Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 1 of 15 PageID #: 531
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
`
`
`ANGUS JAMES TONEY,
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`
`Plaintiff,
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`
`
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`BROWN, et al.,
`
`v.
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`)
`)
`)
`)
`)
`)
`)
`
`)
`)
`
`No. 2:20-cv-00386-JPH-MJD
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`
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`Defendants.
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`Order Granting in Part and Denying in Part Motion for Summary
`Judgment on Exhaustion Defense and Directing Further Proceedings
`
`Plaintiff Angus Toney was housed in the restrictive housing unit, also
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`known as segregation or solitary confinement, at Wabash Valley Correctional
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`Facility from November 2014 to January 2019. He filed this civil rights action
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`pursuant to 42 U.S.C. § 1983 alleging that his long-term confinement in
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`segregation violated his Fourteenth Amendment due process rights and his
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`Eighth Amendment right to be free from cruel and unusual punishment.
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`The defendants moved for partial summary judgment for failure to
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`exhaust administrative remedies. Dkt. 26. The Court granted the motion with
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`respect to Mr. Toney's Eighth Amendment claims and denied it with respect to
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`claims that Mr. Toney failed to exhaust classification decisions after September
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`21, 2017, because the defendants provided no evidence that any subsequent
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`reviews of Mr. Toney's placement in the restrictive housing unit occurred.
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`Dkt. 38. The Court provided the defendants notice of its intent to grant
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`summary judgment in Mr. Toney's favor pursuant to Federal Rule of Civil
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`Procedure 56(f)(1) and provided time for the defendants to respond. Id. at 8−9.
`1
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`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
`
`
`ANGUS JAMES TONEY,
`
`
`Plaintiff,
`
`
`
`
`BROWN, et al.,
`
`v.
`
`)
`)
`)
`)
`)
`)
`)
`
`)
`)
`
`No. 2:20-cv-00386-JPH-MJD
`
`
`
`Defendants.
`
`Order Granting in Part and Denying in Part Motion for Summary
`Judgment on Exhaustion Defense and Directing Further Proceedings
`
`Plaintiff Angus Toney was housed in the restrictive housing unit, also
`
`known as segregation or solitary confinement, at Wabash Valley Correctional
`
`Facility from November 2014 to January 2019. He filed this civil rights action
`
`pursuant to 42 U.S.C. § 1983 alleging that his long-term confinement in
`
`segregation violated his Fourteenth Amendment due process rights and his
`
`Eighth Amendment right to be free from cruel and unusual punishment.
`
`The defendants moved for partial summary judgment for failure to
`
`exhaust administrative remedies. Dkt. 26. The Court granted the motion with
`
`respect to Mr. Toney's Eighth Amendment claims and denied it with respect to
`
`claims that Mr. Toney failed to exhaust classification decisions after September
`
`21, 2017, because the defendants provided no evidence that any subsequent
`
`reviews of Mr. Toney's placement in the restrictive housing unit occurred.
`
`Dkt. 38. The Court provided the defendants notice of its intent to grant
`
`summary judgment in Mr. Toney's favor pursuant to Federal Rule of Civil
`
`Procedure 56(f)(1) and provided time for the defendants to respond. Id. at 8−9.
`1
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 2 of 15 PageID #: 532
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`The parties have provided additional evidence and argument. For the
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`following reasons, the Court finds that administrative remedies were not
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`available to Mr. Toney before February 1, 2018, but thereafter Mr. Toney failed
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`to exhaust available administrative remedies by failing to appeal his
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`classification report after his annual review hearing. Accordingly, summary
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`judgment is granted in part and denied 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
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`no genuine dispute as to any material fact and the movant is entitled to a
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`judgment as a matter of law." Fed. R. Civ. P. 56(a). Once the moving party has
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`met its burden, "the burden shifts to the non-moving party to come forward
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`with specific facts showing that there is a genuine issue for trial." Spierer v.
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`Rossman, 798 F.3d 502, 507 (7th Cir. 2015). A disputed fact is material if it
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`might affect the outcome of the suit under the governing law. Williams v.
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`Brooks, 809 F.3d 936, 941–42 (7th Cir. 2016). "A genuine dispute as to any
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`material fact exists 'if the evidence is such that a reasonable jury could return
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`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
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`(1986)).
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`II.
`Statement of Facts
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`The following statement of facts was evaluated pursuant to the standards
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`set forth above. That is, this statement of facts is not necessarily objectively
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`2
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 3 of 15 PageID #: 533
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`true, but as the summary judgment standard requires, the undisputed facts
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`and the disputed evidence are presented in the light most favorable to
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`Mr. Toney as the nonmoving party. See Barbera v. Pearson Education, Inc., 906
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`F.3d 621, 628 (7th Cir. 2018).
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`A. Classification Process
`
`Inmates placed in restrictive status housing are there because placement
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`"in general population would pose a serious threat to life, property, self, staff,
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`or other offenders, or the security or orderly operation" of the prison. Dkt. 26-6
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`at ¶ 6. Disciplinary department-wide restrictive status ("DWRS/D") results from
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`disciplinary proceedings and a sanction, whereas administrative restricting
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`status housing ("DWRH/A") applies to an inmate who is considered a
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`continued threat to himself or others. Id. at ¶¶ 8–9.
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`Under Indiana statute, inmates in administrative restrictive status
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`housing must receive a review "once every thirty (30) days to determine
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`whether the reason for segregation still exists." Ind. Code § 11-10-1-7(b). A
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`written status report regarding each 30-day review recommends whether the
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`inmate should remain in restrictive housing. See, e.g. dkt. 39-2 at 2; dkt. 26-7
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`at 97. The 30-day status reports are titled "WVCF Secured Housing Unit
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`Department Administrative Restrictive Status Housing Review", and reports
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`issued after classification hearings are on State Form 3412 and titled "Report
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`
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`3
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 4 of 15 PageID #: 534
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`of Classification Hearing." Compare dkt. 39-2 at 1 (example of a 30-day status
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`report) with id. at 2 (Report of Classification Hearing).
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`Inmates in administrative restrictive status housing periodically have
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`other types of classification reviews in addition to the 30-day reviews, including
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`an annual review. Dkt. 26-6 at 3, ¶¶ 11-14; dkt. 26-7 at 22 (IDOC
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`Classification Manual, listing types of hearings); dkt. 39-2 (Annual Review
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`Hearing Notification, State Form 7672).
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`To challenge initial or continued placement in segregation, an inmate
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`must file a classification appeal. Dkt. 26-6 at ¶ 10. The right to appeal
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`classification decisions is "explained to offenders during orientation upon an
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`offender's initial commitment to IDOC," and copies of the policy are available in
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`the law library. Id. at ¶ 12 (emphasis added). The Indiana Department of
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`Correction's Adult Offender Classification Policy Manual ("Classification
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`Policy"), which went into effect on November 1, 2015, explains the classification
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`appeal process.1 Id. at ¶¶ 10−11; dkt. 26-7.
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`The Classification Policy provides that, to appeal an intra-facility
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`classification decision, an inmate must submit a State Form 9260,
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`"Classification Appeal," to the Warden within ten working days of receiving a
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`classification decision from the Supervisor of Classification. Dkt. 26-7 at 25.2
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`
`1 The defendants filed three versions of the grievance process policy that were in effect
`during Mr. Toney's placement in segregation, dkts. 26-2, 26-3, and 26-4, but only one
`version of the Classification Policy, dkt. 26-7. Thus, there is no evidence in the record
`that there was a similar procedure in place before the November 1, 2015, policy.
