GRAY v. ALSIP et al

Filing 34

ORDER granting Defendants' 18 Motion for Summary Judgment. Judgment consistent with this Entry shall now issue. SEE ORDER. Signed by Judge William T. Lawrence on 3/11/2015. Copy sent to Plaintiff via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
STEVEN R. GRAY,
Plaintiff,
vs.
D. ALSIP,
TROYER,
Defendants.

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Case No. 1:14-cv-01530-WTL-TAB

Entry Discussing Motion for Summary Judgment
and Directing Entry of Final Judgment
Plaintiff Steven Gray, an inmate at the Pendleton Correctional Facility, brings this action
pursuant to 42 U.S.C. § 1983 alleging that the defendants failed to protect him from an attack by
other inmates. Specifically, Gray alleges that the defendants failed to protect him from harm.
Arguing that Gray failed to exhaust his available administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), defendant Alsip moves for summary judgment and defendant
Troyer has joined in that motion. For the following reasons, the motion for summary judgment
[dkt 18] is granted.
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).
II. Undisputed Facts
Applying the standards set forth above, the undisputed facts are as follows:
On or around October of 2012, Gray was attacked by five unidentified persons in Pendleton
Correctional Facility. Gray has filed two other federal lawsuits related to this incident, Case No.

1:13-cv-297-JMS-DML (filed February 21, 2013), and Case No. 1:13-cv00739-TWP-DKL (filed
May 6, 2013). The first lawsuit was voluntarily dismissed by Plaintiff “so that he can begin to
exhaust his administrative remedies . . . .” The second lawsuit was dismissed by the court sua
sponte at the outset of the proceedings.
The Indiana Department of Correction (“IDOC”) grievance policy provides a process for
attempting to resolve complaints about the conditions of a person’s confinement. The complete
grievance process consists of three steps: (1) an informal complaint, followed by (2) submission
of a written form setting out the problem or concern, and the facility’s response to the written
grievance, followed by (3) a written appeal of the facility’s response, and the facility’s response to
the appeal.
The grievance policy provides that a grievance is not assigned a grievance number until it
is determined that it was adequately filed. The policy also requires that an offender wishing to file
a grievance do so “no later than 20 working days from the date of the incident giving rise to the
complaint or concern.” The grievance policy goes on to provide a mechanism for an offender to
file an untimely grievance. The policy states: “An offender who does not follow the time limits set
out in this administrative procedure should expect to have his grievance or appeal denied for that
reason unless he or she is able to show good cause.” (Def. Exhibit F at 27.)
Since being incarcerated with IDOC, Gray has properly filed one grievance, and that
occurred in 2005. On July 22, 2014, Gray attempted to file a grievance related to the incident
alleged in the complaint. Gray provided no explanation for the lateness of this grievance. This
grievance was returned on August 4, 2014, for being untimely filed. The grievance was not
assigned a grievance number because it was not timely filed. On August 6, 2014, Gray attempted

to appeal the facility’s response. No response was issued by the facility regarding the grievance
appeal.
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
prescribed by the prison’s grievance system.” Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004).
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). But prison officials must not take unfair advantage of the exhaustion
requirement. 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. See
id.

The defendants argue that because Gray did not file a timely grievance, he has failed to
exhaust his available administrative remedies and this action must be dismissed. Gray responds
that he was in the infirmary with serious injuries after the incident at issue in his complaint. He
contends that while in the infirmary, he had limited access to forms or writing materials. He also
states generally that he “was not physically or mentally able to go thru the process of administrative
remedies.” In reply in support of the motion for summary judgment, the defendants argue that even
if the plaintiff were unable to file grievances while in the infirmary, he still did not file a grievance
related to the October 2012 incident until July of 2014. The defendants point out that the plaintiff
was able to file two federal lawsuits before he filed his grievance related to the actions at issue in
the complaint.
It is undisputed that Gray did not file a grievance until July 2014, nearly two years after
the incident that gave rise to his complaint. While Gray asserts that he was unable to file a
grievance immediately after the incident, he provides no basis to conclude that he was thwarted in
his efforts or physically unable to do so until July of 2014. While the grievance policy contemplates
the acceptance of a late-filed grievance if the prisoner is able to show good cause for the
untimeliness, it is undisputed that the grievance Gray submitted made no attempt to show good
cause for its late filing. The defendants have therefore shown that Gray failed to exhaust his
available administrative remedies. See Dole, 438 F.3d at 809 (An administrative remedy is
available “so long as the administrative authority has the ability to take some action in response to
the complaint.”).
IV. Conclusion
The motion for summary judgment filed by defendant Alsip and joined by defendant
Troyer [dkt 18] is granted. Judgment consistent with this Entry shall now issue.

IT IS SO ORDERED.

Date: 3/11/15
Distribution:
Steven Gray, #906531
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064
All electronically registered counsel

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana