LYNCH v. CORIZON, INC. et al

Filing 43

Entry Discussing Motion for Summary Judgment - Plaintiff Kirk Lynch, an inmate at the New Castle Correctional Facility ("New Castle"), brings this action pursuant to 42 U.S.C. § 1983 alleging that a number of different defendants we re deliberately indifferent to his serious medical needs.1 The defendants move for summary judgment on his claims arguing that he has failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act ("PL RA"). For the following reasons, the motion for summary judgment, dkt. 29 , is granted. For the foregoing reasons, the defendants' motion for summary judgment, dkt. 29 , is granted. Judgment consistent with this Entry shall now issue. (See Entry). Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 11/21/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KIRK LYNCH,
Plaintiff,
v.
CORIZON, INC., et al.,
Defendants.

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No. 1:17-cv-00798-JMS-DML

Entry Discussing Motion for Summary Judgment
Plaintiff Kirk Lynch, an inmate at the New Castle Correctional Facility (“New Castle”),
brings this action pursuant to 42 U.S.C. § 1983 alleging that a number of different defendants
were deliberately indifferent to his serious medical needs. 1 The defendants move for summary
judgment on his claims arguing that he has failed to exhaust his available administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”). For the following reasons,
the motion for summary judgment, dkt. [29], is granted.
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable

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Specifically, He asserts that he suffers from musculoskeletal pain as a result of a previous
injury; anxiety and depression; headaches, dizziness, and blurred vision; gout; cardiovascular
problems, including a rapid pulse, problems with a heart valve, high blood pressure, and high
cholesterol; asthma; and gastrointestinal issues including a hernia and pain from pinched,
impacted intestines.

inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party's favor.”). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490.
Finally, the non-moving party bears the burden of specifically identifying the relevant evidence
of record, and “the court is not required to scour the record in search of evidence to defeat a
motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
Statement of Facts
A. Grievance Program
As required under Indiana Department of Correction (“IDOC”) policy, there is an
offender grievance program in place at New Castle. Offenders are instructed on the grievance
process at the intake facility—Reception Diagnostic Center, and again when they arrive at the
New Castle Correctional Facility.
Under the Offender Grievance Process, offenders can grieve actions of individual staff,
including claims that facility staff were deliberately indifferent or that staff retaliated against
them, and the facility can provide appropriate relief for substantiated grievances. This includes
grievances regarding an offender’s medical care. The grievance process begins with the informal
resolution process. Within five business days of the date of the incident at issue, the offender
shall contact his Casework Manager, his Caseworker, or other Unit Team staff member to
request State Form 52897 Offender Complaint – Informal Process Level. The offender is then

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required to attempt to resolve his complaint informally by contacting an appropriate staff
member within five business days of receiving the Offender Complaint form.
If the informal complaint process does not resolve the Offender’s issue within 10
business days, he may then proceed to the Level I formal grievance process. The formal
grievance process begins when an offender submits a completed State Form 45471 “Offender
Grievance” to the Grievance Specialist. The Offender Grievance must be submitted within five
business days of the date a staff member informs the offender there will be no informal
resolution to the grievance, within five business days of the date the offender refuses the
informal resolution offered by staff, or the 10th business day after the offender first seeks an
informal resolution from staff.
The grievance submitted by the offender is screened by the Grievance Specialist to
determine whether the submitted grievance meets the requirements for a formal grievance as set
forth in the IDOC grievance policy. If it is determined that the grievance does not meet the
requirements of the policy, the grievance is returned to the offender along with State Form 45475
“Return of Grievance.” The Return of Grievance form shall indicate the reason for the return. If
an adequate grievance form is received, the Grievance Specialist enters the grievance, the
computer program OGRE assigns the grievance a case number, and the Grievance Specialist
provides a receipt for the grievance to the offender. If the offender does not receive either a
Return of Grievance Form or a grievance receipt within seven business days after submitting a
grievance, the offender must immediately notify the Grievance Specialist of the missing
grievance, retaining a copy of the notice, so that the Grievance Specialist can investigate the
matter and respond to the offender. The Grievance Specialist may accept a late grievance, or one

