ARCHEY v. PURDUE et al

Filing 42

ORDER - DENYING MOTION FOR SUMMARY JUDGMENT AND DIRECTING FURTHER PROCEEDING; The defendants' motion for summary judgment, dkt. 37 , is DENIED. The evidence shows that Mr. Archey did not fail to exhaust his available administrative remedie s before he filed this lawsuit. Rather, the process was unavailable to him. Therefore, pursuant to Federal Rule of Civil Procedure 56(f)(1), the Court gives the defendants notice of its intent to grant summary judgment in Mr. Archey's favor o n the exhaustion defense. The defendants shall have through September 23, 2020, in which to respond to the Court's proposal and either (a) show cause why summary judgment should not be entered in Mr. Archey's favor on this issue, or (b) withdraw their affirmative defense of exhaustion. Signed by Judge Sarah Evans Barker on 9/10/20. Copy Mailed. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHARLES ARCHEY,
Plaintiff,
v.
MS. PURDUE,
MR. KING,
Defendants.

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No. 1:19-cv-03541-SEB-MPB

ORDER DENYING MOTION FOR SUMMARY JUDGMENT
AND DIRECTING FURTHER PROCEEDINGS
Plaintiff Charles Archey is an inmate at Pendleton Correctional Industrial Facility. Mr.
Archey seeks relief under 42 U.S.C. § 1983 alleging he has received constitutionally inadequate
medical care.
The defendants seek 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). For the reasons discussed below, the Court DENIES
the defendants' motion for summary judgment, dkt. [37], and ORDERS them to show cause why
the Court should not grant Mr. Archey summary judgment on the exhaustion defense.
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).
On a motion for summary judgment, "[t]he applicable substantive law will dictate which
facts are material." National Soffit & Escutcheons, Inc., v. Superior Sys., 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 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)
(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).
As the movants, the defendants bear the burden of establishing that the administrative
remedies upon which they rely were available to the plaintiff. See Thomas v. Reese, 787 F.3d 845,
847 (7th Cir. 2015) ("Because exhaustion is an affirmative defense, the defendants must establish

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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. Facts
Because the plaintiff has not responded to the motion for summary judgment, the Court
accepts as true the following facts, which the defendants have asserted and support with admissible
evidence. See S.D. Ind. L.R. 56-1(f)(1)(A) ("In deciding a summary judgment motion, the court
will assume that[ ] the facts as claimed and supported by admissible evidence by the movant
admitted without controversy except to the extent that[] the non-movant specifically controverts
the facts . . . ."); see also Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1137 (7th Cir. 1997)
(affirming district court's grant of summary judgment where it accepted moving party's facts as
true when non-moving party failed to respond under local rule). The Court still views these facts
in the light most favorable to the plaintiff, but his failure to oppose summary judgment "[r]educe[s]
the pool" from which facts and inferences may be drawn. Smith v. Severn, 129 F. 3d 419, 426 (7th
Cir. 1997).
At all times relevant to his complaint, Mr. Archey was incarcerated at Pendleton, an Indiana
Department of Correction (IDOC) facility. The IDOC Policy and Administrative Procedure 0002-301, Offender Grievance Process ("Grievance Process"), governs the inmate grievance steps
"to provide administrative means by which inmates may resolve concerns and complaints related
to their conditions of confinement." Dkt. 39-1 at 2. Inmates must take the following steps to

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complete the Grievance Process: (1) the inmate must attempt to resolve the complaint informally
by requesting a State Form 52897 Offender Complaint form and contacting an appropriate staff
member within 5 business days of receiving the form; (2) if there is no informal resolution within
10 business days, the inmate may file a Level I formal grievance; (3) if the grievance is not resolved
to the offender's satisfaction or if the offender does not receive a response to the grievance within
20 days of the submission, the offender may file an appeal to the IDOC's Central Office. Id. at 34. Inmates, including Mr. Archey, are provided with information regarding the grievance process
at the time of their orientation, and a copy of the policy is available in the facility's law library. Id.
at 2.
The defendants produced Mr. Archey's record of grievances which indicates that Mr.
Archey filed three grievances regarding the denial of insulin. Id. at 5-6. On July 15, 2019, Mr.
Archey filed a grievance against Mr. King 1 and Ms. Purdue, 2 and these grievances were returned
to him on July 18, 2019. Id. 5-7. On July 29, 2019, Mr. Archey submitted a subsequent grievance
against Mr. King which was returned to him on August 7, 2019. Dkt. 39-4. Mr. Archey did not
submit any further grievances. On July 25 and 26, 2019, Mr. Archey submitted grievance appeal
forms for his grievance against Mr. King and Ms. Purdue. Dkt. 39-5; dkt. 39-7. On August 7, 2019,
these grievance appeals were returned to him for the reason that his grievances "had to be accepted,
logged, and filed prior to submitting an appeal." Id. The defendants argue that Mr. Archey "did not

