United States District Court, S.D. Indiana, Terre Haute Division
ALEX A. MELENDEZ, Plaintiff,
MARK S. INCH, Director, Federal Bureau of Prisons,  Defendant.
ENTRY GRANTING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
Jane Magnus-Stinson, Chief Judge
Alex A. Melendez, a federal inmate incarcerated in the
Federal Correctional Institution Terre Haute, Indiana,
brought this Administrative Procedure Act, 5 U.S.C. §
702, action challenging a Bureau of Prisons decision denying
him placement in a halfway house, home confinement, or a
residential re-entry center. Defendant asserts that Mr.
Melendez did not attempt to exhaust this problem through
available administrative grievance procedures. He seeks
summary judgment against Mr. Melendez pursuant to 42 U.S.C.
§ 1997e(a) - the Prison Litigation Reform Act - which
requires exhaustion of administrative remedies prior to
bringing any action concerning prison conditions. Mr.
Melendez admits he did not exhaust his administrative
remedies. He writes that he was intimidated to not attempt
exhaustion, but offers no evidence in support of that
assertion. For the reasons explained below, defendant is
entitled to summary judgment and Mr. Melendez has failed to
come forward with evidence to establish a genuine issue of
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.
not necessary to detail the Bureau of Prison's
administrative grievance process because Mr. Melendez
acknowledges he did not exhaust his administrative remedies.
In his response opposing summary judgment, Mr. Melendez
writes that he
has made substantial efforts to resolve the matters in this
case through written request to the administration, meetings
with his Case Manager and Unit team. Further he was advised
by his Unit Team/Case Manager Purdue that it would be useless
to go outside of the Camp Administration to seek any relief
because none would be forth coming. The Camp Administrator
Sweeny also said the same and implied to go outside via of
any administrative remedy would cause difficulty to the
dkt. 20, p. 1. These assertions are unsworn. No affidavit or
declaration made under penalty of perjury supporting these
assertions is provided. Defendant contends that Mr.
Melendez's assertions should therefore not be
considered by the Court. Reply, dkt. 21, pp. 4-5. The Court
agrees. Even if the statements could be considered to
establish that Mr. Melendez believed it would be futile to
exhaust his administrative remedies, that belief cannot
excuse the failure to exhaust. Booth v. Churner, 532
U.S. 731, 741 n.6 (2001); Thornton v. Snyder, 428
F.3d 690, 694 (7th Cir. 2005) (“An inmate's
perception that exhaustion would be futile does not excuse
him from the exhaustion requirement.”)
grievance procedure was available to Mr. Melendez but he did
not attempt to use it. Dkt. 16-1, ¶ 8 (Affidavit of R.
Parris). Pursuant to the Prison Litigation Reform Act, Mr.
Melendez was required to exhaust his administrative remedies
before filing this action. 42 U.S.C. § 1997e(a)
(“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted.”). This
exhaustion requirement is mandatory and cannot be waived.
Jones v. Bock, 549 U.S. 199, 211 (2007);
Woodford v. Ngo, 548 U.S. 81, 85 (2006).
Melendez also argues that there are genuine issues of
material fact that preclude summary judgment, but his
assertions concern the merits of his complaint and do not
address the question of exhaustion. Finally, his suggestion
that this action - brought under the Administrative Procedure
Act - is not subject to administrative exhaustion is without
merit. Actions brought under any federal statute that concern
prison conditions, including the Administrative Procedure
Act, are subject to the PLRA's exhaustion requirements.
Richmond v. Scibana, 387 F.3d 602 (7th Cir. 2004).
Melendez admits that he did not attempt to exhaust his
available administrative remedies prior to filing this
action. There are no facts in dispute concerning this issue,
and therefore the PLRA requires this action to be dismissed.
Defendant's motion for summary judgment, dkt. , is