FARMER v. CORRECTIONAL MEDICAL SERVICES/CORIZON et al

Filing 150

ENTRY on Pavey Hearing Rejecting Affirmative Defense of Failure to Exhaust Available Administrative Remedies - The defendants' defense of failure to exhaust available administrative remedies is rejected. The action shall proceed to the merits o f Mr. Farmer's claims. The magistrate judge is requested to set a status conference to direct the further development of this action. The clerk is directed to update the docket to reflect that Mr. McNeil's limited representation of Mr. Farmer has concluded. Mr. Farmer is once again proceeding pro se. (See Order.). Signed by Judge Larry J. McKinney on 1/13/2017.(LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEREMIAH FARMER,
Plaintiff,

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) Case No. 1:15-cv-01192-LJM-TAB
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vs.
GERARD SPEARS, et al.,
Defendants.

Entry on Pavey Hearing Rejecting Affirmative Defense of Failure to Exhaust
Available Administrative Remedies
I. Background
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by Jeremiah
Farmer, an inmate formerly confined at the Pendleton Correctional Facility (“Pendleton”).
Mr. Farmer alleges that defendants Gerard Spears, Dr. Ron Westrate, and Dr. Herb
Troyer were deliberately indifferent to his serious medical needs when they failed to
provide adequate mental health treatment and removed him from the Insight Mental
Health Program.
The defendants asserted as an affirmative defense their contention that Mr. Farmer
failed to comply with the exhaustion requirement of the Prison Litigation Reform Act
(“PLRA”). The burden of proof as to this defense rests on the defendants. Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
On summary judgment, the defendants argued that none of the three relevant
grievances filed by Mr. Farmer were properly filed beyond the second step of the process.
They argued that the informal and formal steps were completed, but no timely appeal was
filed. Genuine issues of fact existed as to the circumstances surrounding Mr. Farmer’s

failure to complete the third step of the process. The defendants’ motion for summary
judgment was denied and a hearing in accordance with Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008) was scheduled. Pro bono counsel was recruited to assist Mr. Farmer in
preparation for and participation in the hearing.
The Pavey hearing was conducted on December 14, 2016. The plaintiff
participated by telephone, per his request. Mr. Farmer was ably represented by recruited
counsel Mr. Andrew McNeil. 1 The defendants appeared by counsel. Documentary
evidence was submitted, as well as testimony from Mr. Farmer and from the defendants’
witness, Grievance Specialist Camay Francum.
For the reasons explained in this Entry, the Court finds that the defendants did not
meet their burden of proof by showing that Mr. Farmer failed to exhaust his available
administrative remedies prior to filing this lawsuit. 2

1

The Court greatly appreciates the efforts of volunteer counsel, Mr. McNeil, in
representing Mr. Farmer for purposes of this hearing. Mr. McNeil’s demeanor, preparation, and
presentation were exemplary.
2

In addition to their primary argument that Mr. Farmer failed to file an appeal, the
defendants asserted in closing arguments that none of Mr. Farmer’s grievances were filed before
the complaint was filed on July 30, 2015. This argument was not presented at any point during
the summary judgment process. A proposed amended complaint was filed December 2, 2015,
and perhaps the defendants did not raise the timeliness issue on summary judgment because of
the date of the amended complaint. Nonetheless, the issues that were framed during the briefing
on summary judgment are the ones that necessitated the evidentiary hearing. Moreover, during
the hearing, when questioned on cross-examination, Mr. Farmer testified that he had filed other
grievances earlier than those discussed at the hearing but he had problems getting them delivered
to the proper staff. Mr. Farmer was not put on notice that this timeliness issue would be raised.
The issue of timeliness was not briefed on summary judgment and, therefore, that issue is waived
and not considered in this ruling. The defendants have argued and continue to argue that Mr.
Farmer did not file an appeal in response to the denials at step two of the grievance process. In
this Entry, the Court has addressed that issue as framed by the ruling on summary judgment.

II. Discussion
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 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).
“The PLRA does not [ ] demand the impossible.” Pyles v. Nwaobasi, 829 F.3d 860,
864 (7th Cir. 2016). “Remedies that are genuinely unavailable or nonexistent need not be
exhausted.” Id. “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.” Id. (internal quotation omitted). “In such cases, the prisoner is
considered to have exhausted his administrative remedies.” Id.
B. Findings of Fact
The following facts having either been stipulated by the parties or found by the
Court to be true for purposes of the issue of exhaustion based on the testimony and
documents presented during the hearing:
Mr. Farmer was incarcerated at Pendleton from July 29, 2014, until March 11,
2016. He was then transferred to Westville Correctional Facility (“Westville”).
The Offender Grievance Process in effect at the relevant times was Indiana
Department of Correction (“IDOC”) Policy and Administrative Procedure 00-02-301,
Offender Grievance Process (“Grievance Process”). This process went into effect on April
5, 2015, which is a modification of an earlier version of the Grievance Process that went
into effect on January 1, 2010.
Under the applicable procedures of IDOC, the grievance process consists of three
steps: (1) an informal step; (2) a formal Level I grievance step; and (3) a formal Level II
appeal step. The Grievance Process identifies State Form 52897, “Offender ComplaintInformal Process Level,” as the form for the informal step. The Grievance Process
identifies State Form 45471, “Offender Grievance,” as the form for the Level I grievance
step.
Camay Francum has served as the Grievance Specialist at Pendleton since May
of 2015.
Mr. Farmer has several mental illnesses, including bipolar disorder, manic
depression, attention deficit hyperactivity disorder, antisocial personality disorder, and
drug dependency.