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Mr. Archey's grievance was returned for the following reasons: (1) no indication/evidence of
informal resolution which is required; (2) the grievance form is incomplete; and (3) staff
discipline, assignment, duties and/or training are not part of the grievance process. Dkt. 39-3 at 1.
Mr. Archey did not sign this grievance form. Id.
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Mr. Archey's grievance was returned for the following reasons: (1) no indication/evidence of
informal resolution which is required; (2) the grievance form is incomplete; and (3) staff
discipline, assignment, duties and/or training are not part of the grievance process. Dkt. 39-6 at 2.
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follow appropriate procedures to file a grievance, and did not file an appropriate appeal." Dkt. 38
at 7.
III. Analysis
The defendants have not shown that they are entitled to summary judgment as a matter of
law as to the affirmative defense of failure to exhaust. To satisfy the PLRA, an inmate's grievance
must provide his custodian with notice of, and an opportunity to correct, the problem of which he
complains. See, e.g., Schillinger v. Kiley, 954 F.3d 990, 995–96 (7th Cir. 2020) (citing Turley v.
Rednour, 729 F.3d 645, 650 (7th Cir. 2013); Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
A. Mr. King
Mr. Archey's signed grievance filed on July 29, 2020, is nearly identical to his first
grievance against Mr. King, and states as follows:
I reported to Wexford[']s HSA Mr. King about the incident where I have been
deprived of not receiving my A.M. and P.M. diabetic insulin shot for 5-days which
is unacceptable medical care. And by such actions can cause me into developing
another serious medical episode [Diabetic Ketoacidosis], all over again. I have
underwent (3) medical emergency signal 3000 due to my blood sugar dropping to
levels that were cautious to my serious medical condition; [Type 1 Diabetes] I have
submitted a informal grievance in complaint to Wexford's HSA Mr. King who
chose not to help my condition. I was forced not to be given my insulin on four
occas[]ion(s) 07-3-2019; 07-4-2019; 07-5-2019; 07-6-2019 that resulted in a
diabetic attack on 07-5-2019. Because of hypoglycemia a blood sugar low level
count.
Dkt. 39-4 at 2. The grievance specialist returned this grievance for two designated reasons: (1) the
grievance form is incomplete and (2) the complaint or concern contains "multiple issues or events"
that must be submitted on a separate form for each event Mr. Archey wanted to grieve. Id. at 1.
This return did not reject the grievance for any failure of Mr. Archey to pursue and provide
evidence of informal resolution. This subsequent grievance was signed by Mr. Archey, unlike his
first attempt, and the defendants present no argument as to why it was rejected for incompleteness.

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Under Ross, "an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use." Ross 136 S. Ct. at 1859. In addition, a grievance process is unavailable "when
prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation." Id. at 1860. By stating that a grievance is "not
completely filled out" without further specifics as to what is missing and every box on the form is
filled in, the inmate's attempt to complete the process is thwarted by misrepresentation and the
process is rendered incapable of use and therefore unavailable.
Regarding the second designated reason for the return, the Court notes that the Grievance
Process does not define what constitutes a singular event or issue. Dkt. 39-2 at 9. Mr. Archey's
grievance alleged that he had been deprived of receiving his daily morning and evening insulin
shots for a period of 5 days which caused him to have a diabetic attack. The Court construes that
Mr. Archey was attempting to grieve a single issue – the ongoing cessation of the administration
of his insulin. His grievance provided specific information as to the number of calendar days and
the consecutive dates in which he did not receive his insulin. Mr. Archey does not allege that there
were gaps in time regarding the deprivation of his insulin, where multiple grievances to describe
any such spans of time may be necessary and reasonable to properly grieve the issue. In this case,
the Court finds that it is unreasonable to infer that the Grievance Process requires Mr. Archey to
submit a total of 5 individual grievances, each of which would be reviewed by the grievance
specialist, one for each of the consecutive days over a week's time that he alleges he did not receive
this medication. The Seventh Circuit has so held. "In order to exhaust their remedies, prisoners
need not file multiple, successive grievances raising the same issue (such as prison conditions or
policies) if the objectionable condition is continuing." Turley, 729 F.3d at 650. The Court also
notes that the Grievance Process defines frivolous/abuse/or multiple grievances as those that are

