SMITH v. INDIANA DEPARTMENT OF CORRECTIONS et al

Filing 41

ORDER granting 25 Motion for Summary Judgment; granting 29 Motion for Summary Judgment; denying 34 Motion in Opposition to Motion for Summary Judgment. Judgment consistent with this Entry shall now issue. (S.O.). Copy mailed. Signed by Judge Sarah Evans Barker on 5/30/2013. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEVIN SMITH,

)
)
Plaintiff,
)
)
vs.
)
)
CORIZON MEDICAL SERVICES, et al., )
)
)
Defendants. )
)

Case No. 1:12-cv-1208-SEB-MJD

Entry Discussing Motion for Summary Judgment
and Directing Entry of Final Judgment
In this action brought pursuant to 42 U.S.C. § 1983, plaintiff Kevin Smith, an inmate at
the Plainfield Correctional Facility, claims alleges that the defendants violated his constitutional
rights. He sues correctional officers Sergeant Kenneth Cork, Sergeant Nhut Daniels, Lieutenant
Kenneth Thompson (the “State Defendants”) and medical care providers Corizon Health, Inc.,
Richard Tanner, Kayla McDermitt, and L’Tia Lewis (the “Corizon Defendants”).
The State Defendants and the Corizon Defendants have each moved for summary
judgment arguing that Smith failed to exhaust his available administrative remedies prior to
filing this action.
I. Standard of Review
Summary judgment should be granted Aif 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). A “material fact” is one that “might affect the outcome of the suit.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury
could find for the non-moving party. Id. If no reasonable jury could find for the non-moving
party, then there is no Agenuine@ dispute. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). The court
views the facts in the light most favorable to the non-moving party and all reasonable inferences
are drawn in the non-movant’s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
Smith has responded to the motions for summary judgment but his responses do not
include the Statement of Material Facts in Dispute required by Local Rule 56-1(b). District
courts have discretion to strictly enforce their local rules even against pro se litigants. See Cady
v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006); Cichon v. Exelon Generation Co., 401 F.3d
803, 809-10 (7th Cir. 2005). He has also filed his own Motion in Opposition to the Motion for
Summary Judgment, but this motion also does not comply with the evidentiary requirements of
Rule 56 of the Federal Rules of Civil Procedure. The consequence of these circumstances is that
Smith 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.”); see also Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011); Wackett
v. City of Beaver Dam, 642 F.3d 578, 582 n.1 (7th Cir. 2011). This does not alter the standard for
assessing a Rule 56(a) motion, but 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).
II. Discussion
A. Undisputed Facts
The following facts, construed in the manner most favorable to Smith as the non-movant,
are undisputed for purposes of the motion for summary judgment:
Smith alleges in his complaint that on March 23, 2012, defendants Cork and Daniels
improperly denied his request to sleep on a bottom bunk, a request he made based on his epilepsy

disorder. As a result, he fell from the top bunk on which he was sleeping and was injured. Smith
alleges that after he fell from his bunk, defendant Thompson took him out of the medical
department before he could receive proper evaluation. Smith further alleges that the Corizon
Defendants failed to provide him proper medical care after his fall.
There is an administrative remedy process, implemented through a grievance procedure,
available at the Plainfield Correctional Facility applicable to these claims. Pursuant to the
grievance policy, the offender must attempt to obtain informal resolution of his complaints by
contacting staff to discuss the matter subject to the grievance. If he is unable to obtain a
resolution of the grievance informally, he may submit a formal written complaint (Level I) to the
Grievance Specialist at the facility. If the formal written complaint is not resolved in a manner
satisfactory to the offender, he may submit an appeal (Level II) within ten working days from the
date of receipt of the grievance response. If the offender receives no grievance response within
twenty-five working days of the day he submitted the grievance, he may appeal as though the
grievance had been denied. Exhaustion of the grievance procedure requires pursuing a grievance
to the final step. Exhaustion also requires compliance with the timing requirements for
submitting formal grievances and appeals.
Since arriving at the Plainfield Correctional Facility, Smith has filed one grievance
related to his fall from his bunk. In this grievance, dated March 26, 2012, Smith alleged that
when he was moved to a new cell on March 23, 2012, Cork and Daniels assigned him a top bunk
even though he had a pass for a bottom bunk. He also alleged that Thompson improperly
interfered with his medical care. The Corizon Defendants are not named or mentioned in the
March 23 grievance. Except for the allegation regarding Thompson removing him from the
medical department, Smith makes no allegation in the grievance regarding the adequacy of his
medical care. A Return of Grievance Response was issued on March 28, 2012, informing Smith

that his grievance was rejected because he failed to attempt to resolve the complaint informally
as required by the Grievance Policy. Smith did not respond to the Return of Grievance and has
filed no appeal of any grievance.
B. Analysis
“Proper 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.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)
(footnote omitted); 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)).
With respect to Smith’s complaint that he was improperly assigned to a top bunk and his
claim that Thompson interfered with his medical care, it is undisputed that (1) Smith attempted
to file a grievance regarding his assignment to a top bunk and Thompson’s alleged interference,
(2) that grievance was rejected because Smith did not show that he had attempted to informally
resolve this complaint as directed by the grievance policy, and (3) Smith made no further attempt
to pursue the grievance procedure regarding this complaint. Smith therefore failed to exhaust his
available administrative remedies on this issue.
With respect to Smith’s complaint regarding the medical care he received after he fell
from his bunk, it is undisputed that he filed no grievance regarding the provision of medical care.
Further, as discussed, Smith filed only one grievance regarding his fall from the top bunk and
failed to complete the grievance procedure for that grievance. Smith therefore failed to exhaust
his available administrative remedies on this issue as well.
In response to the motions for summary judgment, Smith states that the Offender

Handbook does not state that an offender must exhaust his administrative remedies before filing
suit or how to move to another level and that he attempted to put the Corizon defendants on
notice by filing a tort claim. As explained above, Smith’s filings regarding summary judgment
do not provide a Statement of Material Facts in Dispute as required by the Local Rules or cite to
admissible evidence. Even if the Court considers Smith’s version of the facts, however, the
conclusion would be the same.
Smith’s lack of awareness of the grievance process did not excuse him from complying
with 42 U.S.C. § 1997e(a), as the statute “says nothing about a prisoner’s subjective beliefs,
logical or otherwise about administrative remedies that might be available to him. The statute’s
requirements are clear: If administrative remedies are available, the prisoner must exhaust them.”
Twitty v. McCoskey, 226 Fed. Appx. 594, 596 (7th Cir. 2007) (quoting Chelette v. Harris, 229
F.3d 684, 688 (8th Cir. 2000)). Administrative remedies were available and it was ultimately
Smith’s responsibility to exhaust those remedies, which he failed to do.
The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Smith’s
claims should not have been brought and must now be dismissed without prejudice. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004)(“We therefore hold that all dismissals under §
1997e(a) should be without prejudice.”); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002) (explaining that “a prisoner who does not properly take each step within the administrative
process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from
litigating”).
III. Conclusion
For the reasons explained above, motions for summary judgment filed by the State
Defendants and the Corizon Defendants [Dkt. No. 25 and Dkt. No. 29] are granted. Smith’s
motion in opposition to defendant’s motion for summary judgment [Dkt. No. 34] is denied.

Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

05/30/2013
Date: __________________
Distribution:
Kevin Smith
220750
Plainfield Correctional Facility
Inmate Mail/Parcels
727 Moon Road
Plainfield, IN 46168
Electronically Registered Counsel

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana