MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Aug 20 2018, 8:45 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEES
Robert Carl Johnson                                      Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Andrea E. Rahman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Carl Johnson,                                     August 20, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         48A05-1711-PL-2840
        v.                                               Appeal from the Madison Circuit
                                                         Court
Corrections Officer Captain                              The Honorable Angela Warner
Blattner, et al.,                                        Sims, Judge
Appellees-Defendants.                                    Trial Court Cause No.
                                                         48C01-1507-PL-87



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018              Page 1 of 9
                                          Case Summary
[1]   Robert Carl Johnson (“Johnson”) appeals the trial court’s grant of summary

      judgment to State Defendants, Corrections Officer Captain Blattner and

      Corrections Officer Schell (“the State”). Johnson raises one issue on appeal,

      which we restate as follows: whether the trial court erred in granting the State

      summary judgment because Johnson failed to exhaust his administrative

      remedies before filing a lawsuit, as required by the Prison Litigation Reform

      Act, 42 U.S.C. § 1997e (“PLRA”).


[2]   We reverse and remand.



                            Facts and Procedural History
[3]   Johnson is serving a forty-nine year and eleven-month sentence for robbery at

      the Department of Correction’s (“DOC”) Correctional Industrial Facility

      (“CIF”). On July 28, 2015, he filed a complaint in Madison Circuit Court

      alleging the State violated his right to privacy under the Fourth Amendment to

      the U.S. Constitution and his right to equal protection under the Fourteenth

      Amendment to the U.S. Constitution when two correctional officers performed

      a search of his cell and his person four times within the span of seven days,

      contrary to their treatment of other offenders. The State moved to dismiss the

      suit for failure to state a claim upon which relief may be granted, and the trial

      court granted that motion. Johnson appealed, and, on December 26, 2016, a

      panel of this court affirmed the dismissal of the Fourth Amendment claim but


      Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018   Page 2 of 9
      reversed the dismissal of the Fourteenth Amendment claim and remanded the

      case. Johnson v. Corr. Officer Captain Blattner, No. 48A02-1602-PL-285, 2016 WL

      7333630, at *3 (Ind. Ct. App. 2016).


[4]   On remand, on February 23, 2017, the State filed a motion for summary

      judgment on the grounds that Johnson failed to exhaust his administrative

      remedies before filing his complaint, in violation of the PLRA. On March 3,

      Johnson filed a motion for partial summary judgment, contending that he

      exhausted his administrative remedies to the extent allowed by the State. Both

      parties designated evidence in support of their motions and the trial court held a

      hearing on those motions on August 17, 2017.


[5]   The parties’ designated evidence was as follows. On January 9, 2015, Johnson

      filed an Offender Grievance on State Form 45471—grievance number 86162—

      in which he complained that CIF officers had searched his cell and his person

      through strip searches that included anal cavity searches for “four days straight

      almost[,]” in violation of his Fourth and Fourteenth Amendment rights under

      the United States Constitution. Appellees’ App. at 97. He indicated that he

      had been unable to resolve the issue informally because there was no one

      available at the time to take his complaint. Id. On January 12, 2015, the State

      received Johnson’s grievance and responded to it with a denial entitled

      “Offender Grievance Response Report.” Id. at 98. On February 6, 2015,

      Johnson filed with the State a “Request for Interview,” State Form 36935, in

      which he requested “a copy of [his] grievance appeal.” Id. at 100. On February

      9, Johnson submitted to the State an “Affidavit of Mailing” in which he swore

      Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018   Page 3 of 9
      that he had filed his appeal regarding grievance number 86162 on January 13,

      2015, but had not yet received any response. Id. at 93; State’s Br. at 10. Along

      with his appeal, Johnson had sent the State a copy of the January 12 Offender

      Grievance Response Report, but he did not sign or date the bottom of that

      document. Id. at 91.


[6]   On December 26, 2016, Johnson filed with the State a “Request for Access to

      Public Record” in which he requested copies of “all and any records pertaining

      to grievance # 86162.” Id. at 95. On January 12, 2017, Johnson filed another

      “Request for Interview,” State Form 36935, in which he again requested copies

      of “his grievance and its appeal under grievance number #86162.” Id. at 99.

      On January 20, Johnson filed another “Request for Interview” form in which

      he notified the State that, although he had received a copy of the formal

      grievance regarding grievance number 86162, he had not received a copy of the

      “appeal paperwork” for that grievance. Id. at 96. He requested any written

      receipt the State might have that indicated it had sent the appeal paperwork

      “‘down State’ to D.O.C.” Id. The State responded to the January 20 request as

      follows: “You never appealed this grievance[,] Sir[,] so there would be no

      appeals, receipts, etc.” Id.


[7]   In support of its summary judgment motion, the State designated an affidavit

      from the CIF Offender Grievance Administrator which stated in relevant part,

      “Johnson did not file a formal appeal of the grievance … on the matter related

      to searches in early January of 2015.” Id. at 44. The State also designated

      CIF’s “History of Grievances” for Johnson, a grievances log which indicated

      Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018   Page 4 of 9
      that Johnson filed formal grievance number 86162, received on January 12,

      2015, regarding searches and use of restraints but did not reflect that Johnson

      ever filed a formal appeal of the denial of that grievance. Id. at 79.


[8]   DOC grievance procedures are governed by policy number 00-02-301, titled

      “Offender Grievance Process,” of the DOC’s Policy and Administrative

      Procedures Manual. Id. at 47-76. Under this policy, the


              Offender Grievance Process consists of three steps: (1) an
              informal attempt to solve a problem or address a concern, which
              can be followed by (2) submission of a written form setting out
              the problem or concern and other information, and the response
              to that submission, which can be followed by (3) a written appeal
              of the response to a higher authority and the response to that appeal.


