ROWE v. MIZE et al

Filing 107

ENTRY Discussing Affirmative Defense of Failure to Exhaust Available Administrative Remedies - For the reasons explained in this Entry, the court finds that the defendants have failed to meet their burden of proof. Their affirmative defense that Rowe failed to comply with the exhaustion requirement of the PLRA prior to filing this action is therefore rejected. Accordingly, the affirmative defense discussed herein is rejected and the case will proceed. (copy to Plaintiff via US Mail). Signed by Judge Jane Magnus-Stinson on 10/20/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

JEFFREY ALLEN ROWE,
Plaintiff,
vs.
SUPT. BRETT MIZE, et al.,
Defendants.

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1:10-cv-362-JMS-DML

Entry Discussing Affirmative Defense of Failure
to Exhaust Available Administrative Remedies
This is a civil rights action brought by Jeffrey Rowe (“Rowe”) against officials at the
Pendleton Correctional Facility (“Pendleton”), which is a prison operated by the Indiana
Department of Correction.
The defendants have presented as an affirmative defense their contention that
Rowe failed to comply with the exhaustion requirement of the Prison Litigation Reform Act
(APLRA@) prior to filing this action. The burden of proof as to this defense rests on the
defendants. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (citing Dale v. Lappin,
376 F.3d 652, 655 (7th Cir. 2004)).
A hearing was conducted pertaining to the above defense on June 15, 2011. The
parameters of the hearing were established by Pavey v. Conley, 544 F.3d 739 (7th Cir.
2008). The plaintiff was present in person and by counsel.1 The defendants were present
by counsel. Evidence was submitted. Post-hearing proposed findings of fact and
conclusions of law have been filed.
For the reasons explained in this Entry, the court finds that the defendants have
failed to meet their burden of proof. Their affirmative defense that Rowe failed to comply
with the exhaustion requirement of the PLRA prior to filing this action is therefore
rejected.

1 The court appreciates the pro bono efforts of Edward W. Harris III and Erin C. Nave of the law
firm of Taft Stettinius & Hollister, LLP, who accepted the court’s request to represent Rowe for the
purpose of resolving the affirmative defense.

Discussion
The law applicable to the affirmative defense is this: The PLRA requires that a
prisoner exhaust his available administrative remedies before bringing a suit concerning
prison conditions. 42 U.S.C. ' 1997e(a); Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
AProper exhaustion demands compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.@ Woodford v. Ngo, 548
U.S. 81, 90-91 (2006) (footnote omitted); see also Dale v. Lappin, 376 F.3d 652, 655 (7th
Cir. 2004) ("In order to properly exhaust, a prisoner must submit inmate complaints and
appeals 'in the place, and at the time, the prison's administrative rules require.'")(quoting
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).
Strict compliance is required with respect to exhaustion, and a prisoner must
properly follow the prescribed administrative procedures in order to exhaust his remedies.
See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). “Prison officials may not take
unfair advantage of the exhaustion requirement, however, 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.” Id. Of course,
when the prisoner causes the unavailability of the grievance process by
simply not filing a grievance in a timely manner, the process is not
unavailable but rather forfeited. On the other hand, when prison officials
prevent inmates from using the administrative process . . . the process
that exists on paper becomes unavailable in reality.
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
Having weighed the conflicting evidence concerning what Rowe did to utilize the
administrative remedies process, the court credits Rowe’s account, and the evidence
supporting that account, that he did everything within his ability to do. Specifically, as to
Rowe’s allegations that actions of the defendants prior to May 1, 2009 caused his injuries,
the court finds that:
•

In December 2008, Rowe requested to be re-classified from the general
prison population to protective custody due to concerns about his safety.
Pursuant to the Adult Offender Classification Policy in place at the time of
Rowe’s request, a reclassification hearing was held. Rowe was
subsequently placed on administrative segregation instead of the protective
custody he had requested. Rowe filed a classification appeal to the
Superintendent regarding this decision and his appeal was denied on
February 16, 2009. The Superintendent’s decision was final.

•

The grievance process was not available for classification decisions and
Rowe exhausted his means to appeal the denials of his request for
protective custody classification.

As to Rowe’s allegations that the actions of certain Pendleton employees on May 1, 2009,
also caused his injuries, the court finds that:
•

Rowe submitted an informal grievance as to this claim with counselor
Michael Kidder verbally and in writing.

•

Rowe did not receive a response to his informal grievance.

•

DOC grievance policy in effect on May 1, 2009, did not require Rowe to file
a formal grievance as to what occurred on May 1, 2009, prior to the
resolution of his informal grievance.

•

It was the failure of Pendleton personnel to respond to Rowe’s informal
grievance which accounts for Rowe's failure to fully utilize the administrative
remedies procedure at Pendleton as to the failure-to-protect claim. The
defendants’ inaction rendered the formal grievance process unavailable.
Therefore, Rowe exhausted his remedies related to the May 1, 2009,
incident.

Accordingly, the affirmative defense discussed herein is rejected and the case will
proceed.
IT IS SO ORDERED.

10/20/2011
Date: _________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
Edward Wesley Harris , III
TAFT STETTINIUS & HOLLISTER LLP
Email: [e-mail]
Erin C. Nave
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Jeffrey Allen Rowe
116017
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064
Betsy M. Isenberg
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Matthew T. Black
STATE OF INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]