LACEY v. NIELSEN et al

Filing 50

Entry Discussing Defendants' Motion for Summary Judgment - In this civil action, plaintiff John Jay Lacey, an Indiana prisoner incarcerated at the Wabash Valley Correctional Facility, alleges that, while he was incarcerated at the Boone Count y Jail, his First Amendment rights were violated when the defendants denied him access to religious materials and objects, failed to provide him Halal meals, and retaliated against him when he complained about these issues to the ACLU. Presently p ending before the Court is the motion for summary judgment filed by the defendants on April 27, 2018. Dkt. 23 . The defendants' motion argues that the claims alleged against them are barred under the exhaustion provision of the Prison Litiga tion Reform Act ("PLRA"), 42 U.S.C. § 1997e, that requires a prisoner to first exhaust his available administrative remedies before filing a lawsuit in court. Accordingly, the motion for summary judgment, dkt. 23 , is granted as to Mr. Lacey's claim of retaliation against Sheriff Neilsen and denied as to his First Amendment free exercise claims against the other defendants. No partial final judgment shall issue at this time. Because the retaliation claim was the only c laim proceeding against Sheriff Neilsen, the clerk is directed to terminate him as a defendant in this action. The remaining defendants shall have through September 28, 2018, in which to notify the Court in writing that they have either abandoned their affirmative defense of exhaustion or request a hearing to resolve the factual dispute detailed above. (See Entry). Signed by Judge Jane Magnus-Stinson on 8/29/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOHN JAY LACEY,
Plaintiff,
v.
MICHAEL T NIELSEN,
JEFF HECK,
JACK BLAND,
SUSAN KINNEY,
CARL JOE RADEE,
Defendants.

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No. 1:18-cv-00120-JMS-DLP

Entry Discussing Defendants’ Motion for Summary Judgment
In this civil action, plaintiff John Jay Lacey, an Indiana prisoner incarcerated at the Wabash
Valley Correctional Facility, alleges that, while he was incarcerated at the Boone County Jail, his
First Amendment rights were violated when the defendants denied him access to religious
materials and objects, failed to provide him Halal meals, and retaliated against him when he
complained about these issues to the ACLU.
Presently pending before the Court is the motion for summary judgment filed by the
defendants on April 27, 2018. Dkt. 23. The defendants’ motion argues that the claims alleged
against them are barred under the exhaustion provision of the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e, that requires a prisoner to first exhaust his available administrative
remedies before filing a lawsuit in court.
Mr. Lacey filed a response, the defendants filed a reply, and Mr. Lacy filed a surreply. The
motion is now ripe for review.

I. Standard of Review
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 a 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). 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).
II. Material Facts
At all times relevant to his claims, Mr. Lacey was incarcerated at the Boone County Jail.
The jail maintains a grievance process which inmates can access through email kiosks located in
the jail. If an inmate is dissatisfied with the response to his grievance, he must submit a grievance
appeal, again through the kiosk, to exhaust his administrative remedies. Dkt. 24-1.
The defendants assert that, when entering the facility, all inmates receive verbal
instructions on how to use the kiosks to access the grievance system. Id. Mr. Lacey attests that the
only information he received regarding the kiosks was how to log onto them. Dkt. 47-1. He further
attests that the grievance process was never explained to him and the location of the jail rules or
grievance policy was never pointed out to him.
The defendants have produced Mr. Lacey’s grievance record consisting of several
grievances submitted through the kiosk system beginning on October 8, 2016. The defendants
assert that they never received any hand-written complaints from Mr. Lacey. Dkt. 25-1. Mr. Lacey,
on the other hand, attests that when his complaints were not resolved, he attempted to send handwritten complaints to Sheriff Nielsen and Chaplain Bland.

Finally, the defendants assert, and their records indicate, that Mr. Lacey did not submit a
grievance regarding the alleged retaliation on October 15, 2016. Mr. Lacey does not dispute this,
and instead attests that he received no medical assistance after the alleged incident.
III. Discussion
The Prison Litigation Reform Act (“PLRA’”) 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.” Id. 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)
(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).
“An inmate . . . must exhaust available remedies, but need not exhaust unavailable ones.”
Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). An administrative procedure is unavailable when 1)
the process operates as a “simple dead end,” 2) when it is so opaque that it is incapable of use, and
3) when “prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 1859-60. For example, if an

inmate requests a grievance from a staff member who, pursuant to the grievance policy is required
to provide one upon request, and the request is denied, the administrative process has been
rendered “unavailable.” Hill v. Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016).
It is the burden of the defendants to establish that the administrative process was available
to Mr. Lacey. 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.”). To attempt to meet that burden, the defendants argue that
Mr. Lacey filed several grievances through the kiosk system, but he never appealed them, and he
failed even to initiate the grievance process regarding the alleged retaliation.
A. Retaliation Claim
The record indicates that Mr. Lacey knew how to file a grievance on the kiosk system by
October 8, 2016, when he filed his first grievance regarding his request for a halal diet. There is
no evidence that he filed a grievance using the kiosk system regarding the incident of retaliation
that allegedly occurred on October 15, 2016. The defendants produced a hand-written account of
the alleged incident prepared by Mr. Lacey, but the jail grievance policy requires that inmates
submit grievances through the kiosk system. The sheriff submitted an affidavit attesting that he
accepts hand-written grievance appeals, but there is no evidence that the jail accepts initial
grievances through any other means outside the kiosk system. It is undisputed that Mr. Lacey failed
to exhaust available administrative remedies as to this claim because he did not file a grievance in
the kiosk system. Therefore, this claim must be dismissed.
B. Free Exercise Claims
Mr. Lacey does not dispute that he failed to appeal his other grievances in the kiosk system.
Instead, he asserts that he was never given information about how to use the grievance process and

so he attempted to exhaust his remedies by submitting hand-written appeals to the defendants.
Such allegations fall into Ross’s second category of unavailability. Although there is no dispute
that Mr. Lacey did not appeal his grievances using the kiosk system, there are material facts in
dispute regarding whether Mr. Lacey had been given information about how to appeal grievances
in the kiosk system or about the grievance process generally, and whether he submitted handwritten appeals to the defendants. The defendants have not demonstrated that there is no genuine
issue as to any material fact and that they are entitled to judgment as a matter of law on these
claims.
IV. Conclusion
Accordingly, the motion for summary judgment, dkt. [23], is granted as to Mr. Lacey’s
claim of retaliation against Sheriff Neilsen and denied as to his First Amendment free
exercise claims against the other defendants. No partial final judgment shall issue at this time.
Because the retaliation claim was the only claim proceeding against Sheriff Neilsen, the
clerk is directed to terminate him as a defendant in this action.
The remaining defendants shall have through September 28, 2018, in which to notify the
Court in writing that they have either abandoned their affirmative defense of exhaustion or request
a hearing to resolve the factual dispute detailed above.
IT IS SO ORDERED.

Date: 8/29/2018

Distribution:
JOHN JAY LACEY
#263056
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Paul Thomas Belch
TRAVELERS STAFF COUNSEL
[e-mail]
Robert V. Clutter
TAYLOR, CHADD, MINNETTE, SCHNEIDER & CLUTTER, P.C.
[e-mail]