Case 2:20-cv-00386-JPH-MJD Document 38 Filed 09/22/21 Page 1 of 9 PageID #: 373
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`ANGUS JAMES TONEY,
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`v.
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`Plaintiff,
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`Defendants.
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`No. 2:20-cv-00386-JPH-MJD
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`RICHARD BROWN Former Superintendant at
`Wabash Valley Correctional Facility, et al.,
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`Order Granting in Part and Denying in Part Motion for Summary Judgment and
`Directing Further Proceedings
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`Plaintiff, Angus Toney, an inmate at Wabash Valley Correctional Facility (Wabash
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`Valley), brings this action pursuant to 42 U.S.C. § 1983, alleging that his long-term confinement
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`in segregation violated his Fourteenth Amendment due process rights and his Eighth Amendment
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`right to be free from cruel and unusual punishment. The defendants claim they are entitled to partial
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`summary judgment because Mr. Toney failed to exhaust available administrative remedies. For
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`the following reasons, the motion for summary judgment, dkt. [26], is granted in part and denied
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`in part.
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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.
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`Civ. P. 56(a). Once the moving party has met its burden, "the burden shifts to the non-moving
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`party to come forward with specific facts showing that there is a genuine issue for trial." Spierer
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`v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015). A disputed fact is material if it might affect the
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`outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941–42 (7th Cir.
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`1
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`2016). "A genuine dispute as to any material fact exists 'if the evidence is such that a reasonable
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`jury could return a verdict for the nonmoving party.'" Daugherty v. Page, 906 F.3d 606, 609–10
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`(7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
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`II. Statement of Facts
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`The following statement of facts was evaluated pursuant to the standards set forth above.
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`That is, this statement of facts is not necessarily objectively true, but as the summary judgment
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`standard requires, the undisputed facts and the disputed evidence are presented in the light most
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`favorable to Mr. Toney as the nonmoving party. See Barbera v. Pearson Education, Inc., 906 F.3d
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`621, 628 (7th Cir. 2018).
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`A. Conditions of Confinement
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`Mr. Toney was held in the special confinement unit (SCU) at Wabash Valley from
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`November 7, 2014, to January 22, 2019. Dkt. 1 at 7. In his complaint, he alleged that during his
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`confinement in the SCU he was subjected to unconstitutional conditions of confinement in
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`violation of the Eighth Amendment, including being confined to his noisy cell for 23 hours a day;
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`being compelled to take cold showers in the winter; being escorted to solitary recreation on a dog
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`leash while shackled; sleeping on a concrete slab despite back problems; and having feces and
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`urine thrown at him by other inmates without prison staff intervention. Id. at 9–10.
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`The Indiana Department of Correction has an offender grievance process that is intended
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`to promote the resolution of a broad range of issues that an inmate may have. Dkt. 26-1 at ¶¶ 7–8.
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`Wabash Valley had an offender grievance process in place during Mr. Toney's incarceration in the
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`SCU. Dkt. 26-1 at ¶ 10. While the process was periodically revised, it always required the inmate
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`to (1) try to resolve his concern informally, (2) file a written grievance and (3) appeal the response
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`2
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`to the grievance. Id. at ¶¶ 11–12 (2010 procedure), ¶¶ 21–22 (2015 procedure), ¶¶ 31–32 (2017
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`procedure).
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`The conditions of Mr. Toney's confinement were grievable issues. Dkt. 26-1 at ¶ 46.
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`Mr. Toney did not file any grievances related to these conditions. Id. at ¶¶ 44–45.
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`B. Classification Process
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`Inmates placed in the restrictive status housing are there because prison officials have
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`determined that placement "in general population would pose a serious threat to life, property, self,
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`staff, or other offenders, or the security or orderly operation" of the prison. Dkt. 26-6 at ¶ 6.
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`Disciplinary department-wide restrictive status results from disciplinary proceedings and a
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`sanction, whereas administrative restrictive status housing applies to an inmate who is considered
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`a continued threat to himself or others. Id. at ¶¶ 8–9. Mr. Toney was in disciplinary department-
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`wide restive status housing from November 2014 to December 2015, before being transferred to
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`administrative department-wide restrictive status housing. Id. at ¶ 7.
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`Under Indiana law, inmates who are segregated for safety reasons must receive a review
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`"once every thirty (30) days to determine whether the reason for segregation still exists." Ind. Code
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`§ 11-10-1-7(b). This requirement does not apply to disciplinary segregation. Ind. Code § 11-10-
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`1-7(c).
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`The grievance process does not apply to housing classification decisions. Dkts. 26-2 at 6;
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`26-3 at 4; 26-4 at 3. To challenge his initial or continued placement in segregation, an inmate must
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`file a classification appeal by completing State Form 9260, "Classification Appeal," within ten
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`working days from the date that he receives the classification decision. Dkt. 26-6 at ¶ 10. He must
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`then submit that form to the warden. Dkt. 26-7 at 25; dkt. 26-8 at 2–3. The warden then reviews
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`the classification decision and appeal, renders a decision on the appeal, writes the decision on State
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`3
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`Form 9260, and returns the completed form to the inmate. Dkt. 26-7 at 25–26. According to the
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`policy, the warden is "the final administrative review for intra-facility classification decisions." Id.
