IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JASON KEEL, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:14-CV-1492

)

CORIZON MEDICAL )

SERVICES, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendant Dr. Michael

Mitcheff, M.D.’s Motion for Summary Judgment Due to Plaintiff’s

Failure to Exhaust Administrative Remedies, filed on February 12,

2015. (DE #33.) For the reasons set forth below, Defendant’s

motion for summary judgment is GRANTED. Accordingly, Keel’s claims

against Dr. Mitcheff are dismissed without prejudice. The Clerk is

directed to close this case.

BACKGROUND

Jason Keel, a former inmate at the Miami Correctional Facility

(“Miami”), brought this action on May 2, 2014, pursuant to 42

U.S.C. § 1983. (DE #1.) The Court screened the complaint pursuant

to 28 U.S.C. § 1915A, and granted him leave to proceed on a claim

that Dr. Mitcheff, the regional medical director for Corizon
Medical Services1, refused to treat Keel’s hand problems in March

2014. (DE #6.) And, because Keel alleged that he is still

receiving inadequate medical care with respect to his hand, he was

also granted leave to proceed on a claim for injunctive relief

against Dr. Mitcheff, pertaining to his current medical needs.

(Id.)

In his motion for summary judgment, Dr. Mitcheff argues that

Keel has failed to exhaust his available administrative remedies

prior to filing suit as required by the Prisoner Litigation Reform

Act (“PLRA”) and, therefore, these claims must be dismissed. Keel

was provided with a “Notice of Summary Judgment Motion” as required

by N.D. Ind. L.R. 56-1 and a copy of both Federal Rule of Civil

Procedure 56 and Local Rule 56-1. (DE #36.) That notice clearly

informed him that unless he disputed the facts presented by the

defendant, the court could accept those facts as true. Fed. R.

Civ. P. 56(e) (“If a party . . . fails to properly address another

party’s assertion of fact . . . the court may . . . consider the

fact undisputed for purposes of the motion.”). It also told him

that unless he submitted evidence creating a factual dispute, he

could lose this case. Fed. R. Civ. P. 56(a) (“The court shall

grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

1 A private company which provides medical care at Indiana Department of

Correction facilities.

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judgment as a matter of law.”). Keel has filed his response (DE

#46) and Defendant filed a reply (DE #47). The motion is therefore

fully briefed and ripe for adjudication. 

DISCUSSION

Summary Judgment Standard

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

dispute 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). Not

every dispute between the parties makes summary judgment

inappropriate; “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude

the entry of summary judgment.” Id. In determining whether

summary judgment is appropriate, the deciding 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. Ogden v.

Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor

toward the nonmoving party does not extend to drawing inferences

that are supported by only speculation or conjecture.” Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.

C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

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Facts

At all relevant times, and pursuant to Indiana Department of

Correction (“IDOC”) policy, Miami has an Offender Grievance Process

under which an inmate can grieve a broad range of issues related to

their conditions of confinement. (DE #34-1, Ex. A ¶ 7; Ex. B.) All

inmates are made aware of the grievance process during orientation

and a copy of the process is available in the law library. (Ex. A

¶ 7; Ex. B.) The process begins with the inmate attempting to

resolve the matter informally with staff. (Ex. A ¶ 9.) If the

issue cannot be resolved informally, the inmate must file a formal

grievance within 10 days of the underlying incident. (Id. ¶ 9; Ex.

B.) If the grievance is not resolved to the inmate’s satisfaction,

he must file an appeal within 10 working days of the grievance

response. (Id. ¶ 8; Ex. B.) The grievance manager reviews the

appeal and submits a response. (Id. ¶ 7; Ex. B.) An inmate has

not fully exhausted the Offender Grievance Process until he

completes all three steps of the process and receives a response

from the Department’s Offender Grievance Manager. (Id. ¶ 10; Ex.

B.) Moreover, exhausting the grievance procedure requires timely

pursuing each step of the informal and formal process. (Id.)

On October 21, 2013, Keel filed Grievance No. 79052,

complaining about the medical care he received from Dr. Kream, Dr.

Loveridge and Nurse Shalala. (DE #46 at 11.) He fully exhausted

that grievance on December 18, 2013. (Id. at 6.)

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According to the grievance records kept and maintained at

Miami, Keel has initiated three (3) grievances in 2014 that have

been fully exhausted: Grievance Numbers 81396, 81760 and 82172 (Ex.

A, ¶ 11; Ex. C.) In Grievance No. 81396, Keel complained about

prison staff losing his property in conjunction with a move to the

infirmary. (Ex. A ¶ 12; Ex. C.) This grievance was not fully

exhausted until May 22, 2014. (Id.) In Grievance No. 81760, he

complained about his medical care, including being in continuous

pain and not being able to exercise. (Id.) Notably, this

grievance complained about Dr. Mandaret, not Dr. Mitcheff. It was

not fully exhausted until June 3, 2014. (Id.) In Grievance No.

82172, he complained about not being able to obtain information

from the state medical licensing board. (Id.) This grievance was

not fully exhausted until May 29, 2014. (Id.)

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). 

An inmate must exhaust before bringing his lawsuit, and efforts to

exhaust while the case is pending do not satisfy 42 U.S.C.

§ 1997e(a). Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004)

(“exhaustion must precede litigation”); Perez v. Wisconsin

Department of Corrections, 182 F.3d 532, 535 (7th Cir. 1999)

(compliance with 42 U.S.C. § 1997e(a) is a “precondition to suit”).

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For exhaustion purposes, an inmate is deemed to have “brought” the

action on the date when his complaint is tendered for mailing.

Ford, 362 F.3d at 400. 

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. 

Here, Dr. Mitcheff argues that Keel did not properly exhaust

his administrative remedies before filing suit. As outlined above,

the record reflects that Keel exhausted three grievances in 2014

and none were related to Mr. Mitcheff’s March 2014 treatment of his

hand. 

Keel nevertheless maintains that he exhausted his

administrative remedies by pointing to a grievance he filed on

October 21, 2013. (DE #46 at 6.) However, that grievance was

filed four months before Dr. Mitcheff allegedly denied him medical

treatment for his hand. In addition, that October 2013 grievance

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did not relate to Dr. Mitcheff’s treatment of Keel’s hand. Thus,

the October 2013 grievance is insufficient to demonstrate that Keel

exhausted his administrative remedies for his claims against Dr.

Mitcheff in this case. Therefore, the undisputed facts show that

Keel did not exhaust his administrative remedies regarding his

claims that Dr. Mitcheff denied him medical treatment for his hand

in March 2014 and beyond.

CONCLUSION

For the reasons set forth above, Defendant’s motion for

summary judgment (DE #33) is GRANTED. Accordingly, Keel’s claims

against Dr. Mitcheff are dismissed without prejudice. The clerk is

directed to close this case.

DATED: August 17, 2015 /s/ RUDY LOZANO, Judge

United States District Court

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