United States District Court, S.D. Indiana, Terre Haute Division
PHILIP M. SEBOLT, Plaintiff,
FEDERAL BUREAU OF PRISONS, CLINT SWIFT, Defendants.
ENTRY GRANTING DEFENDANTS' UNOPPOSED MOTION FOR
SUMMARY JUDGMENT ON EXHAUSTION AND DIRECTING
ENTRY OF FINAL JUDGMENT
WILLIAM T. LAWRENCE, JUDGE
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.
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.
reasons explained in this Entry, the defendants'
unopposed motion for summary judgment, Dkt. No. 34, must be
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).
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,
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).
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.
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).
the following facts, unopposed by Mr. Sebolt and supported by
admissible evidence, are accepted as true:
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.
Inmate Work Assignments Within the CMU
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 ...