ISBY-ISRAEL v. LEMMON et al

Filing 38

ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT ON EXHAUSTION DEFENSE - Defendant's 28 Motion for Summary Judgment is denied. Isby-Israel has not demonstrated that he exhausted his administrative remedies. Accordingly, an evidentiary hearing t o resolve whether this action is barred by the exhaustion requirement of the PLRA shall be set by separate order. Isby-Israel shall have through July 30, 2014, in which to notify the Court whether he requests the court's assistance in recruiting counsel to represent him at an evidentiary hearing. **SEE ORDER** Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 7/14/2014. (ADH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

AARON ISBY-ISRAEL,

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Plaintiff,
vs.
BRUCE LEMMON Commissioner Indiana
Department of Correction, STEPHEN HALL,
R. NEMERGUT,
Defendants.

Case No. 2:13-cv-00172-WTL-DKL

Entry Discussing Motion for Summary Judgment on Exhaustion Defense
Aaron Isby-Israel is an offender in the Indiana Department of Correction (“IDOC”). He
alleges that the defendants denied him a Kosher diet in violation of his First Amendment rights,
the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), and the
injunctive relief ordered in Willis v. Comm’r, Indiana Dep’t of Correction, 753 F. Supp. 2d 768
(S.D. Ind. 2010).1 The defendants argue that this action should be dismissed because Isby-Israel
failed to exhaust his administrative remedies prior to filing this action as required by the Prison
Litigation Reform Act (“PLRA”). This affirmative defense must be resolved before reaching the
merits of Isby-Israel’s claims. 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) (“The statute [requiring administrative

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As a preliminary matter, the Court agrees with the class counsel’s view that Isby- Israel’s claims should
not be brought as part of the Willis case. See dkt. 37.

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exhaustion] can function properly only if the judge resolves disputes about its application before
turning to any other issue in the suit.”).
Summary judgment is appropriate if “there is no genuine issue as to any material fact and
... the moving party is entitled to judgment as a matter of law.” Scott v. Edinburg, 346 F.3d 752,
755 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)). 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 PLRA requires that a prisoner exhaust his available administrative remedies before
bringing a suit concerning prison conditions under 42 U.S.C. § 1983, or any other federal law. 42
U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524–25 (2002). “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 (2006) (footnote omitted). Strict
compliance is required with respect to exhaustion, and a prisoner must properly follow the
prescribed administrative procedures in order to exhaust his remedies. See Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006). However, a prisoner is only required to exhaust those remedies
that are available to him. Whether Isby-Israel used the grievance process at Wabash Valley
Correctional Facility (“Wabash Valley”) insofar as it was available to him is the relevant point of
dispute here. A remedy becomes “unavailable” if prison employees do not respond to a properly
filed grievance, Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002), or otherwise use
affirmative misconduct to prevent a prisoner from exhausting. Dole, 438 F.3d at 809.

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Undisputed Facts
The following facts are undisputed:
There was an administrative grievance process in effect at Wabash Valley during the
relevant time period and Isby-Israel was acquainted with the process.2 The grievance process
includes an attempt to resolve the complaint informally, as well as two formal steps: a formal
written grievance, and then an appeal of the response to the level one grievance. If an offender is
unable to resolve his complaint or concern informally, the offender is permitted to file a formal
grievance. An offender wishing to file a formal grievance must submit a completed grievance
form no later than twenty working days from the date of the incident giving rise to the complaint
or concern. Exhaustion of the grievance procedure requires pursuing an appeal to the final step of
the grievance process.
Isby-Israel filed an informal grievance on July 14, 2011, which was denied by Chaplain
Nemergut. Isby-Israel submitted a second informal grievance on August 22, 2011, complaining
that he was being denied a kosher diet. No response was provided. See dkt. 33, ¶¶ 6-9.
Isby-Israel failed to submit a formal grievance or a formal appeal regarding his
allegations that the defendants failed to provide him with a kosher diet before filing his
complaint on May 3, 2013.
Availability of Grievance Process
Isby-Israel testified that on several occasions he asked for and was denied a formal
grievance form from Julie Snider and Beverly Gilmore but they refused to provide Isby-Israel
with a grievance form. See dkt. 33 at ¶¶ 10, 11. Isby-Israel notified grievance specialist Teresa
Littlejohn that Julie Snider and Beverly Gilmore refused to provide him with the formal
grievance forms, but Teresa Littlejohn refused to address his complaints or provide him with the
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See IDOC Policy and Administrative Procedure 00-02-301, Offender Grievance Process.

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formal grievance forms. The defendants argue that the grievance process was always open to
Isby-Israel, as demonstrated by his liberal use of the process.
Based on the evidence presented, there is a material fact in dispute regarding whether the
administrative remedy process was available to Isby-Israel. Specifically, the issue is whether
Isby-Israel had access to the formal grievance forms necessary to exhaust his administrative
remedies. Under these circumstances, the defendants’ affirmative defense cannot prevail and an
evidentiary hearing is warranted.
Strict Compliance is Required
Isby-Israel requests that the Court find that he exhausted his administrative remedies for
two reasons. First, because his informal efforts in 2011 were sufficient to satisfy the PLRA; and,
second, because after this action was filed he did in fact exhaust his administrative remedies.
Both of these arguments lack merit.
As previously mentioned, the Seventh Circuit has taken a “strict compliance approach to
exhaustion.” Dole, 438 F.3d at 809; Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
For an offender to exhaust properly, he must comply with a prison’s deadlines and other
procedural rules. Woodford, 548 U.S. at 90-91. It is not enough that Isby-Israel raised his dispute
through a variety of informal channels. He was required to exhaust through Wabash Valley’s
grievance process. In addition, the language of 42 U.S.C. § 1997e(a) is clear: “No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies are available are exhausted.” Thus, a prisoner may not, as Isby-Israel
suggests, file a suit while the administrative appeal is pending. Johnson v. Jones, 340 F.3d 624,

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627 (8th Cir. 2003) (“If exhaustion was not completed at the time of filing, dismissal is
mandatory.”).
Conclusion
Accordingly, the defendants’ motion for summary judgment [dkt. 28] is DENIED.
Similarly, Isby-Israel has not demonstrated that he exhausted his administrative remedies.
Accordingly, an evidentiary hearing to resolve whether this action is barred by the exhaustion
requirement of the PLRA shall be set by separate order.
Isby-Israel shall have through July 30, 2014, in which to notify the Court whether he
requests the court’s assistance in recruiting counsel to represent him at an evidentiary hearing.
IT IS SO ORDERED.

07/14/2014
Date: __________________

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:

AARON ISBY-ISRAEL
DOC # 892219
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
All Electronically Registered Counsel

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