UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ALFRED VELA, ) 

 )

Plaintiff, )

)

v. ) No. 3:16 CV 51

)

INDIANA DEPARTMENT OF )

CORRECTIONS, )

CORIZON HEALTH INC, and )

JOSEPH THOMPSON, )

)

Defendants. )

OPINION and ORDER

Plaintiff Alfred Vela, a prisoner represented by counsel in this matter, sued

Corizon Health Inc. and Joseph Thompson, claiming that he received inadequate 1

medical care while incarcerated which lead to paraplegia. (DE # 1.) Defendants have

moved for summary judgment on plaintiff’s claims, solely on the basis that plaintiff has

failed to exhaust his available administrative remedies as required by the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (DE # 18.) Specifically,

defendants point to plaintiff’s failure to file a formal grievance with the prison before

filing suit, a fact which is undisputed.

As a preliminary matter, the Seventh Circuit has clearly stated a preference for

separating exhaustion inquiries from summary judgment proceedings. Wagoner v.

Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). As the Wagoner court explained, summary

Defendant Indiana Department of Corrections was dismissed by stipulation 1

earlier in this lawsuit. (DE # 16.)
judgment is designed to determine whether any issues of fact must be resolved by a

jury, while the issue of exhaustion is not a question for the jury, but instead is a

preliminary issue for the court. Id. Accordingly, though defendants styled their motion

as one seeking “summary judgment,” the court construes it as a motion for dismissal

given plaintiff’s failure to exhaust administrative remedies.2

I. LEGAL STANDARD

 Exhaustion is an affirmative defense, and consequently the burden of proof is on

defendants. Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). When there are no disputed

facts regarding exhaustion, only a legal question, the court may resolve the issue

without a hearing. Brown v. Korte, No. 15-CV-3288, 2016 WL 3556992, at *2 (C.D. Ill. June

24, 2016); Doss v. Gilkey, 649 F. Supp. 2d 905, 912 (S.D. Ill. 2009). However, when factual

disputes exist, district courts should hold a hearing to determine whether a plaintiff has

exhausted his remedies. Pavey v.Conley, 544 F.3d 739, 742 (7th Cir. 2008).

In Pavey the Seventh Circuit set forth the following sequence to be followed

when the question of exhaustion requires a hearing:

(1) The district judge conducts a hearing on exhaustion and permits

whatever discovery relating to exhaustion he deems appropriate.

(2) If the judge determines that the prisoner did not exhaust his

administrative remedies, the judge will then determine whether (a) the

plaintiff has failed to exhaust his administrative remedies, and so he must go

back and exhaust; (b) or, although he has no unexhausted administrative

 For this reason, the court denies plaintiff’s “Rule 56 Motion to Strike” (DE # 23), 2

which relates to summary judgment procedures inapplicable to the current exhaustion

question.

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remedies, the failure to exhaust was innocent (as where prison officials

prevent a prisoner from exhausting his remedies), and so he must be given

another chance to exhaust (provided that there exist remedies that he will be

permitted by the prison authorities to exhaust, so that he's not just being

given a runaround); or (c) the failure to exhaust was the prisoner's fault, in

which event the case is over.

(3) If and when the judge determines that the prisoner has properly

exhausted his administrative remedies, the case will proceed to pretrial

discovery, and if necessary a trial, on the merits; and if there is a jury trial,

the jury will make all necessary findings of fact without being bound by (or

even informed of) any of the findings made by the district judge in

determining that the prisoner had exhausted his administrative remedies.

Id. at 742.

II. DISCUSSION

In this case, there are several issues which the court can resolve based on

undisputed facts as a matter of law, and one that warrants further exploration and a

hearing, as explained below.