`
`2 In addition to the term "warden", the IDOC has used the terms "facility head" and
`"superintendent" to refer to the warden of a facility. See dkt. 26-8 at 2 (State Form
`4
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`The Warden reviews the appeal, provides a decision on State Form 9260, and
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`returns the form to the inmate and places a copy in his institutional packet. Id.
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`at 25−26. According to the policy, the Warden is "the final administrative
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`review for intra-facility classification decisions." Id. at 26. If an inmate wants to
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`appeal an "inter-facility" classification decision, he sends State Form 9260 to
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`the Director of Classification at IDOC's Central Office in Indianapolis. This is
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`how the instructions appear at the top of the form:
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`
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`B. Mr. Toney's Use of the Classification Process
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`Mr. Toney was placed first placed in the restrictive housing unit in
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`November 2014, one year before the Classification Policy took effect. Dkt. 41-1
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`at ¶¶ 1−3. In December 2015 he was transferred to DWRH/A housing. Id. at
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`¶ 7. He attested that staff never explained the Classification Policy to him, and
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`he did not have access to it due to his placement in segregation. Id. at ¶¶ 4−5.
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`On September 21, 2017, Mr. Toney had a classification review hearing.
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`Dkt. 26-6 at ¶ 14; dkt. 26-8 at 1. The classification hearing report issued on
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`the same day as the hearing—September 21, 2017—recommended that
`
`
`9260); dkt. 26-7 at 25 (Classification Policy); Payton v. Ward, No. 1:18-CV-03101-JPH-
`MPB, 2020 WL 2571492, at *1 (S.D. Ind. May 20, 2020) (explaining that IDOC
`changed the title its facility heads from "Superintendent" to "Warden"). For ease of
`reference and consistency, the Court uses the term "Warden" unless otherwise
`indicated.
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`5
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`Mr. Toney, "Remain DWRH/A." Dkt. 26-8 at 1. Mr. Toney received notice of the
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`decision on October 15, 2017. Id. at 2.
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`On October 23, 2017, Mr. Toney completed State Form 9260 appealing
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`the decision from the September 21, 2017, classification hearing. Id. at 2. In
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`the appeal, Mr. Toney stated that he had been wrongfully terminated from the
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`ACT program and requested placement in general population. Id. Mr. Toney
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`sent the form to the Director of Classification. Mr. Toney attested that because
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`he did not have access to the classification policy, he "did not understand the
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`requirements for filing classification appeals" when he submitted the
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`classification appeal form. Dkt. 41-1 at ¶¶ 5−6.
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`On October 31, 2017, Sonya Phipps from the Classification Division
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`wrote to Mr. Toney regarding the State Form 9260 that he had completed on
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`October 23, 2017, and submitted to the Director of Classification, "You must
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`first appeal a classification decision to the Warden. If you do not agree with
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`response of the Warden, you may then appeal to the Director of Classification
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`at Central Office."3 Dkt. 26-8 at 3. The letter did not state whether Mr. Toney
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`could resubmit this appeal.4 Id. Regardless, by the time Mr. Toney received
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`3 This contradicts the Classification Policy, which states that the "Superintendent"
`(now the Warden) the final decisionmaker for intra-facility classification decisions.
`Dkt. 26-7 at 26.
`4 The Grievance Policy provides that inmates have five days to make necessary
`revisions to deficient grievance forms. Dkt. 26-4 at 10. The Classification Policy has no
`similar timeframe for fixing mistakes; it only states the appeal must be submitted
`within ten days of the decision. Mr. Toney's appeal would have been due by October
`27, dkt. 26-7 at 26, and thus would have been untimely if resubmitted after he
`received Ms. Phipps' letter.
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`
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`6
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`that response, the 10-day time limit for submitting a written appeal had
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`lapsed. Dkt. 26-7 at 26.
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`
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`According to Wabash Valley classification specialist Matt Leohr,
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`Mr. Toney "did not appeal his placement on restricted status housing again
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`after his attempt failed to follow the applicable procedures after the September
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`21, 2017 classification hearing." Dkt. 26-6 at ¶ 15.
