Case 2:20-cv-00153-JPH-DLP Document 20 Filed 12/10/20 Page 1 of 8 PageID #: 265
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`SEAN ELLISON,
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`Plaintiff,
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`v.
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`Defendants.
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`No. 2:20-cv-00153-JPH-DLP
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`RICHARD BROWN, et al.
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`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
`FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
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`Plaintiff Sean Ellison, an inmate at Wabash Valley Correctional Facility ("WVCF"), claims
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`his prolonged placement in administrative segregation violated his Fourth, Fifth, Eighth, and
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`Fourteenth Amendment rights. The defendants have filed a motion for partial summary judgment,
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`arguing that Mr. Ellison failed to exhaust his available administrative remedies on his Eighth
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`Amendment claims. Mr. Ellison, by counsel, argues that these administrative remedies were not
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`"available" because WVCF staff failed to process his formal grievance complaining about his
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`placement in administrative segregation after the expiration of his disciplinary sanction. For the
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`reasons explained below, the motion for partial summary judgment is GRANTED.
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`I.
`SUMMARY JUDGMENT STANDARD
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`A motion for summary judgment asks the Court to find that the movant is entitled to
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`judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed.
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`R. Civ. P. 56(a). A party must support any asserted disputed or undisputed fact by citing to specific
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`portions of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).
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`A party may also support a fact by showing that the materials cited by an adverse party do not
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`establish the absence or presence of a genuine dispute or that the adverse party cannot produce
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`admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations
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`must be made on personal knowledge, set out facts that would be admissible in evidence, and show
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`that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly
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`support a fact in opposition to a movant's factual assertion can result in the movant's fact being
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`considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
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`In deciding a motion for summary judgment, the only disputed facts that matter are material
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`ones—those that might affect the outcome of the suit under the governing law. Williams v. Brooks,
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`809 F.3d 936, 941-42 (7th Cir. 2016). "A genuine dispute as to any material fact exists 'if the
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`evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Daugherty
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`v. Page, 906 F.3d 606, 609−10 (7th Cir. 2018). The Court views the record in the light most
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`favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba
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`v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make
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`credibility determinations on summary judgment because those tasks are left to the factfinder.
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`Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited
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`materials and need not "scour the record" for evidence that is potentially relevant to the summary
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`judgment motion. Grant v. Trustees of Indiana University, 870 F.3d 562, 573−74 (7th Cir. 2017)
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`(quotation marks omitted); see also Fed. R. Civ. P. 56(c)(3).
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`II.
`BACKGROUND
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`A. Mr. Ellison's Claims
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`The complaint alleges that Mr. Ellison was held in administrative segregation at WVCF
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`from January 7, 2015, until July 16, 2018. Dkt. 1, p. 1, para. 1. Mr. Ellison claims, among other
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`things, that he was denied his due process right to meaningful and periodic reviews of this
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`placement. Id. at p. 32, para. 2. He also claims that the conditions of his confinement while in
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`administrative segregation violated his Eighth Amendment right to be free from cruel and unusual
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`punishment. Id. at p. 32, paras. 3-4. Specifically, he alleges that he was exposed to extreme cold
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`and frigid water when he showered in the winter, that he was exposed to extreme heat and scalding
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`water when he showered in the summer, and that these conditions along with his prolonged
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`placement in administrative segregation caused him to suffer physical, mental, and emotional
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`anguish. Id. at paras. 32-25, 214-19.
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`The motion for partial summary judgment argues that Mr. Ellison failed to exhaust his
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`administrative remedies regarding his Eighth Amendment conditions of confinement claims.
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`See dkts. 14, 15, 19.
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`B. Grievance Processes at WVCF
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`At all times relevant to the complaint, WVCF maintained an offender grievance process
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`that allowed inmates to raise issues related to their confinement. See Dkts. 14-2, 14-3, 14-4.
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`Offenders are made aware of the grievance process during orientation. Dkt. 14-1, paras. 20, 30,
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`50. Additionally offenders may access a copy of the grievance process in the WVCF law library.
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`Id. at 20, 30, 52.
