‐1‐ 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

DAVID CORBIN 

 Plaintiff, 

 vs. 

STATE OF INDIANA, 

CORIZON HEALTH, INC., and 

DR. CARA MISETIC 

 Defendants. 

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NO. 3:16–CV-00602 

 

OPINION AND ORDER

 This matter is before the Court on the Defendants’ Motion for 

Summary Judgment for Failure to Exhaust Administrative Remedies, 

filed by the State of Indiana, Corizon Health, Inc., and Dr. Cara 

Misetic (together, “Defendants”) on December 9, 2016 (DE #15). 

For the reasons set forth below, Defendants’ motion for summary 

judgment (DE #15) is DENIED. Within fourteen (14) days of this 

order, Defendants are ORDERED to file a notice advising whether 

they wish to waive their exhaustion defense or proceed with a 

hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). 

BACKGROUND 

David Corbin (“Corbin”), an inmate within the Indiana 

Department of Corrections (“IDOC”), brings an action pursuant to 

42 U.S.C. § 1983 based on allegations that Defendants denied 

services to Corbin and failed to reasonably protect him from a 
‐2‐ 

known substantial risk of harm that ultimately caused his attempted 

suicide, in violation of the Rehabilitation Act, the Americans 

with Disabilities Act, and the Eighth and Fourteenth Amendments to 

the Constitution of the United States. Corbin filed his complaint 

in LaPorte Superior Court on August 9, 2016 (“Complaint”). The 

Complaint alleges that Defendants placed Corbin in solitary 

confinement, i.e., segregated housing, at the Westville 

Correctional Facility (“Westville”) from January 2012 to September 

2014, denied him placement in a non-segregated housing unit, failed 

to provide him with basic psychological care and mental health 

services, and refused to transfer him to a unit where he could 

receive services for his mental disabilities. (DE #3, ¶¶8-9, 12.) 

The Complaint further alleges that Defendants knew that Corbin had 

mental disabilities, but kept him in segregated housing and denied 

him basic psychological care, mental health services and contact 

with other human beings, knowing that doing so would cause him to 

mentally decompensate. (Id., ¶¶ 9, 11, 13.) Defendants allegedly 

failed to intervene to prevent Corbin from mentally decompensating 

to the point of attempting suicide on September 15, 2014. (Id., 

¶14.) 

This action was removed to the Northern District of Indiana, 

and Defendants filed the instant motion for summary judgment on 

December 9, 2016, arguing that Corbin’s claims fail because he did 

not exhaust his available administrative remedies. Corbin filed 
‐3‐ 

a response in opposition to the motion on February 7, 2017. 

Defendants filed a reply memorandum on February 21, 2017. This 

motion is fully ripe and ready for adjudication before this Court. 

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, 106 S. Ct. 

2505, 91 L. Ed. 2d 202 (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. To determine whether a genuine dispute of material 

fact exists, the Court must construe all facts in the light most 

favorable to the nonmoving party and draw all reasonable inferences 

in that party’s favor. See Ogden v. Atterholt, 606 F.3d 355, 358 

(7th Cir. 2010). A party opposing a properly supported summary 

judgment motion may not rely on allegations in his own pleading 

but rather must “marshal and present the court with the evidence 

[he] contends will prove [his] case.” Goodman v. Nat'l Sec. 

Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). 
‐4‐ 

FACTS 

The Grievance Process 

The IDOC uses the Offender Grievance Process, an 

administrative process that offenders committed to the IDOC may 

use to resolve concerns and complaints relating to conditions of 

their confinement. (DE #16-1, Aff. of Troy Cambe, ¶4.) Upon 

intake into Westville, offenders are provided with orientation 

regarding how the grievance process works, and where to locate 

grievance forms. (Id., ¶5.) The grievance process has three 

steps: (1) an attempt to informally resolve the complaint; (2) 

the filing of a grievance form; and (3) the filing of an appeal. 

(Id., ¶8.) The first step requires the offender to discuss the 

complaint with either the staff person responsible for the 

situation, or, if no such person exists, with the person in charge 

of the area in which the situation occurs. (Id., ¶9.) If the 

grievance is not resolved, the offender may proceed to the second 

step and file an Offender Grievance Form. (Id., ¶10.) This form 

must be filed within twenty working days from the date of the 

incident giving rise to the complaint or concern. (Id., ¶11.) If 

a grievance is denied, the offender may proceed to step three, and 

file a grievance appeal for further review. (Id., ¶12.) Records 

of grievances and appeals are maintained and tracked by IDOC. 

(Id., ¶13.) 
‐5‐ 

The Classification Appeal Process 

The IDOC maintains an administrative process that offenders 

committed to the IDOC may use to appeal intra-facility 

classification decisions such as placement in specific housing 

units, or changes in education or work assignments. (DE #16-5, 

Aff. of Jacqueline Salyer, ¶4; DE #16-6, at 10-11.) Offenders may 

also appeal inter-facility classification transfer decisions. (DE 

#16-6, at 11-12.) Upon intake into Westville, offenders are 

provided with orientation regarding how the classification appeal 

process works, and where to locate classification appeal forms. 

(DE #16-5, ¶5.) To initiate a classification appeal, the offender 

submits a written appeal on State Form 9260 within ten working 

days from the date the offender received the classification 

decision at issue. (Id., ¶8; DE #16-6, at 10-12.) The 

classification appeal form is reviewed, and a decision is rendered 

on the appeal. (DE #16-5, ¶9; DE #16-6 at 11-12.) 

Corbin’s Background and Grievance History 

Corbin was incarcerated at Westville from January 28, 2012, 

until September 16, 2014. (DE #16-5, ¶12; DE #25-1, Aff. of David 

Corbin, ¶2.) He is currently incarcerated at the New Castle 

Correctional Facility (“New Castle”). (DE #25-1, ¶2.) Corbin 

suffers from several mental conditions, including clinical 

depression, panic disorder, and post-traumatic stress disorder. 

(Id., ¶3; DE #25-3.) As a result of these conditions, Corbin 
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experiences: difficulties with sleeping, including nightmares; 

flashbacks of witnessing his cousin’s suicide; extreme feelings of 

sadness, hopelessness and helplessness; difficulties with 

concentration and memory; agitation; panic attacks; and 

overwhelming urges to hurt and kill himself. (DE #25-1, ¶3.) 

Corbin was first placed in an administrative segregated unit 

beginning on May 6, 2013. (DE #16-5, ¶13.) He was transferred to 

another segregated cell on August 15, 2014. (Id.) While in the 

segregated unit, Corbin was kept in a segregated cell for 23 out 

of 24 hours each day. (DE #25-1, ¶4.) 

The IDOC has records of six grievances filed by Corbin while 

he was incarcerated at Westville between January 2012 and September 

2014. Five grievances addressed issues such as visitation, mail, 

operations, and food services, and were not appealed by Corbin. 

(DE #16-1, ¶18; DE #16-3.) Corbin filed a grievance on October 

16, 2013, regarding a medical issue, specifically, his neck pain. 

(DE #16-1, ¶17; DE #16-4.) This grievance did not refer to 

Corbin’s mental health or placement in segregation. (DE #16-1, 

¶17; DE #16-4.) Corbin appealed this grievance on November 18, 

2013, and the appeal was denied. (DE #16-4.) 

Corbin attests that he submitted written complaints relating 

to his placement and failure to receive adequate mental health 

services while in segregation at Westville. (DE #25-1, ¶14.) He 

maintains that he requested a “transfer to a facility where [he] 
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could receive appropriate care,” but it was denied. (Id.) Corbin 

was told by “a Miss Tody” (“Tody”) that this was a transfer issue 

that could not be addressed through the grievance process, but 

rather, had to be addressed through the classification appeal 

process.1 (Id.) As a result, Corbin did not complete any 

grievances or grievance appeals at Westville addressing “the 

failure to transfer [him] into a unit where [he] would receive 

appropriate and adequate mental health services.” (Id.) 

Corbin filed two classification appeals while incarcerated at 

Westville. (DE #16-5, ¶14.) He submitted a classification appeal 

on August 31, 2012 (“August 31, 2012 Classification Appeal”), 

complaining that he was not given the opportunity to participate 

in a hearing. (DE #16-7.) This classification appeal was denied. 

(Id.)2

                                                            

1 The record is unclear as to when Tody allegedly made these 

statements to Corbin. 

