United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT
Gee, a pro se prisoner, was granted leave to proceed
on Eighth Amendment claims that he was sexually assaulted by
Officer Eric Parrish, Sergeant Ken Young, and numerous other
unidentified inmates on November 10, 2014, at the Indiana
State Prison. The defendants move for summary judgment,
arguing that Mr. Gee failed to exhaust his administrative
remedies, as required by 42 U.S.C. § 1997e(a). (DE 22.)
was provided with a “Notice of Summary Judgment
Motion” as required by N.D. Ind. L.R. 56-1, along with
a copy of both Federal Rule of Civil Procedure 56 and Local
Rule 56-1. (DE 26.) That notice informed him that unless he
disputed the facts the defendant presented, the court could
accept those facts as true. Fed.R.Civ.P. 56(e) (“If a
party . . . fails to properly address another party's
assertion of fact . . . the court may . . . consider the fact
undisputed for purposes of the motion.”). It also told
him that unless he submitted evidence creating a factual
dispute, he could lose this case. Fed.R.Civ.P. 56(a)
(“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.”). Despite being given proper notice of the motion
for summary judgment, Mr. Gee hasn't responded. Under
N.D. Ind. Local Rule 7-1(d)(4), a party's failure to file
a response within the time prescribed subjects the motion to
summary rulingm but “does not mean that a party's
failure to submit a timely filing automatically results in
summary judgment for the opposing party.” Wienco,
Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir.
1992). The court still must make the finding that
“given the undisputed facts, summary judgment is proper
as a matter of law.” Id.
judgment is granted when “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To
determine whether a genuine issue of material fact exists,
the court must construe all facts in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. Heft v. Moore, 351 F.3d 278,
282 (7th Cir. 2003). A party opposing a properly supported
summary judgment motion may not rely merely on allegations or
denials in its own pleading, but rather must “marshal
and present the court with the evidence she contends will
prove her case.” Goodman v. Nat'l Sec. Agency,
Inc., 621 F.3d 651, 654 (7th Cir. 2010).
the Prison Litigation Reform Act. prisoners can't bring
an action in federal court with respect to prison conditions
until “such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The failure
to exhaust is an affirmative defense on which the defendant
bears the burden of proof. Dole v. Chandler, 438
F.3d 804, 809 (7th Cir. 2006). The court of appeals has taken
a “strict compliance approach to exhaustion.”
Id. “To exhaust remedies, a prisoner must file
complaints and appeals in the place, and at the time, the
prison's administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
“[U]nless the prisoner completes the administrative
process by following the rules the state has established for
that process, exhaustion has not occurred.”
Id. at 1023.
inmate grievance process was in place while Mr. Gee was
housed at the Indiana State Prison. The grievance process has
three steps: (1) an informal attempt to solve a problem; (2)
submission of a written grievance; and (3) a written appeal.
The process begins with the inmate trying to resolve the
matter informally with staff. If the issue can't be
resolved informally, the inmate must file a formal grievance
within 20 working days of the underlying incident. If the
formal grievance isn't resolved to the inmate's
satisfaction, he must file an appeal of the grievance
response. While housed at the State Prison, Mr. Gee
didn't submit any grievance about the allegations for
which he was granted leave to proceed.
undisputed facts show that State Prison had a grievance
process in place at the time of the alleged sexual assaults,
but Mr. Gee didn't submit any grievance related to them.
Accordingly, Mr. Gee didn't fully exhaust his
administrative remedies before bringing this lawsuit, see
Pozo v. McCaughtry, 286 F.3d at 1025, and the case must
be dismissed pursuant to 42 U.S.C. § 1997e(a). It
isn't clear that Mr. Gee still has the ability to exhaust
but, because the IDOC could allow him to cure his omission,
the dismissal will be without prejudice. Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“[A]ll
dismissals under § 1997e(a) should be without
these, the motion for summary judgment (DE 22) is GRANTED and
this case is DISMISSED without prejudice ...