Futch v. Doctor, Nurses John and Jane Doe et al

Filing 54

OPINION AND ORDER granting 47 Motion for Summary Judgment. The Court DISMISSES Noe Marandet, Timothy Neff, Pamela Smyth, Lynn Cadena, and Shalana Seifert. The Court NOTES that the case remains pending against Officer Christopher Gray. Signed by Judge Philip P Simon on 11/16/18. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KENNY L. FUTCH,
Plaintiff,
v.

CAUSE NO.: 3:17-CV-753-PPS-MGG

DOCTOR, NURSES JOHN AND JANE
DOE, et al.,
Defendants.
OPINION AND ORDER
Kenny L. Futch, a prisoner without a lawyer, proceeds on an Eighth Amendment
claim of deliberate indifference against Noe Marandet, Timothy Neff, Pamela Smyth,
Lynn Cadena, and Shalana Seifert (the “Medical Defendants”) for denying him pain
medication and other medical supplies, as well as three claims against Christopher Gray
(the intake officer). The Medical Defendants filed the instant motion for summary
judgment, arguing that Futch failed to exhaust his administrative remedies for the
claims against them. In response, Futch argues that he either completed the grievance
process, or that the grievance process was unavailable. The Medical Defendants reply
that although Futch completed a grievance through appeal as to the correctional officer,
Futch failed to name or describe the Medical Defendants in that claim; therefore, he did
not exhaust his administrative remedies as to the Medical Defendants.

Background
Shawna Morson, grievance specialist at the Miami Correctional Facility, attested
in her declaration that a grievance process is available to inmates and is explained to
them at orientation. ECF 48-1. The grievance policy for the Indiana Department of
Correction sets forth a three-step grievance process. First, an inmate must attempt to
informally resolve a complaint, typically by speaking to the staff member most directly
associated with the complaint. ECF 48-2 at 13-16. If the inmate is unable to informally
resolve the complaint, he may file a formal grievance with the grievance specialist. Id.
at 16-20. 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.
On March 5, 2016, Futch submitted an informal grievance complaining that
Officer Gray confiscated numerous items, including: a chess set, an autobiographical
book, a dictionary, a hair comb, gym shorts, hair grease, packages of milk, drink mix,
seasoning, condiments, batteries, socks, underwear, a toothbrush holder, shampoo, a
bowl lid, a strainer, shower shoes, gym shoes, insoles, arts and crafts, Ace bandages,
diabetic shoes, and a bottom bunk pass. ECF 48-3 at 4. On March 20, 2016, Officer Gray
responded that he confiscated items per policy and denied that he confiscated several of
the items listed by Futch. Id. He also explained that only medical staff could issue
medical devices and that the bottom bunk pass was invalid because it was issued at
another correctional facility. Id.
On May 6, 2016, Futch submitted a formal grievance complaining that Officer
Gray confiscated “legal, personal, and medical necessities,” including a book,
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condiments, copies of legal opinions, shoes, shampoo, and radios, and that this
property had been destroyed. Id. at 3. He also referenced the property confiscation
form prepared by Officer Gray, which listed the property confiscated and provided his
reasons for doing so, and requested an independent investigation and compensation.
Id. The grievance officer responded that the property department had been working
with Futch and returned several items, but that Futch refused to cooperate with them to
dispose of prohibited items.1 Id. at 2. On September 16, 2016, Futch submitted a
grievance appeal. Id. Because the grievance manager failed to prepare a response to the
appeal within thirty days as provided by the grievance policy, the grievance appeal was
deemed to be denied. Id.
The grievance supervisor also provided Futch’s grievance records from February
2016 to April 2018. On August 17, 2016, Futch submitted an informal grievance
regarding access to the law library. Id. at 19. While it was ultimately denied, Futch
completed the grievance process with respect to this grievance. Id. at 17. On September
11, 2017, Futch submitted another informal grievance regarding access to the law
library. Id. at 35. He submitted a formal grievance, but did not appeal this grievance
when it was denied. Id. at 34.
Discussion

1 Although the grievance officer purportedly denied the grievance based on Futch’s untimely
informal grievance, the grievance officer nevertheless conducted an investigation and provided a
substantive response.

