United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING UNOPPOSED MOTION FOR SUMMARY JUDGMENT
AND DIRECTING ENTRY OF FINAL JUDGMENT
WALTON PRATT, JUDGE
Barber filed this action on January 2, 2019, contending that
his constitutional rights were violated when Nurse Isaac and
Dr. Ippel were deliberately indifferent to his serious
medical needs. Specifically, Mr. Barber reported to sick call
at New Castle Correctional Facility (“New
Castle”). At that time, he was suffering from the
effects of a stroke. Nurse Isaac failed to properly assess
his condition and Dr. Ippel ignored Mr. Barber's obvious
symptoms. The next day, Mr. Barber was seen by Dr. Robertson
and immediately sent to a hospital where he was given an EKG
and diagnosed with a mild stroke. The delay in treatment
allegedly caused Mr. Barber harm. Dkt. 11 at p. 2 (Entry
Screening Amended Complaint filed March 25, 2019).
defendants move for summary judgment arguing that Mr. Barber
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. For the reasons explained below, the
motion for summary judgment, dkt , must be
Standard of Review
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). The party seeking summary judgment
“bears the initial responsibility of informing the
district court of the basis for its motion, and
identifying” designated evidence which
“demonstrate[s] the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
the moving party has met its burden, the non-movant may not
rest upon mere allegations. Instead, “[t]o successfully
oppose a motion for summary judgment, the nonmoving party
must come forward with specific facts demonstrating that
there is a genuine issue for trial.” Trask-Morton
v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir.
2008). “The non-movant will successfully oppose summary
judgment only when it presents definite, competent evidence
to rebut the motion.” Vukadinovich v. Bd. of Sch.
Trs., 278 F.3d 693, 699 (7th Cir. 2002) (internal
quotation and citation omitted).
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 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.” Id. 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 omitted).
Exhaustion of available administrative remedies
“‘means using all steps that the agency holds
out, and doing so properly (so that the agency addresses the
issues on the merits).'” Id. at 90
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024
(7th Cir. 2002)). Proper use of the facility's grievance
system requires a prisoner “to file complaints and
appeals in the place, and at the time [as] the prison's
administrative rules require.” Pozo, 286 F.3d
at 1025; see also Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006). The “mandatory language [of the
PLRA] means a court may not excuse a failure to exhaust . . .
.” Ross v. Blake, 136 S.Ct. 1850, 1856-57
(2016) (citing Miller v. French, 530 U.S. 327, 337
(2000) (explaining that “[t]he mandatory
‘shall' ... normally creates an obligation
impervious to judicial discretion.”)).
exhaustion is an affirmative defense, “the burden of
proof is on the prison officials.” Kaba v.
Stepp, 458 F.3d 678, 680 (7th Cir. 2006). So here, the
defendants bear the burden of demonstrating that Mr. Barber
failed to exhaust all available administrative remedies
before he filed this suit. Id. at 681.
Barber failed to respond to the motion for summary judgment.
The consequence is that Mr. Barber has conceded the
defendants' version of the events. 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.”). 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).
the following facts are accepted as true:
subject of Mr. Barber's lawsuit is the medical care and
treatment he received on December 13, 2017. Dkt. 22-1 at
¶ 11. During all relevant times, there was a grievance
process in place at New Castle Correctional Facility
(“New Castle”) and this process was available to
Mr. Barber. Id. at ¶ 6.
purpose of the offender grievance process is to provide an
administrative process by which inmates may resolve concerns
and complaints related to the conditions of their confinement
at their current institution. The grievance procedures at New
Castle are noted in the inmate handbook and are provided to
inmates upon their arrival. Dkt. 21 at p. 2 ¶ 3; dkt.
22-1 ¶ 6. The grievance process consists of four stages:
1) an informal grievance to a prison official at New Castle;
2) a formal grievance to the Grievance Specialist at New
Castle; 3) Level 1 Grievance Appeal to the Warden at New
Castle; and 4) Level 2 Grievance Appeal to the Indiana
Department of Correction's Grievance Manager. Dkt. 21 at
p. 3. Indiana Department of Correction's records reflect
that Mr. Barber has not filed a formal grievance since
October 29, 2014. Dkt. 22-2.