UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

de’CARLOS FREEMAN, )

)

Plaintiff, )

) CAUSE NO. 3:14 CV 1989 

vs. )

)

INDIANA DEPARTMENT OF )

CORRECTIONS COMMISSIONER, )

 et al. )

)

Defendants. )

OPINION AND ORDER

de’Carlos Freeman, a pro se prisoner, was granted leave to proceed against Major

George Payne in his individual capacity for monetary damages for using excessive force

on October 8, 2013. The defendant moves for summary judgment on the ground that

Freeman failed to exhaust his administrative remedies before filing suit as required by 42

U.S.C. § 1997e(a). (DE # 28.) 

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 non-moving party and draw all

reasonable inferences in that party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003).

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Nevertheless, a party opposing a properly supported summary judgment motion may not

rely merely on allegations or denials in her own pleadings, 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). 

Pursuant to the Prison Litigation Reform Act (“PLRA”), prisoners are prohibited

from bringing an action in federal court with respect to prison conditions “until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The failure

to exhaust is an affirmative defense on which the defendant bears the burden of proof. See

Jones v. Bock, 549 U.S. 199, 216 (2007); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). The

U.S. Court of Appeals for the Seventh Circuit has taken a “strict compliance approach to

exhaustion.” Dole, 438 F.3d at 809. Thus, “[t]o exhaust remedies, a prisoner must file

complaints and appeals in the place, and at the time, the prison’s administrative rules

require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “[A] prisoner who does

not properly take each step within the administrative process has failed to exhaust state

remedies.” Id. at 1024.

Nevertheless,inmates are only required to exhaust administrative remedies that are

“available.” Woodford v. Ngo, 548 U.S. 81, 102 (2006). The availability of a remedy is not a

matter of what appears “on paper,” but rather whether the process was in actuality

available for the prisoner to pursue. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Thus,

when prison staff hinder an inmate’s ability to use the administrative process, such as by

failing to provide him with the necessary forms, administrative remedies are not

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considered “available.” Id. In essence, “[p]rison officials may not take unfair advantage of

the exhaustion requirement . . . and a remedy becomes ‘unavailable’ if prison employees

do not respond to a properly filed grievance or otherwise use affirmative misconduct to

prevent a prisoner from exhausting.” Dole, 438 F.3d at 809. In determining whether an

administrative remedy was effectively unavailable, the question is whether the inmate did

“all that was reasonable to exhaust” under the circumstances to exhaust. Id. at 812; see also

Schultz v. Pugh, 728 F.3d 619, 621 (7th Cir. 2013) (plaintiff must demonstrate that a person

of “ordinary firmness” would have been deterred from exhausting under the

circumstances). When there are disputed issues of fact pertaining to whether the plaintiff

exhausted or was precluded from doing so, the court is required to hold a hearing to

resolve those disputes. Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). 

Here, Freeman tendered his original complaint for mailing on October 14, 2014. (DE

# 2 at 8.) The record shows that Freeman was housed at the Westville Correctional Facility

at all relevant times. (Id. at 2.) Westville had a grievance process in place under which an

inmate could grieve a broad range of issues, including the actions of jail staff and jail

polices. (DE # 30-1, Stobaugh Aff. ¶ 7 & DE # 30-2, Standard Operating Procedure 00-02-

301 (“Grievance Policy”)). Under the policy, an inmate is required to attempt to informally

resolve his complaint by speaking with a member of the jail staff. (DE # 30-1, Stobaugh Aff.

¶ 10; DE # 39-1 at 14.) If the inmate is dissatisfied with the response, he must file a formal

grievance. (Id. at ¶ 11.) An inmate must file a written grievance within 20 business days of

the event or issue about which he is complaining. (Id.) If within 7 working days after

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submitting a grievance an offender does not receive either a receipt indicating the

grievance was received, or a form explaining that his grievance was rejected, the offender

is required to notify the counselor/case manager and executive assistant. (Id. at ¶ 12.) If the

grievance is not resolved in a satisfactory manner or if he did not receive a grievance

response within twenty-five working days of submitting the grievance, the offender may

pursue the issue by filing an appeal to the DOC’s Grievance Manager. (Id. at ¶ 13.)

A record is kept of all inmate grievances and appeals, and those records show that

during his time at the jail, Freeman filed various grievances. (Id. ¶ 18 & DE # 30-3,

Grievance Log.) However, none of these grievances were made about the alleged excessive

force of Major Payne in October 2013. (Stobaugh Aff. ¶¶ 19-20; DE # 30-3, Grievances.)

