Galindez v. Ahmed et al

Filing 97

ORDER GRANTING in part and DISMISSING in part 52 Defendants Faisal Ahmed's and K. Schneider's Motion for Summary Judgment. The Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies is GRANTED, and the Motion fo r Summary Judgment on the Deliberate Indifference Claim is DISMISSED as MOOT. COUNT 1 against Defendants Ahmed and Schneider is DISMISSED without prejudice for failure to exhaust his administrative remedies. Plaintiff may refile his suit as a new action, if he wishes to pursue his claim. Because no other claims remain pending, this action is DISMISSED. Signed by Judge J. Phil Gilbert on 7/14/2021. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANGEL ENRIQUE ROMERO
GALINDEZ,

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Plaintiff,
vs.
FAISAL AHMED
and K. SCHNEIDER,
Defendants.

Case No. 20-cv-00655-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court on Defendants Faisal Ahmed’s and K. Schneider’s Motion
for Summary Judgment. (Doc. 52). Defendants request summary judgment based on Plaintiff
Angel Galindez’s failure to exhaust administrative remedies before filing suit or, alternatively, on
the merits of the deliberate indifference claim. For the reasons set forth herein, the Court finds
that Plaintiff failed to exhaust his available administrative remedies before filing suit. Therefore,
the motion for summary judgment on the issue of exhaustion shall be granted, and the motion for
summary judgment on the merits of the deliberate indifference claim shall be dismissed as moot.
INTRODUCTION
Plaintiff Angel Enrique Romero Galindez brings this action for deprivations of his
constitutional rights by persons acting under the color of federal authority at the Federal
Correctional Institution in Greenville, Illinois (FCI-Greenville). Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). More specifically, Plaintiff claims that Defendants denied him
adequate medical care for failed hardware that was surgically placed in his left leg more than two

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decades ago. Following threshold review of the complaint pursuant to 28 U.S.C. § 1915A,
Plaintiff was permitted to proceed on the following claim:
Count 1: Eighth Amendment claim against Dr. Ahmed and PA Schneider for denying
Plaintiff adequate medical care for his left leg injury at FCI-Greenville in 2020.
(Doc. 13).
Defendants Ahmed and Schneider filed their motion for summary judgment along with an
answer to the complaint on November 25, 2020. Defendants argue that Plaintiff failed to exhaust
his administrative remedies prior to filing suit and cannot establish that they were deliberately
indifferent to his serious medical needs. (Doc. 52). More specifically, Defendants indicate that
Plaintiff filed three administrative remedy requests during the relevant time period—a BP-9 dated
June 15, 2020, a BP-10 dated July 20, 2020, and a BP-11 dated September 28, 2020. In each,
Plaintiff requested surgery to remove the intramedullary rod in his left leg. He submitted two of
these requests, i.e., the BP-10 and BP-11, after filing this action on June 29, 2020. Because
Plaintiff did not exhaust his available administrative remedies before bringing suit, Defendants
seek dismissal of the action without prejudice. Alternatively, they request summary judgment on
the merits of Plaintiff’s deliberate indifference claim. In support of this alternative request for
relief, Defendants offer Plaintiff’s medical records and testimony from his initial preliminary
injunction hearing. (Id.).
Plaintiff filed a response in opposition to the motion for summary judgment on
January 28, 2021. (Doc. 72). He challenges Defendants’ summary judgment motion on the
merits of the deliberate indifference claim. However, Plaintiff is silent on the issue of exhaustion.
Defendants filed a supplement to their motion for summary judgment following a second
hearing on Plaintiff’s request for a preliminary injunction on June 11, 2021. (Doc. 90). In it,

