Mayberry v. Schlarf

Filing 63

OPINION AND ORDER DENYING 36 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies by Defendant Jenna Schlarf. Signed by Judge Jon E DeGuilio on 9/24/2024. (mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TIMOTHY MARCUS MAYBERRY,
Plaintiff,
v.

CAUSE NO. 3:23-CV-64-JD-JEM

JENNA SCHLARF,
Defendant.
OPINION AND ORDER
Timothy Marcus Mayberry, a prisoner without a lawyer, is proceeding in this
case “against Jenna Schlarf in her individual capacity for compensatory and punitive
damages for retaliating against him for filing a lawsuit and prison complaint against her
by refusing to mail his outgoing legal correspondence, reopening some of his legal
correspondence and placing them in different envelopes, improperly tampering with
his remittance slips for legal mail postage causing the postage to be denied, taking three
of his books from his cell, and issuing a false conduct report against him in September
2022, in violation of the First Amendment[.]” ECF 9 at 4-5. Caseworker Schlarf filed a
motion for summary judgment, arguing Mayberry did not exhaust his administrative
remedies before filing this lawsuit. ECF 36. Mayberry filed a response, and Caseworker
Schlarf filed a reply. ECF 54, ECF 55, ECF 56, ECF 57. 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 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 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).
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); see also
Chambers v. Sood, 956 F.3d 979, 984-85 (7th Cir. 2020). “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.” Lockett v. Bonson, 937
F.3d 1016, 1025 (7th Cir. 2019) (citing Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)).
To exhaust remedies, “a prisoner must file complaints and appeals in the place, and at
the time, the prison’s administrative rules require.” Id. (citing Pozo v. McCaughtry, 286
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F.3d 1022, 1025 (7th Cir. 2002)). However, a prisoner can be excused from failing to
exhaust if the grievance process was effectively unavailable. Woodford v. Ngo, 548 U.S.
81, 102 (2006). “A prisoner is required to exhaust only available administrative remedies
and a remedy is not available if essential elements of the procedure for obtaining it are
concealed.” Hurst v. Hantke, 634 F.3d 409, 411 (7th Cir. 2011) (quotation marks and
citation omitted). Moreover, when prison staff hinder an inmate’s ability to use the
administrative process, administrative remedies are not considered “available.” Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006). 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.
In her summary judgment motion, Caseworker Schlarf argues Mayberry did not
exhaust his available administrative remedies before filing this lawsuit because he
submitted a relevant grievance but did not appeal the grievance office’s denial of that
grievance. ECF 37. In his response, Mayberry concedes he didn’t fully exhaust any
relevant grievance but argues his administrative remedies were unavailable because the
Grievance Specialist didn’t properly respond to his “Emergency Grievance.” ECF 55.
The parties provide evidence showing the following facts: On September 28,
2022, Mayberry submitted an “Emergency Grievance” complaining that Caseworker
Schlarf entered his cell and unjustly confiscated several books. ECF 36-3 at 5. At the top
of the grievance, Mayberry wrote “EMERGENCY: I am being targeted by IDOC staff
member Schlarf.” Id. On October 13, 2022, Mayberry submitted a “Request for
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Interview” form to the Grievance Specialist informing him he hadn’t received any
receipt or response to his Emergency Grievance. ECF 54-1 at 9. On October 20, 2022,
before Mayberry received any receipt or response to his Emergency Grievance, he filed
this lawsuit. ECF 3. On October 31, 2022, the grievance office registered Mayberry’s
Emergency Grievance as Grievance 146650 and issued a receipt, indicating it had
“received” the grievance on October 28, 2022. Id. 1 On November 29, 2022, the grievance
office denied Grievance 146650 on its merits because Caseworker Schlarf had a valid
reason for confiscating the books. Id. at 3. Mayberry never appealed this response, but
instead sent a response to the grievance office that “this response is out of time frame
and therefore moot.” Id. at 1; ECF 36-1 at 7-8; ECF 36-4 at 3.
Here, it is undisputed Mayberry didn’t fully exhaust Grievance 146650. But
Mayberry argues his administrative remedies were unavailable because the grievance
office did not properly respond to Grievance 146650 as an Emergency Grievance, which
left him without any available remedies. ECF 55 at 6-9.
The Offender Grievance Process defines an “Emergency Grievance” as “The
resolution of a grievance that, if subjected to the normal time limits, could cause the
grievant substantial risk of personal injury or irreparable harm.” ECF 36-2 at 2. It is
undisputed Mayberry labeled Grievance 146650 as an Emergency Grievance, and
Caseworker Schlarf does not dispute that designation. ECF 57. 2
1 It’s unclear why there was a month long delay between Mayberry submitting his Emergency
Grievance and the grievance office “receiving” the grievance.
2 Mayberry argues Grievance 146650 was properly designated as an Emergency Grievance
because he was suffering ongoing “irreparable harm,” as he was being retaliated against in violation of
his First Amendment rights. ECF 55 at 6-7. He cites Elrod v. Burns, 427 U.S. 347, 373 (1976), for the
proposition that irreparable harm is presumed when one’s First Amendment rights are violated.