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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).
The purpose of the grievance process is to alert officials to a problem so that
remedial action can be taken. Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011). Proper
exhaustion of administrative remedies means that “the grievances must contain the sort
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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.
Because the grievance procedure has no applicable requirements, the relevant
question here is whether Futch’s grievance was sufficient to alert the grievance officer to
the nature of his claim against the Medical Defendants for denying him pain medication
and other medical devices. Futch argues that he listed medical devices in the informal
grievance and formal grievance, and complained that he was deprived of medical
necessities. In the informal grievance, Futch complained that “basic necessities for
living” were confiscated from him. ECF 48-3 at 4. While there is some mention of
medical devices in the informal grievance (specifically, two Ace bandages and diabetic
shoes), these only appear near the end of a long list filled with miscellaneous and
inessential items (like a chess set, hair grease, drink mix, and arts and crafts). Id. In the
informal grievance, Futch identified Officer Gray as the sole responsible party and
attempted informal resolution with him rather than someone from the medical unit. Id.
Similarly, in the formal grievance, Futch complained that Officer Gray confiscated
“legal, personal, and medical necessities” but listed several inessential items as
examples, including a book, condiments, and radios. ECF 48-3 at 3. Futch also listed
shoes and shampoo, but the formal grievance does not suggest that these items
amounted to a medical necessity. Id.
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Although there is technically some text in the written grievances that arguably
supports Futch’s position, the grievance records in their entirety indicate that the focus
of Futch’s complaint was Officer Gray and the loss of personal property. The passing
references to medical devices simply do not convey that Futch had a complaint about
inadequate medical treatment. As a result, Futch’s grievances were not sufficient to
alert the grievance officer to the nature of his claim against the Medical Defendants.
Therefore, Futch did not complete the grievance process for this claim.
Futch also contends that the grievance system was unavailable because he did
not know where to find the grievance policy, and that there were no grievance forms
available in the law library. However, the grievance records show that Futch was able
to initiate the grievance process on three occasions since his arrival at the Miami
Correctional Facility, and that he completed the grievance process twice. He further
argues that he did not know the names of the Medical Defendants until he filed this
lawsuit, but neither the grievance forms nor the grievance policy require inmates to
identify the parties responsible for the grieved issue by name. Futch also asserts that
the grievance system is generally ineffective, but, even if Futch believed that filing a
grievance was futile, “he had to give the system a chance.” Flournoy v. Schomig, 152 F.
App’x 535, 538 (7th Cir. 2005); Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 536 (7th Cir.
1999) (emphasis in original) (“No one can know whether administrative requests will be
futile; the only way to find out is to try.”). He argues that he attempted to resolve his
medical issues by filing numerous medical requests and a tort claim with the
Department of Correction. However, “[t]o exhaust remedies, a prisoner must file
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complaints and appeals in the place, and at the time, the prison’s administrative rules
require.” Pozo, 286 F.3d at 1025.
Finally, Futch argues that the grievance officer withheld some of his grievances,
which might have contained a medical complaint, though he has no recollection of the
contents of these grievances. He cites a note from the grievance officer, which states
that the officer received six grievances from Futch and he “responded on various
occasions to each of these.” ECF 51-1 at 2. The grievance officer further states that the
forms will not be processed because they were already addressed through return of
grievance forms, and no changes were submitted. Id. No reasonable factfinder could
conclude that Futch attempted to complete the grievance process for his medical claims
based on this note and the mere possibility that these grievances relate to his medical
claim. This line of reasoning is simply too speculative to defeat summary judgment.
In sum, the undisputed evidence indicates that a grievance process was
available, but that Futch did not complete the grievance process with respect to his
medical claim against Medical Defendants Marandet, Neff, Smyth, Cadena, and Seifert.
Therefore, I grant summary judgment on the claim against these defendants. This case
will proceed on Futch’s claims against Officer Gray.
For these reasons, the court:
(1) GRANTS the motion for summary judgment (ECF 47); and
(2) DISMISSES Noe Marandet, Timothy Neff, Pamela Smyth, Lynn Cadena, and
Shalana Seifert.
(3) NOTES that the case remains pending against Officer Christopher Gray.
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SO ORDERED.
ENTERED: November 16, 2018
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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