LIFFLER v. BROWN

Filing 81

Entry Denying Motion for Summary Judgment - The Medical Defendants' motion for summary judgment, dkt. 64 , is denied for the reasons set forth above. If the Medical Defendants wish to withdraw their affirmative defense in lieu of having a Pavey hearing, they must do so by April 17, 2017. The Court will attempt to recruit volunteer counsel to assist the plaintiff with the Pavey hearing. The Magistrate Judge is requested to hold a pre-Pavey status conference once the Court has recruited counsel to assist the plaintiff with the Pavey hearing. The plaintiff's motion to compel discovery regarding the issue of exhaustion, dkt. 77 , is denied without prejudice. The plaintiff will be given an opportunity to conduct discovery, if it is required, prior to the Pavey hearing (SEE ENTRY). Copy sent to Plaintiff via US Mail. Signed by Judge Larry J. McKinney on 4/11/2017. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

PHILLIP LITTLER,
Plaintiff,
vs.
RICHARD BROWN Superintendent of
Wabash Valley Correctional Facility, et al.,
Defendants.

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No. 2:16-cv-00234-LJM-MJD

Entry Denying Motion for Summary Judgment
Plaintiff Phillip Littler, who at all relevant times was and remains incarcerated at Wabash
Valley Correctional Facility, brought this action pro se against several correctional officers and
two Medical Defendants, Nurse Bender and Corizon, Inc. The plaintiff alleges that the correctional
officers used excessive force against him during a cell extraction on November 13, 2015, and the
Medical Defendants are liable for their failure to provide medical treatment for his injuries
sustained during that extraction.
Only the Medical Defendants asserted the affirmative defense that the plaintiff failed to
exhaust his administrative remedies before filing this action as required by the Prison Litigation
Reform Act (“PLRA”). Before the Court is the Medical Defendants’ motion for summary
judgment on this affirmative defense. The plaintiff has responded. For the reasons explained
below, the Medical Defendants’ motion for summary judgment is denied because there are issues
of material fact that must be resolved at a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008).

I.
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 . . . until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e; see Porter v. Nussle, 534 U.S. 516, 524-25 (2002). The exhaustion requirement
“is an affirmative defense that a defendant has the burden of proving.” King v. McCarty, 781 F.3d
889, 893 (7th Cir. 2015).
“[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). Moreover, the
“exhaustion requirement is strict. A prisoner must comply with the specific procedures and
deadlines established by the prison’s policy.” King, 781 F.3d at 893.
“At the same time, the [PLRA] requires exhaustion only of remedies that are ‘available.’”
Id. “Prison officials may not take unfair advantage of the exhaustion requirement,” and if they do,
their conduct can make the remedy process “unavailable.” Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006).

“Administrative remedies are primarily ‘unavailable’ to prisoners where

‘affirmative misconduct’ prevents prisoners from pursuing administrative remedies.” Hernandez
v. Dart, 814 F.3d 836, 842 (7th Cir. 2016); see Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)
(“[W]hen prison officials prevent inmates from using the administrative process . . . the process
that exists on paper becomes unavailable in reality.”).
The Grievance Process in effect during the relevant time required the plaintiff to (1) file an
informal grievance; (2) file a formal grievance; and (3) file a grievance appeal. The Medical
Defendants present evidence that the plaintiff submitted only one grievance regarding the cell
extraction at issue in this case, and it only complained of excessive force during the extraction, not

deficient medical care. The plaintiff presents evidence—by way of his own statements sworn
under the penalty of perjury—that the Grievance Specialist refused to file his grievance regarding
his medical care because he had already filed a grievance regarding the cell extraction. The
plaintiff asserts that the policy at Wabash Valley is that an inmate can only file one grievance per
occurrence, even if, as here, the inmate wishes to grieve about entirely different aspects of a single
occurrence. The Grievance Specialist invoked this policy, the plaintiff says, when she refused to
accept his grievance.
In short, there is a factual dispute between the parties as to whether the administrative
remedy process was available to the plaintiff regarding his medical claims stemming from the
November 13, 2015, cell extraction. As noted above, inmates must only exhaust administrative
remedies that are “available.” King, 781 F.3d at 893. And administrative remedies are unavailable
when “prison officials prevent inmates from using the administrative process.” Kaba, 458 F.3d at
684; see Hernandez, 814 F.3d at 842. If, as the plaintiff attests, the Grievance Specialist refused
to accept his grievance regarding his medical treatment following the cell extraction at issue, he
was prevented from using the administrative remedy process, making it unavailable to him. The
parties’ dispute regarding the availability of the administrative remedy process cannot be resolved
on summary judgment; it must instead be resolved at a Pavey hearing.
II.
The Medical Defendants’ motion for summary judgment, dkt. [64], is denied for the
reasons set forth above. A Pavey hearing will be set by separate entry. The action remains stayed
except for activities associated with the development and resolution of the affirmative defense that
the plaintiff failed to exhaust his administrative remedies as to the Medical Defendants, or any

other matter directed by the Court. If the Medical Defendants wish to withdraw their affirmative
defense in lieu of having a Pavey hearing, they must do so by April 17, 2017.
The Court will attempt to recruit volunteer counsel to assist the plaintiff with the Pavey
hearing. The Magistrate Judge is requested to hold a pre-Pavey status conference once the
Court has recruited counsel to assist the plaintiff with the Pavey hearing.
The plaintiff’s motion to compel discovery regarding the issue of exhaustion, dkt. [77], is
denied without prejudice. The plaintiff will be given an opportunity to conduct discovery, if it
is required, prior to the Pavey hearing.
IT IS SO ORDERED.

Date: ____________
4/11/2017

Distribution:
Electronically Registered Counsel
PHILLIP LITTLER
121098
WESTVILLE - CF
WESTVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
5501 South 1100 West
WESTVILLE, IN 46391

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana