SOBIN v. BUSS et al

Filing 31

ENTRY denying 24 Motion for Summary Judgment (see Entry). Signed by Judge Richard L. Young on 4/11/2012. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
GREGORY D. SOBIN,
Plaintiff,

v.
L. MARSH,

Defendant.

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No. 1:11-cv-518-RLY-MJD

Entry Denying Motion for Summary Judgment
For the reasons explained in this Entry, the defendant’s motion for summary
judgment must be denied.
A. Background
This is a civil rights action in which Gregory D. Sobin claims that defendant
Larry Marsh placed offender Jack McCardle III in Sobin’s cell for the purpose of
attacking and ultimately injuring him. The defendant asserts as an affirmative
defense that Sobin failed to comply with the exhaustion of administrative remedies
requirement of the Prison Litigation Reform Act prior to filing this action. This
defense is asserted through the defendant’s motion for summary judgment, which is
fully briefed.
B. Legal Standards
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.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine only
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If no
reasonable jury could find for the non-moving party, then there is no “genuine”
dispute. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).
In acting on a motion for summary judgment, “[t]he applicable substantive
law will dictate which facts are material.” National Soffit & Escutcheons, Inc., v.
Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996).

The substantive law applicable to the motion for summary judgment is this:
The Prison Litigation Reform Act (APLRA@) 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).
“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Id., at 532 (citation omitted).
“[T]here is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 212
(2007).
The exhaustion requirement of the PLRA is one of “proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means that the prisoner plaintiff
must have completed “the administrative review process in accordance with the
applicable procedural rules, including deadlines, as a precondition to bringing suit
in federal court.” Id.
C. Material Facts
The following statement of facts is not necessarily objectively true, but as the
summary judgment standard requires, the undisputed facts and the disputed
evidence are presented in the light reasonably most favorable to Sobin as the nonmoving party. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000).
Sobin was incarcerated at the Pendleton Correctional Facility (“PCF”) on
December 1, 2010.
There is a grievance program at PCF which was in place while Sobin was
incarcerated at PCF and during the time Sobin alleges that his rights were violated.
Sobin’s claim in this action is within the scope of matters which can be presented at
the PCF grievance program.
The grievance process at the PCF consists of an attempt to resolve the
complaint informally, as well as two formal steps, a formal written grievance and
then an appeal of the response to the level one grievance.
Proper exhaustion of the grievance procedure requires pursuing an appeal to
the final step of the grievance process. If an offender does not receive a response
from staff in accordance with the established time frames, he is entitled to move to
the next stage of the process.
Offender Sobin did not complete the grievance procedure as to the claim
alleged in the complaint prior to filing this action.

Sobin testified that he submitted his informal and formal grievances, but he
never received a response. Sobin then sought an appeal form from both his
counselor and the law library, but he was never provided with one.
D. Analysis
Prison staff having the responsibility of providing prisoners with a
meaningful opportunity to raise grievances cannot refuse to facilitate that process
and then later argue that the prisoner did not comply with procedures or file in a
timely manner. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). “Prison
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 v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). The facts
construed in a fashion most favorable to Sobin as the non-movant raise a material
question of fact regarding whether he was thwarted in his attempt to use the
grievance system at the PCF.
The defendant has failed to show that there is no genuine issue as to any
material fact and that he is entitled to judgment as a matter of law on the issue of
whether Sobin exhausted his available administrative remedies. Accordingly, the
defendant’s motion for summary judgment [24] is denied.
E. Hearing
The PLRA’s exhaustion requirement creates an affirmative defense and the
burden of proof is 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)). When asserted, the
defense must be resolved prior to the merits of a claim being reached. Pavey v.
Conley, 528 F.3d 494, 498 (7th Cir. 2008); Perez v. Wis. Dep’t of Corr., 182 F.3d 532,
536 (7th Cir. 1999) (“The statute [requiring administrative exhaustion] can function
properly only if the judge resolves disputes about its application before turning to
any other issue in the suit.”). Both parties have requested a hearing to resolve the
material facts in dispute. That request is granted and a hearing shall be set by
separate Order.
IT IS SO ORDERED.
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04/11/2012
Date: __________________

RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distribution:
Gregory D. Sobin
No. 116350
Wabash Valley Correctional Facility
6908 S. Old U.S. Highway 41
P.O. Box 500
Carlisle, IN 47838
All electronically registered counsel