FERRELL v. CORIZON: RMD

Filing 26

ENTRY Granting Motion for Summary Judgment - Dr. Person's motion for summary judgment Dkt. 21 is granted. Judgment consistent with this Entry shall now issue (See Entry). Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 4/21/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

TYLER FERRELL,
Plaintiff,
v.
MICHAEL PERSON,
Defendant.

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No. 2:16-cv-00362-JMS-MJD

Entry Granting Motion for Summary Judgment
Plaintiff Tyler Ferrell, an inmate of the Wabash Valley Correctional Facility (“Wabash
Valley”), brought this action pursuant to 42 U.S.C. 1983. In his amended complaint, Ferrell
alleges that, while he was incarcerated at the Pendleton Correctional Facility (“Pendleton”),
defendant Dr. Michael Person was deliberately indifferent to his need for treating for an injury to
his hand in violation of his Eighth Amendment rights. Dr. Person moves for summary judgment
arguing that Ferrell failed to exhaust his available administrative remedies. For the following
reasons, Dr. Person’s motion for summary judgment Dkt. [21] 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).

II. Facts
At all times relevant to his claims in this suit, Ferrell was incarcerated by the IDOC at
Pendleton. Ferrell was transferred from Pendleton to Wabash Valley on December 15, 2015.
Ferrell’s allegations against Dr. Person arose during the time Ferrell was incarcerated at
Pendleton— where Dr. Person was the chief medical officer in 2014 and 2015—as Dr. Person
did not treat Ferrell at any other time.
The IDOC has in place an Offender Grievance Process that applies to Ferrell’s claims.
The purpose of the Offender Grievance Process is to provide administrative means by which
inmates may resolve concerns and complaints related to their conditions of confinement. The
Grievance Process consists of three stages: (i) an informal attempt to solve a problem or address
a concern, (ii) the submission of a written formal grievance outlining the problem or concern and
other supporting information, and the response to that submission, and finally a (iii) a written
appeal of the response to a higher authority and the response to that appeal.
IDOC records reflect that Ferrell filed three medical grievances (Grievance Nos. 82350,
82351, 82773) in May 2014 and June 2014 while he was incarcerated at Pendleton (abbreviated
as “IRT”). There is no record that Ferrell appealed any of those grievances.
Ferrell attaches to his amended complaint an informal grievance dated August 18, 2016.
In that informal grievance, Ferrell states that he was sent out for a consultation with an
orthopedic surgeon who recommended surgery on Ferrell’s right hand for cubital tunnel
syndrome. Ferrell then complains that the IDOC denied the surgery. The response to Ferrell’s
informal grievance, also dated August 18, 2016, informs Ferrell that his surgery had been
approved and was scheduled. Ferrell also attaches a formal grievance dated August 23, 2016 to
his amended complaint. In his formal grievance, Ferrell states the IDOC delayed providing

surgery to treat pain in Ferrell’s right hand. As relief, Ferrell requested compensation in the
amount of $5000.00. The Return of Grievance form dated August 31, 2016, reflects that Ferrell’s
grievance was returned to him because Ferrell sought only monetary compensation, which is not
appropriate relief under the grievance procedure. Ferrell responded to the return of his grievance
in a letter dated September 2, 2016, that stated he was not asserting a tort claim in his August 23,
2016 grievance. Although Ferrell did not describe what relief he was requesting, he stated he
wanted to exhaust his administrative remedies so that he could file a 42 U.S.C. § 1983 civil
rights complaint. The letter reflects a response from a grievance specialist informing Ferrell
again that a request for money damages was not a grievable issue. Ferrell did not pursue that
grievance any further.
III. Discussion
Dr. Person argues that Ferrell failed to exhaust his available administrative remedies with
regard to his claims in this case because, although he filed grievances regarding his medical care,
he did not complete the grievance process for any of those grievances. In response, Ferrell has
filed a “Notice” asserting that he is seriously mentally ill and asking “could or would exhaustion
be waived?”
The Prison Litigation Reform Act (“PLRA”) 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). The requirement to exhaust provides “that no
one is entitled to judicial relief for a supposed or threatened injury until the prescribed

administrative remedy has been exhausted.” Woodford v. Ngo, 548 U.S. 81, 88-89 (2006)
(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). Because exhaustion is an affirmative
defense, “the burden of proof is on the prison officials.” Kaba v. Stepp, 458 F.3d 678, 680 (7th
Cir. 2006). So here, Dr. Person bears the burden of demonstrating that Ferrell failed to exhaust
all available administrative remedies before he filed this suit. Id. at 681.
Dr. Person has met his burden here. It is undisputed that Ferrell failed to exhaust his
administrative remedies with regard to any of the grievances he filed. He filed grievances in May
and June of 2014, in which he apparently complained about the medical care he was receiving.
But he did not appeal the denial of those grievances. The material issue, then, is whether some
factor outside of his control rendered the Grievance Process unavailable to Ferrell. By asking
that the administrative process be waived, Ferrell appears to concede in response to the motion
for summary judgment that he did not exhaust his available administrative remedies. While he
asserts generally that he is mentally ill, Ferrell provides no argument or evidence to explain why
he was able to file grievances, but was not able to file an appeal of those grievances. He therefore
has failed to rebut Dr. Person’s showing that Ferrell failed to exhaust his available administrative
remedies.
Further, the grievances filed in August of 2016 are irrelevant to Ferrell’s claims. In his
amended complaint, Ferrell alleges that “on and before Oct. 17, 2014” he began complaining of

pain in his hand and that he did not receive proper treatment for that pain until he was sent to
Wabash Valley where he did get treatment by an orthopedic surgeon. Ferrell’s claims in this case
are therefore based on treatment he states he did not receive from Dr. Person while he was at
Pendleton in 2014. Grievances regarding the scheduling of his surgery in 2016, actions that Dr.
Person had nothing to do with, are therefore not relevant to Ferrell’s complaints regarding the
treatment he claims he did not receive from Dr. Person in 2014.
In sum, it is undisputed that Ferrell did not fully exhaust his available administrative
remedies as required by the PLRA. The consequence of these circumstances, in light of 42
U.S.C. § 1997e(a), is that Ferrell’s claims should not have been brought and must now be
dismissed without prejudice. See Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)
(explaining that “a prisoner who does not properly take each step within the administrative
process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from
litigating”); Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)(“We therefore hold that all
dismissals under § 1997e(a) should be without prejudice.”).
IV. Conclusion
Dr. Person’s motion for summary judgment Dkt. [21] is granted. Judgment consistent
with this Entry shall now issue.
IT IS SO ORDERED.

Date: 4/21/2017

Distribution:
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]
TYLER FERRELL
212720
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838