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they seek dismissal of this action on the merits of the deliberate indifference claim based on events
occurring before and after Plaintiff filed suit.
RELEVANT FACTS
In the complaint, Plaintiff alleges that his body rejected internal hardware that was
surgically placed in his left femur twenty-six years ago. (Doc. 1, pp. 4-5, 7, 11-13). Movement
of his leg causes “extreme pain.” (Id. at 4). During his incarceration at FCI-Greenville in 2020,
he requested medical treatment for the condition in February, April, and June 2020. (Id.).
In response, he received an x-ray of his left leg and prescription medication for pain. (Id.). When
the pain medication made him ill, Plaintiff stopped taking it. (Id.). When he requested additional
treatment, including surgical removal of the hardware in his left leg, Dr. Ahmed and PA Schneider
disregarded his requests. (Id. at 2, 5, 13). Plaintiff attempted to use the grievance process to
resolve the matter both before and after filing suit on June 29, 2020.
Defendants Ahmed and Schneider produced a complete copy of Plaintiff’s administrative
remedy records along with their motion for summary judgment. (Doc. 52-3, Exs. 3 and 4).
Plaintiff’s BOP SENTRY Administrative Remedy Generalized Retrieval Report (“Report”) lists
all requests and appeals received from him. (Doc. 52-3, ¶ 5). A copy of each request, response,
and appeal is also included. (Doc. 52-3, pp. 17-22). According to the Report, Plaintiff made the
following attempts to resolve this matter using the grievance process:
•

BP-8: He first attempted informal resolution of his grievance on June 8-9, 2020.
(Doc. 52-3, p. 23).

•

BP-9: He then filed a Request for Administrative Remedy No. 1028809-F1, which was
signed June 15, 2020 and received June 23, 2020. In it, Plaintiff describes left leg pain
and requests surgical removal of a rod and screws. The Warden denied the request on
July 1, 2020. (Doc. 52-3, ¶ 6, Exs. 3 and 4; Doc. 52-3, pp. 20-22).

•

BP-10: He filed a Regional Administrative Remedy Appeal No. 1028809-R1, which
was signed July 20, 2020 and received July 22, 2020. There, Plaintiff appealed the
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Warden’s decision on Administrative Remedy No. 1028809-F1 to the Regional Office,
and it was denied on September 10, 2020. (Doc. 52-3, ¶ 7, Exs. 3 and 4; Doc. 52-3, pp.
18-19).
•

BP-11: He filed a Central Office Administrative Remedy Appeal No. 1028809-A1,
which was signed September 28, 2020 and received October 9, 2020. There, Plaintiff
appealed the prior decisions to the Central Office, and the Central Office Administrator
closed this appeal on November 13, 2020. (Doc. 52-3, ¶ 6, Exs. 3 and 4; Doc. 52-3,
p. 17).

In his response to the motion for summary judgment (Doc. 72), Plaintiff did not address
Defendants’ argument that he failed to exhaust his available remedies before filing suit. Plaintiff
focused entirely on the merits of his deliberate indifference claim against them. (Id.).
In their supplement to the motion for summary judgment (Doc. 90), Defendants did not
address any additional issues regarding Plaintiff’s failure to exhaust his administrative remedies.
They focused entirely on the request for summary judgment on the merits of the deliberate
indifference claim.
DISCUSSION
A.

Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears
the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment
is made, the adverse party must set forth specific facts showing there is a genuine issue. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). In determining a summary judgment motion, the Court views the facts in the light most
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favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital,
Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
Normally, the court cannot resolve factual disputes on a motion for summary judgment;
they must be decided by a jury. See, e.g., Roberts v. Neal, 745 F.3d 232, 234 (7th Cir. 2014) (“[A]
trial is the standard means of resolving factual disputes. . . .”). The opposite is true, however,
when the motion for summary judgment pertains to a prisoner’s failure to exhaust. The Seventh
Circuit has instructed courts to conduct an evidentiary hearing in order to resolve contested issues
of fact regarding a prisoner’s purported failure to exhaust. Pavey v. Conley, 544 F.3d 739 (7th
Cir. 2008); Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015); Roberts, 745 F.3d at 234.
On the issue of exhaustion, the defendants have the burden of proof. Pavey, 663 F.3d at 903;
Westerfer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005). Where there are no material factual
disputes, an evidentiary hearing is not necessary. See Doss v. Gilkey, 649 F. Supp. 2d 905, 912
(S.D. Ill. 2009) (no hearing required where there are “no disputed facts regarding exhaustion, only
a legal questions”).
B.

Administrative Exhaustion
The Prison Litigation Reform Act (PLRA) provides that a prisoner may not bring a lawsuit

about prison conditions unless and until he has exhausted all available administrative remedies.
42 U.S.C. § 1997e(a); Pavey, 663 F.3d at 903. The PLRA provides that “[n]o action shall be
brought with respect to prison conditions under Section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement
applies to both state and federal inmates. Porter v. Nussle, 534 U.S. 516, 524 (2002). As a BOP
inmate, Plaintiff is subject to the PLRA’s exhaustion requirement.
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Proper exhaustion is mandatory. Woodford v. Ngo, 548 U.S. 81, 90 (2006); McNeil v.
United States, 508 U.S. 106, 111, 113 (1993) (Courts are “not free to rewrite the statutory text”
when Congress has strictly “bar[red] claimants from bringing suit in federal court until they have
exhausted their administrative remedies.”). The Seventh Circuit Court of Appeals demands strict
compliance with the exhaustion rules. Doe v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
In order to properly exhaust his administrative remedies, a prisoner must “file complaints and
appeals in the place, and at the time, the prison’s administrative rules require.”

Pozo v.

McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); see also Woodford, 548 U.S. at 90.
In ruling on the pending motion for summary judgment, the Court must first address the
motion seeking dismissal on exhaustion grounds and only then take up the motion seeking
dismissal of the deliberate indifference claim on the merits. See Perez, 182 F.3d at 534. The
Court addresses the motions in this order because “[a]pplication of a law designed to prevent [a]
decision on the merits cannot be avoided by making the very decision whose propriety is contested,
then declaring the decision-avoidance statute ‘moot.’” Id. (emphasis in original). The Seventh
Circuit further explains that “[e]xamining the merits first and then ordering a case dismissed on
exhaustion grounds only if the plaintiff is apt to prevail not only would disregard the statutory
approach, which puts administrative ahead of judicial inquiry, but also would border on (if it would
not transgress) the rule against issuing advisory opinions.” Id. Accordingly, this Court will take
up the issue of exhaustion first and the merits second.
C.

FCI-Greenville’s Administrative Remedies Process
To exhaust administrative remedies at FCI-Greenville, federal prisoners must use the

BOP’s Administrative Remedy Program described in 28 C.F.R. §§ 542.10-.19, along with
institution-specific supplemental procedures.

In its normal course at FCI-Greenville, the
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grievance process involves four steps:
Step 1:

The inmate must attempt informal resolution by presenting his
complaint to a member of the staff. 28 C.F.R. § 542.13. The form
used to document this complaint is referred to as a BP-8;

Step 2:

If informal attempts do not resolve the matter, the inmate must submit
an Administrative Remedy Request on a BP-9 form within 20 calendar
days of the event or injury giving rise to the complaint. 28 C.F.R. §
542.14. The Administrative Remedy Request must be answered by the
warden of the institution where the inmate is located. Id.;

Step 3:

If the inmate is not satisfied with the Warden’s response to the
Administrative Remedy Request, the inmate may appeal the Warden’s
decision to the Regional Director using a BP-10 form submitted within
20 calendar days of the Warden’s response date. 28 C.F.R. § 542.15;

Step 4:

If the inmate remains dissatisfied with the Regional Director’s response
to the appeal, the inmate may appeal once more to the BOP General
Counsel using a BP-11 form submitted within 30 calendar days of the
Regional Director’s response. 28 C.F.R. § 542.15. An appeal to the
BOP General Counsel is the final step in the administrative review
process, and the inmate’s remedies are deemed exhausted when he
receives a response from the BOP General Counsel or upon the
expiration of the General Counsel’s response time.

(See Doc. 52-3, ¶ 4). BOP regulations specify the response time for Administrative Remedy
Requests and Appeals. 28 C.F.R. § 542.18. A warden must respond to an Administrative
Remedy Request within 20 calendar days; a Regional Director must respond to an appeal within
30 calendar days; and the General Counsel must respond to an appeal within 40 calendar days.
Id. BOP staff may extend the deadlines after notifying the inmate in writing. Id. If the
designated BOP employee fails to timely respond, the inmate “may consider the absence of a
response to be a denial at that level.” Id.
D.

