UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES DAHER, JR., )

)

Plaintiff, )

) 

v. ) Case No. 3:13-CV-940 JD-MGG

)

MARK SEVIER, et al., )

)

Defendants. )

OPINION AND ORDER

James Daher, Jr., a pro se prisoner, was granted leave to proceed on a First

Amendment claim that the defendants placed him in segregation in retaliation for filing

grievances at the Miami Correctional Facility (Miami). ECF 12. Daher was also given

leave to proceed on an Eighth Amendment claim that he was purposely housed under

substandard conditions while in segregation. Id. Following a hearing pursuant to Pavey

v. Conley, 544 F.3d 739 (7th Cir. 2008), the court found that Daher had not exhausted his

administrative remedies as to these claims and dismissed this case. ECF 80. However,

the Seventh Circuit ruled that a second Pavey hearing was necessary and the case was

remanded. Daher v. Sevier, 724 Fed. Appx. 461 (7th Cir. 2018). On March 5, 2018, the

court referred this matter to Magistrate Judge Michael Gotsch for a second Pavey

hearing to resolve the following factual disputes:

(1) whether Daher submitted a formal grievance on September 12, 2011;

(2) whether his grievance was returned to him unfiled for the reasons

listed on the return of grievance form dated November 7, 2011; (3)

whether Daher resubmitted the grievance on November 9, 2011; and (4) if

so, how the resubmitted grievance was handled by prison staff.
ECF 50; 108. 

Now, in a bit of a surprising move, Daher has filed a motion for summary

judgment, arguing that a second Pavey hearing is unnecessary. ECF 115. Daher argues

that evidence introduced at the first Pavey hearing establishes he was not required to

exhaust his administrative remedies. Consequently, Daher seeks summary judgment on

the issue of exhaustion and requests to move on to the merits of his case.

Summary judgment must be granted when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A genuine issue of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine issue of material

fact exists, the court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Heft v. Moore, 351

F.3d 278, 282 (7th Cir. 2003). However, a party opposing a properly supported summary

judgment motion may not rely merely on allegations or denials in its own pleading, but

rather must “marshal and present the court with the evidence she contends will prove

her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). 

Here, Daher alleges that the evidence introduced at the prior hearing

undisputedly shows that his claims in this lawsuit were not grievable under Miami’s

policies. ECF 120 at 6. His argument is premised on the fact that classification, housing

assignment and segregation issues are not grievable and, therefore, he had no

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obligation to use the grievance process prior to filing his lawsuit. ECF 120 at 6. It is true

that the prior hearing established that issues such as classification, housing assignment

and placement in segregation are not grievable matters; they are classification matters.

ECF 102 at 20, 59. And, at Miami, classification matters are non-grievable. ECF 120-1 at

2. Nevertheless, as the court has pointed out before, ECF 80 at 3, fn 1, Daher’s claims are

not simply that he was misclassified and erroneously placed into segregation.1

Instead, Daher was given leave to proceed on claims based on the defendants’

alleged misconduct. Daher’s First Amendment claim is that the defendants retaliated

against him for filing grievances. ECF 12 at 2, 3, 8. His Eighth Amendment claim is that

the defendants housed him under substandard conditions. Id. at 4, 5, 8. The evidence

introduced at the hearing established that both of these issues were grievable at Miami.

Def. Ex. A; Offender Grievance Process at p. 5; ECF 102 at 16, 60. Thus, contrary to

Daher’s belief, evidence from the first Pavey hearing indicates that Daher was required

to exhaust his available administrative remedies before filing this lawsuit. ECF 102 at

16, 80. Consequently, Daher has failed to show that he is entitled to judgment in his

favor as a matter of law. 

1

 If they were, then Daher would not have been required to exhaust his administrative remedies.

But, that would not get Daher very far because simply challenging the appropriateness of his

classification would not violate the constitution. Sandin v. Connor, 515 U.S. 472, 486 (1995); see also

DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (“[P]risoners possess neither liberty nor property

in their classifications and prison assignments.”). Simply put, while Daher is correct that he would not be

required to grieve simple classification issues, he would have no constitutional claim based upon them

either.

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Nevertheless, if Daher still believes that he was not required to exhaust his

available administrative remedies with respect to the claims he brings in this lawsuit, he

can present evidence and argument on that point at the upcoming Pavey hearing.

For these reasons, the motion (ECF 115) for summary judgment is DENIED. The

scheduled September 26, 2018, Pavey hearing before Magistrate Judge Gotsch is

REAFFIRMED.

SO ORDERED.

ENTERED: August 14, 2018

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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