United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
William T. Lawrence, Judge
Barnett is a federal prisoner who was previously confined at
USP Terre Haute. He brought this 42 U.S.C. § 1983 action
on April 17, 2017, asserting claims for an incident alleged
to have occurred on March 2, 2017 in the Terre Haute prison.
The complaint was screened pursuant to 28 U.S.C. §
1915A. Eighth Amendment cruel and unusual punishment claims
proceeded against defendants Correctional Officer G. Harlow,
Warden Julian, Medical Supervisor McCoy, and medical provider
Dr. Schmidtt. The other defendants were dismissed from the
action. The four remaining defendants move for summary
judgment on their affirmative defense that Mr. Barnett failed
to exhaust his administrative remedies. Mr. Barnett did not
respond to defendants' motion, and the time to do so has
reasons explained, defendants' unopposed motion for
summary judgment, Dkt. No. 50, is granted,
and Mr. Barnett's claims are dismissed without prejudice.
Barnett is a federal prisoner currently incarcerated at the
United States Penitentiary in Coleman, Florida. This lawsuit
concerns claims from his time incarcerated at USP Terre Haute
and are asserted against four staff at that facility. He
alleges that a correctional officer assaulted him then
allowed another inmate to sexually assault him. He also
alleges that the facility Warden talked to him the next day
and refused to help him and then moved the inmate who had
assaulted him back into the same area where he was housed.
Barnett also alleged that the medical supervisor refused to
provide him medical treatment following the sexual assault,
and that the staff psychologist, Dr. Schmidtt, refused his
requests to be seen for counseling about the sexual assault.
four defendants move for summary judgment, contending all of
Mr. Barnett's claims are barred under the exhaustion of
administrative remedies provision of the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e. This
statute requires a prisoner to first exhaust his available
administrative remedies before filing a lawsuit in court.
noted, Mr. Barnett failed to respond to defendants'
motions for summary judgment, and the deadline for doing so
has passed. The consequence is that Mr. Barnett 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).
the following facts, unopposed by Mr. Barnett and supported
by admissible evidence, are accepted as true:
times relevant to his claims, Mr. Barnett was incarcerated at
USP Terre Haute. The 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 (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) within
twenty calendar days of the date the Warden responded.
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.
Barnett's administrative filings. According to the
database, Mr. Barnett filed multiple administrative remedy
requests regarding the allegations in his Complaint during
his incarceration with the BOP.
Mr. Barnett submitted a BP-10, remedy number 897779, on April
3, 2017, asserting a “Staff PREA Allegation.” The
BOP Regional Office closed the request on April 28, 2017.
There is no record that Mr. Barnett appealed that decision.
This was the only filing Mr. Barnett made on remedy number
897779. Dkt. 50-1, ¶ 5 (affidavit of K.R. Schalburg).
Mr. Barnett filed a BP-9, remedy number 898718, on April 18,
2017, asserting “Staff allegation/Assaulted by an
inmate in SHU.” This remedy request was filed the day
after this lawsuit was filed. It alleged that Mr.
Barnett was sexually assaulted by an offender. Officials at
the USP responded to the remedy and informed Mr. Barnett that
the matter would be investigated, but that he would not be
informed about the outcome of the investigation. BOP records
show that Mr. ...