Case 2:19-cv-00367-JPH-MJD Document 32 Filed 04/24/20 Page 1 of 5 PageID #: 222
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`DEMETRIUS NEWELL,
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`ROBERT E. CARTER, et al.
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`v.
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`Defendants.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`Plaintiff,
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`No. 2:19-cv-00367-JPH-MJD
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`Entry Granting Defendants’ Motion for Partial Summary Judgment
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`Plaintiff Demetrius Newell, an Indiana prisoner incarcerated at the Wabash Valley
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`Correctional Facility (“WVCF”), brings this civil rights action alleging that the defendants denied
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`him meaningful review of his restrictive housing status in violation of the Fourteenth Amendment
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`and that the conditions of his confinement violate the Eighth Amendment.
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`Presently pending before the Court is the defendants’ partial motion for summary
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`judgment, which argues that Mr. Newell’s Eighth Amendment claim is barred under the exhaustion
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`provision of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, that requires a
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`prisoner to first exhaust his available administrative remedies before filing a lawsuit in court. For
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`the reasons that follow, the defendants’ motion for partial summary judgment, dkt. [20], is
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`granted.
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`I. Standard of Review
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`Summary judgment should be granted “if the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.
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`P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248 (1986). The court views the facts in the light most favorable to the
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`1
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`non-moving party, and all reasonable inferences are drawn in the non-movant’s favor. Ault v.
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`Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
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`II. Facts
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`Mr. Newell has been held in administrative segregation at WVCF since November 27,
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`2017, and he complains of two distinct constitutional violations. First, he alleges that the
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`defendants have not conducted meaningful reviews of his restrictive housing status in violation of
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`the due process clause of the Fourteenth Amendment. Second, he alleges that the conditions of his
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`confinement violate the Eighth Amendment because he is confined in a small cell 23 hours a day
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`(which remains lit at all times), is restrained while he is out of his cell, can only shower three times
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`a week, and eats his meals alone. This motion for summary judgment pertains only to whether
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`Mr. Newell has exhausted his administrative remedies for his Eighth Amendment claim.
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`The Offender Grievance Process provides a mechanism for inmates to express complaints
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`regarding topics of concern within the facility. Dkt. 20-1 at ¶ 7. Information about the Grievance
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`Process is included with the Admission and Orientation Paperwork for inmates entering WVCF.
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`Id. at ¶ 13. The Offender Grievance Process is available to offenders at all times, including when
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`they are in the restrictive housing unit. Id. at ¶ 12.
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`Under the Grievance Process, an inmate is first required to attempt to resolve a complaint
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`informally with an appropriate staff member. Dkt. 20-2 at 3. Second, if the inmate is unable to
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`resolve his complaint informally, he may submit a formal grievance to the Offender Grievance
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`Specialist. Id. Third, if the inmate is dissatisfied with the formal grievance response, he can appeal
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`to the Department Offender Grievance Manager. Id.
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`Mr. Newell’s grievance history contains no grievances related to the conditions of his
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`confinement. Dkt. 20-1 at ¶ 19. Grievance records indicate that Mr. Newell has filed only one
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`2
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`accepted formal grievance since November 27, 2018, which related to medical treatment for his
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`right hand. Id. at ¶ 20; dkt. 20-4.
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`Mr. Newell responded to the defendants’ motion, stating that inmates were not aware that
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`they could file a challenge to the 30-day review decision concerning their placement in restrictive
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`housing. Dkt. 23.
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`III. Discussion
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`The PLRA requires that “[n]o action shall be brought with respect to prison conditions
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`under section 1983 . . . until such administrative remedies as are available are exhausted.” 42
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`U.S.C. § 1997e; see Porter v. Nussle, 534 U.S. 516, 524-25 (2002). “[T]he PLRA’s exhaustion
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`requirement applies to all inmate suits about prison life, whether they involve general
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`circumstances or particular episodes, and whether they allege excessive force or some other
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`wrong.” Id. at 532 (citation omitted). The requirement to exhaust provides “that no one is entitled
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`to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has
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`been exhausted.” Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (citation omitted). Exhaustion of
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`available administrative remedies “‘means using all steps that the agency holds out, and doing so
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`properly (so that the agency addresses the issues on the merits).’” Id. at 90 (quoting Pozo v.
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`McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Proper use of the facility’s grievance system
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`requires a prisoner “to file complaints and appeals in the place, and at the time [as] the prison’s
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`administrative rules require.” Pozo, 286 F.3d at 1025; see also Dole v. Chandler, 438 F.3d 804,
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`809 (7th Cir. 2006).
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`The undisputed facts demonstrate that Mr. Newell did not file any grievances with respect
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`to his Eighth Amendment conditions-of-confinement claim. Mr. Newell’s response alleges that
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`inmates were unaware that there was a process to challenge the prison’s decision to keep them in
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`3
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`restrictive housing, but that argument relates to Mr. Newell’s Fourteenth Amendment claim, which
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`is not at issue here. He presents no evidence that he was unaware of the Grievance Process for
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`challenging the conditions of his confinement or was unable to use that process. See Smith v. Davis,
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`218 Fed. App’x 505, 507-08 (7th Cir. 2007) (agreeing with district court that administrative
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`remedies were available to inmate in segregation challenging the conditions of his confinement,
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`and he failed to properly exhaust them).
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`The consequence of Mr. Newell’s failure to exhaust his administrative remedies, in light
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`of 42 U.S.C. § 1997e(a), is that his Eighth Amendment conditions-of-confinement claim must be
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`dismissed without prejudice. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (holding that
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`“all dismissals under § 1997e(a) should be without prejudice.”).
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`IV. Mr. Newell’s Motion for a Pavey Hearing
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`Mr. Newell filed a motion for a hearing pursuant to Pavey v. Conley, 528 F.3d 494 (7th
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`Cir. 2008), to resolve the defendants’ defense that Mr. Newell failed to exhaust his available
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`administrative remedies prior to filing this action. Mr. Newell’s motion discusses only whether a
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`grievance process was available for inmates in restrictive housing to challenge the decision to keep
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`them in segregation. Again, Mr. Newell’s due process claim is not at issue in the defendants’
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`motion for summary judgment. Accordingly, Mr. Newell’s motion for a hearing, dkt. [31], is
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`denied.
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`V. Conclusion
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`For the foregoing reasons, the defendants’ motion for partial summary judgment, dkt. [20],
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`is granted, and Mr. Newell’s motion for a Pavey hearing, dkt. [31], is denied. Mr. Newell’s Eighth
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`Amendment claim is dismissed without prejudice. No partial final judgment shall issue as to the
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`claim resolved in this Order.
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`4
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`Case 2:19-cv-00367-JPH-MJD Document 32 Filed 04/24/20 Page 5 of 5 PageID #: 226
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`The Court will issue a separate scheduling order.
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`SO ORDERED.
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`Distribution:
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`DEMETRIUS NEWELL
`139043
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`Electronic Service Participant – Court Only
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`David C. Dickmeyer
`INDIANA ATTORNEY GENERAL
`David.Dickmeyer@atg.in.gov
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`Margo Tucker
`INDIANA ATTORNEY GENERAL
`margo.tucker@atg.in.gov
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`5
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`Date: 4/24/2020
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