IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMIE JIMMERSON, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:14-CV-342

)

DR. MEYERS, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Partial Motion

for Summary Judgment for Failure to Exhaust Administrative

Remedies, filed by Defendants, Dawn Nelson,1

 Joseph Thompson, M.D.,

and Michael Mitcheff, M.D., on April 16, 2014. (DE #8.) For the

reasons set forth below, Defendants’ motion for summary judgment

(DE #8) is GRANTED. Accordingly, Jimmerson’s claims against

Nelson, Thompson and Mitcheff for denying him pain medication for

neck and throat cancer are DISMISSED WITHOUT PREJUDICE. As this

was the only claim pending against Defendant Thompson, he is

dismissed from this case.

BACKGROUND

Jamie Jimmerson, an inmate within the Indiana Department of

Correction (“IDOC”), brought this action on February 12, 2014,

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Nelson was incorrectly named as “Don” Nelson in the complaint. (DE 1.) 
pursuant to 42 U.S.C. § 1983. (DE #1 at 9.) The Court screened

the complaint pursuant to 28 U.S.C. § 1915A, and granted him leave

to proceed on a claim that Dr. Mitcheff, Dr. Thompson and Nelson,

a health care administrator, provided him improper medical

treatment for throat and neck cancer while he was at Indiana State

Prison (“ISP”). (DE #4.) He was also granted leave to proceed on

a claim that Nelson improperly retaliated against him in violation

of the First Amendment for complaining about his medical care.

(Id.) Jimmerson is no longer housed at ISP, and is presently

housed at Westville Correctional Facility (“Westville”). (DE #1 at

1.) He alleges that he is still receiving inadequate medical care,

particularly with respect to his pain medication. He was granted

leave to proceed on a claim for injunctive relief against Dr.

Mitcheff, the regional medical director for Corizon Medical

Services (“Corizon”), a private company which provides medical care

at IDOC facilities, pertaining to his current need for additional

pain medication. (Id.)

In their motion for summary judgment, Defendants argue that

Jimmerson “has not exhausted all levels of the grievance process

with respect to his allegations that the Defendants failed to

provide pain medications for his throat and neck cancer.” (DE #9,

at 7.) This Court informed Jamie Jimmerson, a pro se plaintiff,

that his initial response was too vague to withstand defendants’

motion for summary judgment. (DE #18.) Rather than immediately

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grant the motion for summary judgment, however, the Court took it

under advisement and, pursuant to Rule 56(e)(1) of the Federal

Rules of Civil Procedure, gave Jimmerson an opportunity to provide

additional detail about his efforts to exhaust his administrative

remedies, which he has now done. (DE ##26, 27, 29.)

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

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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)).

Facts

At all relevant times, and pursuant to IDOC policy, both ISP

and Westville had a grievance process under which an inmate can

grieve a broad range of issues. (DE #9-1, Bean Aff. ¶¶ 2-5.) The

process begins with the inmate attempting to resolve the matter

informally with staff. (Id. ¶ 6.) If the issue cannot be resolved

informally, the inmate must file a formal grievance within 10 days

of the underlying incident. (Id. ¶¶ 7-8.) The grievance must be

submitted to the Grievance Supervisor of the facility where the

incident occurred. (Id. ¶ 7.) 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.)

An official record is kept of all inmate grievances, and those

records reflect that Jimmerson has filed various grievances during

his incarceration. (Id. ¶¶ 11-13.) Relevant here, in February

2013, Jimmerson filed a grievance2 about the medical care he was

receiving for throat and neck cancer. (DE #9-1 at 6; DE #16 at 3;

DE #26-1, at 4.) On March 1, 2013, officials responded by stating,

2

It is unclear whether Jimmerson filed his grievance at ISP or at

Westville. The grievance itself does not indicate at which facility it was

filed. Jimmerson indicates that he filed it with ISP, as he alleges ISP

responded to the grievance. (DE #27-2, at 18, 19, 21.) However, Westville’s

records indicate that Jimmerson filed his grievance with Westville. (DE #9-1,

¶¶ 13, 14; DE #9-1, at 6.)