2

Corbin claims that he filed a classification appeal dated August 

3, 2012, to appeal “IDOC personnel’s decision to keep me on long 

term segregation/Department wide administrative segregation.” (DE 

#25-1, ¶16.) It is unclear whether Corbin intended this to refer 

to the August 31, 2012 Classification Appeal. The August 31, 2012 

Classification Appeal form does not make any reference to Corbin’s 

placement in segregation. (DE #16-7.) Regardless, Corbin does 

not dispute that he was first placed in administrative segregation 

beginning on May 6, 2013, several months after he submitted a 

classification appeal in August 2012. (DE #16-5, ¶13.) Moreover, 

because Corbin does not argue that he exhausted his administrative 

remedies by filing a classification appeal in August 2012, any 

disputes regarding the timing or subject of this classification 

appeal are immaterial. 
‐8‐ 

Corbin submitted another classification appeal over a year 

after being placed in a segregated unit. (DE #16-5, ¶16; DE #16-

8.) Corbin had asked to be transferred to New Castle, but his 

request was denied on June 3, 2014. (DE #16-8.) Corbin attests 

that in or around June 2014, he was told to file a classification 

appeal regarding “the failure to transfer [him] to a prison unit 

where [he] could obtain the psychiatric services [he] needed.” 

(DE #25-1, ¶15.) On June 10, 2014, Corbin submitted a 

classification appeal form challenging the denial of his transfer 

request (“June 2014 Classification Appeal”). (Id; DE #16-8.) 

Corbin based his appeal on the following reasons: 

I have over a year [sic] clear conduct, I have no escape 

related conduct since 2005. I have completed anger 

management. I have completed The Act Program. I am 

actively involved with [sic] Psych Dept. and taking 

medication. I am 39 yrs old and not the same carefree 

kid I was and now respect authority and abide by rules 

as reflected by my conduct and actions. I am actively 

self improving and want to be in programs. I have paid 

greatly for my past wrongs and deserve the opportunity 

to move past my past and be treated for my current status 

and actions which do show I’ve changed. The Unit Team 

and Psych Dept agree I should be given a chance to 

succeed in positive things and to pursue further self 

help program [sic] I can only get in population. They 

are around me and see the way I’ve changed. All I ask 

is for you to have faith in me and in your staff [sic] 

judgment and allow me to take next step [sic] to 

progress. 

(DE #16-8 (emphasis in original).) This appeal was denied on June 

26, 2014, with a note that Corbin needed further observation, and 

that his request “can be renewed in 6 months.” (Id.) 
‐9‐ 

 On or about August 29, 2014 to September 2, 2014, Corbin was 

moved to a suicide precaution cell at Westville. (DE #25-1, ¶5.) 

Corbin remained in the suicide precaution cell for about a week. 

(Id.) While in that cell, Corbin asked a couple of prison officers 

if he could have a pen or pencil, but this request was denied. 

(Id., ¶6.) Corbin attests that he experienced increasing problems 

with his memory and concentration while in this cell. (Id.) 

When Corbin was returned to a segregated cell, he continued 

to feel extremely agitated, helpless and hopeless, was unable to 

concentrate enough to write, and had overwhelming suicidal 

thoughts. (Id., ¶7.) Corbin attests that he tried to complete 

the first step of the grievance process by speaking with Team 

Manager Mr. Lowery (“Lowery”). (Id., ¶17.) Lowery told Corbin 

that he could not file a grievance about not being transferred to 

a treatment unit, but rather, had to file a classification appeal. 

(Id.) Lowery also told Corbin that he could not file a new 

classification appeal because his earlier appeal had been denied, 

and he had to wait six months. (Id.) Corbin claims that he did 

not submit a new classification appeal or an informal grievance 

because of what Lowery told him. (Id.) 

Corbin attempted suicide on September 15, 2014, by cutting 

his wrists and hanging himself. (Id., ¶7.) He was transferred to 

New Castle the following day. (Id.) When Corbin arrived at New 

Castle, he was placed in a “rubber room” in isolation for five to 
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seven days. (Id., ¶8.) Corbin asked two prison guards for 

grievance forms, but the guards refused to supply him with the 

forms or with a pen or pencil. (Id.) 

