1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

NYKAZA GEE, )

)

Plaintiffs, )

)

v. ) CAUSE NO. 3:15-CV-442-JVB-CAN

)

ERIC PARRISH and BRADY )

JANOVITZ, )

)

Defendants. )

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 

Defendants Eric Parrish and Ken Young, by counsel, respectfully submit this 

Memorandum in Support of their Motion for Summary Judgment. 

I. Introduction 

Plaintiff Nykaza Gee (#127839) (“Plaintiff”) is an offender in the Indiana 

Department of Correction (“IDOC”) and filed this action pursuant to 42 U.S.C. § 1983

alleging a violation of his Eighth and Fourteenth Amendment rights (See Complaint). 

Plaintiff alleges that he was assaulted by Defendants on July 21, 2014 at the Michigan 

City Prison. See Prisoner Complaint. The complaint was received on March 15, 2016. 

Plaintiff’s claims are barred due to his failure to exhaust the administrative 

process available. Despite knowing that a grievance process was available, Plaintiff 

failed to file any grievance with regards to the allegations in his Complaint. (See

Attachment B -History of Grievances for Offender; See Prisoners Complaint, II. 

Grievance Procedure). Instead, he chose to proceed with this case. 

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Under IDOC policy, which has been in place since December 1, 2005, offenders 

may file a grievance against an individual staff member. (Attachment C - Long Decl. ¶ 

9). This policy, the IDOC Policy and Administrative Procedure 00-02-301 Offender 

Grievance Process (Effective Date 01/01/2010), governed the grievance process at the 

time of Plaintiff’s alleged incident (See Attachment A – Grievance Procedure). To begin 

the initial grievance process, offenders must first complete State Form 52897 at the 

Offender Complaint-Informal Process Level. (Long Decl. ¶ 10). If the complaint cannot 

be resolved informally, the grievance proceeds into the formal grievance process. (Long 

Decl. ¶ 11). An offender must file a formal grievance within twenty business days from 

the date of the incident. Id. An offender who is unsatisfied with the results of the 

grievance procedure can appeal the decision to the Department Offender Grievance 

Manager. (Long Decl. ¶ 13). This second level review allows for “greater authority to 

review the facility response and fashion a remedy.” (Long Decl. ¶ 14). The decision 

rendered in the “Level II Appeal is reviewed and responded to by the final reviewing 

authorities in the IDOC’s Central Office.” Id. If the grievance is determined to be 

founded, a remedy may be available. (Long Decl. ¶ 25). Under IDOC policy, 

“[e]xhaustion of the grievance procedure requires pursuing an appeal to the final step.” 

(Long Decl. ¶ 15).

Plaintiff failed to follow the IDOC grievance procedures regarding the 

allegations in his Complaint. (Long Decl. ¶ 19-23, See Attachment B - History of 

Grievances for Offender). Plaintiff failed to submit any grievance which meant that 

there was no opportunity for authority to review his allegations and “fashion a remedy 

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to any alleged complaint.” (Long Decl. ¶ 22). Had the Plaintiff proceeded with the 

IDOC grievance process, IDOC would have completed a full investigation into the 

allegations and provided a response to the complaint. (Long Decl. ¶ 24). Had the 

Plaintiff filed a grievance and proceeded through the IDOC process, a suitable remedy 

could have been available. (Long Decl. ¶ 25). Because of Plaintiff’s failure to complete 

the grievance process, Plaintiff has failed to exhaust his available administrative 

remedies in accordance with DOC procedures. (Long Decl. ¶ 23).Therefore, Defendants 

move the Court to enter judgment in their favor and to dismiss all claims for Plaintiff’s 

failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act 

(“PLRA”), 42 U.S.C. § 1997e. 

II. Statement of Material Facts Not in Dispute 

The record in this case, the sworn affidavit and exhibits filed with Defendants’ 

Motion for Summary Judgment, and Plaintiff’s Complaint and exhibits thereto, show 

the undisputed material facts (“Facts”): 

1. Plaintiff was incarcerated at the Indiana State Penitentiary (“ISP”) in Michigan 

City, IN on the date of the alleged incident. (EFC 13). 

2. Vickie Long, an Offender Grievance Specialist at ISP, is familiar with the 

grievance procedure followed at ISP and the rules and regulations of IDOC 

regarding grievances. (Long Decl. ¶ 3). 

3. Vickie Long’s position allows her access to: “(1) the files in which copies of 

offender grievances are maintained (“offender packets”), and (2) the computer 

records containing the records of offender grievances filed (“OGRE”), and (3) the 

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IDOC’s Offender Information System (“OIS”), which is a computer records of 

information relating to offenders who have been committed to the IDOC.” (Long 

Decl. ¶ 4).

