Wilson-El v. Wilson et al

Filing 38

OPINION AND ORDER granting 26 Defendants' Motion for Summary Judgment; Case is dismissed without prejudice; the clerk is DIRECTED to enter FINAL JUDGMENT in favor of defendant Timothy Tibbs and against the plaintiff Shavaughn Carlos Wilson-El. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 11/21/13. (mlc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
SHAVAUGHN CARLOS WILSON-EL,
Plaintiff,
vs.
WILLIAM K. WILSON, et al.,
Defendants.

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CAUSE NO. 4:12-CV-015

OPINION AND ORDER
This matter is before the Court on the Defendant’s Motion for
Summary Judgment (DE #26), filed by defendant Timothy Tibbs, on May
16, 2013. For the reasons set forth below, the Defendant’s Motion
for Summary Judgment is GRANTED, this case is DISMISSED WITHOUT
PREJUDICE, and the clerk is DIRECTED to enter FINAL JUDGMENT in
favor

of

defendant

Timothy

Tibbs

and

against

the

plaintiff

Shavaughn Carlos Wilson-El.

BACKGROUND
Plaintiff Shavaughn Carlos Wilson-El (“Wilson-El”) alleged
that Correctional Officer Timothy Tibbs (“Officer Tibbs”) saw
another inmate, Cartier Rachell, enter his cell at the Indiana
State Prison and attack him with a weapon on October 9, 2010. He
alleged that Officer Tibbs watched the attack but did nothing to
intervene and stop it for seven minutes. Officer Tibbs filed a

motion for summary judgment asserting that the prison had a
grievance system, that this dispute was grievable, and that WilsonEl did not file a grievance about this issue.

DISCUSSION
Pursuant to Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by
“citing to particular parts of materials in the record” or show
“that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1).
To establish a genuine issue of fact, the nonmoving party must come
forward with specific facts showing that there is a genuine issue,
not “simply show that there is some metaphysical doubt as to the
material facts.” First Nat’l Bank of Cicero v. Lewco Secs. Corp.,
860 F.2d 1407, 1411 (7th Cir. 1988) (citing Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Summary
judgment “is the put up or shut up moment in a lawsuit . . ..”
Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). In
ruling on a motion for summary judgment, the court must view all
facts in the light most favorable to the nonmoving party. Anderson,

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477

U.S.

at

255.

The

court

must

not

“make

credibility

determinations, weigh the evidence, or decide which inferences to
draw from the facts; these are jobs for a factfinder.” Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
Pursuant to 42 U.S.C. § 1997e(a), a prisoner may not bring an
action in federal court until “such administrative remedies as are
available are exhausted.” Wilson-El acknowledges that he is “well
aware of the offender grievance process” and that “[t]he acts and
omissions by defendant Tibbs from 10-9-10 were grievable . . . .”
(DE #31 at 3). Officer Tibbs argues that Wilson-El did not file a
timely grievance. (DE #35 at 1.) Wilson-El does not dispute that
the grievance policy required him to submit a formal written
grievance within the time limits set forth in the policy. (See DE
#29-2 at 20.) Though Officer Tibbs discusses various provisions of
the grievance policy that could (and perhaps in this case did) make
the

time

frame

shorter,

it

is

unnecessary

to

analyze

those

provisions because no formal written grievance was filed within the
maximum 20 working days allowed (see DE #29-2 at 20) and there is
no evidence in this record that the deadline for filing a grievance
about these issues was enlarged. Thus, the latest that a grievance
about these events – which occurred on October 9, 2010 – could have
been timely filed (after discounting weekends and Columbus Day on
October 11, 2010) was November 8, 2010.

