ROBERSON v. TALBOT et al

Filing 26

Entry Directing Development of Exhaustion Defense and Issuing Partial Stay - These defendants' exhaustion defense will be resolved pursuant to the following schedule. Dr. Paul Talbot and Wexford Health Services shall have through April 26, 20 18, in which to either: file a dispositive motion in support of the exhaustion defense; file a notice with the Court specifically identifying the fact issue(s) that preclude resolution of this affirmative defense via a dispositive motion and reque sting a Pavey hearing; or file a notice with the Court withdrawing the exhaustion defense. The failure to pursue any of these options by the above deadline constitutes an abandonment of the exhaustion defense. If a dispositive motion is filed, plaintiff shall have twenty-eight (28) days in which to respond. Defendants shall then have fourteen (14) days in which to reply. Except for activities associated with the development and resolution of defendants' affirmative defense that pl aintiff failed to exhaust his administrative remedies prior to filing this action, or any other matter directed by the Court, any other activities or deadlines in the action are stayed. Discovery on the issue of exhaustion is allowed. Signed by Judge Tanya Walton Pratt on 3/1/2018. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAUL ROBERSON,
Plaintiff,
v.
DR. PAUL TALBOT;
WEXFORD HEALTH SOURCES; and
CORIZON MEDICAL SERVICES,
Defendants.

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No. 1:17-cv-04110-TWP-DML

Entry Directing Development of Exhaustion Defense and Issuing Partial Stay
Defendants Dr. Paul Talbot and Wexford Health Services have answered and asserted the
affirmative defense that plaintiff failed to exhaust his administrative remedies prior to filing this
lawsuit as required by the Prison Litigation Reform Act. 42 U.S.C. § 1997e(a). This defense must
be resolved before reaching the merits of this case. See Pavey v. Conley, 544 F.3d 739, 742 (7th
Cir. 2008); Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999).
These defendants’ exhaustion defense will be resolved pursuant to the following schedule.
Dr. Paul Talbot and Wexford Health Services shall have through April 26, 2018, in which to
either:
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file a dispositive motion in support of the exhaustion defense;

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file a notice with the Court specifically identifying the fact issue(s) that preclude resolution
of this affirmative defense via a dispositive motion and requesting a Pavey hearing; or

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file a notice with the Court withdrawing the exhaustion defense.
The failure to pursue any of these options by the above deadline constitutes an

abandonment of the exhaustion defense.

If a dispositive motion is filed, plaintiff shall have twenty-eight (28) days in which to
respond. Defendants shall then have fourteen (14) days in which to reply. Furthermore, if
defendants file a dispositive motion, they must remember that it is their burden to prove both that
the administrative remedy process was available to plaintiff and that he failed to utilize it. See
Thomas v. Reese, 787 F.3d 845, 848 (7th Cir. 2015); Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir.
2006). Thus, if plaintiff responds with evidence that the administrative remedy process was
unavailable, defendants may and should consider whether selecting one of the other two options
outlined above is the appropriate course – that is, conceding that a Pavey hearing is necessary or
withdrawing their affirmative defense. Alternatively, defendants’ reply must directly confront
plaintiff’s evidence regarding availability and explain why they remain entitled to summary
judgment despite that evidence. Failure to present responsive evidence in reply will result in a
forfeiture of any right to present that evidence if there is a future Pavey hearing.
Except for activities associated with the development and resolution of defendants’
affirmative defense that plaintiff failed to exhaust his administrative remedies prior to filing this
action, or any other matter directed by the Court, any other activities or deadlines in the action are
stayed. Discovery on the issue of exhaustion is allowed.
IT IS SO ORDERED.

Date: 3/1/2018

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Distribution:
Paul Roberson
218764
Pendleton Correctional Facility
Electronic Service Participant – Court Only
Electronically Registered Counsel

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