      Id. at 51 (emphasis added). A grievance is defined as a written complaint

      submitted on State Form 45471, and an appeal is defined as “[a] request for

      review of a facility-level response to a grievance by the Department Offender

      Grievance Manager.” Id. at 48-49.


[9]   After an offender has filed a grievance and received a grievance response with

      which he disagrees, the offender has a right to appeal the response within ten

      working days of receiving it. Id. at 69.


              The original grievance, any grievance response, and any other
              information submitted with the original grievance must be
              included with the appeal.


              Staff receiving the appeal shall forward it to the Executive
              Assistant within one (1) working day after receiving it. The
      Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018   Page 5 of 9
                Executive Assistant shall indicate the date he or she received the
                appeal and shall generate a receipt for the appeal. The receipt shall be
                given to the offender within one (1) working day from the date the
                appeal is logged. The Executive Assistant shall log the appeal and
                determine whether all pertinent information is included. If the
                appeal is complete, the Executive Assistant or designee shall scan
                all of the pertinent information relating to the grievance and
                appeal into the Offender Grievance System and send all of the
                information to the Department Offender Grievance Manager
                electronically.


       Id. (emphasis added). The Grievance Manager then makes a final decision

       within twenty working days of receiving the appeal from the Executive

       Assistant and informs the Executive Assistant of the decision. As the last step

       in the offender grievance process, the Executive Assistant must then provide

       that final decision to the offender within two working days of receiving it from

       the Grievance Manager.


[10]   On October 19, 2017, the trial court granted the State’s motion for summary

       judgment. Johnson now appeals that order.



                                    Discussion and Decision
[11]   Johnson maintains that the trial court erred in granting summary judgment1 to

       the State. Our standard of review for summary judgment is well settled. When




       1
         Summary judgment is a permissible vehicle to address a plaintiff’s alleged failure to exhaust administrative
       remedies. See Jackson v. Wrigley, 921 N.E.2d 508, 513 (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018             Page 6 of 9
       reviewing a grant or denial of summary judgment, we apply the same standard

       as the trial court. Holmes v. Celadon Trucking Serv. of Ind., Inc., 936 N.E.2d 1254,

       1256 (Ind. Ct. App. 2010).


               The party moving for summary judgment has the burden of
               making a prima facie showing that there is no genuine issue of
               material fact and that the moving party is entitled to judgment as
               a matter of law. Once these two requirements are met by the
               moving party, the burden then shifts to the non-moving party to
               show the existence of a genuine issue by setting forth specifically
               designated facts. Any doubt as to any facts or inferences to be
               drawn therefrom must be resolved in favor of the non-moving
               party.


       Daviess-Martin Cty. Joint Parks and Recreation Dep’t v. Estate of Abel by Abel, 77

       N.E.3d 1280, 1285 (Ind. Ct. App. 2017) (citations omitted).


[12]   The trial court granted the State’s motion for summary judgment because it

       held that Johnson had not exhausted his administrative remedies prior to filing

       a lawsuit under 42 United States Code § 1983, as required by the Prison

       Litigation Reform Act. 42 U.S.C. § 1997e(a); see also Higgason v. Stogsdill, 818

       N.E.2d 486, 489 (Ind. Ct. App. 2004), trans. denied. Administrative remedies

       are considered exhausted as required by the PLRA when the grievant complies

       with all the rules of the prison grievance system. Smith v. Butts, 66 N.E.3d 967,

       971 (Ind. Ct. App. 2016).


[13]   We hold that the trial court erred in granting summary judgment in this case

       because there is a genuine issue of material fact regarding whether or not

       Johnson completed the last step of the DOC grievance process by filing an
       Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018   Page 7 of 9
appeal of the Offender Grievance Response issued by the State on January 12,

2015. The State designated an affidavit from the CIF Offender Grievance

Administrator, dated February 23, 2017, which stated that Johnson did not file

a formal appeal of the January 12, 2015 decision regarding the grievance. The

State also designated its grievances history log for Johnson which also indicated

Johnson did not file a formal appeal of the grievance. However, Johnson

designated his affidavit, dated February 9, 2015, in which he swore that he did

file an appeal of the grievance on January 13, 2015. Johnson also designated

his February 6, 2015 request to the State for a copy of his appeal of the

grievance. In addition, Johnson designated two requests made in January 2017

for copies of the appeal of the grievance. Thus, there exists a genuine issue of

material fact as to whether Johnson filed an appeal of the January 12, 2015

grievance response,2 making summary judgment inappropriate. Estate of Abel,

77 N.E.3d at 1285.




2
   Much of the State’s appeal brief is devoted to arguing in the alternative that, even if Johnson did file an
appeal of the grievance, that appeal was inadequate because he did not note at the bottom of the Offender
Grievance Response Report that he disagreed with the decision, nor did he sign and date that form. State’s
Br. at 12, 18-21. Given our holding, above, we need not address this contention. However, we note that
nowhere in DOC policy number 00-02-301 does it require that an offender complete the bottom of the
Offender Grievance Response Report in order to perfect his appeal. Appellee’s App. at 47-76. Furthermore,
it is not possible to tell whether Johnson’s appeal, if filed, was sufficient because the State failed to keep a
copy of the appeal as required by its own rules. Id. at 57 (Sec. XI (E), (H), and (K)). And the State did not
give Johnson any response at all to his appeal, if filed, as also required by its own rules. Id. at 51, 69.

Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018               Page 8 of 9
                                               Conclusion
[14]   Because there is a genuine issue of material fact as to whether Johnson

       exhausted his administrative remedies, we reverse and remand for further

       proceedings.


[15]   Reversed and remanded.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1711-PL-2840 | August 20, 2018   Page 9 of 9