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that does not conform to the requirements set forth in the IDOC grievance policy, if an offender
demonstrates good cause. If the grievance is not resolved in a manner that satisfies the offender,
or if he did not receive a response to the grievance within twenty business days of submission,
the offender may file an appeal to the Department Offender Grievance Manager at IDOC’s
Central Office. The offender grievance appeal form is submitted by the offender to the facility
Grievance Specialist, where it is entered into the computer system and forwarded electronically
to the Department Offender Grievance Manager. The Grievance Specialist also provides a
receipt for the appeal to the offender.
In short, exhaustion of the grievance process requires an offender to attempt an informal
resolution, to file a formal grievance, and to pursue an appeal to the Department Offender
Grievance Manager at IDOC’s Central Office.
B. Lynch’s Grievances
Jennifer Smith is the Grievance Specialist at New Castle. Ms. Smith has access to the
files in which offender grievances are maintained (“offender packets”); the computer records
containing the offender grievances filed (“OGRE”); and IDOC’s Offender Information System
(“OIS”), which is a computer record of information relating to offenders who are incarcerated in
IDOC.
On November 3, 2016, Mr. Lynch submitted an Offender Grievance State Form 45471
regarding documents from home that were allegedly confiscated and asking for their return. Ms.
Smith completed a Return of Grievance State Form 45475 on the same day instructing Mr.
Lynch to attempt to resolve this grievance informally, along with additional instructions for the
form to be completed and returned. Mr. Lynch did not correct or return the form.

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On December 13, 2016, Mr. Lynch submitted an Offender Grievance State Form 45471
regarding gout medication being discontinued, it being ineffective, and his serious medical
needs. Ms. Smith completed a Return of Grievance State Form 45475 on the same day
instructing Mr. Lynch to attempt to resolve this grievance informally, along with additional
instructions for the correct form to be completed and returned. Mr. Lynch did not correct or
return the form.
On March 8, 2017, Mr. Lynch submitted an Offender Complaint—Informal Process
Level State Form 52897 regarding medications and paper records which were allegedly missing.
On March 17, 2017, Health Services Administrator (“HSA”) Christopher Hufford responded to
the informal complaint that the medication issue was resolved and all orders are current and
active. Mr. Lynch disagreed with the resolution.
On March 20, 2017, Mr. Lynch submitted an Offender Grievance State Form 45471
regarding his medications being removed and missing for no apparent reason and their
reappearance. Ms. Smith completed a Return of Grievance State Form 45475 on the same day
instructing Mr. Lynch to complete the correct form and advising him that compensation could
not be provided through the grievance process. Mr. Lynch did not submit or return the correct
form.
On April 8, 2017, Mr. Lynch submitted an Offender Complaint—Informal Process Level
State Form 52897 regarding his medications, the times they were administered, why some were
prescribed, and hernia surgery. On April 11, 2017, HSA Christopher Hufford responded to the
informal complaint that Mr. Lynch received the correct medications at the prescribed times based
on medical necessity and that the issue was resolved. Mr. Lynch disagreed with the resolution.

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On April 17, 2017, Mr. Lynch submitted an Offender Grievance State Form 45471
regarding his medical treatments allegedly being withheld, life threatening maladies, pain, and
that he was in imminent danger. Ms. Smith completed a Return of Grievance State Form 45475
on the same day asking Mr. Lynch to clarify which medications and treatments were allegedly
withheld and what imminent danger and life threatening injuries he had. Mr. Lynch did not
submit any of the requested information to clarify his grievance or return the form.
Discussion
The defendants argue that Mr. Lynch failed to exhaust his administrative remedies with
respect to his claims in this case. The PLRA requires that “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e; see Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
Exhaustion of available administrative remedies “‘means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits).’” Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002)). Proper use of the facility’s grievance system requires a prisoner “to file complaints and
appeals in the place, and at the time [as] the prison’s administrative rules require.” Pozo, 286
F.3d at 1025; see also Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Because exhaustion
is an affirmative defense, “the burden of proof is on the prison officials.” Kaba v. Stepp, 458
F.3d 678, 680 (7th Cir. 2006).
The PLRA contains its own, textual exception to mandatory exhaustion. Under §
1997e(a), the exhaustion requirement depends on the “availab[ility]” of administrative remedies:
Thus, an inmate must exhaust available remedies, but need not exhaust unavailable ones. Ross v.
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Blake, 136 S. Ct. 1850, 1858 (2016). In other words, prison staff who have the responsibility of
providing prisoners with a meaningful opportunity to raise grievances cannot refuse to facilitate
that process and then later argue that the prisoner did not comply with procedures or file in a
timely manner. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). “[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.” Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006).
The defendants argue that Lynch failed to exhaust his administrative remedies because he
never completed the Offender Grievance Procedure with regard to any of his claims in this case.
On November 3, 2016, he submitted Offender Grievance State Form 45471 regarding
confiscated medical records, but he had not attempted to resolve the grievance informally. On
December 13, 2016, he submitted Offender Grievance State Form 45471 regarding gout
medication, but he had not attempted to resolve that matter informally. On March 8, 2016, he
submitted an Offender Complaint—Informal Grievance Process Level State Form 52897
regarding missing medications and medical records. Although he disagreed with the response he
received to the informal complaint, he did not file a formal grievance. On March 20, 2017, he
submitted Offender Grievance State Form 45471 regarding his medication, but he had not
attempted to resolve the matter informally. On April 8, 2016, he submitted Offender
Complaint—Informal Grievance Process Level State Form 52897 regarding his medications and
hernia surgery. He disagreed with the response he received to the informal complaint, but he
never filed a formal grievance. On April 17, 2016, he submitted Offender Grievance State Form
45471 claiming that medical treatment had been withheld, that he had life threatening maladies,

