United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING JUDGMENT AS A MATTER OF LAW ON
JANE MAGNUS-STINSON, CHIEF JUDGE.
Abdul-Aziz Rashid Muhammad sued Heather Atterbury and Kayla
Miller (“the defendants”), in their individual
capacities pursuant to the theory recognized in Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). The plaintiff alleges that these defendants were
deliberately indifferent to his serious medical need for
orthopedic shoes to treat neuropathy and artery disease. The
defendants now seek dismissal of this claim on the basis that
the plaintiff failed to exhaust his administrative remedies.
See dkt . The plaintiff responded on January 17,
2017, dkt . No reply was filed.
reasons explained below, the defendants' motion for
summary judgment, dkt , is denied
because the defendants did not meet their burden of proof by
showing that the plaintiff failed to exhaust his available
administrative remedies prior to filing this lawsuit.
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).
applicable substantive law will dictate which facts are
material.” National Soffit & Escutcheons, Inc.,
v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir.
1996) (citing Anderson, 477 U.S. at 248). The
substantive law applicable to the motion for summary judgment
is the Prison Litigation Reform Act (“PLRA”),
which requires that a prisoner exhaust his available
administrative remedies before bringing a suit concerning
prison conditions. 42 U.S.C. § 1997e(a). See Porter
v. Nussle, 534 U.S. 516, 524-25 (2002). “[T]he
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.” Id. at 532
(citation omitted). The Court must consider the issue of
exhaustion before reaching the merits. Perez v. Wis.
Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999)
(“The statute [requiring administrative exhaustion] can
function properly only if the judge resolves disputes about
its application before turning to any other issue in the
suit.”). “In order to exhaust administrative
remedies, a prisoner must take all steps prescribed by the
prison's grievance system.” Ford v.
Johnson, 362 F.3d 395, 397 (7th Cir. 2004).
plaintiff filed his Complaint on July 27, 2015. The plaintiff
has been housed at the Federal Correctional Institution (FCI)
Petersburg, Florida, since August 27, 2015.
plaintiff has been housed at FCC Terre Haute on more than one
occasion, including the time period related to
plaintiff's Complaint (from November 20, 2012, until
October 21, 2013).
Bureau of Prisons (“BOP”) has promulgated an
administrative remedy system which is codified in 28 C.F.R.
§ 542.10, et seq., and BOP Program Statement
1330.18, Administrative Remedy Program. 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. 28 C.F.R. § 542.10. 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.
inmate is not satisfied with the informal remedy response
(BP-8), he is required to address his complaint at the
institutional level with the Warden via a BP-9 form. 28
U.S.C. § 542.14. If the inmate is dissatisfied with the
Warden's response to his BP-9, he may appeal to the
Regional Director via a BP-10. 28 C.F.R. § 542.15. If
dissatisfied with the Regional Director's response, the
inmate may appeal to the General Counsel/Central Office via a
BP-11. 28 C.F.R. § 542.15. Once an inmate receives a
response to his appeal from the General Counsel/Central
Office, after filing administrative remedies at all required
levels, his administrative remedies are deemed exhausted, as
to the specific issue(s) properly raised therein.
administrative remedy requests filed by inmates are logged
and tracked in the SENTRY computer database, which is an
electronic record keeping system utilized by the BOP. The
SENTRY database reflects that from the date the plaintiff
arrived at FCI Terre Haute on November 20, 2012, through
December 31, 2014, the plaintiff submitted a total of 60
administrative remedies. Only two of those remedies and their
subsequent appeals are relevant to the claims alleged in this