                                                                      FILED
                                                                 Dec 27 2016, 9:20 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      APPELLANT PRO SE                                          ATTORNEY FOR APPELLEES
      Roy A. Smith                                              Adam G. Forrest
      Michigan City, Indiana                                    Boston Bever Klinge Cross & Chidester
                                                                Richmond, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Roy A. Smith,                                             December 27, 2016

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                33A04-1606-PL-1295
              v.                                                Appeal from the Henry Circuit
                                                                Court.
                                                                The Honorable Kit C. Dean Crane,
      Keith Butts, Jenny Gibson,                                Judge.
      Amber Berry, Misty Cecil, and                             Cause No. 33C02-1504-PL-20
      Amie Williams,
      Appellees-Defendants.




      Darden, Senior Judge



                                    Statement of the Case
[1]   Roy A. Smith appeals the trial court’s denial of his motion for summary

      judgment and its grant of summary judgment in favor of Keith Butts, Jenny

      Gibson, Amber Berry, Misty Cecil, and Amie Williams (“the Officials”). We

      affirm in part, reverse in part, and remand.

      Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016           Page 1 of 10
                                                     Issue
[2]   Smith raises the following issue, which we restate as: whether the trial court

      erred in granting the Officials’ motion for summary judgment and in denying

      Smith’s motion for summary judgment.



                             Facts and Procedural History
[3]   Smith is an inmate in the Indiana Department of Correction (“the DOC”) and,

      at all times relevant to this case, was imprisoned at the New Castle Correctional

      Facility in Henry County. The Officials worked at the New Castle Correctional

      Facility in various offices including the law library and the mail department.


[4]   In late 2014, Smith was engaged in pro se litigation in the United States Court

      of Appeals for the Seventh Circuit. Initially, Smith did not prevail and decided

      to seek discretionary review by writ of certiorari to the United States Supreme

      Court. On December 26, 2014, Smith gave the Officials his motion for

      extension of time to file a petition for writ of certiorari, expecting that the

      Officials would mail it to the Clerk of the United States Supreme Court prior to

      the January 6, 2015 filing deadline. A few days later, Smith gave the Officials

      his petition for writ of certiorari and related documents for mailing. On

      January 4, 2016, Smith gave the Officials a letter asking them to return the

      petition for writ of certiorari to him, explaining that he had discovered an error

      in the document that needed to be corrected. Subsequently, he gave the

      Officials his corrected petition for writ of certiorari to be mailed.


      Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016   Page 2 of 10
[5]   On January 20, 2015, the Clerk of the United States Supreme Court sent Smith

      a letter indicating that his motion for enlargement of time was untimely because

      it had been due on or before January 6, 2015, but was postmarked January 8,

      2015, and received by the clerk on January 16, 2015. As a result, his petition

      for writ of certiorari was untimely and would not be considered. Smith

      received the letter on February 17, 2015.


[6]   On February 18, 2015, Smith submitted his first informal grievance, in which

      he alleged Amber Perry and Keith Butts failed to properly handle his legal mail,

      resulting in the untimely ending of his federal case. On February 20, 2015,

      Misty Cecil issued a written response denying the informal grievance. The

      document informed Smith he had ten days to file a formal grievance.


[7]   On February 21, 2015, Smith filed his first formal grievance, claiming Perry,

      Butts, and Cecil failed to timely send out his legal mail, resulting in the

      termination of his case before the United States Supreme Court. On March 9,

      2015, a grievance coordinator denied the first formal grievance, claiming Smith

      filed it too late, over twenty (20) days after the incident.


[8]   Meanwhile, on February 21, 2015, Smith had submitted a second informal
                    1
      grievance. Smith again alleged that Keith Butts and unnamed DOC employees

      in the mail room and the law library mishandled his legal mail, resulting in the




      1
        It appears from the record that Smith filed a third informal grievance during this period of time, alleging
      inadequate access to writing materials. That informal grievance does not appear to be relevant to Smith’s
      constitutional claims.

      Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016                        Page 3 of 10
       dismissal of his case in the United States Supreme Court. On February 24,

       2015, the reviewing official denied his second informal grievance in writing.

       The document informed Smith that he had ten days to file a formal grievance.


[9]    On February 24, 2015, Smith filed a second formal grievance on a form

       supplied by the DOC, repeating his allegation that DOC staff effectively ended

       his case in the United States Supreme Court by failing to timely mail his legal

       correspondence. On March 9, 2015, a grievance coordinator denied Smith’s

       second formal grievance, stating: (1) Smith had filed his grievance too late,

       over twenty (20) days after the incident at issue; and (2) Smith should have

       consulted with law library staff to see if he could seek relief under the “mailbox

       rule.” Appellees’ App. p. 25.


[10]   On June 8, 2015, Smith filed suit against the Officials pursuant to 42 United

       States Code section 1983, claiming they had deprived him of his rights under

       the First and Fourteenth Amendments to the Constitution of the United States.

       Specifically, he claimed they unfairly prevented him from pursuing litigation in

       federal court. The Officials filed an answer alleging, among other affirmative

       defenses, that Smith failed to exhaust his administrative remedies prior to filing

       suit.


[11]   The parties filed cross-motions for summary judgment. The trial court denied

       Smith’s motion for summary judgment and granted the Officials’ motion for

       summary judgment. The court determined Smith had failed to exhaust his

       administrative remedies prior to filing suit, and, as a result, the court lacked


       Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016   Page 4 of 10
       subject matter jurisdiction to address Smith’s constitutional claims. This appeal

       followed.



                                  Discussion and Decision
[12]   Smith claims the trial court erred in granting the Officials’ motion for summary

       judgment and in denying his motion for summary judgment, arguing that he

       proved he exhausted his administrative remedies. In response, the Officials

       assert that his formal grievances were untimely and, further, that he caused the

       untimely mailing of the motion by asking the Officials to return his legal

       documents to him rather than mailing them to the United States Supreme

       Court.


[13]   The purpose of summary judgment is to terminate litigation about which there

       can be no factual dispute and which can be determined as a matter of law.

       Lamb v. Mid-Am. Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App. 2014). A party

       requesting summary judgment must affirmatively negate an opponent’s claim

       by demonstrating that the designated evidence raises no genuine issue of

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

       law. Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 839-40 (Ind. Ct. App.

       2016), trans. denied. If the moving party succeeds in carrying its burden, the

       nonmoving party must come forward with evidence establishing the existence

       of a genuine issue of material fact in order to preclude summary judgment. Id.

       at 840.



       Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016   Page 5 of 10
[14]   Our standard of review is identical to that of the trial court: whether there

       exists a genuine issue of material fact and whether the moving party is entitled

       to judgment as a matter of law. Lamb, 19 N.E.3d at 793; see also Ind. Trial Rule

       56(C). On appellate review, all facts and reasonable inferences drawn from

       those facts are construed in favor of the nonmoving party. Lamb, 19 N.E.3d at

       794. We are limited to considering only those materials specifically designated

       to the trial court. Id. at 793-94. Our standard of review does not change when

       the parties have filed cross-motions for summary judgment. Turner v. Boy Scouts

       of Am., 856 N.E.2d 106, 111 (Ind. Ct. App. 2006). In that circumstance, we

       consider each motion separately to determine whether the moving party is

       entitled to judgment as a matter of law. Id.


[15]   We begin with the trial court’s grant of summary judgment to the Officials.

       The trial court erred by concluding that it was deprived of subject matter

       jurisdiction by Smith’s alleged failure to exhaust administrative remedies.

       Failure to exhaust administrative remedies is a procedural error and does not

       give rise to a jurisdictional defect. Alkhalidi v. Ind. Dep’t of Corr., 42 N.E.3d 562,

       565 (Ind. Ct. App. 2015). As a result, the Henry County Circuit Court, which

       is a court of general jurisdiction, retained subject matter jurisdiction over

       Smith’s constitutional claims regardless of any procedural error.


[16]   In any event, a claim that a prisoner failed to exhaust administrative remedies

       prior to filing suit is an affirmative defense. See id. at 566. As a result, the

       Officials had the burden of establishing that Smith failed to exhaust

       administrative remedies. Id. If they submit evidence in support of such a claim

       Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016   Page 6 of 10
       to establish the absence of a dispute of material fact, then the burden shifts

       under Indiana Trial Rule 56 to require Smith to demonstrate a genuine issue of

       material fact exists. Jackson v. Wrigley, 921 N.E.2d 508, 512 (Ind. Ct. App.

       2010).


[17]   When a prisoner intends to file a claim under 42 United States Code section

       1983 in state or federal court regarding prison conditions, he or she must first

       exhaust all administrative remedies. See Higgason v. Stogsdill, 818 N.E.2d 486,

       489 (Ind. Ct. App. 2004) (discussing the Prison Litigation Reform Act, which

       amended 42 U.S.C. § 1997e(a)), trans. denied. The benefits of exhaustion are

       realized when the prison grievance system is given a fair opportunity to

       consider the grievance after the grievant complies with all of the system’s

       critical procedural rules. Jackson, 921 N.E.2d at 511.