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`From January 7, 2015, through September 30, 2017, offenders were required to complete
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`a three-step grievance process: attempted informal resolution; formal written grievance; and
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`appeal. Dkt. 14-1, para. 21; dkt. 14-3. If an offender did not receive a receipt or a rejection within
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`seven working days of submitting a formal grievance, the offender would be required to notify the
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`Executive Assistant of this fact, and the Executive Assistant would be required to investigate the
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`matter. Dkt. 14-2, p. 16; dkt. 14-3, pp. 16-17. The written formal grievance had to "explain how
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`the situation or incident affect[ed] the offender." Dkt. 14-2, p. 17; dkt. 14-3, p. 17.
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`From October 1, 2017, through July 16, 2018, offenders were required to complete a
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`modified three-step process: a written formal grievance; a facility-level appeal; and a department-
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`level appeal. Dkt. 14-1, para. 33; dkt. 14-4. If an offender did not receive a receipt or a rejection
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`within five working days of submitting a formal grievance, the offender would be required to
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`notify the Executive Assistant of this fact, and the Executive Assistant would be required to
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`investigate the matter. Dkt. 14-4, p. 9. The written formal grievance had to "explain how the
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`situation or incident affect[ed] the offender." Id.
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`Offenders were able to grieve the conditions of their confinement during the time period
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`relevant to the complaint. Dkt. 14-1, paras. 17, 29, 43. Mr. Ellison could have grieved, among
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`other things, the temperature of his cellhouse, the temperature of water in his shower, and the lack
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`of adequate recreation time. Id. at para. 58. If Mr. Ellison felt that policies and procedures were
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`not being followed by individual staff members, he could have raised those concerns through the
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`grievance process as well. Id. at paras. 17, 29, 43.
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`C. Mr. Ellison's Grievance Records
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`Grievance Department Supervisor Timothy Wellington has reviewed Mr. Ellison's
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`grievance history at WVCF. Dkt. 14-1, para. 53. Between January 7, 2015, and July 16, 2018,
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`Mr. Ellison filed three accepted formal grievances. Id. at para. 56; dkt. 14-6. These formal
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`grievances did not relate to the conditions of his confinement but instead related to concerns about
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`his right to receive mail. Dkt. 14-6. Mr. Wellington states that WVCF has no record of a rejected
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`formal grievance related to Mr. Ellison's conditions of confinement during the time period relevant
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`to the complaint. Dkt. 14-1, para. 51.
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`D. Mr. Ellison's Affidavit
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`Mr. Ellison has submitted a sworn affidavit in opposition to the motion for summary
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`judgment. Dkt. 18-1. The affidavit states: "During my time in the SHU at WVCF, I submitted a
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`grievance document, which I received no response to. The grievance complaint related to my
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`continued placement in the SHU after disciplinary segregation time was over." Id. at paras. 4-5.
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`Mr. Ellison's affidavit does not indicate that he complained about any of the conditions of his
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`confinement in administrative segregation, such as exposure to extreme cold and heat or lack of
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`adequate recreation time. He does not indicate that he suffered prolonged physical, mental, or
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`emotional anguish. Nor does the affidavit indicate that Mr. Ellison notified the Executive Assistant
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`that he had not received a receipt or a rejection of his formal grievance.
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`III.
`DISCUSSION
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`A. Exhaustion Standard
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`The substantive law applicable to this motion for summary judgment is the Prison
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`Litigation Reform Act ("PLRA"), which provides, "No action shall be brought with respect to
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`prison conditions under section 1983 . . . until such administrative remedies as are available are
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`exhausted." 42 U.S.C. § 1997e; see Porter v. Nussle, 534 U.S. 516, 524-25 (2002). "[T]he PLRA's
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`exhaustion 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). Although exhaustion of administrative remedies is a
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`precondition to bringing a lawsuit in federal court, failure to exhaust is an affirmative defense that
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`the defendant has the burden of pleading and proving. Dale v. Lappin, 376 F.3d 652, 655
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`(7th Cir. 2004).
