Case 2:22-cv-00439-JPH-MG Document 57 Filed 12/13/23 Page 1 of 6 PageID #: 421
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`MICHAEL K GREGORY,
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`Plaintiff,
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`v.
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`ROBERT E CARTER, JR, et al.,
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`Defendants.
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`)
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`No. 2:22-cv-00439-JPH-MG
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`ORDER DENYING MOTION FOR SUMMARY JUDGMENT
`AS TO EXHAUSTION DEFENSE
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`Plaintiff Michael K. Gregory filed this action contending that his
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`constitutional rights were violated while he was held in segregation at Wabash
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`Valley Correctional Facility ("Wabash Valley"). Defendants move for summary
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`judgment arguing that Plaintiff failed to exhaust his available administrative
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`remedies as required by the Prison Litigation Reform Act ("PLRA") before filing
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`this lawsuit. For the reasons explained below, the motion, dkt. [39], is DENIED.
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`I.
`Summary Judgment Standard
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`Parties in a civil dispute may move for summary judgment, a way to resolve
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`a case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment is appropriate
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`when there is no genuine dispute over any of the material facts, and the moving
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`party is entitled to judgment as a matter of law. Id.; Pack v. Middlebury Comm.
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`Schs., 990 F.3d 1013, 1017 (7th Cir. 2021). A "genuine dispute" exists when a
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`reasonable factfinder could return a verdict for the nonmoving party. Anderson
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`
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`1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
`
`
`MICHAEL K GREGORY,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`ROBERT E CARTER, JR, et al.,
`
`
`Defendants.
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 2:22-cv-00439-JPH-MG
`
`ORDER DENYING MOTION FOR SUMMARY JUDGMENT
`AS TO EXHAUSTION DEFENSE
`
`Plaintiff Michael K. Gregory filed this action contending that his
`
`constitutional rights were violated while he was held in segregation at Wabash
`
`Valley Correctional Facility ("Wabash Valley"). Defendants move for summary
`
`judgment arguing that Plaintiff failed to exhaust his available administrative
`
`remedies as required by the Prison Litigation Reform Act ("PLRA") before filing
`
`this lawsuit. For the reasons explained below, the motion, dkt. [39], is DENIED.
`
`I.
`Summary Judgment Standard
`
`Parties in a civil dispute may move for summary judgment, a way to resolve
`
`a case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment is appropriate
`
`when there is no genuine dispute over any of the material facts, and the moving
`
`party is entitled to judgment as a matter of law. Id.; Pack v. Middlebury Comm.
`
`Schs., 990 F.3d 1013, 1017 (7th Cir. 2021). A "genuine dispute" exists when a
`
`reasonable factfinder could return a verdict for the nonmoving party. Anderson
`
`
`
`1
`
`
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`Case 2:22-cv-00439-JPH-MG Document 57 Filed 12/13/23 Page 2 of 6 PageID #: 422
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`v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those that
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`might affect the outcome of the suit. Id.
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`
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`When reviewing a motion for summary judgment, the Court views the
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`record and draws all reasonable inferences from it in the light most favorable to
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`the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565,
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`572–73 (7th Cir. 2021). It cannot weigh evidence or make credibility
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`determinations on summary judgment because those tasks are left to the fact-
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`finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only
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`consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it need
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`not "scour every inch of the record" for evidence that could be relevant. Grant v.
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`Trs. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017).
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`"[A] party seeking summary
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`judgment always bears the
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`initial
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`responsibility of informing the district court of the basis for its motion, and
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`identifying
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`those portions of
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`'the pleadings, depositions, answers
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`to
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`interrogatories, and admissions on file, together with the affidavits, if any,' which
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`it believes demonstrate the absence of a genuine issue of material fact." Celotex
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`Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party
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`may be discharged by 'showing'—that is, pointing out to the district court—that
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`there is an absence of evidence to support the nonmoving party's case." Id. at
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`325. In this case, Defendants have not met that burden.
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`II.
`Factual Background
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`2
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`Case 2:22-cv-00439-JPH-MG Document 57 Filed 12/13/23 Page 3 of 6 PageID #: 423
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`A. Plaintiff's Claims
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`Defendants have moved for partial summary judgment on the issue of
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`exhaustion with respect to Plaintiff's Fourteenth Amendment due process
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`claims, which are based on his allegation that he was denied meaningful reviews
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`during his long-term placement in restrictive housing at Wabash Valley for five
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`years. Dkt. 12 at 2–3.