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`at 26.
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`The right to appeal classification decisions is explained to inmates during orientation upon
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`their arrival to prison, and copies of the applicable policies are available in the law library. Dkt.
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`26-6 at ¶ 12.
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`Mr. Toney testified that during his placement in the SCU, he did not receive meaningful
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`periodic reviews to determine whether he should be released from segregation. Dkt. 35-2 at ¶ 2
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`(Toney affidavit). On July 6, 2017, he wrote to unit team manager Jerry Snyder asking how long
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`he would have to remain in the SCU. Dkt. 35-3. Mr. Snyder responded on July 6, "We will review
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`monthly and you can request a full review every 90 days." Dkt. 35-3. On July 16, Mr. Toney wrote
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`to Mr. Dugan asking for a "full A.S. [administrative segregation] review packet," and someone
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`replied, "Mr. Purcell does the full AS reviews." Dkt. 35-4. On July 19, Mr. Toney wrote to
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`Mr. Purcell asking for a review packet, and he received a response signed by "R.P." (presumably
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`Randall Purcell), stating, "Just came off of DWRH/D on 5/25/17. May request review on
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`11/25/17." Dkt. 35-5. Mr. Toney again requested a review packet from Mr. Purcell on July 20, and
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`Mr. Purcell responded, "You were just removed from DWRH/D to DWRH/A on 5/25/17. You
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`may request a DWRH/A review after being DWRH/A 6 months," i.e. in November.1 Dkt. 35-6.
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`On September 21, 2017, Mr. Toney had a classification review hearing. Dkt. 26-6 at ¶ 14.
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`The classification hearing report was signed by Mr. Purcell and stated, "Remain DWRH/A
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`Pending DWRH/A Status Review." Dkt. 26-8 at 1. Mr. Toney received the decision on October
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`1 The Court understands "DWRH/D" to mean disciplinary department-wide restrictive housing and
`"DWRH/A" to mean administrative department-wide restrictive status housing.
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`15, and on October 23, he completed State Form 9260. Id. at 2. The instructions on the top of the
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`form stated,
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`Instructions: 1. Intra-Facility classification appeals, send to facility head
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`2. Inter-Facility-Department classification appeals, send to:
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`Director of Classification
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`302 West. Washington Street, Room E334
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`Indianapolis, Indiana 46204
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`Id. at 2. Mr. Toney sent the form to the director of classification. On October 31, 2017, Sonya
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`Phipps from the Classification Division wrote to Mr. Toney, "You must first appeal a classification
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`decision to the Warden. If you do not agree with response of the Warden, you may then appeal to
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`the Director of Classification at Central Office." Id. at 3.
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`According to Wabash Valley classification specialist Matt Leohr, Mr. Toney "did not
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`appeal his placement on restricted status housing again after his attempt failed to follow the
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`applicable procedures after the September 21, 2017 classification hearing." Dkt. 26-6 at ¶ 15.
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`Mr. Toney remained in the SCU for another year and four months.
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`III. Discussion
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`The defendants argue that Mr. Toney failed to exhaust his available administrative
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`remedies as to (1) his Eighth Amendment conditions-of-confinement claim for the entire period
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`he was in the SCU and (2) his Fourteenth Amendment due process claim after his September 21,
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`2017, classification hearing.
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`The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust his available
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`administrative remedies before bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a);
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`see Porter v. Nussle, 534 U.S. 516, 524–25 (2002). "[T]he PLRA's exhaustion requirement applies
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`to all inmate suits about prison life, whether they involve general circumstances or particular
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`episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532
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`(citation omitted).
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` "Proper exhaustion demands compliance with an agency's deadlines and other critical
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`procedural rules because no adjudicative system can function effectively without imposing some
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`orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)
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`(footnote omitted). "To exhaust available remedies, a prisoner must comply strictly with the
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`prison's administrative rules by filing grievances and appeals as the rules dictate." Reid v. Balota,
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`962 F.3d 325, 329 (7th Cir. 2020).
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`While a prisoner "must exhaust available remedies," he "need not exhaust unavailable
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`ones." Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). An administrative procedure is unavailable
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`when 1) the process operates as a "simple dead end," 2) when it is so opaque that it is incapable of
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`use, or 3) when "prison administrators thwart inmates from taking advantage of a grievance
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`process through machination, misrepresentation, or intimidation." Id. at 1859–60. It is the
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`defendants' burden to establish that the administrative process was available to Mr. Toney.
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`See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) ("Because exhaustion is an affirmative
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`defense, the defendant must establish that an administrative remedy was available and that
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`[the plaintiff] failed to pursue it.").
