Brown v. Nurse Nancy et al

Filing 40

OPINION AND ORDER: GRANTING 31 MOTION for Summary Judgment by Defendants Nurse LaTosha, Nurse LaToya, Nurse Nancy, Stephanie RN. Signed by Judge Damon R Leichty on 1/8/2020. (Copy mailed to pro se party, cert 7000 0600 0028 2819 7187)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAYSHAWN L. BROWN,
Plaintiff,
v.

CAUSE NO. 3:18-CV-429-DRL-MGG

NURSE NANCY, et al.,
Defendants.
OPINION AND ORDER
Dayshawn L. Brown, a prisoner without a lawyer, was granted leave to proceed against Nurse
Nancy, Nurse Stephanie, Nurse LaToya, and Nurse LaTosha for money damages for allegedly denying
him his prescription medications from January 18, 2017 to January 12, 2018, in violation of the
Fourteenth Amendment. ECF 7. The defendants have filed the instant motion for summary judgment
asserting that Mr. Brown failed to exhaust his administrative remedies. ECF 31. Mr. Brown has
responded to the motion. ECF 36.
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).
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative
remedies before 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 Dept. 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).
Nevertheless, 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, 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, 438 F.3d at 809.
Mr. Brown was incarcerated at the St. Joseph County Jail from January 18, 2017 through
January 12, 2018. ECF 1 at 3. The St. Joseph County Jail’s grievance procedure is contained in the
Inmate Handbook and is distributed to each inmate. ECF 33-1 at 1-2; Aff. of Lynn S. Mahoney
Henckel, ECF 33-2 ¶ 9. The grievance procedure in effect when Mr. Brown was housed at the St.
Joseph County Jail provides:
A grievance is a complaint. It must concern a rule or procedure, a complaint of
oppression, or a misconduct by an employee in administering such rules. A personal
dispute between inmates and/or inmates and employees is not considered grounds for
a grievance. An appeal of a classification or disciplinary decision is NOT a grievance.
1. Submit a grievance with the pod deputy.

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2. The grievance will be numbered and sent to the supervisor responsible
for the person or issue the grievance addresses for investigation.
3. Following the investigation of the claim or complaint a written response to your
grievance will be returned to you upon completion of the investigation.
4. You may file another grievance on the same issue which will be forwarded to the
Jail Commander for a second review. You must indicate on the grievance that it is the
second attempt to have your grievance reviewed. Should the grievance require further
review it may be submitted to the Sheriff.
5. DO NOT have family or friends call the facility to resolve jail issues.
ECF 33-1 at 1-2; ECF 33-2 ¶ 7. The jail’s nursing staff’s alleged failure to administer medications is
subject to the St. Joseph County Jail’s grievance procedure. ECF 33-2 ¶ 8.
The court’s review of the record in this case shows that Mr. Brown did not submit a grievance
for the claims he raised in this lawsuit. First, on its face, Mr. Brown’s complaint shows that he neither
initiated nor exhausted his administrative remedies. ECF 1 at 4. Specifically, in response to question
seven of the complaint—which asks: “Could you have used a prison grievance system to complain
about this event?”—he placed a checkmark in the circle labeled: “No, this event is not grievable at the
prison or jail where it occurred.” Id. In other words, at the time Mr. Brown filed his complaint with
the court, he confirmed he had not submitted a grievance even though the jail’s grievance procedure
required him to do so. ECF 33-2 ¶ 8 (“inmate’s allegations regarding the jail’s nursing staff’s failure to
administer medications as ordered is subject to the St. Joseph County Jail grievance procedure
provided in the Inmate Handbook”).
Nonetheless, Mr. Brown now asserts that he submitted two grievances related to this case.
ECF 36 at 1. Here, he claims he followed the steps mandated by the jail’s grievance procedure by
completing forms and giving them to the custody officers in his pod. Id. However, Mr. Brown has not
provided copies of these grievances, and he has not described the nature of the grievances. While he
represents that he informed Ms. Henckel and other jail officials that he was not receiving his
prescription medications, he has produced no evidence other than his own self-serving statement that
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he filed two grievance forms with custody officers. And his self-serving statement contradicts his
earlier statement in his complaint that he did not utilize the jail’s grievance system to complain about
not receiving his medications. Furthermore, in the affidavit Ms. Henckel filed with the court, she
testified that to the “best of [her] recollection, [she] was not aware of any grievances filed by DayShawn
LeAnthony Brown.” ECF 33-2 ¶ 11.
In sum, the undisputed evidence in this case shows that Mr. Brown initiated this lawsuit
without exhausting his administrative remedies. There is no evidence that the grievance process was
made unavailable to Mr. Brown. Accordingly, the court GRANTS the defendants’ motion for
summary judgment (ECF 31) and in accordance with 42 U.S.C. § 1997(e)(a).
SO ORDERED.
January 8, 2020

s/ Damon R. Leichty
Judge, United States District Court

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