1. Grievance #88706
Mr. Farmer successfully submitted a Level I grievance on September 2, 2015,
under Grievance #88706, alleging that he was removed from the mental health Insight
Program and had been denied adequate mental health treatment. Mr. Farmer’s Level I
Grievance #88706 was denied by Ms. Francum on October 30, 2015. EXs. 4, 5.
When Mr. Farmer received the denial of Grievance #88706, he wrote up his appeal
and gave it to the guards. Mr. Farmer checked “disagree” and dated that form November
2, 2015. EX. 17, p. 1. He testified that the guards to whom he had to give his appeals
were the same guards who “beat him up” and maced him in October 2015.
Ms. Francum received the appeal from Mr. Farmer dated November 2, 2015, but it
was not timely filed within five business days of the return of the grievance. Rather, she
received it in approximately April of 2016, about thirty (30) days after Mr. Farmer was
transferred to Westville. At that time, Ms. Francum received a large packet from him
containing several grievances, dating back to October of 2015.
2. Grievance #89100
Mr. Farmer successfully submitted a Level I grievance under Grievance #89100.
This grievance form is dated September 3, 2015. IDOC records show a receipt date of
October 7, 2015. EXs. 18, 19. The grievance seeks mental health care and to be placed
in a mental health program. The Level I formal Grievance #89100 was denied by Ms.
Francum on October 7, 2015. EX. 18. When Mr. Farmer received the denial of
Grievance #89100, Mr. Farmer dated that form October 10, 2015, and checked
“disagree.” EX. 17, p. 2. He stuck this appeal in the bars of his cell either that same night
or the following day for the guards to take. Ms. Francum testified that she did not receive

this appeal from Mr. Farmer until about thirty (30) days after Mr. Farmer was transferred
out of Pendleton.
3. Grievance #89150
Mr. Farmer successfully submitted a Level I grievance on September 29, 2015,
under Grievance #89150. Again he requested mental health care and placement in the
Insight Program. EX. 7. The Level I formal Grievance #89150 was denied by Ms. Francum
on October 9, 2015. EX. 8.
When Mr. Farmer received the denial of Grievance #89150, he dated that form on
October 15, 2015, and checked “disagree.” EX. 12, p. 6. He placed this appeal in the bars
of his cell either that same night or the following day for the guards to take. Ms. Francum
did not receive this appeal from Mr. Farmer until about thirty (30) days after he was
transferred out of Pendleton.
4. Other Circumstances
Mr. Farmer testified that while he was at Pendleton, he was abruptly taken off all
of his psychotropic medications and was without them during the period of August through
October 2015. As a result, he attempted suicide and he had conflicts with, i.e., assaulted,
the guards. When he was transferred to Westville, he was given his medications again.
The medications help his attention span and make it easier for him to work through the
grievance process. Since Mr. Farmer has been at Westville, he has submitted grievances
and has had no problems completing the administrative process. At Westville, inmates do
not give their grievances to guards. Rather, they file them electronically. He also testified
that since he has been back on his medications, he has not been written up once at
Westville.

Ms. Francum testified that she did not receive the appeals submitted by Mr. Farmer
within the proper time frame of five business days. She also stated that just noting his
disagreement was not sufficient to constitute an appeal. Even though she acknowledged
that the Grievance Process does not actually require any particular State form for an
appeal, she was trained to return an appeal if it was not on the correct “appeal form.” If
an appeal was not received on a certain form, she would return the appeal, based on her
training.
Based on this testimony, even if Ms. Francum had received the appeals at issue in
a timely manner, she would have rejected them as not being filed on the proper form.
Unlike the State forms that exist for the informal and formal Level I steps, however, there
is no “form” that is required for an appeal under the Grievance Process.
The Court does not find that Ms. Francum lacks credibility. Rather, the Court finds that
the appeals submitted by Mr. Farmer did not reach her after Mr. Farmer submitted them
through other prison employees. Therefore, the appeals were not logged into the
grievance system. The Court finds Mr. Farmer credible in stating that his appeals were
provided to prison guards with whom he had experienced much conflict. The Court finds
that once the appeals were taken from Mr. Farmer by the prison guards, their delivery to
Ms. Francum was out of Mr. Farmer’s control. He could not do any more to ensure that
his appeals were delivered in a timely manner. The Court also finds it compelling that Mr.
Farmer was abruptly deprived of his psychotropic medications. This undoubtedly affected
his ability to focus and keep track of his many attempts to comply with the Grievance
Process and bring his mental health claims to the attention of the proper prison officials.

III. Conclusion
When a failure to exhaust administrative remedies is the prisoner’s fault, the
affirmative defense will be sustained and the case is over. Pavey, 544 F.3d at 742. But,
when prison officials prevent a prisoner from exhausting, that failure to exhaust is innocent
and the affirmative defense will not be sustained. Id. This is a case in which Mr. Farmer
was innocent in his failure to complete the exhaustion process. Therefore, the defendants’
defense of failure to exhaust available administrative remedies is rejected.
The action shall proceed to the merits of Mr. Farmer’s claims.
The magistrate judge is requested to set a status conference to direct the further
development of this action.
The clerk is directed to update the docket to reflect that Mr. McNeil’s limited
representation of Mr. Farmer has concluded. Mr. Farmer is once again proceeding pro
se.
IT IS SO ORDERED this 13th day of January, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Distribution:
Jeremiah Farmer, DOC #978522, Westville Correctional Facility, Electronic Service
Participant – Court Only
Electronically registered counsel
Magistrate Judge Tim A. Baker
NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS IN ADDITION TO DOCKETING AND DISTRIBUTION.