OVERTON v. GRUBE et al

Filing 23

ENTRY Granting Defendant's Motion for Summary Judgment and Directing Entry of Final Judgment - 18 Motion for Summary Judgment is GRANTED. Claims against other defendants were dismissed in the screening entry of 5/6/2014. Judgment consistent with this Entry and the Entry of 5/6/2014 shall now issue. See Entry for details. Signed by Judge Tanya Walton Pratt on 4/23/2015 (copy mailed to plaintiff). (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
AARON MICHAEL OVERTON,

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Plaintiff,
vs.
MARK GRUBE,
Defendant.

Case No. 4:14-cv-0024-TWP-TAB

Entry Granting Defendant’s Motion for Summary Judgment and
Directing Entry of Final Judgment
This matter is before the Court on a Motion for Summary Judgment (Dkt. 18) filed by
Defendant Mark Grube (“Lt. Grube”). The plaintiff in this 42 U.S.C. § 1983 civil rights action is
Aaron Michael Overton (“Mr. Overton”), who at all relevant times has been a pretrial detainee at
the Clark County Jail (“the Jail”). Mr. Overton alleges that Lt. Grube wrongfully punished him on
or about April 30, 2013, in violation of the Fourteenth Amendment. Mr. Overton also brings a state
law claim of slander. Mr. Overton seeks compensatory damages and requests that Lt. Grube lose
his job.
Mr. Overton has opposed the motion for summary judgment and Lt. Grube has replied. For the
reasons explained in this Entry, the Motion for Summary Judgment is GRANTED.
I.

Legal Standard

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
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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
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)).
II.

Undisputed Facts

On the basis of the pleadings and the expanded record, and specifically on the portions of
the record which comply with the requirements of Rule 56(c), the following facts, construed in the

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manner most favorable to Mr. Overton as the non-movant, are undisputed for purposes of the
motion for summary judgment:
On April 30, 2013 there was an altercation in the Jail, for which Mr. Overton and another
inmate were wrongfully charged and punished. Mr. Overton was slandered on the Channel 11
news for a C felony battery that he did not commit. He told Lt. Grube and other Jail officers that
he did not do anything and that he was innocent. Mr. Overton alleges that Lt. Grube committed
perjury in a probable cause affidavit by stating that he reviewed the camera footage of the incident
and saw Mr. Overton assault another inmate.
The Clark County Jail’s Rules & Regulations Number 13.3, (III) Inmate Grievance
Procedures, provides, in pertinent part, as follows:
II. Procedures:
A. The grievance procedures for inmates of the Clark County Jail have been
established for inmates to present complaints and problems relating to the
conditions of their confinement. It is intended to be the mechanism to which
inmates may resort after they have attempted to resolve the problem or complaint
with the corrections personnel most directly responsible for the aspect of
institutional life in question.
B. Except as otherwise indicated below, a grievance may relate to any aspect of
institutional life. It may concern Departmental, Correctional policies, procedures,
rule and regulations, or the application of any of these to the grievant. It may also
relate to actions on the part of corrections personnel or inmate affecting the
grievant. A grievance must be specific in its description of the complaint or
problem. A grievance filed with the jail commander must be individual in nature,
even though other inmates may be similarly affected.
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D. Each inmate shall receive either a written or an oral response as soon as possible,
but in no event, more than five (5) working days after receipt by the appropriate
employee or administrator. Normal and routine requests and inquiries shall be
handled informally.

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E. An inmate shall first attempt to resolve his grievance by contacting, in person or
in writing, the appropriate corrections officer whose area of responsibility is related
to the grievance.
F. If the grievance is not resolved to the satisfaction of the inmate, he may, in
writing only, notify the jail commander of his grievance.
III. Grievance Resolution Procedure
The grievance resolution procedure shall be as follows:
A. Upon notification by an inmate, in writing, of a grievance, the jail commander
or his designee shall take such action as necessary to resolve the grievance.
B. The jail commander shall authorize all interviews, records research, or any other
investigations necessary to effect a proper resolution of the grievance. He or his
designee shall maintain a written report of his investigations, as well as his
conclusions and recommendations on actions concerning the grievance.
C. Should the grievance not be resolved by the jail commander or his designee
within ten (10) working days, he shall notify the inmate in writing of the reasons
for the extension of time.
D. In all cases the jail commander or his designee will provide the inmate with
written notice of his resolution of his grievance and the reasons for that resolution.
E. Whenever the inmate is dissatisfied with the resolution of his grievance, he may,
within five (5) working days of receipt of written notice of the resolution of his
grievance, appeal in writing to the jail commander. The jail commander shall notify
the inmate in writing, within twenty (20) working days of the decision of the appeal.
If the jail commander requires additional time, he shall notify the inmate, in writing,
of the reasons for the extension, with a copy to the Sheriff.
Dkt. 20-1.
Upon commitment to the Jail, upon request, each inmate is given a copy of the Jail’s
“Inmate Rules and Regulations” rulebook. The rulebook explains the grievance procedures to the
inmates. The inmates are also generally informed orally of the grievance procedures available to
them. Mr. Overton filed a grievance on March 9, 2014, more than ten months after the incident at

