UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

THOMAS LANE, )

)

Plaintiff, )

) 

v. ) Cause No. 3:13-CV-519 JD

)

DR. RAHAM, et al., )

)

Defendants. )

OPINION AND ORDER

Thomas Lane, a pro se prisoner, is proceeding on a claim that two prison doctors were

deliberately indifferent to his medical needs while he was housed at Westville Correctional

Facility (“Westville”). (DE 19.) The defendants move for summary judgment on the ground that

Lane failed to exhaust his administrative remedies before filing suit as required by 42 U.S.C.

§ 1997e(a). (DE 26.) 

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). Nevertheless, 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). 
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. 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.” Id. 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 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. Id. at

812; see also Schultz v. Pugh, 728 F.3d 619, 621 (7th Cir. 2013) (discussing requirement that

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plaintiff demonstrate that a person of “ordinary firmness” would have been deterred from filing a

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

the plaintiff exhausted, the court is required to hold a hearing to resolve those disputes. Pavey v.

Conley, 544 F.3d 739, 742 (7th Cir. 2008). 

Here, Lane tendered his original complaint for mailing on May 29, 2013. (DE 1 at 6.) He

claimed that on or about May 15, 2013, he was seen by an unknown prison doctor, who allegedly

denied him proper medication for his acid reflux. (DE 1.) In July 2013, he filed an amended

complaint naming Dr. Vance Raham as the unknown doctor. (DE 14.) He also added a claim that

he was seen by Dr. Andrew Liaw on or about July 9, 2013, and this doctor also refused to

provide him proper medication to control his acid reflux. (DE 14.) The court screened the

complaint pursuant to 28 U.S.C. § 1915A, and permitted Lane to proceed on Eighth Amendment

medical claims against both doctors. (DE 19.) 

At all relevant times, and pursuant to Indiana Department of Correction (“IDOC”) policy,

Westville had a grievance process under which an inmate could grieve a broad range of issues,

including the actions of prison staff. (DE 28-1, Bean Aff. ¶¶ 6-10.) The grievance process has

three steps: an attempt at informal resolution; submission of a formal grievance; and submission

of a written appeal. (Id. ¶¶ 6-9.) The first step requires the inmate to try to resolve his dispute

informally by speaking to an appropriate staff member. (Id. ¶ 6.) If the issue cannot be resolved

informally, the inmate must file a formal written grievance. (Id. ¶ 7.) If he does not obtain a

favorable response, he must file an appeal. (Id. ¶ 8.) The grievance policy contains time

deadlines for each of these steps. (Id. ¶ 10.) A record is kept of all inmate grievances, and those

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records show that Lane did not file any grievance pertaining to his medical care while he was

housed at Westville. (Id. ¶ 14.) 

Based on these facts, the defendants argue that they are entitled to dismissal of the

complaint pursuant to 42 U.S.C. § 1997e(a). (DE 26.) Lane filed a response to the motion, and he

does not dispute that he did not exhaust the prison grievance process prior to bringing this action.

(DE 34.) However, he asserts generally that he “tried to file a grievance over this issue.” (Id. at

1.) He appears to claim that on an unspecified date, he sent either a grievance form or a request

for a grievance form to Timothy Bean, the grievance specialist at Westville. (Id.) He claims that

at some point later he was told the request or grievance was lost. (Id.) He claims that on an

unspecified date he requested another grievance form from Bean, but Bean did not respond. (Id.)

He further asserts that he “could not get another grievance from the officers on the [protective

custody unit] because they will not sup[p]ly them.” (Id.) 

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

process was effectively unavailable to him because the defendants did not provide him with the

necessary forms, or otherwise interfered with his ability to exhaust. Kaba, 458 F.3d at 684; Dole,

438 F.3d at 809. However, the defendants argue that Lane has offered only vague assertions

about his attempts to exhaust. (DE 35.) They are correct that an inmate must offer specifics about

his attempts to exhaust to create a genuine issue of fact. See Schultz v. Pugh, 728 F.3d 619, 620

(7th Cir. 2013) (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, 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

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that prison officials interfered with inmate’s ability to exhaust). Lane’s statements are also not

submitted in the form of an affidavit, nor does he otherwise swear to the truth of his assertions

under penalty of perjury. However, the court is cognizant that Lane is proceeding pro se, and he

may not have known the proper format or the level of detail required for his filings. What he has

filed indicates that he may be able to establish a triable issue of fact requiring a Pavey hearing,

but more detail is needed about the dates when he tried to invoke the grievance process, whom

he spoke with, what they told him, and precisely what actions he took to obtain and file a

grievance form before filing this action. If he did not take reasonable and timely steps to invoke

the grievance process, then his failure to comply with 42 U.S.C. § 1997e(a) cannot be attributed

to any wrongdoing by prison staff. 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 compliance with 42 U.S.C.

§ 1997e(a)); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (exhaustion must occur prior to

the filing of the complaint). 

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 that party an opportunity to

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

Doe. —F.3d—, 2014 WL 710027 (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 Lane’s pro se status, the

court will grant him an opportunity to submit either a sworn declaration or an affidavit providing

additional detail about his efforts to exhaust. The declaration or affidavit must address the issues

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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 defendants will be

afforded an opportunity to respond to this filing.

For these reasons, the plaintiff is GRANTED to and including May 5, 2014, to submit a

sworn declaration or affidavit answering the following questions: 

(1) the date on which he first attempted to file a grievance, and what specific

actions he took to obtain and file a grievance form; 

(2) the date on which he spoke to Timothy Bean about his desire to file a

grievance, what Bean told him, and what actions he took after this date to obtain a

grievance form; and

(3) whom he spoke with on the protective custody unit to request a grievance

form (providing names, job titles, or other descriptive information to the extent he

is able), the date(s) on which he spoke with any custody staff, what he said to

them, and their response(s) if any. 

The defendants are granted to and including May 19, 2014, to file a response to the

plaintiff’s filing. The motion for summary judgment (DE 26) is TAKEN UNDER

ADVISEMENT pending further ruling.

SO ORDERED.

ENTERED: March 31, 2014

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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