(A) Effective Compliance Via Medical Requests

First, plaintiff argues that he effectively complied with the prison’s formal

grievance procedure by submitting several requests for medical treatment on a separate

type of form. However, these medical requests are not grievances within the meaning of

§ 1997e(a). The Seventh Circuit has held: “For a prisoner to exhaust his remedies within

the meaning of § 1997e(a), he must ‘file complaints and appeals in the place, and at the

time, the prison’s administrative rules require.’” Burrell v. Powers, 431 F.3d 282, 285 (7th

Cir. 2005) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). Neither the

Supreme Court nor the Seventh Circuit has held that actions other than filing a formal

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grievance can constitute the functional equivalent of filing a grievance, and it is

undisputed that the prison in which plaintiff was housed did not allow for medical

requests to substitute as grievances. Accordingly, plaintiff’s argument fails. Smith v.

Wilson, No. 3:07-CV-338-TS, 2009 WL 395187, at *3 (N.D. Ind. Feb. 13, 2009) (health care

requests and classification appeals were not grievances for purposes of § 1997e(a)); see

also Guillen v. Ridley-Turner, No. 2:05 CV 340, 2009 WL 2475267, at *2 (N.D. Ind. Aug. 10,

2009) (sending letters to jail official not functionally equivalent to filing grievance).

(B) Effective Compliance Via Attempts at Information Resolution

In a variation on the same theme, plaintiff also argues that he properly followed

prison procedures, because the inmate handbook he was given stated that he should

pursue informal resolution of concerns, and he did so. However, the handbook states:

The Department has a way for you to bring issues concerning you or

complaints about things affecting you to staff. The way to bring these

concerns or complaints to staff is through the Offender Grievance Process.

The Offender Grievance Process will provide a way for you to express your

concerns and complaints and have them answered by staff. The use of the

Offender Grievance Process is not to take the place of you talking to staff to

try to resolve your problems or concerns. You and the staff you have contact

with are to work together to resolve your concerns as quickly as possible.

Whenever possible, your concerns should be answered by staff without

having to use the formal written grievance.

(DE # 21-2 at 25.) The handbook’s discussion of informal resolution of disputes is not

misleading, and does not obstruct plaintiff’s knowledge of or access to the grievance

process, which is also referenced in the same section. Archibeque v. Dep't of Corr., No.

CIVA06CV01468MSKMJW, 2007 WL 2412823, at *3 (D. Colo. Aug. 21, 2007) (case

manager’s encouragement of prisoner to informally resolve issue, which was in line

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with prison administrative regulation stating that informal resolutions were preferred

whenever possible, was not so unreasonable as to obstruct prisoner’s ability to obtain

formal relief). Therefore, the court rejects plaintiff’s claim that he properly exhausted his

administrative remedies by utilizing alternative resolution procedures.

(C) Lack of Education About Remedies

Plaintiff also argues that he was not educated about the prison’s formal

grievance procedure, but this argument also fails. The statute “‘says nothing about a

prisoner’s subjective beliefs, logical or otherwise, about administrative remedies that

might be available to him. The statute’s requirements are clear: If administrative

remedies are available, the prisoner must exhaust them.’” Twitty v. McCoskey, 226 Fed.

Appx. 594, 596 (7th Cir. 2007) (quoting Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.

2000)); Smith v. Corizon Med. Servs., No. 1:12-CV-1208-SEB-MJD, 2013 WL 2458461, at *3

(S.D. Ind. May 30, 2013); Thomas v. Wolfe, No. 1:12-CV-01021-RLY, 2013 WL 2149716, at

*4 (S.D. Ind. May 15, 2013).

True, authorities may not establish non-exhaustion based upon an inmate’s

failure to follow unwritten or unavailable rules. King v. McCarty, 781 F.3d 889, 896 (7th

Cir. 2015). However, in this case plaintiff admits to receiving a handbook generally

describing the grievance procedure, and does not dispute defendants’ assertion that the

grievance procedure is available in the law library of the prison and available to all

offenders, so any argument that the policy was unwritten or unavailable fails. Taghon v.

