COMER v. GRAMAGLIA et al

Filing 25

ENTRY DENYING 20 MOTION FOR SUMMARY JUDGMENT: Defendants' Motion for Summary Judgment 20 is DENIED and the affirmative defense of failure to exhaust administrative remedies is REJECTED. (Copy sent to pltf. via U.S. mail.) Signed by Judge Tanya Walton Pratt on 6/11/2015. (MAG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
JOSHUA EMMANNUAL COMER,

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Plaintiff,
vs.
GUY GRAMAGLIA Lieutenant,
JERRY KINNETT Deputy Sheriff,
Defendants.

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

ENTRY DENYING MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant’s Guy Gramaglia’s (“Lt. Gramaglia”) and
Jerry Kinnett’s (collectively, “Defendants”) Motion for Summary Judgment (Filing No. 20).
Plaintiff Joshua E. Comer (“Mr. Comer”), a former inmate at the Dearborn County Jail, filed this
pro se civil action against Defendants alleging that they failed to protect him from physical attack
by another inmate in violation of his Eighth and Fourteenth Amendment rights. Specifically, Mr.
Comer claims that he requested and was denied placement in protective custody because of
overcrowding. His claims are brought pursuant to 42 U.S.C. § 1983. He seeks monetary damages
and injunctive relief. For the reasons stated below, Defendants’ Motion is DENIED.
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). The Court views the facts in the light most favorable to
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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.

STATEMENT OF FACTS

The following statement of facts is not necessarily objectively true, but as the summary
judgment standard requires, the undisputed facts and disputed evidence are presented in the light
reasonably most favorable to Mr. Comer as the non-moving party. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
On June 23, 2014, Mr. Comer made Lt. Gramaglia aware of his need for protection from
inmate Jeffrey Stamler (“Mr. Stamler”). Lt. Gramaglia told Mr. Comer that due to overcrowding,
he did not have any place to move him, however Lt. Gramaglia stated that he would speak with
Mr. Stamler and try to resolve the problem. Lt. Gramaglia instructed Mr. Stamler that if he came
down the stairs he would have criminal charges filed against him and if Mr. Comer went up the
stairs he would have charges made against him also. Thereafter, Lt. Gramaglia returned Mr.
Comer to the dayroom where he was later physically assaulted by Mr. Stamler. On July 9, 2014,
Mr. Comer filed this action alleging deliberate indifference and violation of his Eighth and
Fourteenth Amendment rights when Defendants failed to protect him from being attacked
physically by another inmate at the Dearborn County Law Enforcement Center.
On December 30, 2014, Defendants filed their Motion for Summary Judgment arguing that
the claims alleged against them are barred under the exhaustion provision of the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e, that requires a prisoner to first exhaust his available
administrative remedies before filing a lawsuit in court. No response was filed by Mr. Comer and
the deadline for doing so has passed.
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III. DISCUSSION
“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). 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, the Defendants bear the

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burden of demonstrating that Mr. Comer failed to exhaust all available administrative remedies
before he filed this suit. Id. at 681.
The Defendants have not met their burden to show that Mr. Comer “had available remedies
that [he] did not utilize.” Dale, 376 F.3d at 656. There is no evidence regarding any grievance
policy at the Dearborn County Jail. In addition, the claim in this case is failure to protect and the
evidence submitted demonstrates that Mr. Comer submitted a grievance on June 27, 2014, two
days after he was attacked by Mr. Stamler. Mr. Comer writes:
On June 25th, 2014, while under supervision in care And [sic] Responsibility [sic]
of your guard Deputy Sheriff Jerry. My safety was jeopardized when Jerry opened
our door and it let another inmate physically Attack [sic] and Assault [sic] me in
which I suffered with injuries needing 4 stiches [sic] that I got when I went to the
hospital. The Jail staff was well aware of the issues involving Racial [sic] slurs 2
days before. Please address safety issues.
Filing No. 14-1.
Based on the record, the Defendants have not shown that more was required of Mr. Comer under
the Jail’s grievance policy. A primary purpose of the exhaustion requirement is to allow prison
officials the time and opportunity to respond to complaints internally before an inmate starts
litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001). The level of detail necessary
in a grievance will vary from system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion. Jones v. Bock,
549 U.S. 199, 218 (2007). Where the administrative policy is silent, “a grievance suffices if it
alerts the prison to the nature of the wrong for which redress is sought.” Strong v. David, 297 F.3d
646, 650 (7th Cir. 2002); see also Wilder v. Sutton, 310 Fed. Appx. 10, 15, 2009 WL 330531, *4
(7th Cir. 2009) (“prisoners must only put responsible persons on notice about the conditions about
which they are complaining”). An offender “need not lay out the facts, articulate legal theories,
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or demand particular relief” so long as the grievance objects “intelligibly to some asserted
shortcoming.” Strong, 297 F.3d at 650.

IV. CONCLUSION
Based on the evidence presented, Defendants have failed to meet their burden of proving
that there was an available administrative remedy that Mr. Comer failed to utilize before filing the
instant lawsuit. The Defendants have failed to come forward with evidence which would warrant
a hearing. Accordingly, Defendants’ Motion for Summary Judgment (Filing No. 20) is DENIED
and the affirmative defense of failure to exhaust administrative remedies is REJECTED.
It must be noted that Defendants improperly argued the merits of Mr. Comer’s claim in
their motion for summary judgment on the issue of exhaustion. Defendants were previously
instructed that their exhaustion 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.”).
They were specifically instructed not to file a dispositive motion which incorporates other
defenses. Further, discovery was specifically limited to that necessary to resolve the exhaustion
defense. See Filing No. 19. These instructions were disregarded by the Defendants. As the
Defendants were previously warned, their additional grounds for relief shall not be considered at
this time.
SO ORDERED.
Date: 6/11/2015
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DISTRIBUTION:
Joshua Emmannual Comer, #253720
PUTNAMVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
1946 West U.S. Hwy 40
Greencastle, Indiana 46135
Kenneth Anthony Collier-Magar
LAW OFFICES OF COLLIER-MAGAR
[e-mail]

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