Due v. Ahmed

Filing 41

ORDER GRANTING 34 Motion for Summary Judgment filed by Faisal Vakil Ahmed and DISMISSING CASE. Signed by Judge J. Phil Gilbert on 2/5/2024. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RANDALL DAVID DUE,
#96294-020,

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Plaintiff,
vs.
FAISAL AHMED,
Defendant.

Case No. 22-cv-00640-JPG

MEMORANDUM & ORDER
GILBERT, District Judge:
This matter comes before the Court on Defendant Faisal Ahmed’s Motion for Summary
Judgment filed April 3, 2024. (Doc. 34). Defendant maintains that Plaintiff Randall Due failed to
exhaust his available administrative remedies before bringing suit in federal court pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This Court agrees. For the reasons
set forth below, the motion shall be GRANTED.1
Background
Plaintiff Randall Due brings this action against Dr. Faisal Ahmed, the Clinical Director at
the Federal Correctional Institution in Greenville, Illinois (FCI-Greenville), who allegedly denied
him surgery for an inguinal hernia and treatment for digestive issues and constipation. (Doc. 1,
pp. 1-42). The Court recognized two claims at screening:

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Defendant alternatively seeks dismissal of the claim as being an unauthorized expansion of the Bivens
remedy in the wake of Egbert v. Boule, 596 U.S. 482 (2022). As explained in the Screening Order
(Doc. 15), the Eighth Amendment medical claim at issue is not meaningfully different from the claim
addressed in Carlson v. Green, 446 U.S. 14 (1980). Because Count 1 is not an unauthorized expansion of
Bivens, the Court denies the request for dismissal on this ground without further discussion.

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Count 1:

Eighth Amendment Bivens-type claim against Defendant for denying
Plaintiff adequate medical care for his inguinal hernia, chronic digestive
issues, and constipation at FCI-Greenville beginning in 2021.

Count 2:

“Tort” claim under the Federal Tort Claims Act or Illinois state law against
Defendant for breaching a duty of care under 18 U.S.C. § 4042 and
fiduciary duties and obligations as a “trustee” of the public trust.

(Doc. 15). Count 1 survived review under 28 U.S.C. § 1915A, and Count 2 was dismissed.
Defendant’s Motion for Summary Judgment
Defendant moved for summary judgment on the ground that Plaintiff failed to exhaust his
administrative remedies before filing this lawsuit. (Doc. 34). Defendant produced Plaintiff’s
inmate records, which include two grievance documents. Id. (citing Ex. A, ¶ 5). The first is a
request for an administrative remedy (Remedy ID 977736-F1) (BP-9) that Plaintiff filed with the
warden on or around May 16, 2019. Id. (citing Ex. A, ¶ 6, Att. 3, p. 19). The second is a denial
from the warden dated May 20, 2019. Id. Plaintiff did not appeal this denial to the regional level.
Id. (citing Ex. A, ¶ 7, Att. 3). According to Defendant, Plaintiff faced no impediment to doing so.
Because Plaintiff did not comply with the exhaustion requirements under the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a), Defendant seeks dismissal of Count 1.
Plaintiff’s Responses
Plaintiff submitted two separate Responses to the pending motion on June 2, 2023
(Doc. 37) and July 20, 2023 (Doc. 39). He filed both after the response deadline expired on
May 3, 2023, see Doc. 35, and only after the Court ordered him to show cause why his inaction
should not be construed as an admission of facts presented and an admission of the merits of the
motion. Id. (citing SDIL-LR 7.1(c)).2 In lieu of a show cause response, Plaintiff was allowed to
file his response to the pending motion for summary judgment on or before June 2, 2023. Id.

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Local Rule 7.1(c) permits the Court to construe a plaintiff’s failure to respond to a defendant’s summary
judgment motion as an admission of the merits of the motion. See SDIL-LR 7.1(c).

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1.