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`C. Subsequent Classification Reviews
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`The defendants have supplemented the record to include all classification
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`reviews Mr. Toney received between September 2017 and January 23, 2019.
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`Dkt. 39-2 at 1, 3−4, 6−7, 11−20, 22, and 25. According to Mr. Leohr, "Angus
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`Toney was required to appeal to the Warden for any review he received from
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`September 2017 to January 2019 to exhaust his administrative remedies in
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`accordance with policy." Dkt. 39-1 at ¶ 9.
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`All 30-day status reports were prepared by caseworker Dugan and
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`concluded, "If there are any questions regarding this report, they may be
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`directed to either the Unit Caseworker or" either the Casework Manager or UTM
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`Snyder. Id.
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`There are five classification hearing reports in the record. Dkt. 39-2 at 2
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`(September 1, 2017, report); 5 (November 1, 2017, report); 10 (February 1,
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`2018, report); 21 (November 20, 2018, report); and 26 (January 23, 2019,
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`report). The classification hearing report from November 1, 2017, is different
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`from the other reports, in that the type of classification hearing was "ReClass"
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`rather than "DWRH/A Status Review Initiated." Compare id. at 1, 5. In the
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`7
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 8 of 15 PageID #: 538
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`section under "I submit this request for reclassification" it states, "PR-X22-
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`ACT-PROGPA02-D-I." Id. at 5.
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`On February 1, 2018, Mr. Toney received an "annual review hearing
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`notification", State Form 7262. Dkt. 39-2 at 8. The notification informed Mr.
`
`Toney,
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`In Conjunction with this classification hearing, you have the following
`rights: (1) To appear in person. (2) To present pertinent information that
`will be used at the hearing. (3) To have all aspects of the classification
`discussed. (4) To be notified in writing of the results of the classification
`hearing.
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`Id. The annual review took place that day, and the recommendation was for
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`Mr. Toney to remain in administrative segregation. Id. at 10.
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`The next classification hearing took place on December 10, 2018. Id. at
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`23. The result of that hearing was "Transfer to Phase 5 of the ACT Program." Id.
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`This hearing set into motion Mr. Toney's transfer out of the restrictive housing
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`unit. Id. at 23−26.
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`A. Applicable Law
`
`III.
`Analysis
`
`
`The Prison Litigation Reform Act ("PLRA") requires that a prisoner
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`exhaust his available administrative remedies before bringing a suit concerning
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`prison conditions. 42 U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516,
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`524–25 (2002). "[T]he PLRA's exhaustion requirement applies to all inmate
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`suits about prison life, whether they involve general circumstances or
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`8
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 9 of 15 PageID #: 539
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`particular episodes, and whether they allege excessive force or some other
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`wrong." Porter, 534 U.S. at 532 (citation omitted).
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` "Proper exhaustion demands compliance with an agency's deadlines and
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`other critical procedural rules because no adjudicative system can function
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`effectively without imposing some orderly structure on the course of its
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`proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (footnote omitted).
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`"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
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`dictate." Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020).
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`While a prisoner "must exhaust available remedies," he "need not
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`exhaust unavailable ones." Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). An
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`administrative procedure is unavailable when 1) the process operates as a
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`"simple dead end," 2) when it is so opaque that it is incapable of use, or
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`3) when "prison administrators thwart inmates from taking advantage of a
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`grievance process through machination, misrepresentation, or intimidation."
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`Id. at 1859–60. If grievance policy language is ambiguous, or if grievance
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`provisions are vague or confusing, any ambiguity is resolved in favor of the
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`prisoner, because the burden of proof rests with the defendants to show an
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`administrative process was available. Miles v. Anton, 42 F.4th 777, 781−82
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`(7th Cir. 2022); see also Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015)
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`("Because exhaustion is an affirmative defense, the defendant must establish
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`that an administrative remedy was available and that [the plaintiff] failed to
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`pursue it.").
