United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
Jane Magnus-Stinson, Chief Judge United States District Court
Dwayne Holloway, an Indiana prisoner incarcerated at the
Putnamville Correctional Facility, brings this civil rights
action alleging that Dr. Spendenburg delayed treatment of Mr.
Holloway's urinary tract infection by not placing a
request for emergency surgery. Mr. Holloway alleges that he
was in pain and the delay in treatment led to additional scar
tissue that was later removed.
pending before the Court is the defendant's motion for
summary judgment which argues that the plaintiff's claims
are barred under the exhaustion provision of the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e, that requires a prisoner to first exhaust his
available administrative remedies before filing a lawsuit in
court. Mr. Holloway has not responded to the motion and the
time to do so has passed, leaving the defendant's motion
unopposed. For the reasons that follow, the defendant's
motion for summary judgment, dkt. , is
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). A “material fact” is one that
“might affect the outcome of the suit.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). 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).
noted above, Mr. Holloway failed to respond to the
defendant's motion for summary judgment, and the deadline
for doing so has passed. The consequence is that Mr. Holloway
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.”). 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. Holloway and supported
by admissible evidence, are accepted as true.
times relevant to his claims, Mr. Holloway was incarcerated
at Putnamville Correctional Facility
(“Putnamville”). Putnamville maintained a
grievance policy regarding complaints about prison
conditions. The grievance process requires an inmate to
attempt to resolve the grievance informally through officials
at the facility by contacting staff to discuss the matter or
incident subject to the grievance and seeking informal
resolution. If the inmate is unable to obtain a resolution of
the grievance informally, he may submit a formal written
complaint to the Grievance Specialist of the facility where
the incident occurred. If the formal written complaint is not
resolved in a manner that satisfies the inmate, he may submit
an appeal within ten working days from the date of receipt of
the formal grievance response. If the inmate receives no
grievance response within twenty working days of the day he
submitted the grievance, he may appeal as though the
grievance had been denied.
Williams is the grievance specialist at Putnamville and is
the custodian of the facility's grievance records
including, but not limited to, the initial grievance
documents filed by inmates as well as responses and appeals.
Mr. Holloway's grievance history log shows that he has
only properly submitted one grievance during his
incarceration, concerning a corrections officer at the
Reception and Diagnostic Center in 2006. Furthermore, Mr.
Holloway's informal and rejected grievance file contains
only one informal grievance regarding laundry in October
2016. Dkt. 18-1.
PLRA 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.” Id. 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 omitted).
Exhaustion of available administrative remedies
“‘means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the
issues on the merits).'” Id. at 90
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024
(7th Cir. 2002)). Proper use of the facility's grievance
system requires a prisoner “to file complaints and
appeals in the place, and at the time [as] the prison's
administrative rules require.” Pozo, 286 F.3d
at 1025; see also Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006).
exhaustion is an affirmative defense, “the burden of
proof is on the prison officials.” Kaba v.
Stepp, 458 F.3d 678, 680 (7th Cir. 2006). The burden is
also on the defendant to establish that the administrative
process was available to Mr. Holloway. 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).
undisputed facts demonstrate that Mr. Holloway did not
complete the grievance process. The consequence of Mr.
Holloway's failure to exhaust his administrative
remedies, in light of 42 U.S.C. § 1997e(a), is that this
action must be dismissed without prejudice. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) ...