Analysis
Plaintiff failed to respond to the motion for summary judgment on the issue of exhaustion.

In doing so, Plaintiff disregarded the Notice filed pursuant to Federal Rule of Civil Procedure
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56(e). (Doc. 53). The Rule 56(e) Notice advises Plaintiff that “[i]f a party fails . . . to properly
address another party’s assertion of fact” the Court may “consider the fact undisputed for purposes
of the motion.” (Id.). Local Rule 7.1(c) also provides that a party’s “[f]ailure to timely file a
response to a motion may, in the Court’s discretion, be considered an admission of the merits of
the motion.” SDIL-LR 7.1(c). The Court deems the facts presented by Defendants on the issue
of exhaustion undisputed. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v.
Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (noting that a failure to respond constitutes an admission
that there are no undisputed material facts).
The Court has reviewed the grievance records submitted in connection with the pending
motion for summary judgment and considered the arguments presented. This review shows that
there are only three grievances that potentially cover Plaintiff’s claim against Defendants regarding
Plaintiff’s leg injury and subsequent medical treatment:
•

BP-9 signed June 15, 2020 and received June 23, 2020 (Doc. 52-3, pp. 20-22);

•

BP-10 signed July 20, 2020 and received July 22, 2020 (id. at 18-19); and

•

BP-11 signed September 28, 2020 and received October 9, 2020 (id. at 17).

Plaintiff filed suit on June 29, 2020. See Galindez v. Ahmed, No. 20-cv-03859 (N.D. Ill. June 29,
2020). Therefore, only one of the grievance documents was filed before the lawsuit—the BP-9.
Given this, the Court finds that Plaintiff did not exhaust his available administrative remedies until
after filing suit.
Under the PLRA, exhaustion is a precondition to suit. 42 U.S.C. § 1997e(a). A plaintiff
cannot sue first and exhaust later. Ford v. Johnson, 362 F.3d 395, 398-400 (7th Cir. 2004). The
purpose of exhaustion is to give prison officials the opportunity to resolve disputes informally and
expeditiously without court intervention. Perez, 182 F.3d at 537 (exhaustion serves dual purposes
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of “narrow[ing] a dispute [and] avoid[ing] the need for litigation”). Prison officials must have an
opportunity to resolve disagreements internally before a plaintiff turns to the court for help.
“Until the issue of exhaustion is resolved, the Court cannot know whether it is to decide the case
or the prison authorities are to.” Pavey, 544 F.3d at 741.
The undisputed facts reveal that Plaintiff filed this lawsuit before his available remedies
were completely exhausted and, in doing so, deprived prison officials of a full and fair opportunity
to resolve this matter internally. Failure to properly exhaust is grounds for dismissal of the
lawsuit. Id.; Perez, 182 F.3d at 535. Defendants Ahmed and Schneider are entitled to summary
judgment on the issue of exhaustion. Having reached this conclusion, it is not necessary to
address the related motion for summary judgment on the merits of the deliberate indifference
claim, and this motion shall be dismissed as being moot.
DISPOSITION
IT IS ORDERED that Defendants Faisal Ahmed’s and K. Schneider’s motion for
summary judgment on the issue of exhaustion (Doc. 52) is GRANTED, and the motion for
summary judgment on the deliberate indifference claim (Doc. 52) is DISMISSED as MOOT.
Because no other claims remain pending, this action is DISMISSED.
IT IS ORDERED that COUNT 1 against Defendants Ahmed and Schneider is
DISMISSED without prejudice for failure to exhaust his administrative remedies. Plaintiff may
refile his suit as a new action, if he wishes to pursue his claim. When deciding whether and when
to do so, Plaintiff should remain mindful of the two-year statute of limitations applicable to this
claim. See O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015).
The Clerk is DIRECTED to enter judgment accordingly and close this case.
IT IS SO ORDERED.
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DATED: 7/14/2021
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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