UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MICHAEL HUNTER HAURY, )

)

Plaintiff, )

) No. 3:13 CV 1126 

vs. )

)

BRUCE LEMMON, et al., ) 

)

Defendants. )

OPINION AND ORDER

Michael Hunter Haury, a pro se prisoner, is proceeding in this case against

Chaplain Phillip Leslie in his individual capacity for monetary damages for interfering

with his right to worship as a Reform Jew by forcing him to sign a form, on or around

January 24, 2012, asserting that he was Russian/Greek Orthodox in violation of the First

Amendment. He is also proceeding against Executive Assistant Clair E. Barnes in her

individual capacity for monetary damages for denying him access to prescribed

medication for two weeks in March 2013 in violation of the Eighth Amendment and for

retaliating against him, on or around March 15, 2013, by placing him in segregation

because he sought legal assistance to practice his religion. 

Both defendants have filed a summary judgment motion arguing that Haury did

not exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). (DE # 50.)

With their motion, they filed the notice required by N.D. Ind. L.R. 56-1(f) which advised

him of the importance of responding to the motion. (DE # 52.) It included a copy of

Federal Rule 56 and Local Rule 56-1. He was told that if he did not respond he might
not have a trial and he could lose this case. It informed him that “If you do not agree

with the facts in the motion, you must submit affidavits or other evidence to dispute

those facts.” After receiving the motion and notice, he has not responded and the time

for doing so has expired. However, before defendants filed their motion, Haury

submitted a statement with exhibits which the court will consider in resolving the

summary judgment motion. (DE # 49.)

“Failure to exhaust is an affirmative defense that a defendant has the burden of

proving.” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). In ruling on a summary

judgment motion, the court views all of the facts in the light most favorable to the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). It cannot

“make credibility determinations, weigh the evidence, or decide which inferences to

draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770

(7th Cir. 2003). Summary judgment is not a substitute for a trial on the merits or a

vehicle for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920

(7th Cir. 1994). Instead, the sole task in ruling on a motion for summary judgment is “to

decide, based on the evidence of record, whether there is any material dispute of fact

that requires a trial.” Payne, 337 F.3d at 770. If a reasonable factfinder could find in favor

of the nonmoving party, summary judgment may not be granted. Id. Nevertheless,

summary judgment “is the put up or shut up moment in a lawsuit . . ..” Springer v.

Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). 

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Here, it is undisputed that there was a grievance system and that Haury was

obligated to use it before filing suit. (DE # 50-1 and DE # 49.) Haury has presented a

number of grievances that he filed or attempted to file, but none of them are related to

his claim that Chaplain Phillip Leslie interfered with his right to worship as a Reform

Jew by forcing him to sign a form, on or around January 24, 2012, asserting that he was

Russian/Greek Orthodox. (See DE # 49 at ¶ 7.) Therefore summary judgment will be

granted in favor of Chaplain Phillip Leslie.

Haury has presented three grievances he attempted to file in relation to his claim

that Executive Assistant Clair E. Barnes denied him access to prescribed medication for

two weeks in March 2013 and retaliated against him, on or around March 15, 2013, by

placing him in segregation because he sought legal assistance to practice his religion.

(DE # 24 at 79, 84, and 87.) Each of them were rejected because they did not comply

with the prison’s grievance policy. (Id. at 78, 83, and 86.) The rejection of a grievance

must explain “what correction he needed to make to have the grievance processed.”

Hill v. Snyder, 817 F.3d 1037, 1040 (7 Cir. 2016). In each of these three rejections, Haury th

was given specific instructions as to how he could cure the deficiencies. In all three

cases he was informed:

There is no indication that you tried to resolve this complaint informally.

If you have tried to resolve it informally, please fill out the grievance form

to indicate that. If you have not tried to resolve it informally, you have

five days to begin that process. (This error is NOT subject to the 5 day

return notice at the bottom of this form.)

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(DE # 24 at 78, 83, and 86.) All three rejections notified him to “Contact Ms. Ivers in the

medical department to attempt an informal resolution. Use the space provided on the

grievance form and attach additional pages if necessary.” (Id.) One of them also

explained that “There is not enough information in this form to warrant an

investigation. Names of the staff members involved.” (Id. at 86.) Despite these specific

instructions, Haury makes no mention of having contacted Ms. Ivers nor of filing

another grievance. 

The United States Court of Appeals for the Seventh Circuit takes a “strict

compliance approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).

“To 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. Because Haury

did not do so, summary judgment will be granted in favor of Executive Assistant Clair

E. Barnes. 

Citing to McCarthy v. Madigan, 503 U.S. 140 (1992), Haury argues that exhaustion

is unnecessary under several circumstances including futility. However, McCarthy

predates the Prisoner Litigation Reform Act (PLRA) and the United States Supreme

Court has acknowledged that the PLRA “strengthened th[e] exhaustion provision in

several ways.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). The Supreme Court has also

explained that there is no futility exception to the PLRA’s exhaustion requirements.

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Booth v. Churner, 532 U.S. 731, 741, n.6 (2001). “Exhaustion is necessary even if the

prisoner is requesting relief that the relevant administrative review board has no power

to grant, such as monetary damages, or if the prisoner believes that exhaustion is futile.

The sole objective of [42 U.S.C.] § 1997e(a) is to permit the prison’s administrative

process to run its course before litigation begins.” Dole v. Chandler, 438 F.3d 804, 808-809

(7 Cir. 2006) (citations and quotation marks omitted). Because Haury did not exhaust th

in this case, summary judgment will be granted for the defendants. 

For these reasons, the defendants’ motion for summary judgment (DE # 50) is

GRANTED and this case is DISMISSED WITHOUT PREJUDICE pursuant to 42

U.S.C. § 1997e(a).

SO ORDERED.

Date: October 4, 2016

s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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