TINGLE-DUNCIL v. JEFFERSON COUNTY SHERIFF'S DEPARTMENT et al

Filing 25

ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT - Defendant Jefferson County Sheriff's Department's Motion for Summary Judgment, Filing No. 16 , is DENIED, and Defendant Advanced Correctional Healthcare, Inc.'s Mo tion for Summary Judgment, Filing No. 17 , is DENIED. Defendants shall have through Tuesday, June 25, 2024, by which to (a) withdraw their affirmative defense of exhaustion, or (b) request a hearing pursuant to Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). See Order for additional information. Signed by Judge Tanya Walton Pratt on 6/4/2024. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
ALAINA TINGLE-DUNCIL,
Plaintiff,
v.
JEFFERSON COUNTY SHERIFF'S
DEPARTMENT, and ADVANCED
CORRECTIONAL HEALTHCARE, INC.
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:23-cv-00167-TWP-KMB

ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on Motions for Summary Judgment filed by Defendant
Jefferson County Sheriff's Department ("the Sheriff") (Filing No. 16) and Advanced Correctional
Healthcare, Inc. ("ACH") (Filing No. 17) (collectively, "the Defendants"). Plaintiff Alaina TingleDuncil ("Ms. Tingle-Duncil") suffered a miscarriage while incarcerated in the Jefferson County
Jail (the "Jail") and required medical attention. She filed this civil rights action under 42 U.S.C.
§ 1983 and supplemental state tort claims pertaining to her medical care and the disposition of her
fetus' remains. Defendants seek summary judgment arguing that the action should be dismissed
because Ms. Tingle-Duncil did not exhaust her administrative remedies. Because there are genuine
disputes of material fact regarding the availability of the grievance process, the motions for
summary judgment, are denied.
I.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment asks the court to find that there is no genuine dispute as
to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Federal
Rule of Civil Procedure 56(a). Whether a party asserts that a fact is undisputed or genuinely

disputed, the party must support the asserted fact by citing to particular parts of the record,
including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also
support a fact by showing that the materials cited do not establish the absence or presence of a
genuine dispute or that the adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(B).
The moving party is entitled to summary judgment if no reasonable factfinder could return
a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The court
views the record in the light most favorable to the non-moving party and draws all reasonable
inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018).
The court need only consider the cited materials and need not "scour the record" for evidence that
is potentially relevant to the summary judgment motion. Grant v. Trs. of Ind. Univ., 870 F.3d 562,
573−74 (7th Cir. 2017) (quotation marks omitted); see also Fed. R. Civ. P. 56(c)(3).
II.
A.

BACKGROUND

Allegations in Complaint
According to Ms. Tingle-Duncil's Complaint 1, when she entered the Jail on August 9, 2021,

she was approximately 9 weeks pregnant. On September 28, 2021, she learned from Jail medical
staff that her baby had died and had likely been deceased for three weeks. (Filing No. 1 at 3.)
On October 1, 2021, Ms. Tingle-Duncil was provided four different medications intended
to induce a miscarriage and was then sent back to her cellblock. Id. Before the procedure, she
received no information regarding her right to determine the final disposition of the remains of the
aborted or the disposition policy of the health care facility concerning the disposition of the aborted
fetus, as required by Indiana Codes §§ 16-34-3 and 23-14-54. Nor was she provided the

1

Which Ms. Tingle-Duncil titled "Amended Complaint".

2

opportunity to view the fetal ultrasound imaging as required by Indiana Code § 16-34-2-1.1, or
given certain advisements about follow-up care or warnings about potential side effects as required
by Indiana law. Id. at 4. Ms. Tingle-Duncil was not provided "the name of the physician
performing the abortion, the physician’s medical license number, and an emergency telephone
number where the physician or the physician’s designee may be contacted on a twenty-four (24)
hour a day, seven (7) day a week basis," as required by Indiana law. Id.
Within an hour of returning to her cell, Ms. Tingle-Duncil began experiencing severe
abdominal pain and hemorrhaging. She became too weak to shower or eat. She requested
assistance from Jail staff, who ignored her. Ms. Tingle-Duncil remained in the cellblock for five
days where she experienced continued medical complications and was cared for by fellow inmates
because Jail and medical staff ignored her requests for help. Id. at 5.
Six days after she took the medication, she was taken to an area hospital where she was
diagnosed with an incomplete abortion and received two units of blood. Id.
B.

