DAILEY v. INDIANA DEPT. OF CORRECTION et al

Filing 64

ENTRY - the court rejects Defendants' affirmative defense of failure to exhaust. The case will proceed to pre-trial discovery. Signed by Judge Richard L. Young on 6/24/2015.(TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBERT G. DAILEY III,

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Plaintiff,
vs.
TOM FRANCUM, SGT. MASON,
SUPT. FINNAN, and DONNA
CARNAGE,
Defendants.

1:13-cv-00233-RLY-TAB

ENTRY ON DEFENDANTS’ AFFIRMATIVE DEFENSE
I.

Background
Plaintiff, Robert G. Dailey III, brought this civil rights action pro se pursuant to 42

U.S.C. § 1983, against defendant prison officials, Tom Francum, David Mason, Alan
Finnan, and Donna Carneygee. While a prisoner at the Pendleton Correctional Facility
(“Pendleton”), Mr. Dailey sustained serious injuries when another prisoner stabbed him
with a homemade weapon. Mr. Dailey alleges Defendants violated his Eighth and
Fourteenth Amendment rights when they denied his repeated requests for protective
custody made in response to threats by gang members.
Defendants asserted the affirmative defense that Mr. Dailey failed to comply with
the exhaustion requirement set forth in the Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a). The court held an evidentiary Pavey hearing on February 11, 2015, to
determine whether, prior to filing this lawsuit, Mr. Dailey exhausted his administrative
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remedies as prescribed by the Indiana Department of Corrections (“IDOC”). See Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Mr. Dailey attended the hearing in person
and by counsel. Defendants were present by counsel. In addition to documentary
evidence, the court heard testimony from Mr. Dailey and prison staff, Wayne Scaife and
Danny Fountain.
The Defendants bear the burden of proof as to this defense. Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006). For reasons set forth below, the court finds that
Defendants did not meet their burden of showing that Mr. Dailey failed to exhaust his
administrative remedies.
II.

Discussion
A.

Legal Standards

The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust his
available administrative remedies before filing a lawsuit concerning prison conditions.
42 U.S.C. § 1997e(a). “[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.” Cottman v. Richardson, 1:13cv-01793-JMS-DML, 2014 WL 3846051, at *1 (S.D. Ind. Aug. 5, 2014) (quoting Porter
v. Nussle, 534 U.S. 516, 524–25, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002)). To exhaust
available remedies, the prisoner must adhere fully to the prescribed steps until the
administrative authority cannot take any further action. Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006).

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The Seventh Circuit requires strict adherence to the PLRA’s exhaustion
requirement. Id. Although exhaustion must occur before the prisoner files the lawsuit,
Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004), the prisoner need only exhaust those
remedies available to him. § 1997e(a); Dole, 438 F.3d at 809. If prison staff fail to
respond to a properly filed grievance or take affirmative steps to obstruct the grievance
process, that remedy becomes unavailable to the prisoner. Id.; see also Kaba v. Stepp,
458 F.3d 678, 684 (7th Cir. 2006) (“[W]hen prison officials prevent inmates from using
the administrative process . . . , the process that exists on paper becomes unavailable in
reality.”).
B.

Findings of Fact

Having considered the evidence presented at the hearing, the court makes the
following findings of fact:
1.