[18]   The Officials argue Smith failed to timely file his formal grievances. In support

       of their claim, they point to the Indiana Department of Correction’s grievance

       policy, which states an offender must submit a formal grievance to prison staff

       no later than twenty (20) days after the date of the incident. The Officials

       further note that both of Smith’s formal grievances list the “Date of Incident” as

       December 26, 2014, but he did not submit the grievances until February 2015,

       well after the twenty-day deadline. Appellees’ App. pp. 39, 42.


[19]   In response, Smith argues that, regardless of the dates he put on the forms, he

       was unaware of the Officials’ alleged misconduct until February 17, 2015, when

       he received the letter from the Clerk of the United States Supreme Court


       Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016   Page 7 of 10
       informing him that the Officials had untimely mailed his motion for extension

       of time. He further claims he could not have been made aware of the problem

       any earlier, and he filed the grievances as soon as he was able after realizing

       what had happened.


[20]   Smith’s two formal grievances clearly informed DOC staff of the nature of his

       complaint, specifically that alleged malfeasance by the Officials resulted in his

       motion for extension of time being mailed late in January 2015, thereby ending

       his case. He filed both grievances within twenty days of February 17, 2015.

       Furthermore, the Officials have not pointed to any evidence that Smith knew or

       should have known of the mailing problem prior to receiving the clerk’s letter

       on February 17, 2015. Finally, the DOC’s grievance policy allows for a delay

       in submitting a formal grievance if the offender states good cause for the delay
                        2
       on the form. Smith’s formal grievances referenced the end of his federal case,

       which he did not discover until well after he had submitted his motion to the

       Officials on December 26, 2014. Appellees’ App. p. 33. Viewing the facts in

       the light most favorable to Smith, the nonmovant, we conclude Smith has

       demonstrated disputes of material fact as to whether he complied with the

       procedural rules governing the grievance process and gave prison officials a fair

       opportunity to address his complaints. See Jackson, 921 N.E.2d at 513

       (summary judgment inappropriate where offender established dispute of



       2
         The grievance policy also describes an administrative appellate review process that an offender may use if a
       formal grievance is denied. Neither party discusses the administrative appellate review process here, so we
       need not address it further.

       Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016                      Page 8 of 10
       material fact as to whether he timely complied with prison grievance

       procedure).


[21]   The Officials state an alternative ground for affirming the trial court’s grant of

       summary judgment. Specifically, they claim Smith caused the delay in the

       mailing of his motion for extension of time by asking employees to return his

       legal documents and that they did so in compliance with his request. In

       response, Smith points to the text of his January 4, 2015 letter, in which he

       requested the return of his “petition for writ of certiorari” but did not address

       any other documents, including his motion for extension of time. Appellees’

       App. p. 51. He thus argues his request was limited to his petition for writ of

       certiorari and should not have caused any delay in the mailing of his motion for

       extension of time. At a minimum, there are disputes of material fact as to the

       circumstances surrounding Smith’s request for the return of his petition for writ

       of certiorari and why the Officials would still have in their possession on

       January 4, 2015, Smith’s motion for extension of time, having received the

       same on December 26, 2014. The disputes must be resolved by the finder of

       fact. We must reverse the trial court’s grant of summary judgment to the

       Officials.


[22]   Finally, Smith argues the trial court should have granted his motion for

       summary judgment, claiming he established that the Officials violated his

       constitutional rights by mishandling his motion for extension of time. The trial

       court properly denied Smith’s motion for the same reason the court should have

       denied the Officials’ motion: viewing the facts in the light of the specifically

       Court of Appeals of Indiana | Opinion 33A04-1606-PL-1295 | December 27, 2016   Page 9 of 10
       designated evidence, there are genuine issues of material fact as to whether

       Smith exhausted his administrative remedies and whether Smith caused prison

       officials to delay mailing his motion for extension of time. We thus affirm the

       trial court’s denial of Smith’s motion for summary judgment.



                                                Conclusion
[23]   For the foregoing reasons, we affirm in part, reverse in part, and remand for

       further proceedings.


[24]   Affirmed in part, reversed in part and remanded.


       Baker, J., and Najam, J., concur.




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