Grievance Procedure at the Jail
The Jail's inmate grievance procedures are found in the Jefferson County Correctional

Facility Inmate Handbook (the "Handbook"). (Filing No. 16-3 at 16-18.) The Handbook states,
"A grievance is a complaint and must pertain to a rule or procedure, including a complaint of
oppression or misconduct by an employee in administering such rules." (Filing No. 16-3 at 16.)
A section titled "Inmate Grievance" explains the process. Id. at 17. It begins by explaining
that informal grievances can be communicated to an officer verbally, and if the issue is resolved
informally, no written grievance is required. Id. If the issue is not resolved informally, a formal
grievance must be submitted via the kiosk within seven days of the event or knowledge of the
event being grieved. Id. The grievance is then forwarded to the appropriate staff member. Id.

3

The inmate can view the response by viewing it on the kiosk (or receiving the response in writing
if no kiosk is available). Id. An inmate can appeal an unsatisfactory response by writing the Major
or Jail Commander within five days of the response. Id. Subsequent appeals must be addressed
to the Sheriff within five days of the previous response. Id. at 18. The appeal must be in writing
and include a copy of the previous response. Id. Further, there is a separate section for grievances
directed to ACH, which states:
ADAVANCE [sic] CORRECTIONAL HEALTHCARE SERVICES GRIEVANCES
•

All attempts will be made to resolve inmate complaints on an informal basis
with medical personnel.

•

Other complaints will be reviewed and responded to within seven (7) days.

Id. at 17.
C.

Ms. Tingle-Duncil's Use of the Grievance Process
Jail Commander Joseph Snell reviewed Ms. Tingle-Duncil's inmate records and found one

grievance. (Filing No. 16-2 at ¶ 9.) This grievance, dated October 3, 2021, was on a form titled
"Jefferson County Jail Medical Grievance Form" and stated, "[I] want to give my mother Yvonne
Zdonkewicez p[er]mission to get my med[ica]l records [p]lease[.]" (Filing No. 16-4 at 2.) A nurse
responded two days later that "Pt advised during flu visit that we cannot release records to family
members or discuss treatment unless they have POA." Id.
D.

Disputes of Fact
Commander Snell attested that based on his experience as jail commander and his review

of inmate records, Ms. Tingle-Duncil received a copy of the Handbook. (Filing No. 16-2 at ¶ 7.)
Ms. Tingle-Duncil was shown a copy of the Handbook when preparing her response to the
motions for summary judgment. (Filing No. 20-1 at ¶ 2.) She attests that, "At no time was that
document reviewed with me nor was I provided a copy of it while I was incarcerated in the
4

Jefferson County Jail." Id. Although Ms. Tingle-Duncil submitted a grievance about the medical
records, she "was not advised that [her] grievance rights extended to events [at] the jail and medical
providers not following Indiana law regarding what they were supposed to have in order to perform
procedures, like the one [she] was forced to experience." Id. at ¶ 3. Ms. Tingle-Duncil also attests
that during the time she was sick in the Jail, she "was so physically weak and in pain and mentally
exhausted" that she physically could not have submitted a grievance, even if she had been aware
of the grievance policy. Id. at ¶ 11.
In reply, Defendants submitted the affidavit of Richard Pryor, the Records Custodian for
Combined Public Communications.

(Filing No. 22-1 at ¶¶ 1, 4.)

Combined Public

Communications keeps and maintains records for the Jefferson County Sheriff's Office, including
"records flowing from Jail inmates acknowledging receipt of the Jefferson County Correctional
Facility Inmate Handbook."

Id. at ¶ 5.

According to those records, Ms. Tingle-Duncil

acknowledged receipt of the Handbook on August 14, 2021, September 28, 2021, October 28,
2021, December 2, 2021, January 3, 2022, and December 7, 2023. Id. at ¶ 6. He attached the
following record to his affidavit:

Id. at ¶ 8.

5

There is no explanation from any of the parties as to what form this acknowledgement takes
or when.
III.

DISCUSSION

The Prison Litigation Reform Act ("PLRA") provides, "No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility 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." Porter, 534 U.S. 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.
"To exhaust available remedies, a prisoner must comply strictly with the prison's administrative
rules by filing grievances and appeals as the rules dictate." Reid v. Balota, 962 F.3d 325, 329 (7th
Cir. 2020).
While a prisoner "must exhaust available remedies," she "need not exhaust unavailable
ones." Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). An administrative procedure is unavailable
when 1) the process operates as a "simple dead end," 2) when it is so opaque that it is incapable of
use, or 3) when "prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation." Id. at 1859–60. Exhaustion is an

