LOWDER v. CARDINAL et al

Filing 45

Entry Granting Defendant Dr. Chavez's Motion for Summary Judgment - Dr. Chavez's evidence that Mr. Lowder did not exhaust his administrative remedies against her is persuasive and unrebutted by Mr. Lowder. Accordingly, her motion for summary judgment, dkt. 24 , is granted and she is dismissed from this action. No partial final judgment shall issue at this time. The action shall proceed against the remaining defendants. A pretrial schedule shall enter separately. The stay of proceedings entered May 25, 2017, is lifted (SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus-Stinson on 1/17/2018. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CURT LOWDER,
Plaintiff,
v.
MS. CARDINAL Counselor,
MS. FISCHER Counselor,
MS. RIGGS Registered Nurse,
DR. CHAVEZ,
Defendants.

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No. 2:17-cv-00125-JMS-MJD

Entry Granting Defendant Dr. Chavez’s Motion for Summary Judgment
Defendant Dr. Mary Ann Chavez seeks summary judgment on her assertion that plaintiff
Curt Lowder did not exhaust his administrative remedies as to her prior to filing this action. For
the reasons explained below, Dr. Chavez’s motion, dkt. [24], is granted.
I. Background
Curt Lowder is an Indiana prison inmate. Dr. Chavez is a medical provider in one of the
prisons. Mr. Lowder asserts that on September 15 and December 15, 2016, Dr. Chavez was
deliberately indifferent to his serious medical needs when she halved his pain medication, changed
the timing of pain medication doses, and refused to increase his Neurontin pain medication. He
brought this 42 U.S.C. § 1983 civil rights action against Dr. Chavez, in addition to other claims
against other defendants, in March 2017.

II. Discussion
A.

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 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). 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).
“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 the motion for summary judgment is the Prison
Litigation Reform Act (“PLRA’”), which requires that a prisoner exhaust his 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.” Id. 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

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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).
It is the defendant’s burden to establish that the administrative process was available to
Mr. Lowder. See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) (“Because exhaustion is an
affirmative defense, the defendants must establish 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).
B.

Undisputed Facts
1.

Parties

At all times relevant to the issues in this lawsuit Curt Lowder was an Indiana prison inmate
incarcerated at the Wabash Valley Correctional Facility (WVCF). Dr. Chavez was a medical
provider at the prison. Teresa Littlejohn is the grievance specialist at WVCF.
2.

Grievance Process

The Indiana Department of Correction (“IDOC”), Offender Grievance Process, Policy
00-02-301, has applied to Mr. Lowder during his incarceration. Dkt. 26-2. 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. Id. at ¶ I.

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The Offender Grievance Process consists of three stages: (i) an informal attempt to solve a
problem or address a concern, which can be followed by (ii) submission of a written form outlining
the problem and other supporting information, and the response to that submission, which can be
followed by (iii) a written appeal of the response to a higher authority and the response to that
appeal. Id. at ¶ IV.
Under the Offender Grievance Process, an offender is required to attempt to resolve a
complaint informally before filing a formal grievance. Id. at ¶ X. To do this, the inmate must
complete State Form 52897, Offender Complaint-Informal Process Level. Id. If an inmate is
unable to resolve his complaint informally, he may file a Formal Grievance by submitting a
completed Form 45471, “Offender Grievance,” no later than 20 business days from the date of the
incident giving rise to the complaint or concern. Id. at ¶ XI. If the inmate disagrees with the formal
response at the facility level, he is permitted to appeal the response to the Offender Grievance
Manager. The inmate may mark the line on the Level 1 Finding (i.e., Facility Finding) next to
“Disagree” if he wishes to proceed to an appeal. Id., ¶ XII. If an inmate receives no response within
twenty (20) business days of being investigated by the Grievance Specialist, he may appeal as
though the grievance has been denied. Id.
The Grievance Manager must complete the investigation and submit a response to the
appeal within fifteen (15) business days from the date of receipt. Id., ¶ XIII.
Teresa Littlejohn, as the Grievance Specialist at WVCF, is responsible for keeping the
grievance records of all grievances pursued there. Dkt. 26-1. Ms. Littlejohn testified by affidavit
that Mr. Lowder has filed other grievances, but he has never filed a grievance against Dr. Chavez
or a grievance describing any of the actions he ascribed to Dr. Chavez. Dkt. 26-1, ¶¶ 14-17. The

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grievance log submitted as evidence by Ms. Littlejohn reflects that the most recent grievance filed
by Mr. Lowder was a formal appeal received on March 31, 2016. Dkt. 26-3.
C.

Analysis

Mr. Lowder does not contend that any part of the grievance process was unavailable to
him. Dkts. 30 & 31. Instead, he contends that he filed grievances against the entire medical staff,
and that because he is not required to provide specific names, the grievances against the entire
staffed necessarily included Dr. Chavez. Dkt. 31. He also submits as evidence two health care
request forms he used to make medical supervisors aware of his complaints against Dr. Chavez.
Dkt. 30-4.
The summary judgment evidence demonstrates that Mr. Lowder’s only grievances were
filed before the interactions with Dr. Chavez occurred. His most recent grievance appeal was in
March, 2016, and Dr. Chavez’s first interaction with Mr. Lowder that is the subject of this lawsuit
was in September, 2016, some six months later. Therefore, the grievances Mr. Lowder contends
exhausted his administrative remedies against Dr. Chavez could not have done so because they
were filed before the incidents of which he complains.
The two health care request forms that Mr. Lowder also submits in an effort to show he
exhausted his administrative remedies are not grievance forms. The IDOC recognizes only one
grievance system, discussed above, and it does not include writing health care request forms
complaining about medical staff conduct. To exhaust administrative remedies, Mr. Lowder was
required to follow the three-step grievance process. See Section II.B.2., supra. He did not do so
with respect to Dr, Chavez or either of the September and December, 2016, interactions with her.
Therefore Mr. Lowder failed to exhaust available administrative remedies as to his claims against

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Dr. Chavez, and those claims are precluded by the Prison Litigation Reform Act. 42 U.S.C.
§ 1997e(a).
III. Conclusion
Dr. Chavez’s evidence that Mr. Lowder did not exhaust his administrative remedies against
her is persuasive and unrebutted by Mr. Lowder. Accordingly, her motion for summary judgment,
dkt. [24], is granted and she is dismissed from this action.
No partial final judgment shall issue at this time. The action shall proceed against the
remaining defendants. A pretrial schedule shall enter separately. The stay of proceedings entered
May 25, 2017, is lifted.
IT IS SO ORDERED.

Date: 1/17/2018

Distribution:
Electronically Registered Counsel
Curt Lowder
972067
Pendleton Correctional Facility
Electronic Service Participant – Court Only

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