PETERSON v. MORRISON et al
Filing
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ORDER granting 17 Motion for Summary Judgment and Directing Entry of Final Judgment. Signed by Judge Sarah Evans Barker on 2/12/2015 (dist made) (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LAWRENCE PETERSON,
Plaintiff,
vs.
C. MORRISON, et. al,
Defendants.
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1:14-cv-00655-SEB-MJD
Entry Discussing Motion for Summary Judgment
and Directing Entry of Final Judgment
Plaintiff Lawrence Peterson, a former inmate of the Duvall Work Release Center
(“Duvall”), brings this action pursuant to 42 U.S.C. § 1983 based on treatment he received while
housed there. Specifically, Peterson alleges that the defendants, C. Morrison and Ben Sandman,
Duvall employees, subjected him to cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution by forcing him to be exposed to second-hand
smoke despite the fact that he suffers from COPD and serious chest pains. Arguing that Peterson
failed to exhaust his available administrative remedies as required by the Prison Litigation
Reform Act (“PLRA”), the defendants move for summary judgment.
I. Standard of Review
A motion for summary judgment asks that the Court find that a trial based on the
uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would
conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary
judgment, the non-moving party must set forth specific, admissible evidence showing that there
is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The substantive
law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). 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.” Id. If no reasonable jury could find for the
non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372 (2007). The
key inquiry is whether admissible evidence exists to support a plaintiff’s claims, not the weight
or credibility of that evidence, both of which are assessments reserved to the trier of fact. See
Schacht v. Wis. Dep’t of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). When evaluating this
inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from
the evidence submitted and resolve “any doubt as to the existence of a genuine issue for trial . . .
against the moving party.” Celotex, 477 U.S. at 330.
Whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence or presence of a genuine dispute or
that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro.
56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is competent to testify on matters
stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant’s
factual assertion can result in the movant’s fact being considered undisputed, and potentially the
grant of summary judgment. Fed. R. Civ. Pro. 56(e).
Local Rule 56-1(b) requires a brief in opposition to a motion for summary judgment to
include a section labeled “Statement of Material Facts in Dispute”, which responds to the
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movant’s asserted material facts by identifying the potentially determinative facts and factual
disputes which the non-moving party contends demonstrate that there is a dispute of fact
precluding summary judgment. These facts must be supported by appropriate citations to
admissible evidence. See 56-1(e); Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196
(7th Cir. 1993). Peterson has not presented the Court with a brief in opposition to the motion for
summary judgment or a Statement of Material Facts in Dispute. Instead he has submitted only
his Declaration in response to the motion for summary judgment. That Declaration has been
considered, but any conclusory allegations in the Declaration are insufficient to create a genuine
issue of material fact where the defendants have provided supported evidence of their assertions
of fact. See Young v. Monahan, 420 F. App’x 578, 583 (7th Cir. 2011) (citing Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888 (1990); Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003)).
II. Undisputed Facts
Applying the standards set forth above, the undisputed facts are as follows:
A. The Duvall Residential Center
At all times relevant to the complaint, Lawrence Peterson was a resident of Duvall. In
1983, following the passage of the community corrections statute by the Indiana General
Assembly, the City-County Council enacted a local ordinance creating the Marion County
Community Corrections (“MCCC”). See Indianapolis, IN., Rev. Code § 283-101.1 Indiana Code
section 11-10-8 provides for work release programs through community corrections facilities.
Indiana Code section 11-12 is the community corrections statute. This statute gives the City of
Indianapolis/Marion County the authority to “establish and operate a community corrections
advisory board for the purpose of coordinating or operating community corrections programs.”
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See Ind. Code § 11-12-1-2 (2014). The community corrections programs may include residential
or work release programs. Ind. Code § 11-12-1-2.5(a)(1).
Duvall was opened in October 2007 and provides 350 beds for non-violent males who
are serving work-release sentences through MCCC. In addition to providing local offenders an
option to serve their work-release sentences through Duvall, it also contracts with the Indiana
Department of Correction to provide offenders with housing who are on work release through the
Indiana Department of Correction. Residents are permitted to leave the facility to work, seek
employment, attend school, and receive medical care. Residents may also earn passes to visit
with family or be granted other passes for special circumstances.
B. Grievance Policy at Duvall
On June 9, 1989, Peterson was given a fifty year sentence for committing a burglary and
theft in Marion County Superior Court. As a result of his sentence, Peterson’s projected release
date from prison was June 19, 2014. Peterson was sent to Duvall on January 15, 2014, to serve
out the rest of his sentence via a work-release.
When Peterson entered into the work release program at Duvall in January 2014, it had in
place procedures whereby residents could formally complain about the conditions of their
detention or other specific incidents of alleged misconduct. The details of the grievance
procedure are outlined in the Resident Handbook, which each resident receives upon entering
Duvall. The grievance procedure allows residents to resolve concerns and complaints about all
aspects relating to their sentence and placement at Duvall, including harassment by other
residents and the need for medical treatment.
