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Sebolt v. Federal Bureau of Prisons

United States District Court, S.D. Indiana, Terre Haute Division

July 3, 2018

PHILIP M. SEBOLT, Plaintiff,



         I. Background

         Plaintiff Philip M. Sebolt is a federal prisoner who at all relevant times has been confined at the Federal Correctional Institution in Terre Haute, Indiana (“FCI-TH”). Mr. Sebolt filed his complaint on March 3, 2017, against the Federal Bureau of Prisons (“BOP”) and Clint Swift, case manager. His claims are brought pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the Administrative Procedures Act, 5 U.S.C. § 702, et seq. (“APA”). The Bivens claims of failure to protect and retaliation are brought against Mr. Swift. Mr. Sebolt's APA claim is that the BOP made an irrational and baseless decision to terminate and fail to reinstate his prison job as the commissary orderly.

         The defendants moved for summary judgment seeking resolution of all claims on the basis that Mr. Sebolt failed to exhaust his available administrative remedies. Mr. Sebolt has not opposed the motion for summary judgment.

         For the reasons explained in this Entry, the defendants' unopposed motion for summary judgment, Dkt. No. 34, must be granted.

         II. Legal Standards

         Summary 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). 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).

         “The 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 the motion for summary judgment is the Prison Litigation Reform Act (“PLRA'”), which requires that a prisoner exhaust his available administrative remedies before bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a); 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). In addition to applying to Bivens claims, the exhaustion requirement applies to APA claims. See Richmond v. Scibana, 387 F.3d 602, 607 (7th Cir. 2004); Staadt v. Bezy, 119 Fed.Appx. 784 (7th Cir. Dec. 16, 2004).

         “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)). “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).

         Because exhaustion of administrative remedies is an affirmative defense, the burden of proof is on the defendants to demonstrate that Mr. Sebolt failed to exhaust all available administrative remedies before he filed this suit. 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). The defendants' motion for summary judgment, brief in support, and Rule 56 notice were served on Mr. Sebolt on or about December 27, 2017. Although Mr. Sebolt sought extensions of time to respond, no response has been filed, and the deadline for doing so has passed.

         The consequence of Mr. Sebolt's failure to respond is that he has conceded the defendants' version of the facts. 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(b) (“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(a) motion, but 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).

         III. Discussion

         A. Undisputed Facts

         Accordingly, the following facts, unopposed by Mr. Sebolt and supported by admissible evidence, are accepted as true:

         Mr. Sebolt was transferred to the FCI-TH in April 2013. Upon his arrival at FCI-TH, he was assigned to the Communications Management Unit (“CMU”), which is a housing unit environment that enables staff to more effectively monitor communication between inmates in the CMU and persons in the community. The CMU is a self-contained general population housing unit where inmates ordinarily reside, eat, and participate in all educational, recreation, religious, visiting, unit management, and work programming.

         1. Inmate Work Assignments Within the CMU

         Program Statement 5251.06, Inmate Work and Performance Pay, provides that when making work assignments, staff are to consider the inmate's capacity to learn, interests, requests, needs, and eligibility as well as the availability of the assignment. Dkt. No. 35-1 at 2. Inmate work assignments are also to be made with consideration of the institution's security and ...

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