COMBS v. BUTTS

Filing 42

Entry Granting Motion for Summary Judgment and Directing Entry of Final Judgment - For the reasons explained above, Superintendent Butts's motion for summary judgment, [Dkt. 27], is granted. Mr. Combs's claim is dismissed without prejudice. Final Judgment shall issue (SEE ENTRY). Signed by Judge William T. Lawrence on 7/24/2017. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

DEAN COMBS,
Plaintiff,
vs.
BUTTS Warden, Mr.,
Defendant.

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No. 2:16-cv-00282-WTL-MJD

Entry Granting Motion for Summary Judgment and Directing Entry of Final Judgment
Plaintiff Dean Combs, who at all relevant times was incarcerated at New Castle
Correctional Facility (“New Castle”), brought this action against defendant Keith Butts, the
Superintendent of New Castle. Mr. Combs alleges that Superintendent Butts violated his Eighth
Amendment rights by failing to protect Mr. Combs from being sexually assaulted by his cellmate.
Superintendent Butts moves for summary judgment on the ground that Mr. Combs failed to
exhaust his administrative remedies before bringing this suit. The parties have each submitted
multiple briefs in support of their respective positions. For the reasons explained in this Entry,
Superintendent Butts’s motion for summary judgment, [Dkt. 27], is granted.
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).
“The 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 “[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).

“[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). Exhaustion of available administrative remedies “‘means
using all steps that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits).’” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002)). Proper use of the facility’s grievance system requires a prisoner “to file complaints and
appeals in the place, and at the time [as] the prison’s administrative rules require.” Pozo, 286 F.3d
at 1025; see also Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). 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).
II.
Background
The Court begins by discussing the administrative remedy process in effect at New Castle
during the relevant time. It then will summarize the evidence presented by Superintendent Butts
and Mr. Combs in turn.

The Indiana Department of Correction (“IDOC”) has an Offender Grievance Process
(“OGP”) through which inmates, including those at New Castle, can grieve issues related to their
conditions of confinement, such as the claims at issue here. The OGP in effect at all times relevant
to this action consisted of three stages: the informal grievance stage, the filing of a formal
grievance, and the filing of a grievance appeal. The OGP is complete, and all administrative
remedies are fully exhausted, once the inmate has received a response to his grievance appeal.
Superintendent Butts submits the majority of his evidence via the affidavit of Jennifer
Smith. Ms. Smith was at all times relevant to this action the Grievance Specialist at New Castle,
and as such, she was responsible for entering offender grievances and responses thereto into
IDOC’s grievance tracking system and is the custodian of grievance records at New Castle. Ms.
Smith reviewed the grievance records for Mr. Combs while he was incarcerated at New Castle
from January 2016 through April 2016. The grievance records reveal that Mr. Combs filed three
informal grievances on April 19, 2016, but they related to improper medical treatment and the
inappropriate demeanor of a correctional officer; they did not relate to the claims at issue in this
case. Moreover, the grievance records reveal that Mr. Combs has not filed a formal grievance
since 2007.
Mr. Combs submitted multiple statements in response to Superintendent Butts’s motion,
as well as various documents.1 The following summary of his submissions reveals the ever-