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"repetitive" or "multiple" grievances that "occur when the same issue has been addressed and
where sufficient time for a response has not elapsed or where a response has been provided." Dkt.
39-2 at 2. Again, the process, as interpreted by this grievance rejection, was rendered a "simple
dead end" incapable of use. Ross, 136. S. Ct. at 1859. Accordingly, the Court finds that Mr.
Archey's grievance was improperly returned on this ground. Because Mr. Archey's grievance was
improperly returned, his appeal was not appropriately considered, and instead returned because
the underlying grievance was not properly accepted, logged, and filed. "Prison officials may not
take unfair advantage of the exhaustion requirement . . . and 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). Consequently, Mr. Archey's remedy of an appeal became unavailable when his grievance
against Mr. King was improperly returned, rendering him unable to comply with the exhaustion
requirement.
B. Ms. Purdue
In his complaint, Mr. Archey alleges that defendant Purdue, a nurse practitioner, was
responsible for stopping his insulin shots. Dkt. 10 at 2. Because the Court has determined that Mr.
Archey submitted a viable grievance and grievance appeal pertaining to Mr. King regarding his
allegations that he did not receive his insulin shots, the Court need not review the request for
interview, grievance, and grievance appeal documents related to Ms. Purdue on their merits.
The Supreme Court has explained that notice to an individual that he might be sued "has
not been thought to be one of the leading purposes of the exhaustion requirement," and that "the
primary purpose of a grievance is to alert prison officials to a problem, not to provide personal
notice to a particular official that he may be sued." Jones v. Bock, 549 U.S. 199, 219 (2007)

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(quoting Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)). Instead, "[t]he level of detail
necessary in a grievance to comply with the grievance procedures will vary from system to system
and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries
of proper exhaustion." Id. at 218.
The Grievance Process does not require that Mr. Archey discuss his complaint with the
responsible staff member but rather allows the inmate to discuss the situation with someone who
is in charge. Accordingly, Mr. Archey must only exhaust his available administrative remedies as
to one defendant, not both, and in this case the Court finds that the process was rendered
unavailable to Mr. Archey and therefore "exhaustion is not required." Ross, 136 S. Ct. at 1860.
IV. Rule 56(f) and Notice and Further Proceedings
The defendants' motion for summary judgment, dkt. [37], is DENIED. The evidence shows
that Mr. Archey did not fail to exhaust his available administrative remedies before he filed this
lawsuit. Rather, the process was unavailable to him. Therefore, pursuant to Federal Rule of Civil
Procedure 56(f)(1), the Court gives the defendants notice of its intent to grant summary judgment
in Mr. Archey's favor on the exhaustion defense. The defendants shall have through September
23, 2020, in which to respond to the Court's proposal and either (a) show cause why summary
judgment should not be entered in Mr. Archey's favor on this issue, or (b) withdraw their
affirmative defense of exhaustion.
IT IS SO ORDERED.

Date:

9/10/2020

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
CHARLES ARCHEY
109037
PENDLETON - CORRECTIONAL INDUSTRIAL FACILITY
CORRECTIONAL INDUSTRIAL FACILITY
Inmate Mail/Parcels
5124 West Reformatory Road
PENDLETON, IN 46064
Heather Terese Gilbert
CASSIDAY SCHADE LLP
[e-mail]
Emily Kathleen VanTyle
CASSIDAY SCHADE LLP
[e-mail]
Marilyn A. Young
CASSIDAY SCHADE LLP
[e-mail]

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