Joseph Cottman v. Thomas Richardson

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 21, 2015*
Decided April 22, 2015
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-2894
Appeal from the
JOSEPH COTTMAN, United States District Court for the
Plaintiff-Appellant, Southern District of Indiana,
Indianapolis Division.
v.
No. 1:13-cv-01793-JMS-DML
THOMAS RICHARDSON and
JEFF BALLENGER, Jane Magnus-Stinson,
Defendants-Appellees. Judge.
ORDER
Joseph Cottman, an Indiana prisoner, appeals the denial of his civil-rights
complaint under 42 U.S.C. § 1983 alleging that the defendant prison officials interfered
with his access to the courts when they did not allow him to use the prison’s law
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 14-2894 Page 2
library. After an evidentiary hearing, the district court concluded that Cottman did not
exhaust administrative remedies and dismissed his suit. We affirm.
Cottman, a prisoner at Pendleton Correctional Facility, alleged that he was not
provided library passes and access to his legal materials between March and May of
2013. Repeatedly, he said, his requests for a library pass to work on his appellate brief in
a state-court case were rebuffed by Thomas Richardson, a unit team manager at the
prison. Requests for help to caseworker Jeff Ballenger were similarly unsuccessful.
Cottman alleged that he submitted formal grievances about the actions of both officials.
After receiving no response to either grievance, he alleged that he submitted appeals
but received no response. Cottman attached to his complaint copies of the grievances
and appeals that he said he filed.
In their answer the defendants raised the affirmative defense of failure to exhaust
administrative remedies, see 42 U.S.C. § 1997e(a), asserting that Cottman never
submitted the forms attached to his complaint. After taking Cottman’s deposition, the
defendants acknowledged a factual dispute relating to Cottman’s attempts at
exhaustion and requested a hearing under Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.
2008).
At the hearing the defendants elicited testimony to show that Cottman did not
follow grievance procedures as required by the Indiana Department of Correction.
Specifically, they pointed out that Cottman did not comply with either the second or
third step of the Department’s three-step administrative-remedy process for inmates:
filing a written, formal grievance with the prison’s executive assistant or filing an
administrative appeal. Pendleton’s executive assistant, Jessica Hammack, testified that
she had no record of Cottman submitting either a correctly completed grievance or a
grievance form that was returned. According to her testimony, Hammack would log a
properly completed grievance into a database and assign it a grievance number; any
incomplete grievance would be returned to the inmate along with an explanation for
the grievance’s deficiency (and Hammack would keep a copy of the explanation in her
files). As for appeals, she follows a similar process, and she testified that she has no
record of the appeals attached to Cottman’s complaint.
The district court found Hammack’s testimony credible and determined that
Cottman never submitted the grievances or appeals he attached to the complaint. The
court therefore concluded that Cottman had not exhausted available remedies and
dismissed his suit.
No. 14-2894 Page 3
On appeal Cottman maintains that he tried to follow the prison’s grievance
procedure by submitting both grievances and appeals. But the district court credited
Hammack’s testimony that she had not received either from Cottman. We review this
finding for clear error, see FED. R. CIV. P. 52(a)(6); Pavey v. Conley, 663 F.3d 899, 904
(7th Cir. 2011), and “determinations of witness credibility can virtually never be clear
error,” United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007) (internal quotation marks
and citation omitted); see Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).
The court adequately substantiated its credibility finding, which Cottman does not
seriously challenge.
AFFIRMED.