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pain, and that he was in imminent danger without attempting to resolve these issues informally.
Additionally, when asked to provide more information regarding the dangers to his life, he did
not respond.
Lynch argues that administrative remedies were unavailable to him for a number of
reasons, including:
a.) he was prohibited from trying to request necessary appeal forms; b.) the
Grievance Specialist Jennifer Smith refused, despite multiple requests by Plaintiff
to log in and assign grievance numbers to formal grievance filings; c.) he was
verbally threatened when he attempted even midlevel appeals; d.) he was on
occasion deliberately provided the wrong appeal forms; e.) he was placed in the
‘hole’ without reason or justification as a pretext so that his cell could be
subjected to a punitive search and +30 packages clearly marked legal mail could
be and were destroyed and made unavailable to Plaintiff near the deadline for
contesting Defendants Motion for Summary Judgment; f.) he was directly ordered
by guards and medical staff not to file future grievances concerning medical
issues at the correctional facility; g.) despite verbal requests to staff not to house
him with a specific particularly violent offender, that offender was deliberately
housed near Plaintiff and Plaintiff suffered a violent incident with this drunken
inmate; h.) the institution utilizes a ‘pod-rep (trustee)’ system whereby
specifically designated inmates are utilized to run interference and keep inmates
from access to their counselors, case managers, and prison officials so that
inmates desiring an appeal cannot physically come into contact and raise issues
with prison officials and request appropriate appeals forms; and i.) Medical
Defendants manipulated and withheld Plaintiff’s access to needed medication in
order to negatively affect Plaintiff’s cognition, ability to concentrate and function
during the remedy process.
Lynch has also submitted an affidavit elaborating on some of these arguments.
Many of Lynch’s arguments are too general to dispute the defendants’ specific evidence
that he did not exhaust his administrative remedies. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986) (Once the moving party has met his burden, the non-moving party must
identify specific facts establishing that there is a genuine issue of fact for trial.). These include
his assertion that Ms. Smith did not provide him with grievance file log numbers, which made it

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impossible to track and complete the grievance process, that there are multiple additional
grievances which have been “secreted” by Smith so that he could not complete the process, and
that he was placed in the “hole” and his legal papers were confiscated. He does not state how not
having access to grievance log numbers made it impossible to track and complete the process. In
addition, his statement that additional grievances have been “secreted” does not dispute the fact
that he did not file informal grievances and this is why he was not allowed to move to the formal
step of the process. He does not identify what grievances he has filed or attempted to file that
were not logged or that were hidden. And his argument that he was in the “hole” and his legal
papers were confiscated does not support a conclusion that he was not given grievance forms or
that he was not allowed to file them. Even if hs legal papers were taken away, his own testimony
and recollection of his submission of grievances, or attempts to submit grievances, is all that is
needed at this stage. Importantly, none of these arguments is an argument that Lynch did file, or
attempt to file, an informal or formal grievance as required by the grievance policy and was
prevented from doing so.
Similarly, Lynch also argues that the defendants denied him medication and gave him
improper dosages of medication in order to render him incapable of thinking properly or filling
out grievances. But he does not identify what medication was denied or explain how he was
affected. Further, he did fill out grievance forms, but did not file informal grievance forms first.
When this happened, Smith provided an explanation of the reason his grievance was rejected and
instructed him on how the correct form should be completed and returned.
Lynch further argues that, in August of 2016, correctional officers threatened him and
told him not to file any grievances. But he has not shown how these threats and orders prevented

