KRITDOLL v. BERGESON et al
Filing
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ENTRY GRANTING PARTIAL SUMMARY JUDGMENT - Defendants' motion for summary judgment, Dkt. No. 19 , is granted as to Mr. Kirtdoll's claims regarding knee pain. Mr. Kirtdoll's claims that the defendants were deliberately indifferent to his serious medical condition involving internal bleeding shall remain active. The Court will issue a separate order directing further proceedings on the remaining claims. (Copy to Plaintiff via U.S. Mail) Signed by Judge William T. Lawrence on 8/31/2018. (JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TOMMY KIRTDOLL,
Plaintiff,
v.
LISA BERGESON,
MELISSA LAWRENCE,
TINA COLLINS,
SHANNON MAXY,
Defendants.
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No. 1:17-cv-04585-WTL-MPB
ENTRY GRANTING PARTIAL SUMMARY JUDGMENT
The plaintiff in this civil rights action is Tommy Kirtdoll, an inmate at the Indiana
Department of Correction’s (IDOC) Correctional Industrial Facility (CIF) at Pendleton, Indiana.
The defendants are health care professionals who, at the time of the incidents described in the
complaint, were employed by Corizon, Inc. and Wexford Health to provide medical treatment to
inmates at CIF. This matter is before the Court on the defendants’ motion for summary judgment
on the basis that the plaintiff failed to exhaust available administrative remedies before bringing
this lawsuit as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).
I. Legal Standards
Summary judgment should be granted “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.” Fed. R. Civ. P.
56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find
for the non-moving party. Id. If no reasonable jury could find for the non-moving party, then there
is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007). The Court views the facts in
the light most favorable to the non-moving party, and all reasonable inferences are drawn in the
non-movant’s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
In accordance with Local Rule 56-1(f), the Court assumes that facts properly supported by
the movant are admitted without controversy unless the nonmovant specifically disputes them.
Therefore, a nonmovant who fails to respond to a motion for summary judgment effectively
concedes that the movant’s version of the facts is accurate. Smith v. Lamz, 321 F.3d 680, 683 (7th
Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated by the local rules results in an
admission.”). This does not alter the standard for assessing a Rule 56 motion, but it does “reduc[e]
the pool” from which the facts and inferences relative to such a motion may be drawn. Smith v.
Severn, 129 F.3d 419, 426 (7th Cir. 1997).
On a motion for summary judgment, “[t]he applicable substantive law will dictate which
facts are material.” National Soffit & Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d 262,
265 (7th Cir. 1996) (citing Anderson, 477 U.S. at 248). The substantive law applicable to this
motion for summary judgment is the PLRA, which requires that a prisoner exhaust his available
administrative remedies before bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a);
see Porter v. Nussle, 534 U.S. 516, 524-25 (2002). “[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
(citation omitted).
“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)
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(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.’”) (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002)). “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).
It is the defendants’ burden to establish that the administrative process was available to Mr.
Kirtdoll. See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) (“Because exhaustion is an
affirmative defense, the defendants must establish that an administrative remedy was available and
that [the plaintiff] failed to pursue it.”). “[T]he ordinary meaning of the word ‘available’ is ‘capable
of use for the accomplishment of a purpose,’ and that which ‘is accessible or may be obtained.’”
Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (internal quotation omitted). “[A]n inmate is required
to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief
for the action complained of.” Id. at 1859 (internal quotation omitted).
II. Scope of Motion
A party must “identify[] each claim or defense” on which it seeks summary judgment. Fed.
R. Civ. P. 56(a). Additionally, a party moving for summary judgment must specifically cite
evidence that supports the facts asserted in its brief. S.D. Ind. Local Rule 56-1(e). “The court has
no duty to search or consider any part of the record not specifically cited in” that manner. S.D. Ind.
Local Rule 56-1(h).
Mr. Kirtdoll’s complaint asserts claims that, beginning in March 2017, the defendants
refused to properly treat two serious medical conditions—a knee condition causing serious pain,
and internal bleeding evidenced by blood in his stool. See Dkt. No. 1 at 2; Dkt. No. 9 at 2. The
defendants’ motion for summary judgment addresses only his allegations related to knee pain. It
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does not acknowledge Mr. Kirtdoll’s allegations that he was denied treatment for internal bleeding,
address the question of whether he exhausted claims related to that issue, or cite any evidence in
support of factual allegations that he did not exhaust claims on that issue. Therefore, the Court
must treat the defendants’ motion as seeking summary judgment only on the knee-pain claims. By
failing to seek summary judgment, the defendants have abandoned their exhaustion defense as to
the internal-bleeding claims. See Dkt. No. 18.
III. Facts
Mr. Kirtdoll has not responded to the defendants’ motion for summary judgment, and the
time to do so is long past. Accordingly, the defendants’ properly supported factual assertions are
undisputed. The following statement of facts reflects those undisputed facts in the light most
favorable to Mr. Kirtdoll as the nonmovant.
The IDOC maintains an offender grievance process that allows inmates to seek
administrative resolutions of issues regarding the conditions of their confinement, including issues
related to their medical care. See Dkt. No. 24-1 ¶¶ 3, 6. As a matter of practice, inmates are
provided with information about the grievance process upon their arrival at CIF. Id. at ¶ 6.
The grievance process consists of a three-step process. First, the inmate must seek to
informally resolve the issue with an appropriate staff member. Id. at ¶ 7(a). Second, if the inmate
is unable to achieve a satisfactory resolution informally, he must file a Level 1 formal grievance.
Id. at § ¶ 7(b). Third, if the inmate is not satisfied with the resolution offered in response to the
Level 1 formal grievance, he must file a Level 2 grievance appeal. Id. at ¶ 7(c).1
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The Court notes that this process is different from that described in the Offender Grievance Process filed
by the defendants. See Dkt. No. 24-2 at § IV (describing four-step administrative remedy process).
However, the defendants have asserted in their motion that Mr. Kirtdoll’s claim was subject to a three-step
administrative remedy process, see Dkt. No. 19 at 3–4, and they supported that assertion with a citation to
sworn testimony by CIF’s grievance specialist, see Dkt. No. 19-1 at ¶ 7, 24-1 at ¶ 7. Because Mr. Kirtdoll
did not respond to the motion, this assertion is deemed admitted without controversy, see S.D. Ind. Local
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The IDOC maintains records of inmates’ grievances and logs them in a system known as
“OGRE.” Dkt. No. 24-1 at ¶ 9. A search of Mr. Kirtdoll’s grievance history shows that he filed
one Level 1 formal grievance concerning knee pain on August 30, 2017. See id. at ¶ 11; Dkt. No.
19-2 at 9. A response was issued on September 7, 2017. See Dkt. No. 24-2 at 11; Dkt. No. 19-2 at
6. The IDOC’s records indicate that Mr. Kirtdoll never filed a Level 2 grievance appeal after
receiving that response as required by the grievance process. See Dkt. No. 24-2 at ¶ 12; Dkt. No.
19-2 at 11.
IV. Analysis
The undisputed facts, even viewed in the light most favorable to Mr. Kirtdoll, show that he
did not exhaust his administrative remedies as to his complaints of knee pain as required by the
IDOC’s grievance process. The undisputed records presented by the defendants show that a threestep grievance process was available to Mr. Kirtdoll and that he completed at most two steps in
that process. Because Mr. Kirtdoll never filed a second-level grievance appeal as to his knee
condition, he did not exhaust all available administrative remedies.
The defendants have filed a document titled “Offender Grievance Program Grievance
Appeal” concerning Mr. Kirtdoll’s knee pain. Dkt. No. 19-2 at 24. However, this document is
dated August 6, 2017. Accordingly, even if Mr. Kirtdoll actually filed this document, he could not
have filed it after receiving a response to his Level 1 formal grievance (which was issued
September 7, 2017) as required by the grievance process. Mr. Kirtdoll did not file a Level 2
grievance appeal in the time and manner required by the grievance process. See Dale, 376 F.3d at
655.
Rule 56-1(f)(1), and the Court accepts as fact that Mr. Kirtdoll’s claims were subject to a three-step
administrative remedy process.
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V. Conclusion
For the reasons set forth above, the defendants’ motion for summary judgment, Dkt. No.
19, is granted as to Mr. Kirtdoll’s claims regarding knee pain. Mr. Kirtdoll’s claims that the
defendants were deliberately indifferent to his serious medical condition involving internal
bleeding shall remain active. The Court will issue a separate order directing further proceedings
on the remaining claims.
IT IS SO ORDERED.
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Date: 8/31/18
Distribution:
TOMMY KIRTDOLL
#207089
PENDLETON – CIF
CORRECTIONAL INDUSTRIAL FACILITY
Inmate Mail/Parcels
5124 West Reformatory Road
PENDLETON, IN 46064
Douglass R. Bitner
KATZ KORIN CUNNINGHAM, P.C.
dbitner@kkclegal.com
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
jeb@bleekedilloncrandall.com
Britney Jade McMahan
KATZ KORIN CUNNINGHAM, P.C.
bmcmahan@kkclegal.com
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