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Davis v. Tussy Lieutenant

United States District Court, S.D. Indiana, Terre Haute Division

April 2, 2015

DWAYNE DAVIS, JR., Plaintiff,
v.
TUSSY Lieutenant, D. MEYER Lieutenant, BARKER Lieutenant, Defendants.

ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JANE MAGNUS-STINSON, District Judge.

Plaintiff Dwayne Davis, Jr., an inmate at the United States Penitentiary in Lewisburg, Pennsylvania, filed this civil action pursuant to the theory recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that the defendants violated his civil rights while he was incarcerated at the United States Penitentiary in Terre Haute, Indiana. Specifically, Davis alleges that in October of 2012, the individual defendants D. Myer, Lt. Tussy and Lt. Barker failed to protect him from his cellmate and as a result he was attacked and injured. In addition, Davis alleges that Lt. Tussy subjected him to excessive force by smashing his head into a metal chair.

The defendants D. Meyer and Lt. Tussy now move to dismiss, or in the alternative for summary judgment, arguing that Davis failed to exhaust his available administrative remedies with respect to his claims as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997 ("PLRA"). For the reasons explained in this Entry, the defendants' unopposed motion for summary judgment based on the argument that plaintiff Davis failed to comply with the exhaustion of administrative remedies requirement of the PLRA [dkt. 22] is granted.[1]

I. Standard of Review

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find for the non-moving party. Id. The court views the facts in the light most favorable to the nonmoving party and all reasonable inferences are drawn in the non-movant's favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).

Davis failed to respond to the defendants' motion despite it having been mailed to the updated address he provided the Court [dkt.6]. Thus, Davis has conceded the defendants' version of the facts. Brasic v. Heinemann's Inc., 121 F.3d 281, 286 (7th Cir. 1997).

II. Discussion

A. Undisputed Facts

The BOP promulgated an administrative remedy system which is codified in 28 C.F.R. §§ 542.10, et seq., and BOP Program Statement 1330.18, [2] Administrative Remedy Procedures for Inmates. The Administrative Remedy process is a method by which an inmate may seek formal review of a complaint related to any aspect of his imprisonment. To exhaust his remedies, an inmate must first file an informal remedy request through an appropriate institution staff member via a BP-8, prior to filing a formal administrative remedy request with the Warden, Regional Director, and General Counsel. If the inmate is not satisfied with the informal remedy response, he is required to first address his complaint with the Warden via a BP-9. If the inmate is dissatisfied with the Warden's response, he may appeal to the Regional Director via a BP-10. If dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel via a BP-11. Once an inmate receives a response to his appeal from the General Counsel, after filing administrative remedies at all required levels, his administrative remedies are deemed exhausted as to the specific issues properly raised therein.

All codified BOP Program Statements are available for inmate access via the institution law library, including BOP Program Statement 1330.18. Additionally, Administrative Remedy filing procedures are outlined in an Inmate Information Handbook, which is provided to all inmates upon initial intake at FCC Terre Haute.

In his Complaint, Davis claims that the defendants failed to protect him from an attack by his cellmate on October 22, 2012. As to Defendant Tussey, he also claims that on October 19, 2012, Lt. Tussey engaged in excessive force by slamming Davis's head into a metal seat.

Between October 19, 2012, and the date Davis filed his Complaint in this case, March 25, 2014, he submitted a total of eighteen requests for administrative remedy. Davis did not exhaust any administrative remedies submitted from May 2012 through March 2014.

B. Analysis

The PLRA requires that a prisoner exhaust his available administrative remedies before bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524-25 (2002). The PLRA's exhaustion requirement applies to "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532. This includes the claims Davis raises in this action. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (footnote omitted); see also Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) ("In order to properly exhaust, a prisoner must submit inmate complaints and appeals in the place, and at the time, the prison's administrative rules require.'") (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).

It is undisputed that Davis did not fully exhaust his available administrative remedies as required by the PLRA. The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Davis's claims should not have been brought and must now be dismissed without prejudice. See Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (explaining that "a prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating"); Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)("We therefore hold that all dismissals under § 1997e(a) should be without prejudice.").

III. Conclusion

The defendants' motion for summary judgment [dkt 22] is granted. Judgment consistent with this Entry shall now issue.

IT IS SO ORDERED.


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