United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DIRECTING ENTRY OF FINAL JUDGMENT
WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on the Defendant, Officer
Tutt's Motion for Summary Judgment, dkt. . Plaintiff
Kevin Meyers (“Meyers”), an inmate at the Wabash
Valley Correctional Facility, brings this action pursuant to
42 U.S.C. § 1983. Meyers alleges that, while he was
incarcerated at New Castle Correctional Facility (NCCF), in
August 2016, defendant Officer Tutt used excessive force
against him while he was strapped down, causing a cracked
tooth and infection. Officer Tutt moves for summary judgment
on Meyers's claim arguing that he failed to exhaust his
administrative remedies as required by the Prison Litigation
Reform Act (PLRA) before filing this lawsuit. He also
contends there is a lack of evidence supporting Meyers's
claim that he was assaulted as there exists no reference of
an assault in medical records, grievances, or serious
incident reports, all of which would have been generated by a
person other than the defendant at or near the time period of
the alleged incident, sometime between August 7, 2016, and
August 15, 2016. For the following reasons, the motion for
summary judgment is granted.
Standard of Review
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and
identifying” designated evidence which
“demonstrate[s] the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
the moving party has met its burden, the non-movant may not
rest upon mere allegations. Instead, “[t]o successfully
oppose a motion for summary judgment, the nonmoving party
must come forward with specific facts demonstrating that
there is a genuine issue for trial.” Trask-Morton
v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir.
2008). “The non-movant will successfully oppose summary
judgment only when it presents definite, competent evidence
to rebut the motion.” Vukadinovich v. Bd. of Sch.
Trs., 278 F.3d 693, 699 (7th Cir. 2002) (internal
quotation and citation omitted).
“material fact” is one that “might affect
the outcome of the suit.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine only if a reasonable jury could find for the
non-moving party. Id. If no reasonable jury could
find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007). The Court views the facts in the light
most favorable to the non-moving party, and all reasonable
inferences are drawn in the non-movant's favor. Ault
v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
applicable substantive law will dictate which facts are
material.” National Soffit & Escutcheons, Inc.,
v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir.
1996) (citing Anderson, 477 U.S. at 248). The
substantive law applicable to this motion for summary
judgment is the PLRA, which requires that “[n]o action
shall be brought with respect to prison conditions under
section 1983 . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e;
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.” Porter,
534 U.S. at 532 (citation omitted). The requirement to
exhaust provides “that no one is entitled to judicial
relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.”
Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (citation
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.”
Id. at 90-91; 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)).
“In order to exhaust administrative remedies, a
prisoner must take all steps prescribed by the prison's
grievance system.” Ford v. Johnson, 362 F.3d
395, 397 (7th Cir. 2004).
the defendant's burden to establish that the
administrative process was available to Meyers. See
Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015)
(“Because exhaustion is an affirmative defense, the
defendants must establish that an administrative remedy was
available and that [the plaintiff] failed to pursue
it.”). “[T]he ordinary meaning of the word
‘available' is ‘capable of use for the
accomplishment of a purpose, ' and that which ‘is
accessible or may be obtained.'” Ross v.
Blake, 136 S.Ct. 1850, 1858 (2016) (internal quotation
omitted). “[A]n inmate is required to exhaust those,
but only those, grievance procedures that are capable of use
to obtain some relief for the action complained of.”
Id. at 1859 (internal quotation omitted).
failed to respond to the defendant's motion for summary
judgment, and the deadline for doing so has long passed. The
consequence is that Meyers has conceded the defendant's
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.”). Because
Meyers failed to respond to the defendant's motion, and
thus failed to comply with the Court's Local Rules
regarding summary judgment, the Court will not consider
allegations in Meyers's complaint in ruling on this
motion. Although pro se filings are construed liberally, pro
se litigants such as Meyers are not exempt from procedural
rules. See Pearle Vision, Inc. v. Romm, 541 F.3d
751, 758 (7th Cir. 2008) (noting that “pro se litigants
are not excused from compliance with procedural
rules”); Members v. Paige, 140 F.3d 699, 702
(7th Cir. 1998) (stating that procedural rules “apply
to uncounseled litigants and must be enforced”). 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).
Statement of Facts
following statement of facts was evaluated pursuant to the
standard set forth above. That is, this statement of facts is
not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light reasonably most favorable
to Meyers as the non-moving party with respect to the motion
for summary judgment. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).
times relevant to his claims, Meyers was an inmate at NCCF.
The Indiana Department of Correction (IDOC) has an Offender
Grievance Process - IDOC Policy and Administrative Procedure
00-02-301, Offender Grievance Process - which is intended to
permit inmates to resolve concerns and complaints relating to
their conditions of confinement prior to filing suit in
the IDOC offender grievance program, offenders can grieve
actions of individual staff or issues regarding conditions,
including claims of assault. The grievance process begins
with the offender contacting staff to discuss the matter or
incident subject to the grievance and seeking informal
resolution. If the offender is unable to obtain a resolution
of the grievance informally, he may submit a formal grievance
(SF 45471) to the Grievance Officer of the facility where the
incident occurred. If the formal written grievance is not
resolved in a manner that satisfies the offender, he may
submit an appeal (SF 45473). Exhaustion of the grievance
procedure requires pursuing a grievance to the final step -
the appeal of the level 1 response to the formal grievance. A
grievance must ...