United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING DEFENDANT'S UNOPPOSED MOTION FOR
SUMMARY JUDGMENT ON EXHAUSTION AND DIRECTING
ENTRY OF FINAL JUDGMENT
WILLIAM T. LAWRENCE, JUDGE
Michael James Cable was a prisoner incarcerated at the Marion
County Jail II (the “Jail II”) at the time he
filed this civil rights action. In his complaint, filed on
October 27, 2017, Mr. Cable alleged that he had lost 30
pounds since he was confined at the Jail II and that the food
served there “has absolutely no nutritional
value” and that inmates “do not even receive a
full amount on any tray.” Dkt. No. 1, p. 5. His claim
that he was improperly denied a kosher diet was dismissed for
failure to state a claim upon which relief can be granted.
Dkt. No. 6.
Aramark moves for summary judgment seeking resolution of the
claim against it on the basis that Mr. Cable failed to
exhaust his available administrative remedies. Mr. Cable has
not opposed the motion for summary judgment.
reasons explained in this Entry, Aramark's unopposed
motion for summary judgment, Dkt. No. 19, 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).
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 defendant to
demonstrate that Mr. Cable failed to exhaust all available
administrative remedies before he filed this suit. Kaba
v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006).
Aramark's motion for summary judgment, brief in support,
and Rule 56 notice were served on Mr. Cable on or about April
13, 2018, and were re-served on or about May 14, 2018, after
Mr. Cable reported a change of address. As noted, no response
has been filed, and the deadline for doing so has passed.
consequence of Mr. Cable's failure to respond is that he
has conceded the defendant's 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 (“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).
following facts, unopposed by Mr. Cable and supported by