4. There is an IDOC grievance policy in place at ISP which was in place while the 

Plaintiff was incarcerated there and during the time that the Plaintiff alleges his 

rights were violated. (Long Decl. ¶ 8)

5. IDOC Policy and Administrative Procedure 00-02-301, Offender Grievance 

Process (Effective Date 01/01/2010), was the IDOC policy in place to govern the 

grievance process at the time of Plaintiff’s alleged incident. This policy details 

how an offender can exhaust his administrative remedies through the grievance 

process. (Long Decl. ¶ 8) (See Attachment A - Grievance Procedure).

6. Since December 1, 2005, offenders have been able to grieve actions of individual 

staff members. (Long Decl. ¶ 9). 

7. To begin the grievance process, the offender shall contact the Offender Grievance

Specialist, Casework Manager, Caseworker, or Unit Team Member within five 

business days of the incident to obtain, and complete, State Form 52897 

“OFFENDER COMPLAINT-INFORMAL PROCESS LEVEL.” The offender must 

next attempt to resolve the grievance, informally, with the staff in question 

within five business days from receiving State Form 52897. (Long Decl. ¶ 10). 

8. If the grievance cannot be resolved informally, the offender may proceed to the 

Level I formal grievance process where, once the forms are received, the 

grievance is logged and assigned a case number. The Level I formal grievance 

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must be filed within twenty business days from the date of the incident. (Long 

Decl. ¶ 11).

9. If the offender is unsatisfied with the result of the Level I process, he/she may 

notify the “Offender Grievance Specialist that he/she wants to proceed to the 

next level which would be to appeal to the Department Offender Grievance 

Manager.” (Long Decl. ¶ 13).

10. “The formal appeal is a second level of review that affords greater authority to 

review the facility response and fashion a remedy. The response given in the 

Level II Appeal is reviewed and responded to by the final reviewing authorities 

in the IDOC’s Central Office. (Long Decl. ¶ 14).

11. When a grievance is determined to be founded, a remedy could be offered to the 

offender. (Long Decl. ¶ 25).

12. “Exhaustion of the grievance procedure requires pursuing an appeal to the final 

step.” (Long Decl. ¶ 15).

13. The IDOC maintains records of every informal grievance, formal grievance, and 

formal appeal filed by an offender. (Long Decl. ¶ 19).

14. IDOC records indicate that Plaintiff, Offender Gee, failed to submit any 

grievances related to the incident alleged in his Complaint. (Long Decl. ¶ 21). 

(See Attachment B - History of Grievances for Offender). 

15. Failure to submit a grievance through IDOC eliminates the opportunity for a 

greater authority to review allegations and fashion a remedy to any alleged 

complaint. (Long Decl. ¶ 22). Had a grievance been filed, a full investigation 

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would have been completed as to his complaint and a response provided to the 

offender. (Long Decl. ¶ 24).

16. Plaintiff failed to file a grievance with IDOC and thus failed to exhaust his 

available administrative remedies in accordance with the IDOC’s policies and 

procedures prior to filing his Complaint. (Long Decl. ¶ 23).

III. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure allows a party to move for 

summary judgment if they can demonstrate to the court that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of law. Fed. 

R. Civ. P. 56(a). “The primary purpose of summary judgment is to isolate and dispose of 

factually unsupported claims.” Albiero v. City of Kankakee, 246 F. 3d 927, 932 (7th Cir. 

2001). “As stated by the Supreme Court, summary judgment is not a disfavored 

procedural shortcut, but rather is an integral part of the federal rules as a whole, which 

are designed to secure the just, speedy, and inexpensive determination of every action.” 

Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1103 (7th Cir. 2008 (citations 

omitted). The substantive law underlying the claim defines which facts are material, 

and the Court should refrain from granting the motion when there are “disputes over 

facts that might affect the outcome of the suit under the governing law.” Anderson v. 

Liberty Lobby Inc., 477 U.S. 242, 248 (1986). 

“A party asserting that a fact cannot be or is genuinely disputed must support 

the assertion by: (A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or declarations, 

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stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials; or (B) showing that the materials cited do not 

establish the absence or presence of a genuine dispute, or that an adverse party cannot 

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c) (1). “An affidavit 

or declaration used to support or oppose a motion must be made on personal 

knowledge, set out facts that would be admissible in evidence, and show that the affiant 

or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c) (4). 

IV. Analysis

In the present case, summary judgment is appropriate because the Plaintiff failed 

to exhaust all administrative remedies available to him prior to filing this lawsuit. 