The Court notes that only one of Mr. Combs’s submissions, see dkt. 37 at 11, is sworn under
penalty of perjury and thus constitutes admissible evidence in this case. Although this is an
alternative basis to grant Superintendent Butts’s motion for summary judgment (because that
submission fails to create a fact issue), the Court will discuss all of Mr. Combs’s submissions as
if they constitute admissible evidence to explain why, even if all of his statements were sworn,
Superintendent Butts would still be entitled to summary judgment.
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changing and internally inconsistent nature of his evidence and positions with respect to
exhaustion.
Mr. Combs filed the Complaint in this action on July 6, 2016. In his Complaint, he stated
that he filed three grievances but received “no response.” Dkt. 2 at 2. The Complaint was screened
and Superintendent Butts asserted the affirmative defense of exhaustion. The Court issued a
scheduling order staying all matters in the case unrelated to exhaustion and ordered Superintendent
Butts to file a motion for summary judgment on exhaustion, request a Pavey hearing, or withdraw
his defense. Before Superintendent Butts chose any of these options, Mr. Combs submitted two
filings regarding exhaustion, and the Court stated that it would consider these filings and the
evidence attached thereto in ruling on any motion for summary judgment Superintendent Butts
filed. Superintendent Butts then filed the instant motion for summary judgment.
Mr. Combs filed a short response asking the Court to consider his previously submitted
filings, and the Court agreed to do so. Mr. Combs’s submission discusses several matters unrelated
to the question of exhaustion, including a discussion of the underlying merits of his claims. But
he also discusses exhaustion. He makes several generalized statements regarding difficulties with
exhaustion that do not include specific factual assertions. For example: “The Administration is
incorrect and untruthful to the point to stop grievances all types of ways,” dkt. 23 at 6; “The
Administration loses [sic] grievance letter[s] and [does] not sen[d] them back. I wrote 20 or more
letters about my complaints,” dkt. 23 at 7; “I sent grievance letters to about ever[y]one in that
prison after 3 days that I was there,” dkt. 23 at 10.
Mr. Combs also attached a grievance to his submission in which he complains about
Superintendent Butts’s failure to protect him from assault—that is, the facts underlying his claim
in this action. See dkt. 23-1 at 1. In the grievance, he also asserts that he wrote “10 letters” and

“10 or 12 grievances” about the issue, and some of them “came back,” some of them were lost or
“thrown away,” and some he lost when he was transferred.
This purported grievance is problematic from an evidentiary perspective for several
reasons. First, Mr. Combs does not explain when it was filed and whether it was responded to.
Second, it appears from the grievance that it was filed after Mr. Combs initiated this action. He
references three times that the issue described is “now” a “$100,000 lawsuit,” which is the relief
he seeks in his complaint. Dkt. 23-1 at 1 (emphasis added). Third, New Castle Grievance
Specialist Ms. Smith submitted a supplemental affidavit in which she attests that the document
was likely created by Mr. Combs for this litigation rather than an authentic grievance because the
grievance number is not valid (grievances numbers do not begin with “000”), it does not contain
her handwriting or signature (instead a “Lt. Gard” appeared to sign it), and the date is handwritten
rather than date stamped as she does for properly filed grievances. Because of these factors and
Mr. Combs’s lack of assertion to the contrary, this grievance is not evidence that Mr. Combs
attempted to timely grieve his claims before filing suit. As discussed below, Mr. Combs’s
submission of this grievance also reveals his confusion regarding the exhaustion process.
In his final substantive submission regarding exhaustion, Mr. Combs stated that he had
“newly discovered evidence.” This evidence, however, amounts to (1) two grievances Mr. Combs
filed from Wabash Valley Correctional Facility (where he was transferred to from New Castle in
late April 2016) after he filed this action and regarding issues unrelated to this case; and (2) two
lists of prison staff members whom inmates should contact depending on the problem they wish
to have addressed. Mr. Combs explains that these exhibits are “about the grievances [he] file[d]”
and asks the Court to “please believe that [he] like[s] to write and did file grievance and letters to
Mr. Butt[s] and [the] grievance office and did all three step[s].” Dkt. 37 at 3.