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`9
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`B. Discussion
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`The defendants have presented no evidence that Mr. Toney knew about
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`the Classification Policy or any process to appeal his classification prior to
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`October 2017. The designated evidence shows that inmates are informed of the
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`IDOC's Classification Policy only during orientation or by consulting a copy on
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`file in the library. Dkt. 26-6 at ¶ 12. Here, Mr. Toney was in segregation when
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`the Classification Policy was implemented in 2015 and did not have access to
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`the library, and there is no designated evidence showing that he knew before
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`October 23, 2017, that he could appeal his placement in segregation.
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`On that date, Mr. Toney submitted a classification appeal challenging the
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`September 21, 2017, classification decision. Dkt. 26-8 at 2. He filed his appeal
`
`on a State Form 9260. The instructions on the top of that form are not clear.
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`Again, here are the instructions:
`
`
`
`Dkt. 26-8 at 2. There is no punctuation between items (1) and (2), creating
`
`ambiguity as to whether the appeal could be sent to the IDOC Central Office
`
`regardless of the intended recipient. There is nothing on the form defining
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`"intra-facility" versus "inter-facility-department." The form uses the term
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`"facility head" instead of the much more common "Warden." Mr. Toney attested
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`that because he had no opportunity to review the Classification Policy and no
`
`one explained the appeal process to him, he did not understand the
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`
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`10
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`requirements for filing classification appeals when he filed his appeal of the
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`September 21, 2017, report of classification hearing. Dkt. 41-1 at ¶¶ 5−6.
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`In response to his appeal form, Mr. Toney received a letter dated October
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`31, 2017, that said—in plain language—he "must first appeal a classification
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`decision to the Warden." Dkt. 26-8 at 3. This shows that as of the receipt of
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`this letter, in November 2017 at the latest, Mr. Toney knew there was an
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`available administrative process to challenge his placement in segregation.5
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`Crediting Mr. Toney's testimony and construing the ambiguous instruction
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`language in his favor, the Court finds that the administrative process was not
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`available to Mr. Toney until November 2017, after he received the October 31
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`letter. Miles, 42 F.4th at 782.
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`Defendants' designated evidence further shows that Mr. Toney received
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`multiple reviews between September 21, 2017 (when he submitted the
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`classification appeal) and January 2019 (when he was reclassified to general
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`population and removed from restricted housing), but he did not attempt to
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`appeal any of them. Many of the reviews were 30-day status reports that
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`Mr. Toney was not obligated to appeal as there is no designated evidence
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`showing that Mr. Toney knew or should have known that the 30-day reviews
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`were appealable. The form is titled "Review" rather than "decision" and is not
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`signed by the Classification Supervisor. Dkt. 39-2 at 1; dkt. 26-7 at 25 (noting
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`inmate can appeal after he receives classification decision from classification
`
`
`5 It is not clear in the record when Mr. Toney received Ms. Phipps' letter, but
`presumably it was not the same day it was mailed.
`11
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`supervisor). The 30-day status reports that he received only note that the
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`inmate may ask questions about the report, not that he can appeal the
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`decision. See, e.g., dkt. 39-2 at 1. Moreover, the Seventh Circuit has
`
`determined it "was unclear whether [a 30-day review] could be appealed" before
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`IDOC added language to the review forms in February 2019 explaining that
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`inmates could appeal the 30-day reviews. Crouch v. Brown, 27 F.4th 1315,
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`1319 (7th Cir. 2022); see also id. oral argument at 10:51−11:12 (deputy
`
`attorney general explaining that it is unclear whether an inmate could appeal
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`30-day reviews prior to February 2019, but he would not have been expected to
`
`because it was neither in the Classification Policy nor on the review form).6 Mr.
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`Toney was not obligated to appeal the 30-day status reports in order to exhaust
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`his administrative remedies, so the Court looks to other classification reviews
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`that were conducted between September 21, 2017 and January 2019.