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issue occurred. Lieutenant Retha Boley (“Lt. Boley”) responded to the grievance on March 13,
2014. Mr. Overton did not file an appeal from Lt. Boley’s response to his grievance.
With regard to Mr. Overton’s allegation that he was slandered, Both Lt. Grube and Rick
Elliott (“Director Elliott”), the Director of Corrections, have submitted affidavits that to their
knowledge “nobody from the Clark County Jail contacted any news outlet concerning Plaintiff’s
charges.” (Dkt. 20-1 at p. 4 ¶ 25, Dkt. 20-2 at p 2 ¶ 8).
III.

Discussion

Lt. Grube seeks resolution of Mr. Overton’s federal claim through the entry of summary
judgment based on the affirmative defense that Mr. Overton failed to exhaust his available
administrative remedies prior to filing the complaint. He also seeks dismissal of the slander claim
on the merits. The Court will address each argument in turn.
A. Analysis of Exhaustion Defense
The Jail’s policy is essentially a three step process. First, inmates are encouraged to attempt
to resolve their grievances informally. Second, if they are unable to resolve the grievance
informally, they are provided a grievance form to complete. Third, if the inmate is unsatisfied by
the investigating officer’s decision, the inmate may, within five (5) days of receipt of written notice
of the resolution of his grievance, appeal in writing to the jail commander.
Mr. Overton filed a grievance on March 9, 2014, over ten months after the April 30, 2013,
assault. He received a written response to his grievance four days later, on March 13, 2014. In
response to the motion for summary judgment, Mr. Overton submitted some documents and
reported that he enclosed his evidence of his exhausting administrative remedies. (Dkt. 21). He
asserted, “I exhausted my administrative remedies before the filing of this case.” Id. One document
appears to be a copy of the grievance he submitted on March 9, 2014. (Dkt. 21-1, p. 1). The other

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documents are purportedly of grievance forms, one dated March 30, 2014, and on another the date
is illegible. (Dkt. 21-1, pp. 2-3). The summaries on the forms are illegible, and Mr. Overton has
not provided any statement of material facts or any sworn statement of his version of what
transpired in relation to the exhaustion process. In sum, there is no evidence that Mr. Overton filed
an appeal of the response to his grievance and thereby completed his available administrative
remedies.
“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) (emphasis
added). Mr. Overton failed to complete the exhaustion process before filing this lawsuit. Defendant
Lt. Grube is entitled to summary judgment on this basis. Therefore, in light of 42 U.S.C. §
1997e(a), the federal claim against Lt. Grube should not have been brought and must now be
dismissed without prejudice. See Ford, 362 F.3d at 401 (“We therefore hold that all dismissals
under § 1997e(a) should be without prejudice.”).
B. Slander Claim
Mr. Overton alleges in his complaint that he was “wrongfully charged and slandered across
the news.” Generally speaking, slander is an oral type of defamation. 18 Ind. Law. Encyc., Libel
and Slander § 1. Under Indiana law, to maintain an action for defamation, “a plaintiff must show
a communication with four elements: (1) defamatory imputation; (2) malice; (3) publication, and
(4) damages.” Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind.Ct.App. 1998). Under Indiana law,
the plaintiff must include in his complaint the alleged defamatory statement and the speaker of the
statement. Columbus Specialty Surgery Center v. Southeastern Indiana Health Org., Inc., 22
N.E.3d 665, 669-70 (Ind.Ct.App. 2014). Mr. Overton has not pleaded nor has he presented any
evidence that Lt. Grube published a communication against him with malice. Further, Mr. Overton

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has offered no evidence to dispute Lt. Grube and Director Elliott’s statements that no one from the
Jail contacted any news outlet concerning the April 30, 2013, incident. Therefore, Lt. Grube is
entitled to summary judgment on the supplemental state law claim.
IV.

Conclusion

For the reasons explained above, the Motion for Summary Judgment filed by Lt. Grube
(Dkt. 18) is GRANTED. Claims against other defendants were dismissed in the screening Entry
of May 6, 2014. Judgment consistent with this Entry and with the Entry of May 6, 2014, shall now
issue.
IT IS SO ORDERED.

Date: 4/23/2015

Distribution:
Aaron Michael Overton
#90623
Clark County Jail
501 E. Court Avenue
Jeffersonville, IN 47130
Electronically registered counsel

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