United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING DEFENDANTS' UNOPPOSED MOTION FOR
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
Tyler Ferrell, an Indiana prison inmate incarcerated in the
Pendleton Correctional Facility, brought this 42 U.S.C.
§ 1983 action on October 26, 2016, contending defendants
used excessive force on him and failed to protect him from
excessive force on November 18 and 19, 2015. All five
defendants now seek summary judgment contending that this
action is barred by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), because
plaintiff failed to exhaust available administrative remedies
prior to commencing his suit.
Summary Judgment Standard
judgment is appropriate “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.” Fed.
R. Civ. P. 56(a). The movant bears the initial
responsibility of informing the district court of the basis
of its motion, and identifying those portions of designated
evidence that demonstrate the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). After “a properly supported
motion for summary judgment is made, the adverse party must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quotation marks and
factual issue is material only if resolving the factual issue
might change the outcome of the case under the governing law.
See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). A factual issue is genuine only if there is sufficient
evidence for a reasonable jury to return a verdict in favor
of the non-moving party on the evidence presented. See
Anderson, 477 U.S. at 248. In deciding a motion for
summary judgment, the court “may not ‘assess the
credibility of witnesses, choose between competing reasonable
inferences, or balance the relative weight of conflicting
evidence.'” Bassett v. I.C. Sys., Inc.,
715 F.Supp.2d 803, 808 (N.D. Ill. 2010) (quoting Stokes
v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 619
(7th Cir. 2010)). Instead, it must view all the evidence in
the record in the light most favorable to the non-moving
party and resolve all factual disputes in favor of the
non-moving party. See Anderson, 477 U.S. at 255.
has not responded to defendants' motion and the deadline
for doing so has passed. The consequence is that plaintiff
has conceded defendants' version of the events. See
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)
(“[F]ailure to respond by the nonmovant as mandated by
the local rules results in an admission.”);
see S.D. Ind. Local Rule 56-1 (“A party
opposing a summary judgment motion must . . . file and serve
a response brief and any evidence . . . that the party relies
on to oppose the motion. The response must . . . identif[y]
the potentially determinative facts and factual disputes that
the party contends demonstrate a dispute of fact precluding
summary judgment.”). This does not alter the standard
for assessing a Rule 56 motion, but it does “reduc[e]
the pool” from which the facts and inferences relative
to such a motion may be drawn. Smith v. Severn, 129
F.3d 419, 426 (7th Cir. 1997).
PLRA 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 exhaustion requirement of the PLRA is
one of “proper exhaustion” because “no
adjudicative system can function effectively without imposing
some orderly structure on the course of its
proceedings.” Woodford v. Ngo, 548 U.S. 81, 84
(2006). This means that the prisoner plaintiff must have
completed “the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a precondition to bringing suit in federal
court.” Id. at 84; see also Dale v.
Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (“In
order to properly exhaust, a prisoner must submit inmate
complaints and appeals ‘in the place, and at the time,
the prison's administrative rules require.'”)
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002)).
court may not excuse a failure to exhaust, even to take such
[special] circumstances into account.” Ross v.
Blake, 136 S.Ct. 1850, 1856 (2016) (citing Miller v.
French, 530 U.S. 327, 337 (2000)). This is true even if
the plaintiff seeks a remedy that is not available through
the administrative process. Id. (citing Booth v.
Churner, 532 U.S. 731 (2001)).
evidence in support of their motion for summary judgment
reflects that plaintiff failed to properly follow and exhaust
his administrative remedies.
relevant grievance procedures are contained in the Indiana
Department of Correction Policy and Administrative
Procedures, number 00-02-301, effective January 1, 2010.
Section XIII.A requires the grievance process to start with
an informal grievance accomplished by the offender discussing
the situation with the persons responsible for it, or with a
counselor, caseworker, manager, or other team unit member.
Dkt. 26-5, p. 14 (IDOC Offender Grievance Process). Section
XIII.C requires the informal grievance to be attempted no
later than five days after the incident. Id. at p.
15. Section XIII.E addresses the appeal procedures, which is
a required step in exhausting administrative remedies.
grievance specialist with the Pendleton Correctional Facility
submitted her affidavit averring that plaintiff first failed
to commence an informal grievance. Dkt. 26-3 (affidavit of
Camay Francum). The formal grievance he filed, the first and
only grievance he attempted, was filed well after the
deadline to commence the grievance process. Id. The
grievance was rejected on two grounds - that it was untimely
and an informal grievance had not first been ...