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Officer Tibbs has submitted two declarations of Howard Morton,
an executive assistant at the Indiana State Prison. Morton declared
that Wilson-El filed two grievances (63176 and 63237)1 arising out
of events which occurred on October 9, 2010. (DE #29-1 and #35-1.)
Wilson-El acknowledges filing those grievances. (See DE 31-1 at 67.) He does not contend that either one is about the claim he
raises in this case.2 Rather, he argues that “defendants and
several agents took steps to frustrate my pursuit of administrative
remedies . . ..” DE 31 at 3. The essence of the problem with
Wilson-El’s argument that he was obstructed from filing a grievance
1

Morton’s original declaration only identified one grievance: 63176. (DE
#29-1.) After Wilson-El identified a second one (63237) in his response brief,
Morton promptly acknowledged it in a second declaration. (DE #35-1.) In his reply
brief Wilson-El asks for sanctions because Morton did not mention the second
grievance in the first declaration. This request is not set forth in a separate
motion as required by Federal Rule of Civil Procedure 11(c)(2), N.D. Ind. L.R.
7-1(a), and 56-1(e). Therefore the Court need not address it. Nevertheless, the
court will explain why a request for sanctions would have been meritless even if
it had been properly presented.
Wilson-El does not contend that the omitted grievance exhausted his
administrative remedies (and it did not). It is about an ongoing need for medical
treatment. (DE #31-1 at 7.) Though the introductory sentence begins by explaining
that Wilson-El needed treatment for an injury caused by an attack witnessed by
a guard that did not stop it, that cursory background statement is not what the
grievance is about. The grievance is a request for medical care and the refund
of a $10 co-pay. The appeal of that grievance only discusses the absence of
medical care needed because he was assaulted with a weapon. (DE #31-1 at 13.) As
such, the second grievance (63237) did not notify prison officials of a claim
based on a guard’s deliberate indifference to being attacked by a fellow inmate.
The second grievance is not material to the resolution of this case.
Because the second grievance is of no benefit to Wilson-El, its omission could
not have been of any benefit to Officer Tibbs. Wilson-El provides no evidence
that the omission was other than an unintentional oversight which could have been
easily (albeit meaninglessly) corrected by his merely noting it in his response.
Therefore its omission from the first declaration could not be found to have been
in bad faith as required by Rule 56(h) and sanctions would not be warranted.
2

Neither are about Officer Tibbs being deliberately indifferent to the
attack by Offender Rachell. The first grievance (63176) is related to Wilson-El’s
cell being left open on October 9, 2010, so that Offender Hall could steal his
property. It makes no mention of an attack. (DE #31-1 at 6.) The second grievance
(63237) is about an ongoing need for medical care for injuries sustained in the
attack. (DE #31-1 at 7.)

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about the issues raised in this lawsuit is that he has not
presented any evidence that he was obstructed from filing a
properly completed grievance form before the deadline for filing
expired on November 8, 2010. Neither has he presented any evidence
that he sought or was granted an enlargement of that deadline to
raise the claim that he has presented in this case.
In support of his obstruction claim, Wilson-El submits proof
– which the Court accepts as an undisputed fact – that he initiated
the grievance process by filing a timely, informal grievance on
October 11, 2010 (two days after the attack). (DE #31-1 at 1.) In
that informal grievance he stated that the attack “was caused by
breach of security orchestrated by correctional officers Timothy
Tibbs, D. Cabanau [sp.] and other unnamed officers.” (Id.) WilsonEl also submits proof - which the Court accepts as an undisputed
fact – that he attempted to file a formal grievance (DE #31-1 at 2)
on November 11, 2010. In that rejected grievance, Wilson-El wrote:
(This is not a complaint regarding CAB cases ISP 1010-0134 / ISP 10-10-0142)
On 10-9-10 I was assaulted by C. Rachell (Number not
known) and forced to defend my life while he was
attempting to rob me inside my cell at knife point, and
C/O Tibbs stood by and did nothing during security
checks, on D E 500 range. This is an A/S unit and I was
the only offender who was authorized to be out of my cell
for my job, Cell House Representative. I called for help,
C/O Tibbs did nothing but ran behind the gate and stood
there!! I managed to wrestle away the weapon but still
suffered bruises, cuts, & stabs during the defense. I
begged Tibbs to let me out with him as Rachell was vowing
to get another knife and “kill” me; after I tossed the
weapon I took down the range to the bottom. Tibbs then
stood there and watched Rachell beat me with a mop handle
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on my face, back, and head before he went down the back
steps and called a signal. I have been denied proper
medical treatment for my injuries, subjected to false
reporting of an assault and then possession of a weapon
as a conspiracy for vowing to sue for the security breach
and labeled a snitch.
(DE #31-1 at 2) (underlines omitted). The relief he sought was:
“Proper

