Jordan v. Department of Corrections et al

Filing 59

OPINION AND ORDER: The court GRANTS the summary judgment motion 50 ; DISMISSES this case WITHOUT PREJUDICE; and DIRECTS the clerk to enter judgment in favor of the defendants and against Mr. Jordan. Signed by Judge Damon R Leichty on 6/7/2021. (Copy mailed to pro se party)(bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
FREEMON JORDAN, SR.,
Plaintiff,
v.

CAUSE NO. 3:18-CV-510 DRL-MGG

RADATZ et al.,
Defendants.
OPINION AND ORDER
Freemon Jordan, Sr., a prisoner without a lawyer, is proceeding in this case
“against Officer West and Sgt. Radatz, in their individual capacities, for allegedly
violating his rights under the Eighth Amendment by being deliberately indifferent to
Mr. Jordan when he was getting raped in his cell by other inmates on March 25, 2018.”
ECF 37 at 3. On November 24, 2020, the defendants filed a summary judgment motion
arguing that Mr. Jordan did not exhaust his administrative remedies before filing suit.
ECF 50. The defendants provided Mr. Jordan the notice required by N.D. Ind. L.R. 561(f). ECF 52. Attached to the notice was a copy of Federal Rule of Civil Procedure 56 and
Northern District of Indiana Local Rule 56-1.
Pursuant to Local Rule 56-1(b)(1), “[a] party opposing [a summary judgment]
motion must, within 28 days after the movant serves the motion, file and serve (A) a
response brief; and (B) any materials that the party contends raise a genuine dispute.”
Because the motion was served by mail, Fed. R. Civ. P. 6(d) provided Mr. Jordan an
additional three days. Therefore, the deadline for filing a response was December 26,

2020. The deadline passed nearly five months ago, but Mr. Jordan has not responded. So
the court will now rule on the motion.
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.” Federal Rule of
Civil Procedure 56(a). A genuine issue of material fact exists when “the evidence is such
that a reasonable [factfinder] could [find] 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). However, a party opposing a properly supported summary judgment
motion may not rely merely on allegations or denials in its own pleading, but rather must
“marshal and present the court with the evidence she contends will prove her case.”
Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying
on mere speculation or conjecture will not suffice.” Trade Fin. Partners, LLC v. AAR Corp.,
573 F.3d 401, 407 (7th Cir. 2009). Summary judgment “is the put up or shut up moment
in a lawsuit . . ..” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).
“If a party . . . fails to properly address another party’s assertion of fact as required
by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion
. . ..” Fed. R. Civ. P. 56(e). Because Mr. Jordan has not responded to the defendants’
summary judgment motion, he has not properly addressed their assertions of fact and
the court accepts these facts as undisputed:

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1. Plaintiff was incarcerated at Indiana State Prison (“ISP”) during
the incidents alleged in his complaint. [See ECF 1.]
2. There is a Grievance Process at ISP, and one was in place
throughout the times Plaintiff alleges his rights were violated. [Ex. A at 1 ¶
5.]
3. IDOC Policy and Administrative Procedure 00-02-301, effective
October 1, 2017, was the IDOC policy governing the grievance process and
how an offender could exhaust his administrative remedies using that
process, in effect at the time of the events alleged in this litigation. [Ex. A.
at 2 ¶ 8–9; Ex. B.]
4. The grievance program is intended to promote prompt and
effective resolution of a broad range of issues or complaints offenders may
have, including those described in the Complaint filed by Plaintiff. [Ex. A
at 1 ¶ 6.]
5. As an inmate incarcerated with IDOC, the Offender Grievance
Process has been available to Plaintiff. Documentation on the Offender
Grievance Process is included in the orientation paperwork received upon
intake at ISP. [Ex. A at 4 ¶ 20.]
6. The grievance process begins with the informal resolution process.
The offender must attempt to resolve his complaint informally by
contacting an appropriate staff member within five working days of the
date of the incident. [Ex. A at 2 ¶ 10.]
7. If informal resolution is unsuccessful, the offender then proceeds
to the formal grievance process. The formal grievance process begins when
the offender submits a completed state form 45471 “Offender Grievance” to
the Grievance Specialist. [Ex. A at 2 ¶ 14.]
8. The Offender Grievance must be submitted no later than ten (10)
business days from the date of the incident giving rise to the complaint or
concern to the Grievance Specialist. [Ex. A at 2 ¶ 14.]
9. The grievance submitted by an offender is screened by the
Grievance Specialist to determine whether the submitted grievance meets
the requirements for a formal grievance as set forth in the IDOC grievance
policy. [Ex. A at 2–3 ¶ 15.]
10. If the grievance submitted by the offender is rejected during
screening, the grievance is returned to the offender along with a state form
45475 “Return of Grievance” indicating the reason for the rejection and
permitting the offender to resubmit a corrected grievance within five (5)
working days. [Ex. A at 3 ¶ 15.]
11. If an adequate grievance is received, the Grievance Specialist
assigns the grievance a case number and provides a receipt for the
grievance to the offender. [Ex. A at 2–3 ¶ 15.]
12. If the grievance is not resolved in a manner that satisfies the
offender, or if he did not receive a grievance response within twenty (20)
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working days, the offender may pursue the issue by filing a formal appeal
to the Warden/designee’s office. The appeal must be submitted on state
form 45473 “Offender Grievance Appeal” within five (5) working days of
the grievance response or the expiration of the twenty (20) working day
deadline for a response. [Ex. A at 3 ¶ 16.]
13. If the offender wishes to appeal the Warden/designee’s appeal
response, the offender must check disagree on the appeal response and
submit the complete State Form 45473, “Offender Grievance Appeal,” along
with any pertinent documentation to the Offender Grievance Specialist
within five (5) business days of receipt of the Warden’s/designee’s appeal
response. The Offender Grievance Specialist must then enter the completed
State Form 45473 and any additional documentation received into the
grievance database within two (2) business days of receipt. The decision of
the Department Offender Grievance Manager is final. [Ex. A at 3 ¶ 17.]
14. The successful exhausting of a grievance by an offender includes
timely pursuing each step or level of the informal and formal process,
including the appeals process. An offender must use the proper grievance
forms in order to exhaust successfully and must file each grievance within
the time outlined in the Offender Grievance Process. [Ex. A at 2 ¶ 12.]
15. IDOC keeps records on every formal grievance and formal
appeal filed by an offender. [Ex. A at 4 ¶ 24.]
16. On or about April 30, 2018, Plaintiff filed an Offender Grievance,
in which he alleged he had been raped. [Ex. A at 4 ¶ 27; Ex. D.]
17. On May 21, 2018, Mr. Wallen provided Plaintiff with a grievance
response regarding the April 30 grievance, noting that Plaintiffs claim of
being raped was unsubstantiated. [Ex. A at 4 ¶ 28; Ex. E.]
18. IDOC records indicate that Plaintiff did not file an appeal with
the Department Grievance Manager regarding the April 30 grievance. [Ex.
A at 4 ¶ 29; Ex. C; Ex. E.]
19. On or about May 2, 2018, Plaintiff filed a formal grievance,
alleging again that he was raped. [Ex. A at 5 ¶ 30; Ex. H.]
20. On May 21, 2018, Mr. Wallen provided Plaintiff with a grievance
response regarding the May 2 grievance, indicating that Plaintiff’s
complaint failed to name any existing prison guards or inmates and that
Plaintiff’s allegations were unsubstantiated. [Ex. A at 5 ¶ 31; Ex. G.]
21. IDOC records indicate that Plaintiff did not file an appeal with
the Department Grievance Manager regarding the May 2 grievance. [Ex. A
at 5 ¶ 32; Ex. C; Ex. G.]
ECF 51 at 2-5 (brackets in original).

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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). “[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) (emphasis added). Nevertheless,
“[f]ailure 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 law takes a “strict
compliance approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
Thus, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place,
and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d
1022, 1025 (7th Cir. 2002).
Here, the undisputed facts show that Mr. Jordan filed formal grievances about the
claims raised in this lawsuit but did not file appeals after those grievances were denied.
As a result, Mr. Jordan did not exhaust the available administrative remedies before he
filed this lawsuit. See ECF 50-2 at 3; Perez, 182 F.3d at 535; Pozo, 286 F.3d at 1025. Summary
judgment must be granted.
For these reasons, the court:
(1) GRANTS the summary judgment motion (ECF 50);
(2) DISMISSES this case WITHOUT PREJUDICE; and
(3) DIRECTS the clerk to enter judgment in favor of the defendants and against
Mr. Jordan.
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SO ORDERED.
s/ Damon R. Leichty
Judge, United States District Court

June 7, 2021

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