The Prison Litigation Reform Act (“PLRA”) was “designed to reduce the 

quantity and improve the quality of prisoner suits” by allowing “correction officials an 

opportunity to address complaints internally before allowing the initiation of a federal 

case.” Porter v. Nussle, 534 U.S. 516, 517, 122 S.Ct. 983, 992 (2002) (quoting Booth v. 

Churner, 532 U.S. 731, 737, 121 S. Ct. 1819 (2001)). Additionally, for cases that find their 

way into court, “an administrative record clarifying the controversy’s contours could 

facilitate adjudication.” Id. Failing to proceed through the administrative process before 

litigating a grievance puts the adjudging court at a severe disadvantage. 

Exhaustion of administrative remedies is a condition precedent to suit under the 

PLRA. Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 535 (7th Cir. 1999). This 

applies to “all inmate suits, whether they involve general circumstances or particular 

episodes, and whether they allege excessive force or some other wrong.” Porter v. 

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Nussle, 534 U.S. 516, 122 S.Ct. 983, 992 (2002). “[A]dministrative exhaustion [is] required 

even if the process could not result in a prisoner’s desired form of relief.” Booth v. 

Churner, 532 U.S. 731, 121 S. Ct. 1819 (2001). By requiring prisoners to exhaust all 

administrative remedies, this ensures compliance with an agency’s deadlines and 

procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006). A prisoner who fails to take 

each step in the administrative process has failed to exhaust and cannot bring suit. Pozo 

v. McCaughtry, 286 F. 3d 1022, 1024 (7th Cir. 2002). “Failure to do what the state requires 

bars, and does not just postpone, suit under § 1983.” Id. “[U]nexhausted claims, even 

those alleging excessive force by staff, cannot be brought into court.” Porter, 534 U.S. at 

532; See also Jones v. Bock, 549 U.S. 199, 204 (2007). 

The Seventh Circuit takes a “strict compliance approach to exhaustion.” Dole v. 

Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Pozo, 286 F.3d at 1025. If the prisoner fails to 

use the prison’s grievance system, “the prison administrative authority can refuse to 

hear the case, and the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d 

at 809. Sufficient exhaustion requires that the prisoner comply with the prison’s 

deadlines and other procedural rules. Woodford, 548 U.S. at 90-91. 

The evidence clearly demonstrates that the ISP maintains an offender grievance 

forum, as required by DOC Policy. (Facts, ¶ 5). The requirements of the grievance 

process are clear: the offender has an informal and two formal steps that he must take to 

exhaust his administrative remedied. (Facts, ¶ 7-10). If a grievance is determined to be 

founded, a remedy could be available to the offender. (Facts, ¶ 11). At the time of the 

alleged incident, the grievance process was active at the Plaintiff’s location and would 

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have allowed him to grieve against an individual staff member. (Facts, ¶ 4, 6). Plaintiff 

failed to take advantage of the administrative process and did not file any grievances. 

(Facts, ¶ 14). Plaintiff has not exhausted his administrative remedies and thus his suit 

arising through 42 U.S.C. § 1983 cannot proceed. 

V. Conclusion

For the above reasons, Defendants respectfully move the Court to grant 

summary judgment in their favor and against Plaintiff, to dismiss all claims against 

them, and to grant all other relief deemed just and proper by the Court. 

Respectfully submitted,

GREGORY F. ZOELLER

Indiana Attorney General

Attorney No. 1958-98

Date: September 19, 2016 By: s/ Philip A. Gordon 

Philip A. Gordon

Deputy Attorney General

Attorney No. 31321-49

OFFICE OF INDIANA ATTORNEY GENERAL

Indiana Government Center South, 5th Floor

302 West Washington Street

Indianapolis, IN 46204-2770

Telephone: (317) 232-6217

Fax: (317) 232-7979

Email: Philip.Gordon@atg.in.gov

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CERTIFICATE OF SERVICE

I hereby certify that on September 19, 2016, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent 

to counsel of record by operation of the Court’s electronic filing system. Parties may 

access this filing through the Court’s system. I also certify that a copy of the foregoing 

was sent by United States Mail, postage prepaid to the following:

Nykaza Gee

DOC #127839

Indiana State Prison

One Park Row

Michigan City, IN 46360

/s/ Philip A. Gordon

Philip A. Gordon

Deputy Attorney General

Office of the Indiana Attorney General

Indiana Government Center South, 5th Floor

302 W. Washington Street

Indianapolis, IN 46204-2770

Telephone: (317) 232-6217

Fax: (317) 232-7979

Email: Philip.Gordon@atg.in.gov 

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