United States District Court, N.D. Indiana
OPINION AND ORDER
S. Van Bokkelen, United States District Judge
Gee, a pro se prisoner, was granted leave to proceed
on an Eighth Amendment claim against Officers Brady Janovitz
and Eric Parrish for their using excessive force against him
on July 21, 2014, at the Indiana State Prison. The defendants
move for summary judgment, arguing that Gee failed to exhaust
his administrative remedies, as required by 42 U.S.C. §
1997e(a). (DE 28.)
provided with a “Notice of Summary-Judgment
Motion” as required by N.D. Ind. L.R. 56-1 and a copy
of both Federal Rule of Civil Procedure 56 and Local Rule
56-1. (DE 30.) That notice clearly informed him that unless
he disputed the facts presented by the defendant, 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, Gee has not
responded. Pursuant to N.D. Ind. Local Rule 7- 1(d)(4), a
party's failure to file a response within the time
prescribed may subject the motion to summary ruling.
Nevertheless, this “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). Rather, the court still must make the finding that
“given the undisputed facts, summary judgment is proper
as a matter of law.” Id.
judgment must be 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). However, 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 (“PLRA”),
prisoners are prohibited from bringing 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 U.S. Court of Appeals for
the Seventh Circuit has taken a “strict compliance
approach to exhaustion.” Id. Therefore,
“[t]o 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.
was an inmate grievance process in place while Gee was housed
at the Indiana State Prison (“ISP”). (DE 29-3,
Decl. Vickie Long ¶ 9; DE 29-1, IDOC Offender Grievance
Process.) The grievance process has three steps. The process
begins with the inmate attempting to resolve the matter
informally with staff by completing State Form 52897. (Decl.
Long at ¶ 10.) If the issue cannot be resolved
informally, the inmate must file a formal grievance within 20
working days of the underlying incident. (Id. at
¶ 11.) If the formal grievance is not resolved to the
inmate's satisfaction, he must file an appeal of the
grievance response. (Id. at ¶ 13, 14.) While
housed at ISP, Gee did not submit any grievance regarding the
allegations for which he was granted leave to proceed in this
case. (Id. at ¶¶ 19-23; DE 29-2, History
of Grievances for Offender.)
undisputed facts show that ISP had a grievance process in
place at the time of the alleged assault. Despite this
available administrative process, Gee failed to submit any
grievance related to the alleged July 21, 2014, assault.
Accordingly, Gee did not fully exhaust his administrative
remedies before bringing this lawsuit, see Pozo, 286
F.3d at 1025, and the case must be dismissed pursuant to 42
U.S.C. § 1997e(a). It is not clear that 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 prejudice.”).
these reasons, the motion for summary judgment (DE 28) is
GRANTED and this case is DISMISSED without prejudice ...