United States District Court, N.D. Indiana, South Bend Division
TODD A. BEBOUT, Plaintiff,
DR. LIAW, M.D., Defendant.
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Bebout., a prisoner without a lawyer, was granted leave to
proceed on a single claim against Dr. Liaw for denying him
proper medical treatment for spinal scoliosis and
degenerative disk disease at the Westville Correctional
Facility from October 2014 to January 3, 2019, by not
prescribing medication he told Bebout would be prescribed and
by repeatedly allowing his prescriptions to expire without
being renewed, in violation of the Eighth Amendment. ECF 25.
The defendant has moved for summary judgment (ECF 35),
arguing that Bebout failed to exhaust his administrative
remedies because he did not complete the grievance process
with respect to his claim.
defendant also provided Bebout with the summary judgment
notice required by N.D. Ind. L.R. 56-1 and a copy of both
Federal Rule of Civil Procedure 56 and Local Rule 56-1. ECF
37. The notice informed Bebout of the importance of filing a
response. It advised that, unless he disputed the facts
presented by the defendants, the court could accept those
facts as true. It further advised that a lack of response
could result in the dismissal of his case. Nevertheless,
Bebout did not file a response.
grant summary judgment when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To
determine whether a genuine issue of material fact exists, I
must construe all facts in the light most favorable to the
non-moving party and draw all reasonable inferences in that
party's favor. Heft v. Moore, 351 F.3d 278, 282
(7th Cir. 2003).
to 42 U.S.C. § 1997e(a), prisoners are required to
exhaust available administrative remedies prior to filing
lawsuits in federal court. “[A] suit filed by a
prisoner before administrative remedies have been exhausted
must be dismissed; the district court lacks discretion to
resolve the claim on the merits, even if the prisoner
exhausts intra-prison remedies before judgment.”
Perez v. Wisconsin Dep't of Corr., 182 F.3d 532,
535 (7th Cir. 1999). “Failure to exhaust is an
affirmative defense that a defendant has the burden of
proving.” King v. McCarty, 781 F.3d 889, 893
(7th Cir. 2015). The Seventh Circuit has taken a
“strict compliance approach to exhaustion.”
Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
“[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state
remedies.” Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002).
grievance policy for the Indiana Department of Correction
sets forth a three-step grievance process. First, an inmate
must attempt to informally resolve a complaint by contacting
an appropriate staff member. ECF 36-1 at ¶ 9. If the
inmate is unable to resolve informally the complaint, he may
file a formal grievance with the grievance specialist.
Id. at ¶ 10. If an inmate is dissatisfied with
the grievance specialist's determination, he may file an
appeal with the Department Offender Grievance Manager at the
IDOC's Central Office. Id. at ¶ 17. So to
exhaust a grievance, an offender must attempt an informal
resolution, file a formal grievance, and pursue an appeal to
the Department Offender Grievance Manager at IDOC's
Central Office. Id. at ¶ 19.
to the grievance records, Bebout filed only one formal
grievance while he was housed at the Westville Correctional
Facility. ECF 36-1 at ¶¶ 24-25; ECF 36-3. Bebout
filed a formal grievance on March 6, 2015, regarding multiple
medical problems, including bulging discs. ECF 36-1 at ¶
24; ECF 36-3 at 3; ECF 36-4. In that grievance, Bebout
indicated that he would not see Dr. Liaw because “all
he does is deny him proper medical treatment.” ECF 34-4
at 1. The grievance was denied after reaching a determination
that Bebout had not been denied medical care. Id.
The records do not reflect that Bebout appealed that denial.
ECF 36-3; ECF 36-1 at ¶ 24.
submitted a copy of an informal grievance against Dr. Liaw
dated December 13, 2015, with his amended complaint. ECF 26
at 9. In it, Bebout complains that Dr. Liaw indicated that he
would order medication for him, but he did not actually order
it. Id. That informal grievance was responded to on
December 15, 2015. ECF 36-1 at ¶ 27. If he was not
satisfied with the outcome, Bebout should have filed a formal
grievance, but a review of his grievance history shows that
he did not do so. Id.; ECF 36-3.
has also submitted a copy of an envelope addressed to
“Michael Mitcheff, Ind. Regional Office, 3737 N.
Meridian St., Suite 500, Indpls., IN 46208.” ECF 26 at
10. Bebout noted on the envelope that it was never opened,
and that it was returned to him on January 28, 2010. This
date is consistent with the postmark date of January 16, 2010
- dates that fall far outside the scope of the claim for
which Bebout was granted leave to proceed. Thus, the envelope
has no relevance to the issue I must decide.
reviewing the record, I conclude that the undisputed evidence
demonstrates that Bebout did not exhaust his available
administrative remedies with respect to his claim that Dr.
Liaw denied him adequate medical treatment for his spinal
scoliosis and degenerative disk disease between October of
2014 and January of 2019.
these reasons, the court:
GRANTS the motion for summary judgment (ECF 35); and
DIRECTS the clerk to enter judgment ...