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“You were seen in Medical and treated. After being referred to

oncology, you were transferred to WCC for further treatment.” (DE

#9-1 at 6; #26-1, at 5.) Jimmerson received this response on March

8, 2013. (DE #27-3, at 2.)

On March 13, 2014, Jimmerson sent3 a “Request for Interview”

form to Timothy Bean, the Westville Grievance Specialist, stating,

“I just got here from I.S.P. and I need you to file this grievance

appeal #75362.” (DE 27-1, at 19.) Grievance appeal #75362 states:

It is the responsibility of the D.O.C. to keep my records

of complaints (informal and formal) filed by offenders. 

My obligation is to follow the procedure. Due to the

time constraints I couldn’t attend the law library to

make copies of the informal grievances. I am supposed to

be able to trust the process without fear that my

complaint records could hinder my ability to legal

recourse which I believe is the reason these records were

lost intentionally. What steps are taken to ensure that

hard copy records are saved to keep a record of offender

complaints? What is the official D.O.C. policy on

retention of these documents?

(DE #27-1 at 20.) 

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.

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This is disputed. However, taking the evidence in a light most

favorable to Jimmerson, this Court interprets the unsigned “Request for

Interview” form dated March 3, 2013, to mean that Jimmerson submitted it to

Timothy Bean on that date.

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§ 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”).

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, the defendants argue that Jimmerson did not properly

exhaust his administrative remedies before filing suit. (DE #9.)

As outlined above, the record reflects that Jimmerson filed a

grievance about his medical care. (DE #27-1, at 1). Westville has

no record of Jimmerson filing an appeal of that grievance. (DE #9-

1, ¶¶ 13, 14.) However, Jimmerson nevertheless maintains that he

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exhausted his administrative remedies. In an effort to show that

he appealed his grievance, Jimmerson has submitted two documents. 

He provided a “Request for Interview” form, asking Timothy Bean to

file grievance appeal #75362 (DE #27-1 at 19), along with grievance

appeal #75362 where Jimmerson complains about the Indiana

Department of Corrections needing to keep better records of

prisoner complaints and grievances. (DE #27-1, at 20.) Neither of

these documents are signed by prison officials as “received.” 

(Id.) Defendants dispute that Jimmerson ever submitted these

documents to Timothy Bean. However, whether or not Jimmerson

tendered these documents to Timothy Bean is immaterial.

Even assuming that Jimmerson submitted grievance appeal #75362

to Timothy Bean, that purported appeal does not address the same

subject matter as his formal grievance. In his formal grievance,

Jimmerson alleged that he was subjected to deficient medical care

at ISP. In his submitted appeal, Jimmerson complains only of the

IDOC’s poor record keeping practices. 

Consequently, Jimmerson’s submitted appeal documents

contradict his contention that he properly filed and appealed a

grievance related to deficient medical care. See Peterson v.

Rogan, No. 2:11-CV-0007, 2012 WL 4020996, *3 (S.D. Ind. Sept. 12,

2012)(noting that a plaintiff’s characterization of his grievances

can be overcome by the grievance documents themselves). Even

assuming Jimmerson submitted this appeal to Timothy Bean on March

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13, 2013, he still would have failed to exhaust his administrative

remedies with respect to his alleged deficient medical care. 

Wilson-El v. Wilson, No. 4:12-CV-015, 2013 WL 6148918, at * 4 (N.D.

Ind. Nov. 21, 2013)(noting that the grievance appeal must contain

the original issue contained in the formal grievance); Peterson,

2012 WL 4020996 at *3 (holding that formal grievance and grievance

appeal must contain the same subject matter as the lawsuit to

effectively exhaust administrative remedies). 

CONCLUSION

For the reasons set forth above, defendants’ motion for

summary judgment (DE #8) is GRANTED. Accordingly, Jimmerson’s

claims against Nelson, Thompson and Mitcheff for denying him pain

medication for neck and throat cancer are DISMISSED WITHOUT

PREJUDICE. As this was the only claim pending against Defendant

Thompson, he is dismissed from this case.

DATED: February 3, 2015 /s/ RUDY LOZANO, Judge

United States District Court

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