medical

evaluation

of

my

injuries;

an

internal

investigation into my being subjected to discipline when the breach
of

security

caused

or

failed

to

prevent.

I

also

want

an

investigation into my properties stolen.” (Id.)
That grievance was rejected on November 18, 2010. (DE #31-1 at
3.) The Court accepts as an undisputed fact that the grievance was
rejected by checking three reasons on the “Return of Grievance”
form:
Your complaint concerns a Classification or
Disciplinary Hearing issue or action. These types of
issues or actions are to be appealed through their own
appeal process and not through the grievance process
The grievance form is not completely filled out.
Complete the form and submit it again within 5 working
days. Include DOC Number.
Your complaint or concern contains multiple issues
or events. You may separate the issues and submit a
separate form for each one that you wish to grieve.
(DE #31-1 at 3) (“Disciplinary Hearing” circled in original,
“Include DOC Number” hand written in original.) In addition,
Wilson-El was given a letter explaining why his grievance was
returned, how he could proceed, and what would happen if he filed
another improperly completed grievance.
My office has received a grievance from you that is
being returned for the following reasons:
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The complaint contains multiple issues.
You seek relief of requesting a proper medical
evaluation stating that you have not been
properly treated.
You request an investigation into being
subjected to disciplinary discipline. That is
an issue that you may pursue through a
disciplinary hearing appeal. That is not an
issue that the grievance process can resolve.
You request an investigation into alleged
stolen properties. Property issues may be
grieved but should be a separate issue from
medical issues.
I have spoken to Case Manager Brown and asked her to
return any grievance forms that are not filled out
properly and assist the offender to know how to
appropriately fill out the grievance form if an informal
resolution is not agreed upon.
You may resubmit a grievance form on the medical
issue and property issues if there is no resolution
achieved. Please insure that you include your DOC number
on the grievance form.
(DE #31-1 at 4) (emphasis in original). Wilson-El argues that the
rejection of that grievance was improper, but it was not.
Though Wilson-El began the grievance by stating that it was
not about either of two disciplinary hearings, his request for an
investigation

into

being

subjected

to

discipline

clearly

contradicted that statement. As such, it was not improper to have
rejected the grievance because it concerned a disciplinary hearing.
As for the other two reasons given, the form does not contain his
DOC number and it clearly contains more than one issue. Thus both
of those are also valid reasons for rejecting the form. It is
unclear why neither the rejection form nor the rejection letter
make any mention of the assertion that Officer Tibbs did nothing to
help during the attack. What is clear is that Wilson-El obfuscated
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this issue by asking for an investigation into his disciplinary
case. It is also clear that this issue was implicitly rejected as
one of several “multiple issues” raised in the grievance. Thus the
November 11, 2010, grievance was validly rejected and doing so was
not

an

obstruction

of

Wilson-El’s

ability

to

file

a

timely

grievance.
This circuit has taken a strict compliance approach
to exhaustion. A prisoner must properly use the prison’s
grievance process. If he or she fails to do so, the
prison administrative authority can refuse to hear the
case, and the prisoner’s claim can be indefinitely
unexhausted. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th
Cir. 2002) (“To exhaust remedies, a prisoner must file
complaints and appeals in the place, and at the time, the
prison’s administrative rules require.”).
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
As a part of the rejection of his November 11, 2010, grievance
on November 18, 2010, Wilson-El was granted an additional 5 days to
“resubmit a grievance form on the medical issue and property issues
if there is no resolution achieved.” (DE #31-1 at 4.) He was not
granted additional time to file a grievance as to any other issues.
Wilson-El argues that after he received the rejection notices, he
thereafter made a number of unsuccessful attempts to file a
grievance about his claim that Officer Tibbs did nothing to help
during the attack on October 9, 2010. Wilson-El states that he was
told3 by Ms. Brown that she was ordered “to reject any grievances