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`A. Eighth Amendment Condition-of-Confinement Claim
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`Mr. Toney does not dispute that he did not file any grievance related to the conditions of
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`his confinement in the restricted housing unit, and he "voluntarily relinquishes" that claim. Dkt. 35
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`at 9. Accordingly, the defendants' motion for summary judgment is granted to the extent that
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`Mr. Toney's Eighth Amendment conditions-of-confinement claim is dismissed.
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`C. Due Process Claim
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`Mr. Toney did not designate evidence showing that he attempted to appeal the
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`classification process after the September 2017 decision. He argues, however, that the grievance
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`procedure was unavailable to him because (1) the September 2017 decision failed to provide any
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`reason for his continued placement in the SCU, making any appeal of the denial "inherently futile,"
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`and (2) Mr. Purcell and Mr. Snyder's contradictory statements to Mr. Toney about his eligibility
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`for review obscured the administrative process.2 Dkt. 35 at 8–9.
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`Mr. Toney's first argument—that any appeal would have been futile—is undercut by the
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`fact that Mr. Toney tried to file a classification appeal but submitted it to the wrong person. Further,
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`"[a]n inmate's perception that exhaustion would be futile does not excuse him from the exhaustion
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`requirement." Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005).
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`His second argument—that mixed messaging obscured the process such that it became "so
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`opaque" as to be "incapable of use," Ross, 136 S. Ct. at 1859—is stronger. "Grievance procedures
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`must be transparent." Williams v. Wexford Health Sources, Inc., 957 F.3d 828, 834 (7th Cir. 2020).
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`Mr. Purcell twice informed Mr. Toney that he would not be eligible for a complete review of his
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`housing status until November. Dkts. 35-5 and 35-6. These statements on their own may not have
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`been enough to defeat the defendants' argument that Mr. Toney failed to properly exhaust the
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`September 2017 classification decision. After all, the Central Office responded to Mr. Toney and
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`informed him that he had to first appeal the decision to the Warden, which Mr. Toney failed to do.
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`2 Mr. Toney focuses much of his brief on whether his continued placement in the SCU after September 21,
`2017, implicated his right to due process and whether he received meaningful reviews. Dkt. 35 at 4–8. The
`Court does not address those issues—which go to the merits of Mr. Toney's claim—in this order which is
`limited to resolving Defendants' motion for summary judgment based on failure to exhaust administrative
`remedies.
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`The burden is on the defendants to prove the availability of an administrative remedy.
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`Thomas, 787 F.3d at 847. Here, the defendants have designated no evidence that Mr. Toney
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`received another review after the September 2017 hearing. If there were no subsequent reviews,
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`there was nothing for Mr. Toney to appeal. Dkt. 26-6 at ¶ 10 (appeal must be made within ten
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`working days after offender receives classification decision). And whether Mr. Toney received
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`meaningful periodic reviews is a material issue of fact; indeed, it is the core issue of the case. By
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`the time Mr. Toney received the letter from Central Office telling him he needed to file the
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`classification appeal with the warden, he should have already had another 30-day classification
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`review on or around October 21.3 There is no evidence that he had a classification review in
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`October, or in the subsequent fourteen months before his release from segregation.
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`Accordingly, the undisputed evidence is that the grievance procedure was unavailable to
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`Mr. Toney to challenge his continued placement in the SHU after September 21, 2017, because
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`there is no evidence that any subsequent reviews occurred that would have triggered his obligation
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`to exhaust. Accordingly, the defendants' motion for summary judgment, dkt. [26] is denied as to
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`his Fourteenth Amendment due process claim.
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`IV. Rule 56(f) Notice and Further Proceedings
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`For the foregoing reasons, the defendants' motion for summary judgment is granted in
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`part and denied in part. The defendants are entitled to summary judgment with respect to
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`Mr. Toney's claim that particular conditions of confinement violated his Eighth Amendment rights,
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`and accordingly his conditions-of-confinement claim is dismissed. Mr. Toney is entitled to
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`summary judgment with respect to the claim that administrative remedies were not available to
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`challenge his classification after his September 21, 2017 hearing. Therefore, pursuant to Rule
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`3 Administrative remedies were available for some time period after the September review, but without
`evidence of when Mr. Toney's next review was, the Court cannot identify that time period.
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`56(f)(1), the Court gives the defendants notice of its intent to grant summary judgment in
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`Mr. Toney's favor on the due process claim. The defendants shall have through October 22, 2021,
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`in which to respond to the Court's notice. Alternatively, they may withdraw their affirmative
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`defense by this date.
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`SO ORDERED.
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`Distribution:
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`ANGUS JAMES TONEY
`162450
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`Electronic Service Participant – Court Only
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`Andrea Lynn Ciobanu
`CIOBANU LAW, PC
`aciobanu@ciobanulaw.com
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`Marley Genele Hancock
`CASSIDAY SCHADE LLP
`mhancock@cassiday.com
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`W. Andrew Kirtley
`INDIANA ATTORNEY GENERAL
`andrew.kirtley@atg.in.gov
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`9
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`Date: 9/22/2021
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