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`Mr. Toney received four classification hearing reports after October 2017.
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`Dkt. 39-2 at 5 (November 1, 2017); 10 (February 1, 2018); 23 (December 10,
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`2018); and 26 (January 23, 2019). The November 1, 2017, classification
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`hearing report did not discuss Mr. Toney's placement in restricted housing but
`
`rather whether he should be able to participate in the ACT Program.7 Dkt. 39-2
`
`
`6 Available at Seventh Circuit Court of Appeals, Public Access to Oral Argument
`recordings, http://media.ca7.uscourts.gov/oralArguments/oar.jsp (Search by Case
`Number 21-2422).
`
` 7
`
` As the Seventh Circuit explained in Isby v. Brown, the ACT Program is designed to
`help inmates make better decisions. 856 F.2d 508, 516 (7th Cir. 2017). Once inmates
`reach the fifth and last phase of the ACT Program, they are released from the
`restrictive housing unit and transferred to a different unit or facility. Id.
`12
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`
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 13 of 15 PageID #: 543
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`at 5. Recall that part of Mr. Toney's October 23, 2017, appeal complained that
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`he was improperly removed from the ACT Program. Dkt. 26-8 at 2. Given the
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`close timing between Mr. Toney's appeal and this decision to place him back in
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`the ACT program, the Court finds that Mr. Toney would not have been on
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`notice that this was a housing classification decision that he could or should
`
`appeal.
`
`On February 1, 2018, Mr. Toney was advised that he was having an
`
`annual review hearing at which he could appear, present relevant information,
`
`and "have all aspects of the classification discussed." Id. at 8. The hearing was
`
`held that day, and it was decided that Mr. Toney would remain in
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`administrative segregation. Id. at 10. Mr. Toney could have appealed this
`
`decision, but he did not.
`
`In summary, reviewing the evidence in the light most favorable to
`
`Mr. Toney, administrative remedies were not available to him until November
`
`2017, when he received a letter in response to his State Form 9260 submission
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`that explained the form should be submitted to the warden. The next review
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`that triggered an obligation to exhaust his administrative remedies was Mr.
`
`Toney's annual review on February 1, 2018. Accordingly, the defendants'
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`motion for summary judgment is granted as to Mr. Toney's placement in the
`
`restrictive housing unit after February 1, 2018.
`
`IV.
`Conclusion and Further Proceedings
`
`The Court has considered the supplementary evidence in support of the
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`defendants' motion for partial summary judgment for failure to exhaust
`13
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 14 of 15 PageID #: 544
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`administrative remedies for classification decisions after September 21, 2017.
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`For the foregoing reasons, the defendants' motion for summary judgment is
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`granted in part and denied in part. Mr. Toney is entitled to summary
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`judgment with respect to the claim that administrative remedies were not
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`available to challenge his classification before November 2017 and that further
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`no duty to exhaust arose until February 1, 2018. The defendants are entitled to
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`summary judgment as to Mr. Toney's failure to exhaust administrative
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`remedies with respect to his placement in the restrictive housing unit after
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`February 1, 2018.
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`This case will now proceed on the merits as to Mr. Toney's due process
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`claims for his placement in the restrictive housing unit between November
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`2014 and February 1, 2018. The magistrate judge is requested to set this
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`matter for a telephonic status conference to discuss a case management plan.
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`SO ORDERED.
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`14
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`Date: 10/31/2022
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`
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`Case 2:20-cv-00386-JPH-MJD Document 44 Filed 10/31/22 Page 15 of 15 PageID #: 545
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`Distribution:
`
`ANGUS JAMES TONEY
`162450
`WABASH VALLEY - CF
`WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
`Electronic Service Participant – Court Only
`
`All Electronically Registered Counsel
`
`Magistrate Judge Dinsmore
`
`15
`
`
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