3

Officer Tibbs objects to consideration of this hearsay testimony, but
since it is of no benefit to Wilson-El, it is unnecessary to address that
objection.

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that mentioned the incident or names of any of the parties involved
in the incident of 10-9-10.” (DE #31 at 5.) However, by then, any
grievance about that issue was untimely. So, rejecting such a
grievance (or ordering someone else to reject it) was not an
improper obstruction that made the grievance system unavailable to
Wilson-El.4 Rather, he had already made it unavailable by waiting
too long to file a properly prepared, single issue, written
grievance

about

this

issue.

Therefore,

Wilson-El’s

equitable

estoppel argument is meritless.
Wilson-El argues that he “sought my exhaustion thru other
means, even trying to slip my issue into the 2nd level grievance to
Central Office” (DE #32 at 13) in the grievance appeal for 63176.
(DE #31-1 at 12.) In that appeal he wrote, “(Tibbs C/O) permitted
another offender to come into my cell and assault me with a weapon
while he stood by and did nothing until the incident became live
and the attack had commenced.” (Id.) Though that version of events
is significantly different than the one alleged in this complaint,
it nevertheless did nothing to exhaust his administrative remedies
because the grievance policy does not provide for adding issues on

4

The only specific example Wilson-El provides is a grievance form dated
December 3, 2010, which he says was rejected. (DE #31-1 at 5.) He does not
provide a rejection form for this grievance nor provide any details about its
rejection. Nevertheless, in addition to being untimely, is also does not contain
his DOC number even though he had been specifically admonished to include it on
every grievance. He had also been cautioned that any improperly filed out
grievance would be rejected. Thus, no reasonable factfinder could infer from the
rejection of this grievance that Wilson-El was improperly prevented from filing
a timely grievance.

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appeal. “The appeal may contain additional facts or information
regarding the original issue and may raise concerns regarding the
response from the previous level, but it shall not raise new or
unrelated issues.” (DE #29-2 at 18.)
Finally, Wilson-El argues that, “where a prisoner is pursuing
only monetary damages and the prison grievance procedure does not
provide for monetary relief, the exhaustion requirement of §
1997e(a) does not apply.” Hollimon v. DeTella, 6 F. Supp. 2d 968,
970 (N.D. Ill. 1998). However, that is simply not good law.
Exhaustion is necessary even if the prisoner is
requesting relief that the relevant administrative review
board has no power to grant, such as monetary damages,
or if the prisoner believes that exhaustion is futile.
The sole objective of [42 U.S.C.] § 1997e(a) is to permit
the prison’s administrative process to run its course
before litigation begins.
Dole v. Chandler, 438 F.3d 804, 808-809 (7th Cir. 2006) (citations
and quotation marks omitted).
Therefore, summary judgment must be granted because Wilson-El
did not exhausted his administrative remedies as required by 42
U.S.C.

§

1997e(a).

However,

because

“all

dismissals

under

§

1997e(a) should be without prejudice,” the dismissal will be
without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
2004).

CONCLUSION

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For the reasons set forth above, the Defendant’s Motion for
Summary Judgment (DE #26) is GRANTED, this case is DISMISSED
WITHOUT PREJUDICE, and the clerk is

DIRECTED

to enter

FINAL

JUDGMENT in favor of defendant Timothy Tibbs and against the
plaintiff Shavaughn Carlos Wilson-El.

DATED: November 21, 2013

/s/RUDY LOZANO, Judge
United State District Court

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