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Gilmore v. Decker

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

December 20, 2017

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

          ENTRY REJECTING EXHAUSTION DEFENSE FOLLOWING PAVEY HEARING

          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 (“FCI Terre Haute”), 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 moved for summary judgment on the ground that the plaintiff failed to exhaust his administrative remedies before bringing this suit. The Court denied summary judgment due to material factual disputes regarding the availability of the administrative remedy process. A hearing was held pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), to resolve the exhaustion defense, at which Mr. Gilmore was represented by recruited counsel. For the reasons explained below, the Individual Defendants failed to carry their burden to establish that the administrative remedy process at FCI Terre Haute was available to Mr. Gilmore. Their exhaustion defense is therefore rejected, and Mr. Gilmore's Eighth Amendment medical claims will proceed against the Individual Defendants.

         I. Findings of Fact

         The following facts are based on the undisputed evidence and the evidence presented at the Pavey hearing deemed credible by the Court.

         A. Mr. Gilmore's Health Issues and Hospitalization

         Mr. Gilmore brought this action against the Individual Defendants based on his alleged receipt of deficient medical treatment on January 27 and 28, 2015.[1] Mr. Gilmore's medical records establish that he began experiencing medical issues at least as early as January 2015. He was transported to Union Hospital on February 9, 2015, and remained there until his release back to FCI Terre Haute on April 1, 2015. During this period he experienced renal failure, and his treating physicians thought there was a chance he would die in the hospital. Mr. Gilmore's return to FCI Terre Haute did not last. He was taken to Union Hospital Emergency Room a week later, on April 8, 2015, where he was found to be in shock. After undergoing dialysis and multiple blood transfusions over a two-week period, Mr. Gilmore was returned to FCI Terre Haute on April 21, 2015. He gradually recovered from his conditions over the next several months.

         B. The Administrative Remedy Process

         The Federal Bureau of Prisons (“BOP”) promulgated an administrative remedy process, 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).

         “Where the inmate demonstrates a valid reason for delay, an extension in filing time may be allowed.” 28 C.F.R. § 542.14(b). “In general, valid reason for delay means a situation which prevented the inmate from submitting the request within the established time frame.” Id. “Valid reasons for delay include, ” as relevant here, “an extended period of time during which the inmate was physically incapable of preparing a Request or Appeal.” Id. “Ordinarily, the inmate should submit written verification from staff for any claimed reason for delay.” Id.

         If the inmate is dissatisfied with the Warden's response to the BP-9, 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 to the BP-11, an inmate has exhausted all of his administrative remedies.

         When any administrative remedy request is rejected, “the inmate shall be provided a written notice . . . explaining the reason for rejection. If the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.” 28 C.F.R. § 542.17(b).

         C. Mr. Gilmore's Attempts to Utilize the Administrative Remedy Process

         Mr. Gilmore remained at FCI Terre Haute after returning from his second stay at Union Hospital on April 21, 2015. It appears undisputed-and to the extent there is a dispute, the Court finds based on the medical records and Tracy Joslyn's testimony-that Mr. Gilmore was physically unable to file a grievance prior the competition of his second stay at Union Hospital on April 21, 2015, due to his dire health issues. When he returned, Mr. Gilmore knew that any grievance he filed would be late under the grievance policy, since the BP-8 and BP-9 steps must be completed within twenty days of when the incident occurred, which was late January.

         Mr. Gilmore acknowledged that his counselor, Ms. Joslyn, could have helped him fill out a BP-8 when he returned to FCI Terre Haute on April 21, 2015, but he was not ready to file it then. He credibly explained that, while he could have sought assistance filing his BP-8 then, he knew it was untimely no matter when he filed it. Nevertheless, the Court finds that Mr. Gilmore was physically capable of filing his BP-8 beginning on April 21, 2015. The evidence shows that Mr. ...


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