NEELY-BEY TARIK-EL v. KNIGHT
Entry Sustaining Defense of Failure to Exhaust Available Administrative Remedies and Directing Entry of Final Judgment - In this civil rights action brought by Mr. Neely-Bey Tarik-El, he alleges his rights under the First Amendment were violated by the defendants when they allegedly enforced a restriction placed on him by the Moorish Science Temple of America that suspended him from participating in religious services. His claims are brought pursuant to 42 U.S.C. § 1983. He seeks injun ctive relief. In light of 42 U.S.C. § 1997e(a), is that Mr. Neely-Bey Tarik-El's action should not have been brought and must now be dismissed without prejudice. Judgment consistent with this Entry shall now issue. (See Entry.) Signed by Judge William T. Lawrence on 11/10/2016.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DERRICK DION NEELY-BEY TARIK-EL,
WENDY KNIGHT, et al.,
) Case No. 1:15-cv-363-WTL-DML
Entry Sustaining Defense of Failure to Exhaust
Available Administrative Remedies and Directing Entry of Final Judgment
In this civil rights action brought by Mr. Neely-Bey Tarik-El, he alleges his rights under
the First Amendment were violated by the defendants when they allegedly enforced a restriction
placed on him by the Moorish Science Temple of America that suspended him from participating
in religious services. His claims are brought pursuant to 42 U.S.C. § 1983. He seeks injunctive
The defendants have presented as an affirmative defense their contention that Mr. NeelyBey Tarik-El failed to comply with the exhaustion requirement of the Prison Litigation Reform
Act (PLRA) prior to filing this action. Specifically, the defendants argue that Mr. Neely-Bey TarikEl failed to file an appeal of the denial of his formal grievance.
The Court denied the defendants’ motion for summary judgment. The Court held a hearing
on June 29, 2016, pertaining to the exhaustion defense. The parameters of the hearing were
established by Pavey v. Conley, 544 F.3d 739, (7th Cir. 2008). Mr. Neely-Bey Tarik-El was present
in person and represented by Mr. Nicholas Baker.1 The defendants were represented by counsel.
Documentary evidence was submitted, as well as testimony from the plaintiff, plaintiff’s witness
James Clemens, and from defendants’ witness, grievance administrator Robert Stafford. The Court
has considered the evidence presented in support of and in opposition to the motion for summary
The burden of proof as to the 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)). For the reasons
set forth in this Entry, the Court finds that Mr. Neely-Bey Tarik-El did not exhaust his
administrative remedies as required by the PLRA.
A. Legal Standards
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). The statutory exhaustion requirement is that “[n]o action shall be brought with
respect to prison conditions…by a prisoner…until such administrative remedies as are available
are exhausted.” 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.” Porter, 534 U.S. at 532.
“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
The Court acknowledges its gratitude to Mr. Baker for his efforts on behalf of Mr. Neely-Bey Tarik-El.
properly exhaust, a prisoner must submit inmate complaints and appeals in the place, and at the
time, the prison's administrative rules require.”) (internal quotation omitted). “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).
B. Undisputed Findings of Fact
Having considered the evidence presented at the hearing, the Court makes the following
findings of fact:
Mr. Neely-Bey Tarik-El was incarcerated at the Pendleton Correctional Industrial Facility
(“CIF”) at all time relevant to this action. The Indiana Department of Correction (“IDOC”) has a
three step administrative remedy process for inmates which is set forth in the “Offender Grievance
Process” policy No. 00-02-301 (“Grievance Policy”). First, an inmate must attempt to resolve the
grievance informally by communicating with prison staff. Second, if the informal grievance is not
successful, the inmate can file a written formal grievance with the Executive Assistant. Third, if
not satisfied with the Executive Assistant’s response, the inmate may file an appeal. An appeal
must be submitted to the person, or in the manner, or both, as designated by the facility for persons
living in the offender’s housing unit, within ten working days from the date of the grievance
response. If the offender receives no grievance response within twenty-five working days of the
day he submitted the grievance, he may appeal as though the grievance had been denied. In that
event, the time to appeal begins on the 26th working day after the grievance was submitted and
ends ten working days later. (Defendants’ Ex. 1, pp. 14-25).