Once Corbin was moved from the “rubber room” to a segregated 

cell, he spoke to the “grievance officer at New Castle” regarding 

his complaint relating to his suicide attempt at Westville. (Id., 

¶10.) According to Corbin, the grievance officer told him to “do 

a Grievance” and send it to the grievance specialist at Westville. 

(Id.) Relying on her advice, Corbin completed a grievance form on 

September 23, 2014, and mailed it to Westville (“September 2014 

Grievance”). (Id., ¶¶10-11.) Corbin attests that the September 

2014 Grievance addressed Westville’s failure to transfer him 

sooner to a prison unit where he could receive adequate treatment 

for his mental illness and its failure to provide adequate care to 

prevent him from deteriorating to the point of attempting suicide 

on September 15, 2014. (Id., ¶11.) Corbin never received a 

response to this grievance. (Id., ¶12.) 

Corbin later spoke to the “Grievance Specialist at New Castle” 

regarding the status of the September 2014 Grievance. (Id.) The 

Grievance Specialist told Corbin that there was no record of it, 

and “that there was nothing [Corbin] could do about it now.” (Id.) 

Corbin attests that he did not pursue any further grievances 

regarding Westville’s failures because of what he was told. (Id.) 
‐11‐ 

Corbin’s belongings, including a copy of Westville’s 

grievance procedure, were delivered to Corbin several weeks after 

his transfer to New Castle. (Id., ¶¶9, 13.) Corbin did not have 

a copy of Westville’s grievance procedure until he received his 

belongings. (Id., ¶9.) Corbin received a copy of New Castle’s 

grievance procedure approximately one month after his arrival 

there, after he had attempted to file the September 2014 Grievance. 

(Id., ¶13.) 

DISCUSSION 

 Defendants argue that the Court should grant their motion for 

summary judgment because Corbin failed to exhaust his 

administrative remedies pursuant to the Prison Litigation Reform 

Act (“PLRA”), 42 U.S.C. § 1997e. The PLRA provides that inmates 

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. § 1997e(a). 

Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (“exhaustion 

must precede litigation”). 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) 

(citation omitted). 
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The Seventh Circuit has taken a “strict compliance approach 

to exhaustion.” Id. Therefore, “[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). “[U]nless the prisoner 

completes the administrative process by following the rules the 

state has established for that process, exhaustion has not 

occurred.” Id. at 1023. 

The record reflects that: (1) Westville had an Offender 

Grievance Process and a Classification Appeal process in place at 

the time of the events at issue; (2) Corbin had utilized both 

processes repeatedly, having filed six grievances, one grievance 

appeal, and two classification appeals while incarcerated at 

Westville; and (3) while Corbin was incarcerated at Westville, he 

did not file a grievance regarding Defendants’ alleged failures 

that precipitated his attempted suicide. Relying on these 

undisputed facts, Defendants maintain that Corbin failed to 

exhaust administrative remedies under the PLRA. In response, 

Corbin argues that his June 2014 Classification Appeal exhausted 

his administrative remedies. He also contends that the Offender 

Grievance Process was not available to him due to the actions of 

prison personnel and his own deteriorated psychiatric condition. 
‐13‐ 

The June 2014 Classification Appeal 

Corbin maintains that his June 2014 Classification Appeal 

exhausted administrative remedies under the PLRA. While 

Defendants attempt to distinguish between Corbin’s complaints 

about mental health services and the denial of his transfer 

request, they admit that Corbin could have “utilize[d] one or both 

systems,” i.e., the grievance process or the classification appeal 

process, to address his complaints about the conditions of his 

confinement. (DE #27 at 2.) Defendants argue that the June 2014 

Classification Appeal was not a proper appeal of Corbin’s 

assignment to segregation because it was filed over a year after 

he was placed in administrative segregation in May 2013. However, 

the IDOC accepted the June 2014 Classification Appeal and resolved 

it on the merits. “[W]hen a state treats a filing as timely and 

resolves it on the merits, the federal judiciary will not secondguess that action, for the grievance has served its function of 

alerting the state and inviting corrective action.” Riccardo v. 

Rausch, 375 F.3d 521, 524 (7th Cir. 2004).3

Defendants also assert that Corbin did not exhaust his 

administrative remedies because the June 2014 Classification 

                                                            

3 Courts have applied case law addressing grievances where a 

prisoner was supposed to, and did, utilize the classification 

appeal process. See, e.g., Littler v. Indiana Dep't of Corr. 

Com'r, No. 3:11-CV-218 CAN, 2013 WL 1149607, at *7 (N.D. Ind. Mar. 

19, 2013) (citing Riccardo, 375 F.3d at 523-24). 
‐14‐ 

Appeal fails to properly raise the claims forming the substance of 

Corbin’s Complaint. “As in a notice-pleading system, the grievant 

need not lay out the facts, articulate legal theories, or demand 

particular relief. All the grievance need do is object 

intelligibly to some asserted shortcoming.” Riccardo, 375 F.3d at 

524; see McDaniel v. Meisner, 617 F. App'x 553, 557 (7th Cir. 2015) 

(where regulations are silent, “a grievance suffices if it alerts 

the prison to the nature of the wrong for which redress is sought”) 

(citation omitted); Peterson v. Rogan, No. 2:11–CV–0007, 2012 WL 

4020996, at *3 (S.D. Ind. Sept. 12, 2012) (a grievance appeal must 

contain the same subject matter as the lawsuit to effectively 

exhaust administrative remedies). The Complaint alleges that 

Defendants failed to provide Corbin with basic psychological care 

and mental health services, refused to transfer him to a nonsegregated unit where he could receive services for his mental 

disabilities, and denied him human contact knowing that doing so 

would cause him to mentally decompensate. It also alleges that 

Defendants failed to prevent Corbin from mentally decompensating 

to the point of attempting suicide. 

Corbin claims that he challenged the denial of his transfer 

request in the June 2014 Classification Appeal because he needed 

to be treated for his current mental health and psychiatric status, 

and needed access to therapeutic programs that were not available 

in the segregated unit at Westville. However, the June 2014 
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Classification Appeal form does not alert Defendants to the nature 

of the wrongs alleged in Corbin’s Complaint. See Peterson, 2012 

WL 4020996, at *3 (noting that a plaintiff’s characterization of 

his grievances can be overcome by the grievance documents 

themselves). The June 2014 Classification Appeal form states that 

Corbin appealed the denial of his request “to send me to New Castle 

‘step down’ as I finished Act Program.” (DE #16-8.) On the form, 

Corbin explained that he sought the appeal because he had “over a 

year of clear conduct,” had completed anger management and the 

“Act Program,” was “actively self improving,” and “now respect 

authority and abide by rules as reflected by my conduct and 

actions.” (Id.) He stated that he was “actively involved” with 

the psychology department, was taking medication, and that the 

psychology department agreed that he “should be given a chance to 

succeed in positive things and to pursue further self help program 

[sic] I can only get in population. They are around me and see 

the way I’ve changed.”4 (Id.) Corbin stated that he had “paid 

greatly for my past wrongs and deserve the opportunity to move 

past my past and be treated for my current status and actions which 

do show I’ve changed,” and asked that he be allowed “to take next 

step [sic] to progress.” (Id.) 

                                                            

4 The Court reasonably infers that “population” refers to the 

general prison population.
‐16‐ 

The June 2014 Classification Appeal does not indicate that 

Corbin was mentally decompensating in the segregation unit, or 

that being denied human contact was harming him psychologically. 

Nor does it indicate that Corbin was being denied basic 

psychological care, or that participating in programs in the 

general prison population was necessary to provide basic services 

for his mental disabilities. Because the June 2014 Classification 

Appeal does not alert Defendants to the nature of the wrongs 

alleged in Corbin’s Complaint, it does not exhaust his 

administrative remedies with respect to the claims alleged in the 

Complaint. 

Unavailability of Administrative Remedies 

Corbin argues that even if the June 2014 Classification Appeal 

did not exhaust his administrative remedies, the PLRA does not 

prevent him from proceeding with his claims because Westville’s 

administrative remedy procedure was unavailable to him. Under the 

PLRA, prisoners are only required to exhaust administrative 

remedies that are “available.” See Pyles v. Nwaobasi, 829 F.3d 

860, 864 (7th Cir. 2016) (“Remedies that are genuinely unavailable 

or nonexistent need not be exhausted.”). “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. In such cases, the prisoner is 

considered to have exhausted his administrative remedies.” Id. 
‐17‐ 

(internal citations and quotation marks omitted). “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.” Jimmerson v. Meyers, No. 3:14-

CV-342, 2014 WL 3734181, at *3 (N.D. Ind. July 28, 2014) (quoting 

Dole, 438 F.3d at 812). When there are disputed issues of fact 

pertaining to whether the prisoner exhausted, the Court is required 

to hold a hearing to resolve those disputes. Pavey v. Conley, 544 

F.3d 739, 742 (7th Cir. 2008) (indicating that a judge, not a jury 

should resolve initial disputes about exhaustion in prisoner 

cases, and setting forth the procedure to be followed in doing 

so). 