6

affirmative defense, and the defendant bears the burden of demonstrating that the plaintiff failed
to exhaust all available administrative remedies before she filed this suit. Thomas v. Reese, 787
F.3d 845, 847 (7th Cir. 2015). "To meet their burden, the defendants must show beyond dispute
that remedies were available." Ramirez v. Young, 906 F.3d 530, 534 (7th Cir. 2018).
"If a remedy is 'officially on the books' but the remedy is incapable of use in practice,
perhaps because the prison's grievance processes have not been maintained or are unduly difficult
to navigate, then the duty to exhaust falls away." Miles v. Anton, 42 F.4th 777, 780 (7th Cir. 2022).
Further, where a dispute involves ambiguous policy language, the ambiguity is resolved in favor
of the inmate. Id. at 782.
Here, there are material questions of fact related to the availability of the grievance process.
First, a grievance process may be unavailable if prison personnel fail to inform inmates about the
process. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016) ("[P]rison officials must inform the
prisoner about the grievance process. The prison cannot shroud the prisoner in a veil of ignorance
and then hide behind a failure to exhaust defense to avoid liability.") (cleaned up). Defendants
argue that Ms. Tingle-Duncil had access to the grievance process because (1) she filed a grievance
requesting a copy of her medical records; (2) inmates receive a copy of the Handbook upon
booking; and (3) a printout of a database shows Ms. Tingle-Duncil confirmed receipt of the
Handbook on six occasions.
As it relates to Ms. Tingle-Duncil's sole grievance, it was simply a request for medical
records rather than a complaint. Further, the printout submitted by record keeper Richard Pryor is
ambiguous and was presented with no context whatsoever. Does it indicate that Ms. Tingle-Duncil
received six copies of the Handbook? Ms. Tingle-Duncil has at least raised an issue of fact on this
point, affirming that she never saw a copy of the Handbook before preparing the response to

7

Defendants' motion. Defendants have not met their burden that Ms. Tingle-Duncil was informed
of the grievance process.
Moreover, there is an ambiguity in the policy. Both Defendants' memoranda state that an
inmate must submit a grievance within seven days of the relevant event. (See generally, Filing
No. 16-1 at 2; Filing No. 18 at 2.) But the policy also states that if an issue is resolved informally,
"then the grievance does not need to be submitted formally." (Filing No. 16-3 at 17.) At some
point during Ms. Tingle-Duncil's five days of medical discomfort, she or other inmates complained
enough that she was taken to the hospital—did that resolve the issue?
Finally, Ms. Tingle-Duncil's contention that she was too ill to comply with the grievance
process was not adequately addressed by Defendants. See Weiss v. Barribeau, 853 F.3d 873, 875
(7th Cir. 2017) (noting that an inmate suffering a mental breakdown would not be required to
exhaust because such remedies are unavailable "if the prisoner can't obtain or complete the forms
required to invoke them."). Although she submitted a medical grievance form to ACH requesting
her medical records on October 3, 2021 (after her miscarriage was induced), there is no evidence
in the record as to how this form was submitted, and whether it would be submitted in the same
manner as a grievance directed to Jail staff, given that the grievance policy presents separate tracks
for grieving Jail staff and grieving ACH staff.
In summary, there are disputes of material fact with respect to whether the grievance
process was unavailable, either because Ms. Tingle-Duncil was not informed about the process or
because she was too sick to file a grievance. There is also a possibility that Ms. Tingle-Duncil's
grievance was resolved informally, obviating the need for her to file a written grievance, when she

8

was taken to the hospital. 2 Accordingly, the Defendants' Motions for Summary Judgment must be
denied.
IV.

CONCLUSION

For the reasons explained above, Defendant Jefferson County Sheriff's Department's
Motion for Summary Judgment, Filing No. 16, is DENIED, and Defendant Advanced Correctional
Healthcare, Inc.'s Motion for Summary Judgment, Filing No. 17, is DENIED. Defendants shall
have through Tuesday, June 25, 2024, by which to (a) withdraw their affirmative defense of
exhaustion, or (b) request a hearing pursuant to Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). 3
SO ORDERED.
Date: 6/4/2024

DISTRIBUTION:
J. Clayton Culotta
CULOTTA & CULOTTA LLP
[e-mail]
Justin M. Schaefer
BARNES MALONEY PLLC
[e-mail]
Patrick Muldoon
BARNES MALONEY PLLC
[e-mail]

As it relates to her state law claims concerning the disposition of her fetus' remains, the Court observes that those
are state law claims rather than federal claims, so it is unclear that the PLRA would apply to them.

2

In Pavey, the Seventh Circuit instructed district courts to conduct a hearing when "exhaustion is contested" to
determine whether a plaintiff has exhausted his administrative remedies.

3

9

Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
[e-mail]
Travis W. Montgomery
BLEEKE DILLON CRANDALL, P.C.
[e-mail]

10