Langston v. McDonald et al

Filing 27

OPINION AND ORDER GRANTING 18 MOTION for Summary Judgment filed by Darrell Martin and DISMISSING WITHOUT PREJUDICE Sgt. Darrell Martin. Signed by Chief Judge Jon E DeGuilio on 7/14/2021. (Copy mailed to pro se party)(mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEONDRE LANGSTON,
Plaintiff,
v.

CAUSE NO. 3:20-CV-968-JD-MGG

LARRY MCDONALD, et al.,
Defendants.
OPINION AND ORDER
Deondre Langston, a prisoner without a lawyer, was granted leave to proceed
against Sgt. Darrel Martin for allegedly using excessive force against him on October 18,
2020, or October 19, 2020, when he sprayed Langston with OC spray while he was in his
cell, in violation of the Eighth Amendment. Langston was also granted leave to proceed
against Sgt. Martin for allegedly denying Langston medical care following the incident,
in violation of the Eighth Amendment. And, Langston was granted leave to proceed
against Larry McDonald for allegedly maliciously hitting him in the face with a mop
containing excrement on October 19, 2020, leading to blindness in Langston’s right eye,
in violation of the Eighth Amendment.
On March 11, 2021, Sgt. Martin filed a summary judgment motion arguing that
Langston did not exhaust his administrative remedies before filing suit. 1 ECF 18. Sgt.
Martin provided Langston the notice required by N.D. Ind. L.R. 56-1(f) and a copy of

Larry McDonald did not move for summary judgment on the issue of exhaustion of
administrative remedies, and he has withdrawn his exhaustion defense. ECF 22.
1

Federal Rule of Civil Procedure 56 and Northern District of Indiana Local Rule 56-1.
ECF 21.
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.”
This deadline passed, but Langston has not responded. 2 Therefore, 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.” Fed. R.
Civ. Pro. 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.

2 Sgt. Martin’s initial attempt to serve Langston was unsuccessful because Langston was
transferred to a different facility. However, Langston was served at his current address on April 8, 2021.
ECF 24.

2

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 Langston has not responded to the
summary judgment motion, he has not properly addressed Sgt. Martin’s assertions of
fact and the court accepts the following facts as undisputed.
Under the Indiana Department of Correction’s grievance policy in effect at
the relevant time, successful completing of the grievance process consisted of three
steps. ECF 20-1 at ¶¶ 5, 7; ECF 20-2. For the first step of the grievance procedure,
an offender must submit a formal grievance using State Form 45471, “Offender
Grievance,” no later than 10 business days from the date of the incident giving rise
to the complaint. ECF 20-1 at ¶ 8. The grievance is then reviewed by the Offender
Grievance Specialist within ten business days and is either accepted and logged or
rejected and returned to the offender with a Return of Grievance form. Id. at ¶ 9.
If rejected, it is returned along with an explanation of why it is being returned. Id.
If accepted, the grievance is forwarded to the applicable staff or supervisor to
prepare a response within ten days. Id. at ¶ 11.
If an offender is dissatisfied with the response to an accepted formal
grievance, he may appeal by completing State Form 45473, “Grievance Appeal.”

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Id. at ¶ 12. And, if dissatisfied with the response to the appeal, an offender must
submit a final written grievance appeal. Id.
Offenders are provided with information regarding the grievance process
during orientation, and copies of the Offender Grievance Process are available in
the Law Library. Id. at ¶ 7. Langston’s History of Grievances demonstrates he has
submitted numerous formal grievances that have been accepted and logged. Id. at
¶ 13; ECF 20-3. However, none of his grievances relate to his complaints against
Sgt. Martin. ECF 20-1 at ¶ 13. There are also no records of a formal grievance
pertaining to these claims being submitted but returned to Langston. Id. at ¶ 14.
Prisoners are prohibited from bringing an action in federal court “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 Seventh Circuit has taken 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).

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Here, the undisputed facts show Langston did not file a formal written grievance
related to his claims against Sgt. Martin. Moreover, there is no evidence suggesting that
the administrative process was made unavailable to him. As a result, Langston did not
exhaust the available administrative remedies before he filed this lawsuit. Summary
judgment must be granted. This case will now proceed only on Langston’s claim that
Sgt. Larry McDonald maliciously hit him in the face with a mop containing excrement
on October 19, 2020, leading to blindness in Langston’s right eye, in violation of the
Eighth Amendment.
For these reasons, the court GRANTS the summary judgment motion (ECF 18)
and DISMISSES Sgt. Darrell Martin WITHOUT PREJUDICE.
SO ORDERED on July 14, 2021
/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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