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Gilmore v. Decker

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

April 18, 2017

AMAR GILMORE, Plaintiff,
v.
DAVID DECKER, et al., Defendants.

          ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT

          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Amar Gilmore, who at all times relevant to this action was a federal inmate incarcerated at the Federal Correction Institution in Terre Haute, Indiana, brought this action pro se against the United States of America, David Decker, Genevieve Daughtery, and Sarah Walters. Mr. Gilmore asserts a claim under the Federal Tort Claims Act against the United States and Eighth Amendment claims against David Decker, Genevieve Daughtery, and Sarah Walters (the “Individual Defendants”) based on his alleged receipt of deficient medical treatment while under their care. The Individual Defendants move for summary judgment on the ground that the plaintiff failed to exhaust his administrative remedies before bringing this suit. For the reasons explained in this Entry, the Individual Defendants' motion for summary judgment is denied. Filing No. 23. The Court also provides the Individual Defendants notice and an opportunity to respond, pursuant to Rule 56(f), as to why summary judgment on the issue of exhaustion should not be entered in Mr. Gilmore's favor. In the alternative, the Individual Defendants may withdraw its affirmative defense.

         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). The Court views the facts in the light most favorable to the non-moving party and all reasonable inferences are drawn in the non-movant's favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).

         II.

         Background

         The Individual Defendants move for summary judgment on the ground that Mr. Gilmore's claims are barred under the exhaustion provision of the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e. That provision requires a prisoner to first exhaust his available administrative remedies before filing a lawsuit in court. The parties both present evidence supporting their respective positions.

         The Bureau of Prisons (“BOP”) had promulgated an administrative remedy system, codified in 28 C.F.R. § 542.10, that was in effect at all times relevant to this case. The administrative remedy process allows an inmate to seek formal review of a complaint related to any aspect of his imprisonment. To exhaust his administrative remedies under this process, an inmate must first file an informal remedy request through the appropriate institution staff member (BP-8). If the inmate is not satisfied with the response to his informal request, he is required to file his complaint with the Warden of his institution (BP-9). See 28 C.F.R. § 542.14. The deadline for completion of these two steps is twenty days following the date on which the basis for the request occurred. See 28 C.F.R. § 542.14(a).

         If the inmate is dissatisfied with the Warden's response, he may appeal the decision to the Regional Director (BP-10). See 28 C.F.R. § 542.15. Finally, if an inmate is dissatisfied with the Regional Director's response, he may appeal to the General Counsel (BP-11). See Id. Once the General Counsel has responded, an inmate has exhausted all of his administrative remedies.

         All administrative remedy requests filed by inmates are logged in the SENTRY computer database utilized by the BOP to track such requests. This database was used to review Mr. Gilmore's administrative filings. Two administrative remedy requests filed by Mr. Gilmore have been accepted during his incarceration with the BOP, only one of which, Remedy 826489, dealt with the medical issues-chest and back pain-raised in Mr. Gilmore's Complaint.

         Mr. Gilmore attempted to informally resolve the medical issues as demonstrated on his BP-8 form. The BP-8 was rejected on the merits on June 15, 2015. The reviewing staff member noted that Mr. Gilmore was properly evaluated and treated for chest and back pain on January 28 and 29, 2015, and checked a box on the form stating that an informal resolution was not reached and he should “[p]rogress to BP-9.” Filing No. 1-1 at 3.

         Mr. Gilmore filled out a BP-9 on June 22, 2015, and it was received by the Warden on June 30, 2015. See Filing No. 1-1 at 4-5. It was rejected as untimely on the same date it was received. See Filing No. 1-1 at 13; Filing No. 23-5 at 5. The rejection notice noted that a BP-9 must be received within twenty days “of the event complained about.” Filing No. 1-1 at 13. Apparently, the rejection was based on the fact that the medical care about which Mr. Gilmore complained occurred in January 2015, while his BP-9 was not filed until June 2015.

         Mr. Gilmore subsequently filed a BP-10 and BP-11 regarding this incident, both of which were rejected. The BP-10 rejection notice instructed Mr. Gilmore to address his complaint at the institution level and informed him that he “may file an appeal after receiving [the] warden['s] response.” Filing No. 1-1 at 11. The BP-11 rejection notice stated that it “concur[red] ...


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