Corbin maintains that the actions of prison personnel 

prevented him from exhausting administrative remedies between June 

2014 and October 2014. First, Corbin attests that Tody told him 

that the denial of his request to transfer to a facility where he 

would receive appropriate care had to be addressed through the 

classification appeal process, rather than the grievance process. 

Corbin maintains that based on Tody’s statements, he did not 

complete any grievances or grievance appeals regarding Westfield’s 

failure to transfer him to a unit where he would receive 

appropriate mental health services. See Thomas v. Reese, 787 F.3d 

845, 847–48 (7th Cir. 2015) (administrative remedies were 

unavailable where a prison officer misled a prisoner into believing 
‐18‐ 

he could not file a grievance when in fact he could). Defendants 

do not address Tody’s alleged statements, or Corbin’s alleged 

reliance on them, but state that Corbin was responsible for 

understanding the policies and procedures available to him. 

Defendants argue that Corbin offers no evidence that the 

classification appeal process was not available to him within ten 

days of his assignment to another segregation cell on August 15, 

2014. However, the denial of the June 2014 Classification Appeal 

indicates that prison officials would not review Corbin’s transfer 

request until six months had passed. 

Second, Corbin asserts that his administrative remedies were 

unavailable because prison guards denied his requests for writing 

utensils and grievance forms while he was in a suicide precaution 

cell in Westville and in a “rubber room” at New Castle. See Dale 

v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (administrative 

remedies were unavailable where prison officials thwarted a 

prisoner’s efforts to exhaust by failing to provide him with the 

necessary forms). Once released from the “rubber room,” Corbin 

claims that he was not provided with copies of the Westville and 

New Castle grievance procedures until nearly one month after his 

arrival at New Castle. Defendants respond that Corbin’s lack of 

a writing utensil for a period of days does not excuse his failure 

to file grievances about the mental health care he received for 

the preceding two years. They also note that Corbin utilized the 
‐19‐ 

grievance process several times, and the classification appeals 

process twice, indicating that he was aware of both processes. 

Third, Corbin maintains that he made reasonable efforts to 

complete the grievance process, but that those efforts were met 

with a non-response from Westville. He tried to complete the 

informal step of the grievance process by speaking with Lowery 

about his complaint of not being transferred to a treatment unit. 

Corbin attests that he did not file a grievance or new 

classification appeal because Lowery told him that he could not 

file a grievance about his complaint, or file a new classification 

appeal for six months. After Corbin’s suicide attempt and his 

transfer to New Castle, he allegedly relied on the advice of the 

New Castle grievance officer, and prepared and mailed the September 

2014 Grievance to Westville. When Corbin followed up with the New 

Castle Grievance Specialist, she told him that there was no record 

of the September 2014 Grievance, and that there was nothing Corbin 

could do about it. Corbin maintains that he did not submit any 

additional grievances based on the New Castle Grievance 

Specialist’s statements. See Pavey v. Conley, 663 F.3d 899, 906 

(7th Cir. 2011) (“An administrative remedy is not ‘available,’ and 

therefore need not be exhausted, if prison officials erroneously 

inform an inmate that the remedy does not exist or inaccurately 

describe the steps he needs to take to pursue it.”) (citations 

omitted). Defendants do not respond to the statements allegedly 
‐20‐ 

made by Lowery, the New Castle grievance officer, or the New Castle 

Grievance Specialist. Nor do Defendants address Corbin’s alleged 

reliance on those statements. 