Euler, No. 3:11-CV-386, 2013 WL 5603928, at *5 (N.D. Ind. Oct. 10, 2013) (“Not only was

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Taghon oriented to the grievance process, but there was a copy that was readily

available in the law library. In the event Taghon wanted a copy of the grievance

process, all he needed to do was request one from the law library, which he did not

do.”); Hinton v. Corr. Corp. of Am., 623 F. Supp. 2d 61, 64 (D.D.C. 2009) (inmate failed to

exhaust administrative remedies by following grievance policy, which was summarized

in inmate handbook and available in complete format in prison’s law library).

(D) “Availability of Remedies”

The court finds that there exist disputed issues of fact as to one of plaintiff’s

arguments. Plaintiff argues that he did not become aware of the severity of his

condition until he was essentially made paraplegic, and that at that point the grievance

system was “unavailable” to him because no remedy could be supplied through any

administrative action as a result of filing a grievance. In short, plaintiff claims that once

the damage was done, no further administrative remedies were available and a lawsuit

for money damages was plaintiff’s only remaining remedy.

Plaintiff cites two cases in support of this argument. First, in Perez v. Wisconsin

Department of Corrections, 182 F.3d 532, 538 (7th Cir. 1999), the Seventh Circuit, in obiter

dicta, described a hypothetical situation in which administrative remedies could

conceivably be unavailable to a prisoner. The Perez court commented: “It is possible to

imagine cases in which the harm is done and no further administrative action could

supply any ‘remedy.’ . . . Suppose the prisoner breaks his leg and claims delay in setting

the bone is cruel and unusual punishment. If the injury has healed by the time suit

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begins, nothing other than damages could be a ‘remedy’ and if the administrative

process cannot provide compensation then there is no administrative remedy to

exhaust.” Id. at 538.

Next, in White v. Bukowski, 800 F.3d 392, 395 (7th Cir. 2015), the Seventh Circuit

built upon its dicta in Perez to hold that an incarcerated woman who gave birth to a

baby with birth defects had no available remedies after the defects were discovered,

and therefore was not required to exhaust administrative remedies before filing suit.

The White court reasoned: “For how could a prisoner be expected to file a grievance that

would be academic because no response would benefit him or her in the slightest?”

However, the court went on to highlight the plaintiff’s lack of awareness of her fetus’s

condition, explaining that “[t]he plaintiff may have had no reason to think at the time that

her medical care in the jail was seriously inadequate, that it posed a threat to the fetus. By the

time she discovered its inadequacy, or thought she had, which was when the baby was

born with severe birth defects, it was too late for her to obtain a remedy of better

prenatal care. . . . Likewise it was too late to request prompt transport to the emergency

room for her delivery. There was no remedy within the power of the jail to grant for the

baby’s birth defects.” Id. at 395 (emphasis added).

Because no discovery has occurred in this case and the sequence of events related

to the development and progression of plaintiff’s condition, his awareness of his

condition, the information and advice he received from physicians, etc., is murky, the

court finds that questions of fact prevent the court from determining as a matter of law

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whether or not a remedy was “available” to plaintiff such that he was required to file a

grievance before filing this lawsuit in light of Perez and White. In other words, viewing

the evidence in a light most favorable to plaintiff, the court cannot say that defendants

have met their burden of proving the availability of administrative remedies. 

III. CONCLUSION

For the foregoing reasons, and to keep summary judgment proceedings separate

from Pavey proceedings as preferred by the Seventh Circuit in Wagoner, 778 F.3d at

591-92, the court DENIES defendants’ motion for summary judgment (DE # 18) and

plaintiff’s related motion to strike (DE # 23).

Further, the court REFERS this matter to the Honorable Michael G. Gotsch,

United States Magistrate Judge for this District, pursuant to 28 U.S.C. § 636(b)(1)(B),

Fed. R. Civ. P. 72(b), and N.D. Ind. R. 72-1, to oversee preliminary discovery, if

appropriate, and conduct hearings, including evidentiary hearings, on the factual

questions related to exhaustion as described in Part II (D) of this opinion, and to submit

proposed findings of fact and recommendations for the disposition of the issue.

SO ORDERED.

Date: January 24, 2017

 s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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