kim Myers, a nurse
practitioner, recommended X-rays of his left hand and pain
medication. Mr. Davis didn’t get the pain medication until July 15.
On August 19, Nurse Abbie and Nurse Shylenia told Mr. Davis that
he no longer needed pads or cream for his burns and refused to treat
him. On August 22, another nurse arranged for him to continue
receiving treatment. On September 28, X-rays revealed a torn thumb
ligament in the left hand. A physical therapist recommended a hand
brace and told Mr. Davis that surgery might be necessary. Mr. Davis
seeks money damages.
ECF 10 at 1-3. The defendants filed these motions for summary judgment,
arguing that Mr. Davis failed to exhaust his administrative remedies with respect
to Mr. Shultz, Mr. Kennell, Ms. Wilson, Ms. Simpkins, and Ms. Seifert. Mr. Davis
responds that the grievance process was not available.2

Though Mr. Davis filed his brief on the exhaustion issue as a motion, the court construes it as a
response to the defendants’ motions for summary judgment.
2

2

Angela Heishman, grievance supervisor at the Miami Correctional Facility,
attests that a grievance process is available to inmates and is explained to them
at orientation.3 ECF 65-1. The grievance policy for the Indiana Department of
Correction sets forth a three-step grievance process. ECF 65-2. First, an inmate
must try to resolve a complaint informally, typically by speaking to the staff
member most directly associated with the complaint. Id. at 13-16. If the inmate
can’t resolve the complaint informally, he may file a formal grievance with the
grievance specialist. Id. at 16-20. The inmate must file a formal grievance no
later than twenty business days after the incident giving rise to the grievance.
Id. at 16. Finally, if an inmate is dissatisfied with the grievance specialist’s
determination, he may file an appeal with the grievance manager. Id. at 20-22.
Between July 10, 2017, and July 21, 2017, Mr. Davis submitted six
grievances about his cellmate, the physical assault, and his medical care. ECF
65-1 at 4-5. Two grievances described Mr. Davis’ earlier efforts to obtain a new
cellmate by consulting Mr. Shultz, characterizing them as “giving [Mr. Shultz]
notice that [Mr. Davis] and [his cellmate were not getting along,” and one of those
grievances indicated that Mr. Davis was attacked by his cellmate, “who had been
acting out in [the cell] for hours before he attacked [Mr. Davis], and no staff came
to the cell to find out what was wrong.” ECF 65-5; ECF 65-9. The two grievances

3 Mr. Davis objects to this declaration, arguing that Ms. Heishman is not a party to this case and
that the exhibits supporting the declaration have not been authenticated. However, there is no
requirement that declarants must be a party to a case, and the declaration, which identifies Ms. Heishman
as the custodian of records, sufficiently authenticates the underlying exhibits. See Fed. R. Evid. 901.

3

referencing Mr. Shultz were rejected as an attempt to grieve a classification issue
and an attempt to grieve another inmate. ECF 65-6; ECF 65-10.
In his deposition, Mr. Davis testified that, before filing this lawsuit, he had
some understanding of the grievance process, but he didn’t have access to the
grievance policy. ECF 61-1 at 4-5. He discussed his problems with his cellmate
with Mr. Shultz in December 2016, but Mr. Shultz refused to provide him with
a formal grievance form. Id. at 11. After the physical assault, Mr. Davis was held
in the infirmary until June 20, 2017, and was then held in restrictive status until
July 28, 2017. Id. at 8, 19. During his time in the infirmary, he asked
correctional staff and medical staff several times to speak with a counselor and
for assistance with filing grievances, but his requests were ignored. Id. at 8. In
the restrictive housing unit, counselors were available on a sporadic basis, and
he only occasionally had access to grievance forms. Id. at 15.
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 non-moving party and draw all reasonable
inferences in that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003).
Prisoners must exhaust available administrative remedies prior to filing
lawsuits in federal court. 42 U.S.C. § 1997e(a). “[A] suit filed by a prisoner before

4

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). Our court of appeals takes 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).
The purpose of the grievance process is to alert officials to a problem so
action can be taken to remedy the problem. Maddox v. Love, 655 F.3d 709, 722
(7th Cir. 2011). Proper exhaustion of administrative remedies means that “the
grievances must contain the sort of information that the administrative system
requires.” Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002). “When the
administrative rulebook is silent, a grievance suffices if it alerts the prison to the
nature of the wrong for which redress is sought.” Id. at 650. “[T]he 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.” Id.
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 isn’t a matter of what appears “on paper,” but rather whether the process
was actually available for the prisoner to pursue. Kaba v. Stepp, 458 F.3d 678,