Corbin also contends that his deteriorated psychiatric 

condition prevented him from exhausting administrative remedies 

during the period between his placement in the suicide precaution 

cell at Westville and his release from the “rubber room” at New 

Castle. See Weiss v. Barribeau, No. 16-3039, 2017 WL 1291716, at 

*2 (7th Cir. Apr. 7, 2017) (reversing summary judgment based on 

failure to exhaust administrative remedies, noting that “[g]iven 

the questionable state of [the prisoner’s] mental stability at the 

time, we cannot have any confidence that administrative remedies 

actually were available to him”). Corbin claims that during this 

time, he suffered serious impairments with memory and 

concentration, along with other symptoms, and could not sit still, 

draw or write, which caused him to be unable to prepare a 

grievance. (DE #26 at 20-21; DE #25-1, ¶¶6, 7.) 

Defendants respond that Corbin was sufficiently mentally 

competent to file a grievance relating to his current claims 

because he had filed several other grievances while incarcerated 

at Westville. They insist that Corbin cannot choose his periods 

of lucidity by saying he was not mentally competent to file 

grievances about the issues raised in his Complaint, when he was 

able to file grievances about other issues not raised in his 
‐21‐ 

Complaint. But “[t]he ability to take advantage of administrative 

grievances is not an ‘either-or’ proposition,” and the 

availability of an administrative process may change over time. 

Kaba v. Stepp, 458 F.3d 678, 685-86 (7th Cir. 2006) (requiring a 

“more discriminating analysis” where a prisoner alleged that his 

access to the administrative process varied due to threats and 

intimidation by prison staff). While Defendants contend that 

Corbin offers no reason why he failed to file a grievance related 

to his mental health care before being moved to a suicide 

precaution cell, they ignore Corbin’s claim that Tody told him 

that he had to use the classification appeal process, rather than 

the grievance process, to address his complaint about being denied 

a “transfer to a facility where [he] would receive appropriate 

care.” (DE #25-1, ¶14.) 

Given the ambiguity in the record, Defendants have not 

demonstrated an entitlement to summary judgment. They will be 

afforded an opportunity to demonstrate at an evidentiary hearing 

that the grievance process was available to Corbin. See Pavey, 

544 F.3d at 742. If they do so, and Corbin did not properly 

exhaust his administrative remedies as required by the PLRA, the 

case must be dismissed. If the grievance process was effectively 

unavailable to Corbin, he would be excused from failing to exhaust. 

See Dole, 438 F.3d at 809. 
‐22‐ 

Because summary judgment cannot be granted on the present 

record, Defendants’ motion is DENIED. Unless Defendants withdraw 

their exhaustion defense, it will be necessary to hold a hearing 

pursuant to Pavey to resolve the following issues: 

(1) what issues Corbin raised in his discussions with Tody 

and Lowery regarding the conditions of his confinement, what each 

of them told Corbin about his ability to file grievances and/or 

classification appeals regarding those issues, and the dates of 

those conversations; 

(2) whether Corbin was unable to prepare a grievance due to 

prison guards’ refusal to provide him with writing utensils and/or 

grievance forms while he was held in a suicide precaution cell at 

Westville and in a “rubber room” at New Castle; 

(3) whether Corbin was unable to prepare a grievance due to 

a deteriorated mental state during the time period when he was 

first placed in a suicide precaution cell at Westville until his 

release from a “rubber room” at New Castle, and the dates of that 

time period; 

(4) what the New Castle grievance officer told Corbin 

regarding how to file a grievance about his treatment at Westville, 

and the dates on which those statements were made; 

(5) whether Corbin prepared and mailed the September 2014 

Grievance to Westville, and the date(s) on which he did so; 

(6) what issues were raised in the September 2014 Grievance; 
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(7) what the New Castle Grievance Specialist told Corbin 

regarding the lack of a record of the September 2014 Grievance, 

whether she told Corbin that there was nothing that he could do 

about it, and the dates on which those statements were made; and 

(8) the date(s) on which Corbin received copies of the 

Westville grievance procedure and New Castle grievance procedure 

while he was incarcerated at New Castle. 

CONCLUSION 

 For the reasons set forth above, Defendants’ motion for 

summary judgment (DE #15) is DENIED. Within fourteen (14) days of 

this order, Defendants are ORDERED to file a notice advising 

whether they wish to waive their exhaustion defense or proceed 

with a hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 

2008). 

DATED: April 26, 2017 /s/ RUDY LOZANO, Judge 

 United States District Court