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The Offender Grievance Process provides a different set of timelines for an
Emergency Grievance than it does for a normal grievance. Specifically, the Offender
Grievance Process provides the following:
C. Emergency Grievances:
The Offender Grievance Specialist shall immediately bring an emergency
grievance to the attention of the Warden / designee for review and
response within one (1) business day of recording the emergency
grievance. The action on any emergency grievance may be appealed by
the offender within one (1) business day of receiving the response. Upon
the receipt of the appeal, the Offender Grievance Specialist shall notify,
via email, the Department Offender Grievance Manager that the appeal
has been submitted. The Department Offender Grievance Manager shall
issue a final Department decision within five (5) business days of the
offender filing the grievance. The initial response and final Department
decision shall document the Department’s determination whether the
offender is in substantial risk of imminent danger and the action taken in
response to the emergency grievance. The facility may discipline an
offender for filing an emergency grievance in bad faith. The determination
that a grievance is not an emergency may be appealed through the normal
grievance procedures as directed in this policy and administrative
procedure.
ECF 36-2 at 5.
Here, the undisputed facts show Mayberry’s administrative remedies were
unavailable at the time he filed this lawsuit. Specifically, Mayberry filed this lawsuit on
October 20, 2022, nearly a month after he submitted his Emergency Grievance and a
week after he sent a “Request for Interview” form to the Grievance Specialist notifying
him of the lack of response to his Emergency Grievance. The Offender Grievance
Process provides that the Department Offender Grievance Manager shall issue a final
decision on an Emergency Grievance “within five (5) business days of the offender filing
the grievance.” ECF 36-2 at 5 (emphasis added). Because Mayberry filed his Emergency
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Grievance on September 28 and hadn’t received any receipt or response for more than
three weeks when he filed this lawsuit on October 20, despite notifying the Grievance
Specialist of the lack of response, his administrative remedies were unavailable at the
time he filed this lawsuit.
Moreover, the undisputed facts show Mayberry’s administrative remedies
remained unavailable even after he filed this lawsuit because the Grievance Specialist
did not comply with the Offender Grievance Process’ instructions for handling an
Emergency Grievance. Specifically, it’s undisputed that (1) Mayberry submitted his
Emergency Grievance on September 28, 2022; (2) the Grievance Specialist received the
Emergency Grievance on October 28, 2022; and (3) the Grievance Specialist issued a
receipt for the Emergency Grievance on October 31, 2022. It’s unclear why there was
such a delay between Mayberry’s filing of his Emergency Grievance and the Grievance
Specialist’s receipt of the grievance but, regardless, the undisputed facts show the
Grievance Specialist did not comply with the “Emergency Grievance” timelines once he
received the grievance.
Specifically, the Offender Grievance Process provides that, once an Emergency
Grievance is received by the grievance office, the grievance office shall immediately
bring the Emergency Grievance to the attention of the warden within one business day
of recording the Emergency Grievance, and shall issue a final decision on the
Emergency Grievance within five business days of the inmate filing the grievance. ECF
36-2 at 5. The Grievance Specialist did not comply with these requirements, as he
recorded Mayberry’s Emergency Grievance on October 31, 2022, and waited until
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November 29, 2022, to issue any response to the grievance. Moreover, while the
Offender Grievance Process did not require the Grievance Specialist to accept
Mayberry’s designation of his grievance as an Emergency Grievance, it provides that
the grievance response “shall document the Department’s determination whether the
offender is in substantial risk of imminent danger and the action taken in response to
the emergency grievance,” and that Mayberry can then appeal that designation. ECF 362 at 5. Here, the Grievance Specialist’s response to Grievance 146650 did not document
any decision regarding whether the grievance was properly designated as an
Emergency Grievance, and instead seemed to only ignore that designation.
Accordingly, Mayberry has provided evidence the Grievance Specialist made his
administrative remedies unavailable by failing to comply with the Offender Grievance
Process’ requirements for handling an Emergency Grievance. In her reply, Caseworker
Schlarf does not discuss this argument or address the Emergency Grievance portions of
the Offender Grievance Process. ECF 57. Therefore, Caseworker Schlarf has not carried
her burden to show Mayberry had available administrative remedies he didn’t exhaust
before filing this lawsuit.
For these reasons, the court DENIES Caseworker Schlarf’s summary judgment
motion (ECF 36).
SO ORDERED on September 24, 2024
/s/JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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