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`B. Grievance Process
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`The IDOC has a standardized Adult Offender Classification Policy (IDOC
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`Policy No. 01-04-101) that was in place during the time Plaintiff alleges his rights
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`were violated. Dkt. 39-1 at 2. Pursuant to the policy, an inmate may
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`administratively appeal when he receives a classification decision, including
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`placement and continued placement in restrictive housing. Id. Inmates may
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`submit a written appeal using State Form 9260 "Classification Appeal" within
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`ten working days from the date the classification decision is received. Id. The
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`appeal process is available to inmates at all times, and Mr. Gregory was on notice
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`of the opportunity to appeal his classification designation. Id. at 3.
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`C. Plaintiff's Attempts at Exhaustion
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`Plaintiff was approved for transfer to restrictive housing on September 7,
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`2018. Id. The only classification appeal successfully submitted by Plaintiff was
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`on September 24, 2018. Id. at 4. This appeal was denied on October 2, 2018,
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`and he was subsequently transferred to the restrictive housing unit. Id.
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`3
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`Case 2:22-cv-00439-JPH-MG Document 57 Filed 12/13/23 Page 4 of 6 PageID #: 424
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`III. Discussion
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`The PLRA, requires that a prisoner exhaust available administrative
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`remedies before suing over prison conditions. 42 U.S.C. § 1997e(a). "[T]he PLRA's
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`exhaustion requirement applies to all inmate suits about prison life, whether
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`they involve general circumstances or particular episodes, and whether they
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`allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532
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`(2002) (citation omitted). "To exhaust administrative remedies, a prisoner must
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`comply strictly with the prison's administrative rules by filing grievances and
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`appeals as the rules dictate." Reid v. Balota, 962 F.3d 325, 329 (7th Cir. 2020)
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`(citing Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)). A "prisoner must submit
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`inmate complaints and appeals 'in the place, and at the time, the prison's
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`administrative rules require.'" Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)
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`(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).
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`While the exhaustion requirement is strict, it "hinges on the availability of
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`administrative remedies: An inmate, that is, must exhaust available remedies,
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`but need not exhaust unavailable ones." Ross v. Blake, 578 U.S. 632, 642 (2016)
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`(internal quotation omitted). "[T]he ordinary meaning of the word 'available' is
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`'capable of use for the accomplishment of a purpose,' and that which 'is
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`accessible or may be obtained.'" Id. Thus, "exhaustion is not required when the
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`prison officials responsible for providing grievance forms refuse to give a prisoner
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`the forms necessary to file an administrative grievance." Hill v. Snyder, 817 F.3d
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`1037, 1041 (7th Cir. 2016).
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`4
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`Case 2:22-cv-00439-JPH-MG Document 57 Filed 12/13/23 Page 5 of 6 PageID #: 425
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`"Because exhaustion is an affirmative defense," Defendants face the
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`burden of establishing that "an administrative remedy was available and that
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`[Plaintiff] failed to pursue it." Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015).
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`In their summary judgment motion, Defendants argue that Plaintiff failed
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`to exhaust his administrative remedies because after he appealed his initial
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`placement in segregation, he failed to appeal any of the classification decisions
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`regarding continued placement in restrictive status housing. Dkt. 40 at 4. In
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`response, Plaintiff attests that he attempted many times to appeal these
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`decisions, that Caseworker Charles Dugan picked up his forms and never mailed
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`them out, and that he complained to Mr. Dugan about the issue on numerous
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`occasions. Dkt. 46 at 1. Plaintiff's sworn statements directly contradict Mr.
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`Dugan's affidavit that was provided by the Defendants in reply to Plaintiff's
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`response. See dkt. 52-1 at 1-2. If the Court were to credit Mr. Gregory's testimony
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`over that of Mr. Dugan, it could conclude that Mr. Gregory took all steps
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`necessary to exhaust the administrative remedy process. Dole v. Chandler, 438
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`F.3d 804, 811–13 (7th Cir. 2006). Cf. Hill, 817 F.3d at 1041. Because the
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`"parties’ competing written evidence creates a genuine dispute of material fact
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`that must be resolved by making a credibility finding", a Pavey hearing is
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`required. Winston v. Clarke, 746 F. App'x 561, 563 (7th Cir. 2018).
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`IV. Conclusion
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`The defendants' motion for summary judgment, dkt. [39], is DENIED for
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`the reasons set forth above. The defendants shall have through December 28,
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`5
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`Case 2:22-cv-00439-JPH-MG Document 57 Filed 12/13/23 Page 6 of 6 PageID #: 426
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`2023, to notify the Court whether they wish to withdraw their affirmative defense
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`or proceed to a Pavey hearing.
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`SO ORDERED.
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`Distribution:
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`All ECF-registered counsel of record via email
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`MICHAEL K GREGORY
`852611
`NEW CASTLE - CF
`NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
`1000 Van Nuys Road
`P.O. Box E
`NEW CASTLE, IN 47362
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`6
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`Date: 12/13/2023
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