BOND v. STATE OF INDIANA et al
Filing
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ORDER granting Defendants' 36 Motion for Summary Judgment (See Order). Signed by Judge William T. Lawrence on 6/8/2011. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRISHON BOND,
Plaintiff,
vs.
THE STATE OF INDIANA,
MITCHELL E. DANIELS, JR.,
Governor, THE INDIANA
DEPARTMENT OF CORRECTIONS,
J. DAVID DONAHUE,
Commissioner, MARK R. SEVIER,
Superintendent, Miami Correctional
Facility.
Defendants.
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CAUSE NO. 1:09-cv-01237-WTL-MJD
ENTRY ON MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the Defendants’ motion for summary judgment. The
motion is fully briefed and the Court, being duly advised, GRANTS the Defendants’ motion to
the extent and for the reasons set forth below.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that 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.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007). However, “[a] party who bears the burden of proof on a particular
issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual
allegations, that there is a genuine issue of material fact that requires trial.” Id.
Factual Background
The relevant facts of record, viewed in the light most favorable to the Plaintiff, who is the
non-moving party, are as follow.
Bond began his incarceration at the Miami Correctional Facility (“MCF”) in 2001 where
he developed a stomach ulcer. Prior to October 2007, Bond’s ulcer required medical treatment
at both Dukes Memorial Hospital in Peru, Indiana, as well as Wishard Hospital (“Wishard”) in
Indianapolis, Indiana, due to the ulcer being beyond what the medical staff at MCF could treat.
Both times, Bond was referred to a gastroenterologist specialist; however, upon his return to
MCF, the Defendants refused to allow Bond the opportunity to see the specialists.
In October 2007, Bond began experiencing severe pain in his abdomen and requested
assistance from the medical staff. After receiving milk of magnesia, Bond returned to his cell
where his condition deteriorated for the next several hours. The following morning, officers
ordered Bond to go to breakfast. When he was unable to do so, the officers placed Bond inside a
blanket and swung him back into his cell. Eventually, his cellmate found him vomiting and
unresponsive and Bond was transferred to Wishard, where he remained for treatment for five
days.
Upon his return to MCF, Bond was placed in segregation for three and a half weeks,
purportedly due to overcrowding. Over a year later, Bond discovered from two staff members at
MCF that there had been no overcrowding problem. The staff members informed him that he
was placed in segregation in order to monitor his correspondence with his family to see if he
intended to pursue a lawsuit regarding the treatment he received in October 2007. Upon
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receiving this information, Bond filed a grievance with MCF in February 2009 complaining of
improper medical treatment and abuse. Bond requested the following relief: proper medical
treatment; acknowledgment that the reason he was given for being placed in segregation was
false; discipline of the relevant staff members; and monetary compensation.
The Indiana Department of Correction Offender Grievance Program Return of Grievance
Form (State Form #45475) lists fourteen reasons why a prisoner’s grievance may be returned.
Bond’s original grievance was returned for several reasons: (1) Bond had not first attempted to
resolve his grievance informally with the medical staff as required by the Offender Grievance
Process (“OGP”); (2) the relief sought was not a function of the OGP; and (3) Bond needed to
explain why he was filing the grievance so late. After attempting to speak with the medical staff
regarding an informal resolution, Bond filed a second grievance in which he provided the
following additional information: (1) “I sent a request form to Ms. Cummings in the medical
department . . . I did not receive a response from her”; and (2) “Based on the advice of legal
counsel, at this stage of the process I will not reveal the names of the staff members that gave me
this information.”
Bond’s second grievance was returned because (1) he didn’t provide the response he
received from the medical staff; (2) the relief he sought was not a function of the OGP; and (3)
he needed to answer the following questions: “Who were the staff that gave you this
information? When were you provided with this information”? Bond filed one more grievance
with the following additional information: (1) “I attempted to speak with the staff in medical via
a pink request slip and a medical request form. Neither were responded to”; (2) “Much of what I
spoke about was just told to me (by staff members) three days before I filed the grievance.
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Obviously I could not grieve those issues that I did not know about. Certainly, under special
circumstances the time frame can be waived”; and (3) “If as you say the grievance process
cannot provide relief . . . then to whom do I turn”?
The boxes checked on Bond’s third grievance indicate that it was returned for two
reasons: (1) “This grievance is a request for reimbursement or replacement of personal property
that has been lost, damaged, or destroyed. This claim is handled through the Tort Claim process,
Policy 00-01-104. See the Law Library”; and (2) “The relief you are seeking is not a function of
the grievance process. Compensation is a function of the tort claim process.” Bond did not
pursue the grievance process any further, but instead filed this action.
Discussion
Bond brings this action pursuant to 42 U.S.C. § 1983, asserting that the Defendants’
actions constitute a willful and knowing violation and deprivation of his rights secured by the
Constitution of the United States. The Defendants move for summary judgment claiming Bond
did not properly exhaust his administrative remedies before filing suit by not timely filing his
grievance and not timely correcting it. Bond contends he did timely revise his grievance and
respond to the Defendants’ requests for additional information and further argues that the
Defendants should be estopped from asserting their exhaustion of remedies defense.
The Timeliness of Bond’s Grievances
Section 1997(e) of the United States Code provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997(e). In order for a prisoner to have
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exhausted his administrative remedies, he “must file complaints and appeals in the place, and at
the time, the prison administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th
Cir. 2002). It has been established that if a prison has an internal process in place to resolve
problems, prisoners need to utilize that process before filing a lawsuit. Massey v. Helman, 196
F.3d 727, 733 (7th Cir. 1999).