First Response
Plaintiff’s first response was filed June 2, 2023. (Doc. 37). It is entitled: “Show Cause

Objection to Defendant’s Summary Judgment.” Id. It includes four subsections: “Take Judicial
Notice” (id. at 1); “Plaintiff’s Genuine Issues of Material Facts” (id. at 2); “Show Cause” (id. at
3); and “Disclaimer: Notice to Respond/Show Cause” (id. at 4). The first response is timely.
In it, Plaintiff maintains that he exhausted his available remedies for Count 1 by filing Tort
Claim #TRT-NCR-2021-04384 (Tort Claim). (Doc. 37 at ¶ 1). This lawsuit is the second suit he
filed against Defendant to address the same claims. (Id. at ¶ 2). The first one was dismissed
without prejudice on exhaustion grounds.

Id.

In the dismissal order, the Court provided

instructions for properly exhausting the claim and invited Plaintiff to file a new suit after
completing the remaining step(s). Id. Plaintiff explains that he simply followed these instructions
by filing the Tort Claim with the North Central Regional Office of the Bureau of Prisons. Id.
Plaintiff provides a copy of the Regional Counsel’s denial of the claim dated September 30, 2021.
(Id. at ¶ 3) (Doc. 39, Ex. G).
2.

Second Response
Plaintiff’s second response was filed on July 20, 2023. (Doc. 39). It is entitled: “Request

for Summary Judgment Against Defendant.”

Id.

It consists of three sections: “Reply to

Defendant’s Response” (id. at 1); “Show Cause” (id. at 2); and “Disclaimer/Notice of
Response/Show Cause” (id. at 3). This response is late but duplicates much of the first response.
In addition, Plaintiff seeks summary judgment against Defendant on Count 1 because
Defendant failed to respond to Requests for Admissions served on him via certified mail in
December 2022.

(Doc. 37, ¶ 4). According to Plaintiff, Defendant’s failure to respond

conclusively establishes deliberate indifference to Plaintiff’s serious medical needs. Id. at ¶¶ 5-6.

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Therefore, Plaintiff asks the Court to deny Defendant’s motion for summary judgment on
exhaustion and grant his request for summary judgment on the merits of the Eighth Amendment
claim instead. Id. at ¶ 7.
Defendant’s Reply
In a Reply, Defendant pointed out that Plaintiff’s Tort Claim did not exhaust his
administrative remedies for the Bivens claim in Count 1. (Doc. 40). Further, Defendant was not
required to respond to Plaintiff’s Requests for Admissions because discovery on the merits is
stayed until the issue of exhaustion is resolved. Id.
Applicable Legal Standards
1.

Summary Judgment
Summary judgment is proper only if the moving party can demonstrate “that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party
is entitled to judgment as a matter of law when the pleadings, answers to interrogatories,
depositions, and admissions, along with affidavits, show that there is no genuine issue of material
fact. FED. R. CIV. P. 56(c). Any doubt about a genuine issue must be resolved in favor of the
nonmoving party, i.e., the prisoner. Lawrence v. Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004).
When deciding a motion for summary judgment on the issue of exhaustion, the Seventh
Circuit has instructed courts to conduct an evidentiary hearing and resolve contested issues of fact
regarding a prisoner’s efforts to exhaust. Pavey v. Conley, 544 F.3d 739, 739-42 (7th Cir. 2008).
After hearing evidence, finding facts, and determining credibility, the court must decide whether
to allow the claim to proceed or to dismiss it for failure to exhaust. See Wilborn v. Ealey, 881 F.3d
998, 1004 (7th Cir. 2018) (citing Pavey, 544 F.3d at 742). However, no hearing is required if no

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material facts are disputed. 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”).
2.

Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (PLRA), a prisoner may not file a Bivens suit “until

such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). This affords prison officials an opportunity to address
complaints internally and take corrective action before the court gets involved. Id. To satisfy the
PLRA’s exhaustion requirement, a prisoner’s grievance and appeal must be filed “in the place, and
at the time, the prison’s administrative rules require . . . [and] . . . contain the sort of information
that the administrative system requires.” Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002)
(internal citation and quotations omitted); see Woodford v. Ngo, 548 U.S. 81, 90-93 (2006).
For constitutional claims like the one at issue here, an inmate must use the BOP’s
Administrative Remedy Program described in 28 C.F.R. § 542.10 et seq., along with any
institution-specific supplemental procedures. This procedure involves four steps. First, the inmate
must attempt informal resolution of his complaint with prison staff by submitting an informal
resolution form detailing any efforts to resolve the problem. 28 C.F.R. § 542.13. Second, if
informal attempts do not resolve the grievance, the inmate must submit a formal Administrative
Remedy Request (BP-9) within twenty calendar days of the event or injury giving rise to the
complaint. 28 C.F.R. § 542.14. Third, if the inmate is not satisfied with the warden’s response to
the Administrative Remedy Request, the inmate may file an appeal of the decision to the
appropriate Regional Director (BP-10) within twenty calendar days of the date the warden signed
his response. 28 C.F.R. § 542.15. The fourth step is an appeal to the BOP General Counsel (BP11) submitted within 30 calendar days of the Regional Director’s response. 28 C.F.R. § 542.15.

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The inmate’s remedies are deemed exhausted once he receives a response from the BOP General
Counsel or the General Counsel’s response time expires. The Court will refer to this exhaustion
process as “Part 542 exhaustion.”
Analysis
Based on the undisputed evidence in the record, Plaintiff did not complete Part 542
exhaustion for Remedy ID 977736-F1 before filing this suit to address his Eighth Amendment
claim in Count 1. To exhaust this claim, he was required to seek informal resolution and then file
a BP-9, BP-10, and BP-11, or the equivalent. Plaintiff stopped short. He offered only one reason
for doing so. According to him, Plaintiff perfected exhaustion by filing Tort Claim #TRT-NCR2021-04384 (Doc. 37 at ¶ 1). Plaintiff’s tort claim in Count 2 never survived screening, however,
so his efforts to exhaust that claim have no bearing on Count 1.
Plaintiff made the same mistake in Due v. Ahamed, Case No. 19-cv-1161-JPG (S.D. Ill.)
(prior case) (Doc. 36). In his prior case, Plaintiff pursued an identical constitutional claim against
the same defendant. Before bringing suit, he failed to complete Part 542 exhaustion for Remedy
ID 977736-F1. This Court dismissed Plaintiff’s Eighth Amendment claim without prejudice. Id.
In doing so, the Court recognized that Plaintiff might have intended to pursue an FTCA
claim, instead of a federal constitutional claim. (see Doc. 36, pp. 8-9, prior case). However, FTCA
claims proceed against the United States, and exhaustion of FTCA claims is governed by “Part
543 exhaustion” not “Part 542 exhaustion.” Id. Because Plaintiff still had time to complete Part
543 exhaustion and file a suit against the United States under the FTCA, the Court dismissed the
prior case without prejudice. Id. (noting “the FTCA allows a claimant two years to file an
administrative claim, 28 U.S.C. § 2401(b), so Due may still be able to file a timely FTCA action
after exhausting his administrative remedies under Part 543, if he has not already done so).

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This suit followed. However, Plaintiff still focuses on his federal constitutional claim in
Count 1 against the same individual defendant.3 He has failed to exhaust his administrative
remedies for this claim under Part 542. Accordingly, Defendant is entitled to summary judgment.
And, because merits discovery was stayed while the issue of exhaustion was resolved, Plaintiff’s
request for summary judgment on the merits is denied.
Disposition
For the reasons set forth above, Defendant Faisal Ahmed’s Motion for Summary Judgment
(Doc. 34) is GRANTED, and COUNT 1 is DISMISSED without prejudice. Plaintiff’s request
for summary judgment on the merits (Doc. 39) is DENIED. Because no other claims remain, the
Clerk is DIRECTED to enter judgment accordingly and close this case.
IT IS SO ORDERED.
DATED: 2/5/2024
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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Plaintiff’s “tort claim” in Count 2 did not name the United States as a defendant and did not survive
screening.

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