COMER v. GRAMAGLIA et al

Filing 13

ENTRY Directing Development of Affirmative Defense Regarding Asserted Failure to Exhaust Available Administrative Remedies - The defendants shall have through September 30, 2014, in which to either 1) file a dispositive motion in support of the affir mative defense that the plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit, 2) notify the court that this affirmative defense is not amenable to resolution through a dispositive motion, or 3) notify the court that th e defendant will not pursue the affirmative defense of failure to exhaust. If a dispositive motion is filed, the plaintiff shall have thirty (30) days in which to respond. The defendants shall then have fifteen (15) days in which to reply. All other proceedings and deadlines are stayed. Signed by Judge Tanya Walton Pratt on 8/22/2014 (copy mailed to plaintiff).(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
JOSHUA EMMANNUAL COMER,
Plaintiff,
vs.
GUY GRAMAGLIA Lieutenant,
JERRY KINNETT Deputy Sheriff,
Defendants.

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Case No. 4:14-cv-00064-TWP-DML

Entry Directing Development of Affirmative Defense Regarding
Asserted Failure to Exhaust Available Administrative Remedies
The defendants have asserted the affirmative defense that the plaintiff failed to exhaust
his administrative remedies prior to filing this lawsuit. This defense must be resolved before
reaching the merits of this case. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Perez v.
Wis. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999) (“The statute [requiring administrative
exhaustion] can function properly only if the judge resolves disputes about its application before
turning to any other issue in the suit.”). Accordingly, the defendants shall have through
September 30, 2014, in which to either 1) file a dispositive motion in support of the affirmative
defense that the plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit,
2) notify the court that this affirmative defense is not amenable to resolution through a
dispositive motion, or 3) notify the court that the defendant will not pursue the affirmative
defense of failure to exhaust. If a dispositive motion is filed, the plaintiff shall have thirty (30)
days in which to respond. The defendants shall then have fifteen (15) days in which to reply.
All other proceedings and deadlines are stayed.
IT IS SO ORDERED.

Date: 8/22/2014

Distribution:
JOSHUA EMMANNUAL COMER
Dearborn County Jail
301 West High Street
Lawrenceburg, IN 47025
All Electronically Registered Counsel