United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
JANE MAGNUS-STINSON, CHIEF JUDGE
Plaintiff Andrew Barnett, an inmate incarcerated at the
United States Penitentiary in Coleman, Florida, filed this
civil action based on events that occurred while Mr. Barnett
was incarcerated at the United States Penitentiary in Terre
Haute, Indiana (“USP-TH”). He alleges that
Officer Harlow physically assaulted him on March 2, 2017, and
allowed another inmate to sexually assault him on March 3,
defendant seeks summary judgment arguing that Mr. Barnett
failed to exhaust his available administrative remedies as
required by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), before
filing this lawsuit. Mr. Barnett has not opposed the motion
for summary judgment. For the following reasons, the motion for
summary judgment, dkt. 22, is granted in part and denied in
Standard of Review
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Williams v.
Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). “A
genuine dispute as to any material fact exists ‘if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” Daugherty v.
Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Gekas v. Vasilades, 814 F.3d
890, 896 (7th Cir. 2016). The moving party is entitled to
summary judgment if no reasonable fact-finder could return a
verdict for the non-moving party. Nelson v. Miller,
570 F.3d 868, 875 (7th Cir. 2009). The Court views the record
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor.
Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717
(7th Cir. 2018). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are
left to the fact-finder. Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014). The Court need only consider
the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh
Circuit Court of Appeals has repeatedly assured the district
courts that they are not required to “scour every inch
of the record” for evidence that is potentially
relevant to the summary judgment motion before them.
Grant v. Trustees of Indiana University, 870 F.3d
562, 573-74 (7th Cir. 2017). Any doubt as to the existence of
a genuine issue for trial is resolved against the moving
party. Anderson, 477 U.S. at 255.
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 Mr. Barnett. See
Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015)
(“Because exhaustion is an affirmative defense, the
defendant 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).
Barnett failed to respond to the motion for summary judgment,
and the deadline for doing so has passed. The consequence is
that Mr. Barnett 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).
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 Mr. Barnett as the non-moving party with respect to the
motion for summary judgment. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).