HOWARD v. MCNUE

Filing 22

Entry Correcting Defendant's Name and Directing Development of Exhaustion Defense and Issuing Partial Stay - Defendant has answered in her correct name. The clerk is directed to modify the docket to reflect the name of defendant as Lara McNew, LPN. If a dispositive motion is filed, plaintiff shall have twenty-eight (28) days in which to respond. Defendant shall then have fourteen (14) days in which to reply. See entry for details. Except for activities associated with the development a nd resolution of defendant's 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. See entry for details. Signed by Judge Tanya Walton Pratt on 3/1/2018. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LANCE HOWARD,
Plaintiff,
v.
LARA McNEW, LPN,
Defendant.

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No. 1:17-cv-04318-TWP-MJD

Entry Correcting Defendant’s Name
and Directing Development of Exhaustion Defense and Issuing Partial Stay
I. Correction of Defendant’s Name
Defendant has answered in her correct name. The clerk is directed to modify the docket
to reflect the name of defendant as Lara McNew, LPN.
II. Exhaustion Defense and Partial Stay
Defendant Lara McNew, LPN, has 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. 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).
Defendant’s exhaustion defense will be resolved pursuant to the following schedule.
Defendant 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. Defendant shall then have fourteen (14) days in which to reply. Furthermore, if
defendant files a dispositive motion, she must remember that it is her 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,
defendant 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, defendant’s reply must directly confront plaintiff’s
evidence regarding availability and explain why she remains 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 defendant’s
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

Distribution:
Lance Howard
250494
Putnamville Correctional Facility
Electronic Service Participant – Court Only
Electronically Registered Counsel