Indiana Southern District Chief Judge Jane Magnus-Stinson has issued a stern warning to any defendants considering filing an affirmative defense of failure to exhaust administrative remedies under the Prison Litigation Reform Act – provide evidence to support that claim or abandon the defense entirely.
The chief judge issued that warning Monday after striking down a motion for summary judgment Marc T. Warren v. Corizon Inc., Dick Brown, Swartzengrubber Nurse, Chavez M.D., 2:17-cv-00116. In that case, Marc Warren, an inmate at the Wabash Valley Correctional Facility, filed suit in the U.S. District Court for the Southern District of Indiana against the defendants for giving him medication he asserted they knew he was allergic to.
In their motion for summary judgment, the defendants maintained Warren had failed to exhaustive his administrative remedies by not filing a grievance appeal which is the third and final phase of the Indiana Department of Correction’s Offender Grievance Process. However, Warren claimed in a sworn declaration he had placed the denial of his formal grievance in the grievance specialist’s mailbox located in his housing unit. According to Warren’s declaration, that was the informal process inmates followed to begin a grievance appeal, yet he never received an appeal form after depositing the form in the specialist’s box.
The defendants argued Warren “simply relie(d) on his own declaration that he put a grievance appeal request in the counselor’s mailbox” to contest their summary judgment motion. But Magnus-Stinson denied the defendants’ motion, finding the administrative process was unavailable to Warren because it operated “as a simple dead end.”
She then cautioned the attorneys against filing such “frivolous” motions and warned that sanctions would be warranted for similar conduct in the future.
“The defendants’ argument is simply a request for the Court to not consider Mr. Warren’s sworn declaration to be competent evidence,” the chief judge wrote. “…The defendants’ position is problematic for several reasons, but the Court will focus here on the most salient – namely, that this argument has been consistently rejected by the Seventh Circuit such that it is legally frivolous for the defendants to raise it.”
Magnus-Stinson then pointed to the 7th Circuit Court of Appeals’ case Sanders v. Melvin, –F.3d–, 2017 WL 4638653, *2 (7th Cir. 2017), from the Central District of Illinois that was handed down Oct. 17. In that ruling, the appellate court wrote, “Everything a litigant says in support of a claim is self-serving …Yet self-serving statements are not necessarily false; they may be put to the test before being accepted, but they cannot be ignored.”
The circuit court then pointed to the case Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013), which overruled precedent “that so much as hinted” toward “a doctrine that allows judges to disregard self-serving statements….”
“It is dismaying to see plausible allegations labeled ‘self-serving’ and then swept aside after Hill… ,” the circuit court wrote in October.
Magnus-Stinson said the defense’s decision in the instant case to use the same approach in its summary judgment motion is part of a “troubling pattern” in prisoner civil rights cases that leaves a court with only two options – taking time to explain that such an argument lacks any basis in law, or “mistakenly accept(ing) the defendants’ invitation to commit legal error.”
“Of course, neither of these options forced upon the Court by defendants in these cases is acceptable,” she continued. “It is not only unethical for defendants to take this approach to exhaustion for all the reasons set forth above, but it also wastes the parties’ and the Court’s limited resources to brief and then rule on what amount to frivolous motions for summary judgment on exhaustion.”
The chief judge also said attorneys have professional obligations under Federal Rule of Civil Procedure 11, 28 U.S.C. section 1927 and the Indiana Rules of Professional Conduct not to invite the court to commit such error. Though she declined to impose sanctions in the Monday opinion, Magnus-Stinson warned that if similar motions are filed in the future, sanctions could issue.
“When confronted with evidence that the administrative remedy process was unavailable, defendants must pursue only legitimate course – e.g., attempt to dispute that evidence, submit evidence showing that the administrative remedy process was nevertheless available, conceded that a Pavey hearing is required, or withdraw their affirmative defense of exhaustion,” she wrote. “Whatever path they choose, asking this Court to commit legal error by ignoring the plaintiff’s perfectly admissible material evidence is not an option. Should this continue, sanctions under Rule 11 and 28 U.S.C. 1927 will be warranted.”
Magnus-Stinson then gave the defendants notice of her intent to grant summary judgment to Warren on the exhaustion defense and gave them until Nov. 29 to either respond to the notice or withdraw their affirmative defense.