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`The exhaustion requirement is interpreted strictly; thus, a "prisoner must comply with the
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`specific procedures and deadlines established by the prison's policy." Pyles v. Nwaobasi, 829 F.3d
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`860, 864 (7th Cir. 2016). "The PLRA does not, however, demand the impossible. Remedies that
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`are genuinely unavailable or nonexistent need not be exhausted." Id. Remedies are unavailable
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`where prison personnel have denied the prisoner access to grievance forms. Dale, 376 F.3d at 656;
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`Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). In such cases, the prisoner is considered to have
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`exhausted his available administrative remedies and may proceed to bring suit in federal court. See
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`Turley v. Rednour, 729 F.3d 645, 650 n. 3 (7th Cir. 2013) (collecting cases).
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`Generally, "prisoners need not file multiple, successive grievances raising the same issue
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`(such as prison conditions or policies) if their objectionable condition is continuing." Id. at 650.
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`However, "[s]eparate complaints about particular incidents are required if the underlying facts or
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`the complaints are different." Id.
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`B. Mr. Ellison's Available Administrative Remedies
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`The undisputed designated evidence shows that Mr. Ellison was aware of the offender
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`grievance process and that he was able to use the offender grievance process during the time period
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`relevant to the complaint. The evidence further shows that Mr. Ellison did not complete the
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`offender grievance process regarding his conditions of confinement claims, as there is no evidence
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`that he ever submitted a grievance appeal on this issue. The only factual dispute is whether
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`Mr. Ellison submitted a written formal grievance complaining about his placement in segregation
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`after his disciplinary sanction had expired. The issue before the Court is whether this factual
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`dispute precludes summary judgment.
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`Mr. Ellison states that he submitted a formal grievance, at some point, complaining about
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`his continued placement in administrative segregation after the completion of his disciplinary
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`sanction. He does not state that he complained about exposure to frigid showers and extreme cold
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`in the winter or scalding showers and extreme heat in the summer. Nor does he state that he
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`complained about the physical, mental, or emotional anguish he suffered as a result of being placed
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`in prolonged segregation. Instead, his affidavit indicates that he attempted to complain about his
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`classification in administrative segregation after the expiration of his disciplinary sanction, rather
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`than about any of the conditions he experienced there.
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`Further, Mr. Ellison's affidavit does not indicate that he attempted to notify the Executive
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`Assistant after failing to receive a receipt or a rejection of his formal grievance. The grievance
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`process explicitly required Mr. Ellison to notify the Executive Assistant within five working days
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`(or seven, depending on the month and year he submitted his formal grievance) if he received no
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`such response. Nothing in the text of the PLRA prohibits WVCF from imposing this obligation
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`before allowing an offender to abandon his efforts to exhaust. "[T]he Supreme Court has held that
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`so long as additional remedies are 'available' to a prisoner, 'the PLRA's text suggests no limits on
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`an inmate's obligation to exhaust.'" Williams v. Wexford Health Sources, Inc., 957 F.3d 828, 836
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`(7th Cir. 2020) (Barrett, J., concurring) (quoting Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)).
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`Because Mr. Ellison's formal grievance did not raise issues regarding the conditions of his
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`confinement, and because there is no evidence that he attempted to contact the Executive Assistant
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`after failing to receive a receipt or a rejection of his formal grievance, the alleged failure of WVCF
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`staff to process his formal grievance is not a material factual dispute precluding partial summary
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`judgment. Accordingly, the motion for partial summary judgment is GRANTED.
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`Case 2:20-cv-00153-JPH-DLP Document 20 Filed 12/10/20 Page 8 of 8 PageID #: 272
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`IV.
`CONCLUSION
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`The motion for partial summary judgment, dkt. [14], is GRANTED. Mr. Ellison's Eighth
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`Amendment claims are DISMISSED WITHOUT PREJUDICE. The Court will issue a pretrial
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`schedule to resolve the remaining claims in due course.
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`SO ORDERED.
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`Distribution:
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`Jeffrey R. Cardella
`LAW OFFICE OF JEFF CARDELLA LLC
`jeffcardella@cardellalawoffice.com
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`Kyle Christie
`CHRISTIE FARRELL LEE & BELL, P.C.
`kyle@cflblaw.com
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`David C. Dickmeyer
`INDIANA ATTORNEY GENERAL
`David.Dickmeyer@atg.in.gov
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`Marley Genele Hancock
`INDIANA ATTORNEY GENERAL
`marley.hancock@atg.in.gov
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`8
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`Date: 12/10/2020
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