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him from completing the grievance process. The attempted grievances at issue in this case were
all filed after these alleged threats took place. These threats, therefore, did not make the
grievance process unavailable because he still attempted to use it after they were made.
Similarly, Lynch’s argument that, despite his requests, he was housed with a violent
inmate who attacked him on August, 5, 2017, does not show how his administrative remedies
were made unavailable. Even if he meant that he was attacked in August of 2016, he has
demonstrated no connection between the alleged attack and his ability or inability to file
grievances.
He also asserts that another inmate is “running interference” and prevented him from
complying with the grievance process. He states that this inmate “told [him] on multiple
occasions that he knew about [this] lawsuit and that [Lynch] was not to be allowed access to staff
and not to be given any appeal forms whatsoever.” In other words, Lynch states that this inmate
has blocked his ability to access forms after this lawsuit was filed. These actions therefore have
no bearing on whether Lynch exhausted his available administrative remedies before this case
was filed. See Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004) (“Ford’s real problem . . . is
timing. Section 1997e(a) says that exhaustion must precede litigation. ‘No action shall be
brought’ until exhaustion has been completed. . . . And these rules routinely are enforced . . . by
dismissing a suit that begins too soon, even if the plaintiff exhausts his administrative remedies
while the litigation is pending . . . . To prevent this subversion of efforts to resolve matters out of
court, it is essential to keep the courthouse doors closed until those efforts have run their
course.”) (internal citations omitted).

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Finally, Lynch also contends in his response that “he was prohibited from trying to
request necessary appeal forms” and “he was on occasion deliberately provided the wrong appeal
forms.” But these statements are not included in Lynch’s affidavit and are not otherwise sworn to
under oath. They therefore will not be considered in response to the motion for summary
judgment. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1255 n.13 (7th Cir. 1990) (explaining
that statements that are “neither notarized nor made under penalty of perjury [do] not comply
with Rule 56(e) . . . . As such, we can simply ignore them.”).
In short, the defendants have shown that Lynch did not exhaust his administrative
remedies with respect to his claims before filing this lawsuit. Lynch argues that, for a number of
reasons, administrative remedies were not available to him. But Lynch has failed to present
evidence that would create an issue of fact regarding whether administrative remedies were
available to him. 2 The defendants are therefore entitled to summary judgment and Lynch’s
complaint must be dismissed without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
2004) (holding that “all dismissals under § 1997e(a) should be without prejudice.”).
Conclusion
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The Court notes that the defendants argue in their reply in support of their motion for summary
judgment that Lynch’s arguments are “not convincing” and “not credible.” They go on to urge
the Court to find that Lynch “fabricated” his testimony like the Magistrate Judge found in Pavey
v. Conley, 663 F.3d 899, 903 (7th Cir. 2011). While the Court has found in this case that Lynch
has failed to create a dispute of fact, it appears necessary to remind the defendants that
determinations of whether testimony is “convincing” or “credible” are not made at the summary
judgment stage. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“On summary judgment a
court may not make credibility determinations, weigh the evidence, or decide which inferences
to draw from the facts; these are jobs for a factfinder.”). The defendants’ reference to Pavey is
misplaced. In that case, the Magistrate Judge made a credibility determination at an evidentiary
hearing that was held for the purpose of resolving disputed issues of fact, not upon a review of
the briefs submitted by the parties at summary judgment. Id. at 901. This hearing is what is
required when disputes of fact exist, as was established in the case which directly preceded the
hearing discussed. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
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For the foregoing reasons, the defendants’ motion for summary judgment, dkt. [29], is
granted. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date: 11/21/2017

Distribution:
KIRK LYNCH
220939
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]
Britney Jade McMahan
BLEEKE DILLON CRANDALL, PC
[e-mail]

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