Carson v. Payne et al

Filing 53

OPINION AND ORDER: The motion for summary judgment 34 is DENIED. The defendants are CAUTIONED that if a Pavey hearing is not requested by 02/03/2023, the affirmative defense of exhaustion of administrative remedies will be forfeited. Signed by Judge Damon R Leichty on 01/17/2023. (jdb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVEAUN CARSON,
Plaintiff,
v.

CAUSE NO. 3:21-CV-717-DRL-JPK

JOHNSON et al.,
Defendants.
OPINION AND ORDER
Daveaun Carson, a prisoner without a lawyer, proceeds “against Lieutenant
Harris, Correctional Officer Johnson, and Correctional Officer Castalew in their
individual capacities for compensatory and punitive damages for failing to protect him
from attack by a rival gang member on June 7, 2021, when they forced him to move into
a cell with that inmate in violation of the Eighth Amendment[.]” ECF 25 at 3. The
defendants filed a summary judgment motion, arguing Mr. Carson did not exhaust his
administrative remedies before filing this lawsuit. ECF 34. Mr. Carson filed a response,
and the defendants filed a reply. ECF 42, 43. The summary judgment motion is now fully
briefed and ripe for ruling.
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

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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). 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).
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). “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 law takes a “strict compliance approach to exhaustion.” Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006). Thus, “unless the prisoner completes the administrative
process by following the rules the state has established for that process, exhaustion has
not occurred.” Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). A prisoner can be
excused from exhausting if the grievance process was effectively unavailable. Woodford
v. Ngo, 548 U.S. 81, 102 (2006). When prison staff hinder an inmate’s ability to use the
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administrative process, administrative remedies are not considered available. Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Accordingly, “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.
The parties agree to certain facts. The offender grievance process requires
offenders to complete three steps before filing a lawsuit: (1) a formal grievance; (2) a Level
I appeal to the warden; and (3) a Level II appeal to the department grievance manager.
ECF 35-1 at 2; ECF 35-2 at 3. On June 8, 2021, Mr. Carson submitted Grievance 129688,
complaining the defendants transferred him to an unsafe cell. ECF 35-1 at 5-6; ECF 35-4.
On July 28, 2021, the grievance specialist denied Grievance 129688 on its merits. ECF 351 at 6; ECF 35-4 at 1.
On August 1, 2021, Mr. Carson submitted a Level I appeal to the warden. ECF 351 at 6; ECF 35-5 at 3. On August 5, 2021, the warden denied Mr. Carson’s Level I appeal.
ECF 35-5 at 3. On August 17, 2021, the warden’s response was sent to Mr. Carson. ECF
35-1 at 6. On August 18, 2021, Mr. Carson submitted a Level II appeal to the department
grievance manager, which he dated “8-5-2021.” ECF 35-1 at 6; ECF 35-5 at 1. The
grievance specialist rejected Mr. Carson’s Level II appeal on the ground he had
improperly backdated the form, as it was dated before he had even received the warden’s
denial of his Level I appeal. ECF 35-1 at 6-7; ECF 35-5 at 1. Mr. Carson agrees he
accidentally wrote the wrong date on his Level II appeal form. ECF 42 at 1. Because both
parties agree to these facts, the court accepts them as undisputed.

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The parties disagree over whether Mr. Carson timely corrected and resubmitted
his Level II appeal form. The offender grievance process provides that, once the grievance
office rejects a grievance form, it is the responsibility of the offender to “make the
necessary revisions to the grievance form and to return the revised form to the Offender
Grievance Specialist within five (5) business days from the date that it is returned to the
offender.” ECF 35-2 at 10. The grievance specialist attests Mr. Carson did not correct and
resubmit his Level II appeal form within five business days. ECF 35-1 at 7. In his response,
Mr. Carson argues he timely corrected and resubmitted his Level II appeal form but
received no response from the grievance office. ECF 42. Specifically, Mr. Carson asserts
that he submitted a corrected version of his Level II appeal form to his dorm
representative Robin Keffer to provide to the grievance office, but never received any
response from the grievance office. Id. He argues the grievance office made his
administrative remedies unavailable by not responding to his corrected Level II appeal
form. Id. at 2. In their reply, the defendants reiterate the grievance office has no record of
ever receiving any corrected Level II appeal form from Mr. Carson. ECF 43.
Here, there is a disputed material fact regarding whether Mr. Carson timely
submitted a corrected Level II appeal form to the grievance office. If Mr. Carson did
timely submit a corrected Level II appeal form, the grievance office made his
administrative remedies unavailable by not responding to this form, and the defendants’
summary judgment motion should be denied. If Mr. Carson did not timely submit a
corrected Level II appeal form, he did not exhaust his available administrative remedies
before filing this lawsuit, and the defendants’ summary judgment motion should be
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granted. Resolving this issue will require a hearing as explained in Pavey v. Conley, 544
F.3d 739 (7th Cir. 2008). However, the court will not schedule such a hearing unless the
defendants file a motion requesting it.
For these reasons, the motion for summary judgment (ECF 34) is DENIED. The
defendants are CAUTIONED that if a Pavey hearing is not requested by February 3, 2023,
the affirmative defense of exhaustion of administrative remedies will be forfeited.
SO ORDERED.
January 17, 2023

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

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