5

684 (7th Cir. 2006). When prison staff hinder an inmate’s ability to use the
administrative process, such as by failing to provide him with the necessary
forms, administrative remedies are not considered “available.” Id. In essence,
“[p]rison officials may not take unfair advantage of the exhaustion requirement .
. . and a remedy becomes ‘unavailable’ if prison employees do not respond to a
properly filed grievance or otherwise use affirmative misconduct to prevent a
prisoner from exhausting.” Dole v. Chandler, 438 F.3d at 809.
The defendants argue that they are entitled to summary judgment with
respect to Mr. Shultz and Mr. Kennell on the Eighth Amendment failure to
protect claim. They assert that Mr. Davis failed to file any grievances alleging
that these defendants failed to protect him against the physical assault. The
record contains grievances that refer to Mr. Shultz’s refusal to assist Mr. Davis
with his requests for a new cellmate and a grievance that references individuals
who refused to assist him in the hours leading up to the physical attack, whom
he later identified as Mr. Shultz and Mr. Kennell. The defendants suggest that
these grievances didn’t put them on notice that he was complaining about Mr.
Shultz and Mr. Kennell because the only relief he requested was the criminal
prosecution of his cellmate. However, Mr. Davis, by strongly implying that the
defendants’ refusals to assist him caused the eventual physical assault,
effectively expressed his dissatisfaction with Mr. Shultz and Mr. Kennell in the
grievances, and the request for relief doesn’t make this sentiment any less clear.
The defendants also argue that they are entitled to summary judgment
with respect to Mr. Shultz and Mr. Kennell on the failure to protect claim because

6

the grievances were untimely. According to the defendants, the grievances
should have been filed by July 3, 2017, but Mr. Davis filed no grievances until
July 10. Even if the grievances were untimely, Mr. Davis’s testimony (which must
be assumed to be true at this stage) indicates that correctional staff impeded his
access to the grievance process in the infirmary and the restrictive housing unit
and that he filed grievances as quickly as he could considering the lack of
assistance or resources. ECF 61-1 at 10. Moreover, Mr. Davis testified that he
tried to file a grievance about Mr. Shultz as early as December 2016 but Mr.
Shultz refused to provide him with a grievance form. “If prison employees refuse
to provide inmates with those forms when requested, it is difficult to understand
how the inmate has any available remedies.” Dale v. Lappin, 376 F.3d 652, 656
(7th Cir. 2004). It’s clear that Mr. Davis had some access to the grievance process
by July 10, but whether the grievance process was available to Mr. Davis before
July 10 remains disputed. Therefore, the motion for summary judgment is
denied with respect to Mr. Shultz and Mr. Kennell on the Eighth Amendment
failure to protect claim.
Defendants Kennell, Wilson, Simpkins, and Seifert argue that they are
entitled to summary judgment on the Eighth Amendment claim of deliberate
indifference to serious medical needs. The record contains no evidence that Mr.
Davis made any effort to grieve these defendants in relation to his medical care.
Though the grievance process might not have been available to Mr. Davis before
July 10, it was, at least, partially available to him immediately thereafter and
entirely available to him after his release from restrictive status. The record

7

contains no explanation as to why he didn’t mention these defendants in
connection with his medical care in any grievance. Because the record contains
no evidence that Mr. Davis filed or tried to file a grievance with respect to Mr.
Kennell, Mr. Wilson, Ms. Simpkins, and Ms. Seifert in connection with his
medical care, the court grants the motion for summary judgment with respect to
these defendants on the Eighth Amendment claim of deliberate indifference to
serious medical needs.
For these reasons, the court:
(1) CONSTRUES the motion in opposition (ECF 70) as a response to
the motions for summary judgment (ECF 60, ECF 64);
(2) GRANTS the motion for summary judgment filed by Adriana
Simpkins and Shalana Seifert (ECF 61);
(3) GRANTS the motion for summary judgment filed by Nicholas
Kennell, Danielle Wilson, and Adam Shultz (ECF 64) with respect to the
Eighth Amendment claim of deliberate indifference to serious medical
needs but DENIES the motion in all other respects;
(4) DISMISSES Adriana Simpkins, Shalana Seifert, and Danielle
Wilson;
(5) ORDERS Adam Shultz and Nicholas Kennell to file a notice by
September 7, 2018, as to whether they intend to withdraw the exhaustion
defense or proceed with a hearing in accordance with Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008); and

8

(6) CAUTIONS Adam Shultz and Nicholas Kennell that, if they do not
respond by this deadline, the affirmative defense of failure to exhaust
administrative remedies will be waived.
SO ORDERED on August 20, 2018
/s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

9