Based on these facts, the defendants request dismissal pursuant to 42 U.S.C. § 1997e(a).

Freeman filed three responses, asserting that jail staff failed to document a timely

formal grievance he submitted so as to purposely interfere with his ability to exhaust. (DE

## 38, 40, 41.) He also claims to have filed two additional grievances, which were rejected

as being untimely even though he was unable to file them any earlier. (DE # 38 at 2.) Under

the applicable law, Freeman could be excused from failing to exhaust if the grievance

process was effectively unavailable to him. Kaba, 458 F.3d at 684; Dole, 438 F.3d at 809. At

present, however, Freeman has offered only vague assertions about his attempts to

exhaust, and an inmate must offer specifics to create a genuine issue of material fact. See

Schultz, 728 F.3d at 620 (since prisoner failed to set forth specifics about why he was unable

to exhaust, summary judgment for the defendants was proper); Dale v. Lappin, 376 F.3d 652,

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655-56 (7th Cir. 2004) (plaintiff who offered concrete details in a sworn statement submitted

enough to defeat summary judgment, whereas vague assertions are not sufficient to create

a genuine issue of fact on exhaustion issue). Here Freeman does not provide specifics of the

grievances that he claims were mishandled and wrongfully denied. He also does not

provide dates or any other details pertaining to his attempts at exhausting his

administrative remedies. Further, his statements are not submitted in the form of an

affidavit or otherwise made under penalty of perjury.

Nevertheless, the court is cognizant that Freeman is proceeding pro se, and there

may be some confusion about how to properly respond to the motion for summary

judgment. What he has filed indicates that he may be able to establish an issue of fact

requiring a Pavey hearing, but more detail is needed about the date or dates when he tried

to invoke the grievance process, to whom he gave these grievances, how they responded,

and precisely what actions he took to exhaust before he brought this action. If he did not

take reasonable and timely steps to invoke the grievance process before filing suit, then he

did not properly exhaust in accordance with 42 U.S.C. § 1997e(a) and his case must be

dismissed. See Pozo, 286 F.3d at 1025 (inmate must comply with time deadlines to properly

exhaust); Dole, 438 F.3d at 809 (inmate must show he did “all that was reasonable to

exhaust” under the circumstances to be excused from exhaustion requirement). 

When a party has failed to adequately support an assertion of fact in connection

with a motion for summary judgment, the court has discretion to afford the party an

opportunity to properly support that fact. See FED.R. CIV. P. 56(e)(1); see also Archdiocese of

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Milwaukee v. Doe, 743 F.3d 1101, 1109 (7th Cir. 2014) (observing that “trial courts have

considerable discretion in managing the course of litigation. . . . and this is no less true in

the context of summary-judgment motions”). In the interest of justice, and in light of

Freeman’s pro se status, the court will grant him an opportunity to submit a sworn

declaration or affidavit providing additional detail about his efforts to exhaust. The

declaration or affidavit must address the specific issues identified below. He may provide

other details pertaining to his efforts to exhaust that he believes are relevant to the court’s

consideration. He may also submit any documentation he has in his possession or can

obtain pertaining to his efforts to exhaust the grievance process.

For the reasons set forth above, the plaintiff is GRANTED to and including May 2,

2016, to submit a sworn declaration or affidavit addressing the following issues: 

(1) the date(s) when he first attempted to invoke the jail’s formal grievance

process;

(2) the date(s) he attempted to resolve his complaint informally;

(3) what specific actions he took to resolve his complaint informally;

(4) the date he attempted to file a formal grievance(s); 

(5) what specific actions he took to file a formal grievance;

(6) the date he attempted to file any appeal(s).

(7) what specific issues he raised in those grievances(s) and appeal(s);

(8) to whom on the jail staff he gave each of his completed grievance(s) and

appeal(s);

(9) the response(s) of jail staff, if any; and

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(10) a detailed explanationofwhy his two grievances deemed untimely could

not have been filed earlier.

The defendant is granted to and including June 6, 2016, to file a response to the

plaintiff’s submission. The defense motion seeking dismissal under 42 U.S.C. § 1997e(a) is

TAKEN UNDER ADVISEMENT pending further ruling. 

SO ORDERED.

Dated: March 21, 2016

s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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