United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge
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.
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).
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
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).
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.
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.
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.
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.
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] ...