United States District Court, S.D. Indiana, New Albany Division
DONALD B. ROBERTS, Plaintiff,
O'NIEL Officer, MAY Officer, MYERS Officer, HAUB Officer, Defendants.
EVANS BARKER JUDGE.
Granting Motion for Summary Judgment
Donald Roberts brings this action pursuant to 28 U.S.C.
§ 1983 alleging that when he was in custody at the Floyd
County Jail, defendants Officer Haub used excessive force to
shove him into his cell in view of defendants Officers
O'Neil, May, and Myers. The defendants move for summary
judgment arguing that Mr. Roberts failed to exhaust his
available administrative remedies for these claims before he
filed this lawsuit. Mr. Roberts has not
responded. For the following reasons, the motion for
summary judgment, dkt. , is granted.
Standard of Review
Rule of Civil Procedure 56(a) provides that summary 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.” In ruling on
a motion for summary judgment, the admissible evidence
presented by the non-moving party must be believed and all
reasonable inferences must be drawn in the non-movant's
favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009) (“We view the record in
the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.”).
However, “[a] party who bears the burden of proof on a
particular issue may not rest on its pleadings, but must
affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires
trial.” Hemsworth, 476 F.3d at 490. Finally,
the non-moving party bears the burden of specifically
identifying the relevant evidence of record, and “the
court is not required to scour the record in search of
evidence to defeat a motion for summary judgment.”
Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.
Roberts failed to respond to the summary judgment motion.
Accordingly, facts alleged in the motion are deemed admitted
so long as support for them exists in the record. 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”); Brasic
v. Heinemanns, Inc., 121 F.3d 281, 285-286 (7th Cir.
1997) (affirming grant of summary judgment where the
nonmovant failed to properly offer evidence disputing the
movant's version of the facts). 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 summary judgment
standard, but it does “reduce the pool” from
which facts and inferences relative to the motion may be
drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir.
Roberts alleges in the Complaint that defendant Haub shoved
him into a cell door while he was an inmate at the Floyd
County Jail and that defendants O'Neil, May, and Myers
were present when this incident occurred.
David Furman is the commander of the Jail and is employed by
the Floyd County Sheriff's Office, Corrections Division.
He has knowledge of the grievance procedures used at the
Jail. The procedures governing inmate grievances are set
forth in the Inmate Rules and Regulations of the Floyd
County, Indiana Jail and in an Inmate Grievance Policy. The
Inmate Rules and Regulations and the Grievance Policy were in
effect during Mr. Roberts' incarceration at the Jail.
are permitted to file grievances about any aspect of
institutional life, including the actions of corrections
officers. However, a grievance is required to be
“specific in its description of the complaint or
Roberts was familiar with the inmate grievance procedure at
the Jail and had filed four grievances during September 2017,
the month in which the incident allegedly occurred. However,
none of the grievances Mr. Roberts filed pertained to the
incident alleged in his Complaint. Captain Furman has
searched for and been unable to locate any records at the
County Jail showing that Mr. Roberts had exhausted his
administrative remedies with respect to his concerns raised
in this case before he filed it.
defendants argue that Mr. Roberts failed to exhaust his
available administrative remedies as required by the PLRA
with respect to his claims against them.
PLRA requires that a prisoner exhaust his available
administrative remedies before bringing a suit concerning
prison conditions. 42 U.S.C. § 1997e(a); Porter v.
Nussle,534 U.S. 516, 524-25 (2002). “Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules 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, 90-91 (2006) (footnote
omitted); 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)). Strict
compliance is required with respect to exhaustion, and a
prisoner must properly follow the prescribed administrative
procedures in order to exhaust his remedies. Dole v.
Chandler,438 F.3d 804, 809 (7th Cir. 2006). The
PLRA's exhaustion ...