Other than the foregoing evidence, Mr. Combs provides several more general assertions
regarding the exhaustion process. For example, he asserts that he was “refused [a] . . . grievance
from staff like when I ask for grievance th[e]y said you got to have a real problem if[] you want a
grievance.” Dkt. 37 at 2. However, in that same paragraph he states that he obtained a grievance
from an inmate and “sent it in the mail,” but “[i]t was sent back” with a notation that he would not
be given “$100,000 dollars for your relief.” Dkt. 37 at 2. He later asserts, again generally, that
“when you have a grievance in the [IDOC] . . . they stop your grievance by not giving you one.”
Dkt. 37 at 2. Finally, in his most specific factual assertion, Mr. Combs states that some officers
will deliver your grievance that you place in the mail bag and others will not, yet when he filed his
“grievance to Ms. Smith she didn’t get my grievance.” Dkt. 37 at 5-6.
III.
Discussion
Superintendent Butts maintains that the undisputed evidence shows that Mr. Combs did
not complete the three-stage process necessary to exhaust and thus his claim is barred under the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, which requires a prisoner to first
exhaust his available administrative remedies before filing a lawsuit in court.
The parties’ arguments and evidence set forth above raise two questions regarding
exhaustion: whether the administrative remedies process was available to Mr. Combs, and if so,
whether he exhausted his administrative remedies. Turning first to the question of availability,
“the [PLRA] requires exhaustion only of remedies that are ‘available.’” King, 781 F.3d at 893.
“Prison officials may not take unfair advantage of the exhaustion requirement,” and if they do,
their conduct can make the remedy process “unavailable.” Dole, 438 F.3d at 809. “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).
As set forth above, Mr. Combs undoubtedly attempts to assert that the administrative
remedy process was unavailable because he either had difficulty obtaining a grievance form or his
grievances were being destroyed. The problem for the Court accepting these assertions as
sufficient to create a factual dispute is two-fold. First, many of Mr. Combs’s assertions about his
inability to obtain a grievance form or accusations that prison staff otherwise thwart his attempts
to grieve are too general to create a factual dispute about the specific material facts in this case.
For example, his assertions that “[t]he Administration losses [sic] grievance letter[s] and [does]
not sen[d] them back,” dkt. 23 at 7, or that “when you have a grievance in the [IDOC] . . . they
stop your grievance by not giving you one,” dkt. 37 at 2, are generalized complaints about the
grievance process in IDOC facilities. They are not specific factual allegations that his attempts to
grieve the claims raised in this action were thwarted by those means.
Second, and more importantly, his alleged inability to access grievance forms is
contradicted by his own statements and his other evidence. When he filed this action on July 6,
2016, Mr. Combs stated that he had filed three grievances but did not receive a response. See dkt.
2 at 2. But once Superintendent Butts raised the affirmative defense of exhaustion, Mr. Combs’s
story changed. Then he said he “sent grievance letters to about ever[y]one in that prison after 3
days that I was there,” dkt. 23 at 10, and he provided the Court with a grievance (which was written
after this action began) stating that he wrote “10 letters” and “10 or 12 grievances” about the issue,
and some of them “came back,” some of them were lost or “thrown away,” and some he lost when
he was transferred, dkt. 23-1 at 1. And finally, in his next submission, he contends at length that
his attempts to obtain grievance forms were thwarted or his grievances were destroyed, yet he

explains that he obtained a grievance, submitted it, and “[i]t was sent back” with a notation that he
would not be given “$100,000 dollars for your relief.” Dkt. 37 at 2.
The Court may refuse to consider affidavits—often called “sham affidavits”—when they
“contradict[] the affiant’s previous testimony . . . unless the earlier testimony was ambiguous,
confusing, or the result of a memory lapse.” Cook v. O’Neill, 803 F.3d 296, 298 (7th Cir. 2015);
see United States v. Funds in the Amount of $271,080, 816 F.3d 903, 907 (7th Cir. 2016) (“Changes
in testimony normally affect the witness’s credibility rather than the admissibility of the testimony,
and thus the sham-affidavit rule applies only when a change in testimony is incredible and
unexplained, not when the change is plausible and the party offers a suitable explanation such as
confusion, mistake, or lapse in memory.” (citations and quotations marks omitted)). Mr. Combs
initially informed the Court in his Complaint that he filed three grievances but they were not
returned. But once exhaustion was at issue, he stated he had actually filed 10 to 12 grievances,
that he could not obtain a grievance form, that his grievances were destroyed, and finally, that he
“did all three step[s].” Dkt. 37 at 3. All of these statements cannot be true. The grievance process
cannot be both unavailable and completed; he cannot both have been denied grievances forms,
which prevented him from grieving this issue, and filed a dozen grievances on the issues, some of
which he states were returned to him. These subsequent assertions—all of which deviate from Mr.
Combs’s initial statement that he filed three grievances that were not returned—are both
“incredible and unexplained,” and thus will not be considered by the Court. Funds in the Amount
of $271,080, 816 F.3d at 907. Mr. Combs offers no explanation for his ever-changing story, nor
is an innocent explanation for these contradictions apparent to the Court.
The Court, however, does not suggest that Mr. Combs intentionally made
misrepresentations to the Court (although this cannot be ruled out). Instead, confusion about the