Robert Stafford is the grievance administrator at CIF. He is responsible for the grievance
process at CIF. His responsibilities as grievance administrator include collecting grievances and
grievance appeals, logging the grievances and grievance appeals into the Offender Grievance
Review and Evaluation System (“OGRE”), investigating and responding to grievances and sending
grievance appeals to central office of the IDOC.
The IDOC grievance policy 00-02-301 was in effect in December of 2014, when Mr.
Neely-Bey Tarik-El submitted his grievance regarding a suspension from religious services. Upon
arriving at CIF inmates go through an orientation process and receive a handbook which includes
information explaining the grievance process.
The offender submits the grievance form to the person, or in the manner, or both, that the
facility designates for persons living in the offender’s housing unit. (Defendants’ Ex. 1, pp. 1425). At CIF, there are several ways for offenders to submit a grievance. First, is a central box
located in the offender dining hall. This box is marked as the offender grievance box. It is a secure
location and Mr. Stafford has a key and checks the box daily in the morning. Second, there is an
offender mailbox located in the housing units. Mail placed in the offender mailbox are delivered
to the mailroom and then delivered to Mr. Stafford. Finally, offenders are able to submit a
grievance directly to the housing unit counselor.
IDOC policy dictates that during orientation each facility explain to the offender how the
grievance process and policy works. During the orientation process, offenders are instructed to
place a grievance or grievance appeal in the grievance box outside of the dining hall. Mr. NeelyBey Tarik-El received orientation as a new arrival at CIF, along with a copy of the offender
handbook on March 8, 2012. (Plaintiff’s Ex. 4).
Mr. Neely-Bey Tarik-El is a member of the Moorish Science Temple of America. He
alleges that his First Amendment rights were violated by the defendants when they allegedly
enforced a restriction placed on him by the Moorish Science Temple of America that suspended
him from participating in religious services.
Mr. Neely-Bey Tarik-El submitted his formal grievance concerning his suspension from
religious services on December 22, 2014. (Defendant’s Ex. 3, p. 1). Mr. Stafford determined this
was a grievable issue, logged it into the OGRE system, and assigned grievance number 86046.
(Defendant’s Exs. 2, 3). He also provided Mr. Neely-Bey Tarik-El a receipt of grievance. [dkt. 211, at p. 1]. He then requested statements from the parties involved in the issue and investigated the
claims in the grievance. Chaplain Smith provided a response to Mr. Stafford’s inquiry.
(Defendant’s Ex. 3, p. 2). Based on Smith’s statement and his investigation, Mr. Stafford sent a
formal level one response to Mr. Neely-Bey Tarik-El denying his formal grievance on December
31, 2014. (Defendant’s Ex. 3, p. 3). Mr. Neely-Bey Tarik-El received a copy of the denial of the
formal grievance. [dkt. 21-1, at p. 2]. Attached to the denial of the formal grievance was an appeal
form. As of the date of the Pavey hearing, Mr. Stafford did not receive a grievance appeal from
Mr. Neely-Bey Tarik-El.
Offender James Clemens testified he is aware of instances where Mr. Stafford misplaced
or lost appeals. Specifically, Mr. Clemens placed a grievance in the grievance box in the dining
hall. When he received no response, he inquired to Mr. Stafford as to the status of his grievance.
Mr. Stafford responded he did not have it and instructed Mr. Clemens to resubmit the entire
grievance. This is not the only instance Mr. Clemens has experienced lost grievances or appeals.
Mr. Clemens also explained that the grievance process is explained when inmates arrive at the
The testimony of Robert Stafford, the grievance administrator, was credible. He testified
in detail as to how he consistently performs his job. His records reflect that Mr. Neely-Bey TarikEl did not file an appeal of the formal grievance relating to his suspension from religious services.
Mr. Neely-Bey Tarik-El’s witness, Mr. Clemens, bolstered the defendants’ position that
the grievance process works in the manner that Mr. Stafford described. On an occasion that Mr.
Clemens did not receive a response to his grievance, he notified Mr. Stafford and was instructed
to resubmit the entire grievance. Additionally, Mr. Clemens confirmed that the grievance process
is explained to inmates upon their arrival at CIF.
Mr. Neely-Bey Tarik-El was not credible for many reasons. First, at the hearing, Mr. NeelyBey Tarik-El testified he did not read the handbook he received at orientation at CIF. However,
during the deposition he testified that he did read the handbook he received during at orientation
Second, at the hearing and during the deposition, Mr. Neely-Bey Tarik-El stated he did not
recall if he received the receipt of grievance from Mr. Stafford. He also testified at the deposition
that he did not receive the receipt of grievance. However, Mr. Neely-Bey Tarik-El attached the
receipt of grievance to a document he titled “Objection Notice” that was filed with the Court on
October 6, 2015. [dkt. 21]. At the hearing, he explained that he received the receipt of grievance
from defendants’ counsel as an attachment to defendants’ motion for summary judgment that was
filed on October 26, 2015. The certificate of service attached to the defendants’ motion for
summary judgment indicates it was mailed to Mr. Neely-Bey Tarik-El on October 26, 2015. As
such, Mr. Neely-Bey Tarik-El was in possession of the receipt of grievance prior to the filing of
the defendant’s motion for summary judgment and was not truthful with the Court regarding when
or how he came to be in possession of this document.
Third, Mr. Neely-Bey Tarik-El testified at the hearing that the grievance process is not
explained to inmates upon their arrival at CIF, or that inmates are not instructed where to place a
grievance or grievance appeal. However, his witness, Mr. Clemens, testified the grievance process
is explained to inmates upon their arrival at CIF, and that inmates are instructed to place a
grievance or grievance appeal in the grievance box outside of the dining hall.
Finally, in his complaint, Mr. Neely-Bey Tarik-El wrote that he placed his grievance appeal
in the mail box which was sent to the IDOC central office. [dkt. 1, at p. 3]. In contrast, at the
hearing, he testified that he placed his grievance appeal in the grievance box in the dining hall.
Additionally, he had previously availed himself of the grievance process, including an appeal, in
2012. [dkt. 22-1, at p. 37]. As such, he was familiar with the grievance process at CIF.
Mr. Neely-Bey Tarik-El’s testimony at the hearing was riddled with inconsistencies such
that his testimony at the hearing was not credible. Stated another way, the Court simply does not
believe that, despite exhausting his administrative remedies in 2012, Mr. Neely-Bey Tarik-El did
not know the proper procedure to exhaust in 2014. Or that he did not read the inmate handbook
that contained the grievance procedure, or that he was not oriented to the grievance procedure
when he arrived at CIF. Because Neely-Bey Tarik-El was not credible, there is no credible
evidence to support a finding that he exhausted his administrative remedies by filing an appeal of
the denial of his formal grievance.
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, 438
F.3d at 809. Although “[p]rison 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,” id., the record does not reflect that the grievance procedure at CIF was
unavailable to Mr. Neely-Bey Tarik-El at any time in 2014.
Under these circumstances, the defendants have met their burden of proving there was an
available administrative grievance procedure that Mr. Neely-Bey Tarik-El failed to complete
before he filed this lawsuit.
The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Mr.
Neely-Bey Tarik-El’s action should not have been brought and must now be dismissed without
prejudice. See Ford, 362 F. 3d at 401 (“We therefore hold that all dismissals under § 1997e(a)
should be without prejudice.”); see also Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)
(explaining that “a prisoner who does not properly take each step within the administrative process
has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating. Failure
to do what the state requires bars, and does not just postpone, suit under § 1983.”).
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
All electronically registered counsel
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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