The Duvall Grievance Procedure requires the resident to attempt to first informally
resolve the complaint by discussing the matter with a staff member via a message card. If there is
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no such single person, the resident is to contact the Duvall Team Leader or Residential Program
Coordinator, who will direct the resident’s complaint to an appropriate staff member. All
complaints must be submitted by the resident within fourteen days of the incident/problem.
If the resident has been unable to resolve his complaint or concern informally, the
resident is then required to file a formal grievance by using the Grievance Form. A Grievance
Form is available by request from the Duvall Team Leader, Residential Programs Coordinator,
Security Supervisor, and Center Director. A resident wishing to file a grievance is required to
submit a completed grievance form no later than thirty days from the date of the incident giving
rise to the complaint or concern.
The Grievance Form is to be submitted to the Residential Programs Coordinator who
may forward it to the appropriate Supervisor as needed. The Grievance Form must explain how
the situation or incident affects the offender personally, and must explain what actions he has
taken to try to resolve the complaint or concern informally, including the date he informally
contacted staff about the complaint, the name and title of the staff person with whom he
discussed the complaint, and the response from the staff person. After the filing of the resident’s
grievance, the Residential Programs Coordinator will investigate and respond to the grievance
within five business days, unless the Coordinator indicates he needs additional time for
investigation purposes. A copy of the Grievance Form and response will be provided to the
appropriate Administrative Assistant. The Administrative Assistant keeps copies of all
grievances and responses on file, as well as keeps statistics including the number of grievances
filed, the number of grievances filed that are “not grievable,” the number of grievances resolved
informally (if information is available), and the number of grievances resolved formally.
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If a resident is not satisfied with the response to the Grievance, an appeal may be
submitted to the Center Director within seven days of the receipt of the response. The Center
Director will further investigate the matter and either affirm, modify, or reverse the response to
the grievance. The Center Director’s decision is the final administrative step.
Peterson received a copy of the Resident Handbook when he arrived at Duvall on January
15, 2014. In his Residential Center Contract, he initialed his agreement to obey all rules and
regulations set out in the Resident Handbook. A review of Peterson’s entire resident file for the
duration of Peterson’s residency at Duvall revealed that Peterson never filed a grievance during
his stay at Duvall, and he did not file a grievance regarding the medical care (or lack thereof),
second-hand smoke exposure, or his alleged denial of medical treatment.
III. Discussion
The PLRA requires that a prisoner exhaust his available administrative remedies before
bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a); see 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).
“Proper 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)). “In order to exhaust administrative remedies, a prisoner must take all steps
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prescribed by the prison’s grievance system.” Ford v. Johnson, 362 F.3d 395, 397 (7th Cir.
2004).
The defendants argue that by failing to file a grievance as required by the Grievance
Policy, Peterson failed to exhaust his administrative remedies as required by the PLRA. Peterson
appears to argue that the PLRA requirement is not applicable to his claims because: (1) the
PLRA does not apply to Duvall; and (2) Duvall did not offer a grievance policy.
Peterson asserts that because Duvall is a privately-run facility, the PLRA does not apply
to this lawsuit. The PLRA provides: “No 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.A. § 1997e(a) (emphasis added). Duvall houses inmates of the Indiana
Department of Correction who are completing their sentences. This facility certainly qualifies as
an “other correctional facility” for purposes of the PLRA. See Witzke v. Femal, 376 F.3d 744,
753 (7th Cir. 2004) (a halfway house is an “other correctional facility”). Because Duvall
qualifies as a correctional facility under the PLRA, the exhaustion requirement applies to
Peterson’s claims.
Next, Peterson appears to argue that because Duvall did not have a grievance policy, he is
excused from failing to abide by that policy. But Peterson’s bald assertion that Duvall did not
offer a grievance procedure is unfounded. See Young, 420 Fed. App’x at 583. It is undisputed
that Peterson did not file a grievance regarding his complaints of second-hand smoke exposure.
The defendants have shown that Duvall had a grievance policy in place at the time of Peterson’s
allegations at issue in his complaint, that Peterson received a copy of the Resident Handbook
containing the grievance policy, and that Peterson agreed to comply with the rules and
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regulations outlined in the Resident Handbook. Peterson states simply that there was no
grievance policy. This is insufficient to defeat the defendants’ supported evidence that Duvall
had a grievance policy that Peterson failed to follow. Accordingly, it is undisputed that Peterson
failed to complete the exhaustion process before filing this action. Therefore, in light of 42
U.S.C. § 1997e(a), Peterson’s lawsuit should not have been brought and must now be dismissed
without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004). (“We therefore hold that
all dismissals under § 1997e(a) should be without prejudice.”).
IV. Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment [dkt 17] is
granted. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
Date:
_______________________________
2/12/2015
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
Lawrence Peterson
5526 East 21st Street
Indianapolis, IN 46254
All electronically registered counsel
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