grievance process (not “confusion” about the underlying facts as the word is used in Cook) appears
to animate the evolving and inconsistent nature of his position in this case. See, e.g., dkt. 37 at 3
(Mr. Combs citing to unrelated grievances as evidence that he exhausted his claims in this case).
It appears that Mr. Combs believes he can exhaust his claims by writing “letters to about
ever[y]one in that prison,” dkt. 23 at 10, rather than complying with the specific three-step
grievance process. But the Seventh Circuit has made clear that 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.
Mr. Combs also appears to believe that he can exhaust his claims after this action was filed.
After all, he provided the Court with a grievance form in which he complains about the issues in
this case as evidence of exhaustion, yet, as discussed above, that grievance was clearly written
after this action was filed. Furthermore, Mr. Combs submitted what he described as “newly
discovered evidence” of exhaustion, but this new evidence amounted to two grievances filed after
he was transferred to Wabash Valley and related to medical issues rather than the issues in this
case. But the PLRA is clear “that exhaustion must precede litigation.” Ford v. Johnson, 362 F.3d
395, 398 (7th Cir. 2004); see 42 U.S.C. § 1997e (a) (“No action shall be brought with respect to
prison conditions. . . until such administrative remedies as are available are exhausted.”).
In sum, Mr. Combs’s evidence regarding unavailability is in many instances too vague to
create a specific factual dispute necessitating a hearing, or, more importantly, is contradictory and
internally inconsistent such that it will not be considered by the Court. Although the Court cannot
rule out intentional misrepresentations on Mr. Combs’s part, it is far more likely that confusion
drove his inconsistent statements, so the Court will pursue the matter no further.

Given this, Superintendent Butts’s evidence that the remedy process was available remains
undisputed. The Court therefore turns to whether Mr. Combs exhausted his administrative
remedies. Superintendent Butts’s other evidence shows that Mr. Combs did not file any informal
grievances regarding the claim brought in this case, let alone formal grievances or grievance
appeals. During the relevant timeframe, Mr. Combs filed three informal grievances, but they were
related to medical issues, not the claims in this case.
Notably, Superintendent Butts’s evidence that Mr. Combs filed only three grievances
during the relevant time period aligns with Mr. Combs’s statement in his complaint that he had
filed three grievances. But even if Mr. Combs’s statement is construed as an assertion that he filed
three grievances relating to the claims in this case, the fact that he asserts they were not returned
does not excuse his failure to complete the other two steps of the grievance process. As
Superintendent Butts correctly points out, the OGP requires a formal grievance to be submitted
even if an inmate has not received an official rejection of an informal grievance. See dkt. 29-1 at
16. Therefore, accepting Mr. Combs’s statement as true that his grievances were not returned to
him, it remained his obligation to submit a formal grievance. Critically, at no time does Mr. Combs
specifically state that he filed a formal grievance or grievance appeal. Accordingly, Mr. Combs
failed to exhaust the administrative remedy process that was available to him.
IV.
Conclusion
For the reasons explained above, Superintendent Butts’s motion for summary judgment,
[Dkt. 27], is granted. Mr. Combs’s claim is dismissed without prejudice. Final Judgment shall
issue.
IT IS SO ORDERED.
Date: 7/24/2017

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

Distribution:
DEAN COMBS
882800
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Adam Garth Forrest
BOSTON BEVER KLINGE CROSS & CHIDESTER
[e-mail]