The Grievance Process

The IDOC’s administrative Grievance Policy consists of three mandatory steps set
forth in the Offender Grievance Process, effective as of January 1, 2010. (See Ind. Dep’t
of Corr. Manual of Policies and Procedures No. 00-02-301 (“Grievance Policy”), at 14–
26). First, the prisoner must attempt to resolve the issue informally with either the staff
person responsible for the situation or the person in charge of the area where the situation
occurred. (Id. at 14). Second, if the prisoner finds no informal resolution, he may submit
a formal grievance form to the executive assistant. (Id. at 16). The executive assistant
must, within seven days, provide the prisoner a receipt of submission unless the
grievance form is deemed unacceptable. (Id. at 17). A rejected grievance form must be
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returned to the prisoner with an explanation of how to remedy any deficiencies. (Id. at
19). If the prisoner does not receive either a receipt or a rejected form within seven days,
the prisoner must notify the executive assistant of that fact. (Id. at 17). Third, if the
response from the executive assistant does not satisfy the prisoner, he may formally
appeal the response to the Department Offender Grievance Manager, whose decision
constitutes the final administrative disposition. (Id. at 23, 26). Notably, nowhere in the
written Grievance Policy does it warn that failure to adhere to the procedures set forth
therein will preclude a civil rights lawsuit.
Wayne Scaife, the executive assistant at Pendleton, is responsible for receiving,
processing, and investigating all prisoner grievances at that facility. 1 When Mr. Scaife
receives a grievance form, he date stamps it and makes a facial determination of whether
the prisoner properly completed the form. For example, Mr. Scaife rejects and returns
any grievance form that contains missing information, such as a description of the
prisoner’s informal attempts to resolve the issue. In such a case, the grieving prisoner
receives the rejected grievance form and an accompanying “return of grievance” form
that explains how the prisoner can remedy the deficiencies. If, and only if, Mr. Scaife
finds the grievance form acceptable, he logs it into the offender grievance reevaluation
system (“OGRE”). After an investigation into the substance of the grievance, Mr. Scaife
then provides the prisoner a written response, or decision, on the relief sought.

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Mr. Scaife testified that his official job title is “grievance specialist,” although he initially
referred to his position as “community services director,” “grievance specialist,” and “executive
assistant.” Because he processes the grievances at Pendleton, the court will refer to him as an
“executive assistant” consistent with the Grievance Policy.

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The Grievance Policy requires that all prisoners receive instruction on the
grievance process during orientation to the IDOC and its facilities. (See Grievance Policy
at 2). Danny Fountain, a caseworker at Pendleton, conducted prisoner orientations. Mr.
Fountain relied on a “check sheet” of topics to guide the orientation and ensure that
newly incarcerated inmates received the necessary information on day-to-day living at
the facility. He checks off topics as he covers them, prints the prisoner’s name and date
of the orientation, and has the prisoner sign the sheet at the conclusion of orientation. For
prisoners who transfer to Pendleton from other IDOC facilities, where they receive
similar information, Mr. Fountain abridges his orientation, sparing the details unless the
prisoners request otherwise. Notwithstanding the degree of detail in Mr. Fountain’s
presentation, he routinely informs all prisoners of where they can find grievance forms
and to whom they should address related questions.
2.

Availability of the Grievance Process to Mr. Dailey

Mr. Dailey first learned about IDOC’s grievance procedures some time in 2008
while a prisoner at the Branchville Correctional Facility. He arrived at Pendleton on
September 22, 2010. The court heard conflicting testimony as to whether Mr. Dailey
received an orientation upon his arrival to Pendleton. Defendants presented an
orientation check sheet containing both Mr. Fountain’s and Mr. Dailey’s signatures and a
mark next to the topic labeled “Appeals/Grievances,” indicating that Mr. Fountain
addressed that topic with Mr. Dailey. Mr. Fountain testified that he would have given
Mr. Dailey an abbreviated version of orientation—with no discussion of the appeals
process—because he transferred from another IDOC facility. The check sheet, however,
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states that Mr. Dailey and Mr. Fountain completed the orientation on August 24, 2010,
approximately one month before Mr. Dailey transferred to Pendleton.
Although Mr. Dailey concedes that his signature appears on the check sheet, he
testified that he never received orientation from Mr. Fountain and that he had never
before seen—much less signed—the check sheet. According to Mr. Dailey, the extent of
any orientation he received occurred in early October 2010 and consisted of a staff person
arriving at Mr. Dailey’s cell and handing him two envelopes and paperwork to sign. Mr.
Dailey testified that no one at Pendleton explained to him step-by-step how to properly
file a grievance or an appeal. He insists that he had not received such an explanation
since his orientation at the Branchville facility in 2008, where he would have learned
about the pre-2010 grievance process.
Records show that Mr. Dailey properly filed two formal grievances prior to the
grievance giving rise to this lawsuit. His first grievance dates back to September 2008
and concerned dental care; the second grievance was filed on February 10, 2011, and
concerned Mr. Dailey’s commissary account. Both grievances concluded at the first step
of the process, meaning the executive assistant accepted the grievances, logged them into
OGRE, and delivered a response concerning the relief sought. In neither case did Mr.
Dailey appeal the decision of the executive assistant.
On August 22, 2010, while a prisoner at IDOC’s Correctional Industrial Facility
(“CIF”), Mr. Dailey filed a third grievance form concerning stolen property. In the body
of the form, he articulated in detail the circumstances of his grievance and the steps taken
to resolve the issue, including dates and names of individuals. Mr. Dailey did not,
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however, record the same information in the bottom portion of the form where the
prisoner must describe the steps taken to resolve the issue informally. Consequently, the
executive assistant returned the grievance form to Mr. Dailey and attached to it a separate
“return of grievance” form specifying this deficiency.
3.

The April 7th Grievance

On March 28, 2011, prison staff handcuffed and escorted Mr. Dailey down the
range. As they walked by the cell of inmate Troy Riggs, Riggs reached through the
unlocked cuff port and stabbed Mr. Dailey with a homemade weapon. As a result of his
injuries, Mr. Dailey underwent surgery at Wishard Hospital in Indianapolis.
The testimony muddled the timeline of events, but upon his return to Pendleton,
Mr. Dailey initially spent some time in the infirmary before being transferred to
protective custody. On April 7, 2011, Internal Affairs Officer Tom Francum and an
Indiana State Police detective interviewed Mr. Dailey regarding the attack. That same
day, Mr. Dailey obtained a grievance form from Counselor Mike Kidder. The parties
dispute whether Mr. Dailey ever properly filed this grievance. Mr. Dailey insists that his
cell neighbor, whose handwriting was more legible, filled the form out on his behalf and
Mr. Dailey then placed the form in “offender mail.” 2 Mr. Dailey testified that roughly
two weeks later, Mr. Scaife and Counselor Kidder approached Mr. Dailey at his cell
where Mr. Scaife informed him that he could not process the grievance due to the

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The testimony confirms that receptacles designated for grievance forms exist throughout
the facility. In this instance, Mr. Dailey testified that he mailed the form directly to Counselor
Kidder, meaning he placed the form on the ledge of his cell for prison staff to collect for mail
circulation.

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ongoing investigation of the attack by the Indiana State Police and Internal Affairs. Mr.
Dailey contends that Mr. Scaife did not mention the appeals process or suggest any other
recourse. He understood Mr. Scaife’s comments to mean that he could not process the
grievance until the investigation concluded.
Mr. Scaife denies the legitimacy of Mr. Dailey’s purported grievance form. He
notes the absence of a date stamp, Mr. Dailey’s signature, and housing assignment.
Based on these deficiencies, Scaife claims he would have returned the form to Mr. Dailey
with an appropriately marked “return of grievance” form. Scaife also testified that he
does not recall a conversation with Mr. Dailey, although he conceded that such a
conversation would not be unusual if an Internal Affairs investigation had overlapped
with a grievance. Defendants did not dispute whether Internal Affairs had an ongoing
investigation while Mr. Dailey was in protective custody. Mr. Scaife even testified that
when he receives a grievance concerning an issue under investigation by Internal Affairs,
he explains to the prisoner that he cannot resolve the issue or offer relief. Mr. Scaife
clarified, however, that in such cases, he nonetheless would log the grievance in OGRE,
which generates a printed response, and inform the prisoner of his right to appeal the
response. Mr. Dailey denies that Mr. Scaife informed him of the option to appeal,
contending that he took Mr. Scaife at his word that nothing could be done until Internal
Affairs and the Indiana State Police completed the investigation. Furthermore,
Defendants did not controvert Mr. Dailey’s testimony that he did not have access to a
written copy of the grievance process while in protective custody.

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C.

Analysis

As to whether Mr. Dailey received adequate instruction on the grievance process,
the court credits Mr. Dailey’s testimony. Mr. Dailey testified that he had not received an
orientation of the grievance process since arriving at the Branchville facility in 2008,
before the current Policy took effect. He insisted that he never had a meeting or anything
resembling an orientation with Mr. Fountain, who testified to the contrary. As evidence
that such a meeting took place, Defendants presented a signed orientation document with
a suspiciously inaccurate date. Yet even if the court credits the document’s authenticity,
Mr. Fountain conceded that he would have glossed over the details of the grievance
process because Mr. Dailey transferred from another IDOC facility. Although he could
not remember this purported conversation with Mr. Dailey, Mr. Fountain stated that he
would have explained where to obtain and submit grievance forms. He testified that he
would not have discussed the appeals process during orientation even though the topic
category on the check sheet is “Appeals/Grievances.” Compounding the problem, Mr.
Dailey’s uncontradicted testimony shows that while in protective custody, he did not
have ready access to written copies of the grievance procedure.
Defendants seem to rely on the testimony of Messrs. Fountain and Scaife that it is
common knowledge at Pendleton that case workers, among others, have all the forms
necessary to commence a grievance or an appeal and can answer any questions regarding
the process. In essence, Defendants maintain that the availability of staff to answer
questions cures any deficiencies in the delivery of instruction or the accessibility of
written procedures. Without a medium through which prisoners may access the step-by9

step procedure in plain language, the viability of potential claims rests on the precarious
chances that a grieving prisoner directs the right questions to the right staff person who
will then reliably convey the particulars of the process. The law requires strict
compliance with the procedures set forth at the administrative level, including timeliness.
See Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (citation omitted). The evidence
confirms that prison officials, too, enforce strict compliance with the procedures. 3
Officials, therefore, must ensure that prisoners have the necessary resources to avail
themselves of the process.
This requires more than “open door” policies that presume prisoners know what
questions to ask. Mr. Dailey’s testimony confirms as much. When asked how he knew
to file a grievance after the attack, he recited the perfunctory mantra in the prison: “If you
have a problem, file a grievance.” This does not adequately describe a policy—detailed
in roughly twelve pages of text (see Grievance Policy at 14–26)—that imposes rigid
timelines and substantive requirements upon the griever. See King v. McCarty, 781 F.3d
889, 896 (7th Cir. 2015) (noting that prisoners cannot be required to satisfy procedures
unknown to them, such as unwritten rules or unspoken understandings within the prison).
Although the policy had existed for months prior to Mr. Dailey’s arrival at Pendleton,

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For example, Mr. Dailey’s August 22, 2010 grievance from CIF appears to detail his
informal attempts to seek help from Internal Affairs concerning his stolen property. Yet, the
executive assistant at CIF, James Dick, returned the form to Mr. Dailey for lack of an “apparent
informal.” Mr. Dailey ostensibly received this response because he detailed this information in
the wrong space on the form. His frustration with the process is apparent, as he also writes, “I’m
trying to do what I’m supposed to do and [Internal Affairs] will not respond.”

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Defendants provide no credible evidence that the current grievance process was fully
available to Mr. Dailey either prior to or immediately following the attack.
The court cannot resolve from the evidence whether (1) Mr. Dailey in fact
submitted a grievance form and, if so, whether (2) Mr. Scaife’s conduct misled Mr.
Dailey into believing the Internal Affairs investigation stalled the processing of his
grievance. The court credits the testimony of Messrs. Dailey and Scaife. Mr. Scaife
testified that Mr. Dailey’s complaint—that Defendants failed to protect him from
attack—is indeed a grievable issue. The evidence establishes that Mr. Dailey believed he
had a grievable issue and that he at least knew he had to submit a grievance form, which
causes the court to doubt that Mr. Dailey would simply fail to take this step. Moreover,
his account of an encounter with Mr. Scaife and Counselor Kidder contains certain
compelling details that align with Mr. Scaife’s testimony. For instance, Mr. Scaife
conceded that an Internal Affairs investigation would preclude him from granting relief
for a grievance concerning the same incident. He also acknowledged that it would not be
unusual to visit a prisoner’s cell to discuss such a situation. He insisted, however, he
would not refuse to process such a grievance, thereby precluding the prisoner’s ability to
appeal.
Because the court finds that the IDOC’s administrative remedies were not made
sufficiently available to Mr. Dailey, the court need not resolve the contradictory evidence
concerning the validity of the April 7 grievance form.

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III.

Conclusion
For the foregoing reasons, the court rejects Defendants’ affirmative defense of

failure to exhaust. The case will proceed to pre-trial discovery.

SO ORDERED this 24th day of June 2015.

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

Distributed Electronically to Registered Counsel of Record.

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