MCF has a three-step OGP for prisoners explained in the Manual of Policies and
Procedures to remedy their complaints: (1) informal resolution, (2) formal grievance process,
and (3) appeals to grievance responses. Exhibit D - Grievance Policy pp. 13-22. Each of these
steps have certain time restrictions that a prisoner must follow. Id. at 22. Prisoners are to
informally discuss their grievance with the appropriate staff member within five working days of
the incident. Id. If the prisoner is unable to resolve the grievance informally, he has twenty days
to file a formal written grievance. Id. at 24. If for any reason the formal grievance is returned for
revision, the prisoner has five working days to correct and return it. Id.
It is undisputed that Bond filed his first formal grievance on February 12, 2009, well past
the twenty-day time requirement. Bond Affidavit ¶ 24. The OGP, however, states that the
Facility Head may waive the time frame if there is a valid reason for doing so. Exh. D at 14. It
appears that one reason Bond’s first grievance was returned was because of this delay; the
response asked “if the incident occurred in October 2007, why are you filing a grievance so
late”? Exhibit A - Pl.’s first returned grievance. Bond responded by stating,
I am aware of concerns about time limitations. However a number of these issues were
intentionally kept from me and it was only in the last few days that I was made aware. In
addition grievance time limitations can be lifted under special circumstances. If any
situation qualifies as “special” I think this one does.
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Id. His next two grievances were not returned for any reason involving time; in fact, his third
grievance was returned indicating no deficiencies remained, only that the OGP was not the
correct vehicle for Bond’s complaint. Exh. C. This indicates that the prison considered this a
special circumstance and waived the twenty-day requirement for Bond’s grievance.
The next timing issue the Defendants raise is the five-day requirement to revise the
grievance. The bottom of the Return of Grievance form states, “[i]f you wish to proceed with
this grievance, you have five (5) working days from the date of response to return the corrected
grievance to the Executive Assistant.” Exh. A, B, C. Bond’s first grievance was returned on
February 20; however, he did not return the grievance with corrections until March 4. Exh. A, B.
As the Defendants point out, this is an untimely response. Def.’s Reply pp. 3. However, once
again, the second and third grievance Bond received made no further mention of untimeliness.
Exh. B, C. This indicates that the prison also chose to waive this time requirement by not
rejecting his grievance due to an untimely revision.
Inasmuch as untimeliness was not one of the reasons given for the ultimate rejection of
Bond’s grievance, the Court finds that untimeliness is not a basis for finding that Bond failed to
exhaust his administrative remedies.
Bond Failed to Pursue His Grievance to the Final Step
In addition to their untimeliness argument, the Defendants further assert that Bond failed
to pursue his grievance to the final step of the OGP. Specifically, Bond failed to appeal his third
returned grievance before filing a lawsuit as required in the OGP. Exh. D pp. 19. In response,
Bond argues the Defendants should be barred from raising the exhaustion of remedies defense
using the theory of promissory estoppel. Bond argues that Defendants cannot claim he did not
exhaust his administrative remedies by failing to take his grievance through the last step in the
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OGP because they told him his grievance could not be remedied through that process.
The Defendants are correct in asserting that a promissory estoppel argument is not
applicable to this case. Promissory estoppel is “an equitable contract remedy that permits
enforcement of a promise that induces actual and reasonable reliance on the part of the plaintiff.”
Peters v. Gilead Sciences, Inc., 533 F.3d 594, 595 (7th Cir. 2008). The Defendants did not
promise Bond anything in his last grievance, and as such, the theory of promissory estoppel does
not apply. The third and final grievance Bond filed was returned stating (1) “This grievance is a
request for reimbursement or replacement of personal property that has been lost, damaged, or
destroyed. This claim is handled through the Tort Claim process”; and (2) “The relief you are
seeking is not a function of the grievance process. Compensation is a function of the tort claim
process.” Exh. C. Neither of these reasons for the return is a promise, a needed component for
promissory estoppel.
Essentially, Bond is raising a futility argument, claiming that since the Defendants told
him his grievance could not be remedied through the OGP, it would be pointless for him to
appeal the response he received from his third grievance because, presumably, the response
would be the same. This argument, however, has been rejected. Even if the type of relief a
prisoner seeks cannot be awarded in the grievance process, a prisoner is still required to
complete the process before his administrative remedies can be exhausted. Dixon v. Page, 291
F.3d 485, 488 (7th Cir. 2002). It is not considered futile for a prisoner to go through all the steps
even if the requested relief cannot be awarded because “an administrative claim may help to
narrow a dispute or avoid the need for litigation.” Perez v. Wisconsin Dept. of Corrections, 182
F.3d 532, 537 (7th Cir. 1999). Bond acknowledged this in the additional information to his
grievance by stating, “even if the type of relief I am seeking cannot be granted via a grievance,
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this is a mandatory step that I am required to take if these issues are to be put in front of a judge
(lawsuit) and prosecutor (charges).” Exh. C. The final mandatory step Bond was required to
complete before filing a lawsuit was an appeal of his third grievance.
If a prisoner fails to file a timely appeal as required by the prison system, that prisoner
has failed to exhaust his administrative remedies. Burrell v. Powers, 431 F.3d 282, 284-285 (7th
Cir. 2005). The Court finds that Bond failed to exhaust his administrative remedies before filing
his lawsuit by not filing an appeal as required in the OGP. Accordingly, the Defendants are
entitled to summary judgment on Bond’s § 1983 claim against them.
Conclusion
For the reasons set forth above, the Defendants’ motion for summary judgment is
GRANTED.
SO ORDERED: 06/08/2011
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic notification
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