MEYERS v. GEO MENTAL HEALTH et al

Filing 35

ORDER - granting 31 Motion for Summary Judgment and Directing Entry of Final Judgment. Officer Tutt argues that Meyers failed to exhaust his available administrative remedies as required by the PLRA with respect to his claims against him. The u ncontested facts demonstrate that the defendant has met his burden of proving that Meyers "had available [administrative] remedies that he did not utilize." This action is dismissed without prejudice. Judgment consistent with this Entry shall now issue. (See Order.) Copy to Plaintiff via US Mail. Signed by Judge Tanya Walton Pratt on 6/19/2018. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEVIN MEYERS,
Plaintiff,
v.
OFFICER TUTT,
Defendant.

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No. 1:16-cv-03492-TWP-TAB

Order Granting Motion for Summary Judgment and
Directing Entry of Final Judgment
This matter is before the Court on the Defendant, Officer Tutt’s Motion for Summary
Judgment, dkt. [31]. Plaintiff Kevin Meyers (“Meyers”), an inmate at the Wabash Valley
Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983. Meyers alleges that, while
he was incarcerated at New Castle Correctional Facility (NCCF), in August 2016, defendant
Officer Tutt used excessive force against him while he was strapped down, causing a cracked tooth
and infection. Officer Tutt moves for summary judgment on Meyers’s claim arguing that he failed
to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA)
before filing this lawsuit. He also contends there is a lack of evidence supporting Meyers’s claim
that he was assaulted as there exists no reference of an assault in medical records, grievances, or
serious incident reports, all of which would have been generated by a person other than the
defendant at or near the time period of the alleged incident, sometime between August 7, 2016,
and August 15, 2016. For the following reasons, the motion for summary judgment is granted.
I.

Standard of Review

Summary 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).
Once 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).
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 “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (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).
“The 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

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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.” Porter, 534
U.S. 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).
“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.” Id. at 90-91; 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)). “In order to exhaust administrative
remedies, a prisoner must take all steps prescribed by the prison’s grievance system.” Ford v.
Johnson, 362 F.3d 395, 397 (7th Cir. 2004).
It is the defendant’s burden to establish that the administrative process was available to
Meyers. See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) (“Because exhaustion is an
affirmative defense, the defendants must establish that an administrative remedy was available and
that [the plaintiff] failed to pursue it.”). “[T]he ordinary meaning of the word ‘available’ is
‘capable of use for the accomplishment of a purpose,’ and that which ‘is accessible or may be
obtained.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (internal quotation omitted). “[A]n inmate
is required to exhaust those, but only those, grievance procedures that are capable of use to obtain
some relief for the action complained of.” Id. at 1859 (internal quotation omitted).
Meyers failed to respond to the defendant’s motion for summary judgment, and the
deadline for doing so has long passed. The consequence is that Meyers has conceded the

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defendant’s version of the events. See 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 S.D.
Ind. Local Rule 56-1 (“A party opposing a summary judgment motion must . . . file and serve a
response brief and any evidence . . . that the party relies on to oppose the motion. The response
must . . . identif[y] the potentially determinative facts and factual disputes that the party contends
demonstrate a dispute of fact precluding summary judgment.”). Because Meyers failed to respond
to the defendant’s motion, and thus failed to comply with the Court’s Local Rules regarding
summary judgment, the Court will not consider allegations in Meyers’s complaint in ruling on this
motion. Although pro se filings are construed liberally, pro se litigants such as Meyers are not
exempt from procedural rules. See Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008)
(noting that “pro se litigants are not excused from compliance with procedural rules”); Members
v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (stating that procedural rules “apply to uncounseled
litigants and must be enforced”). 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).
II.

Statement of Facts

The following statement of facts was evaluated pursuant to the standard set forth above.
That is, this statement of facts is not necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed evidence are presented in the light
reasonably most favorable to Meyers as the non-moving party with respect to the motion for
summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
At all times relevant to his claims, Meyers was an inmate at NCCF. The Indiana
Department of Correction (IDOC) has an Offender Grievance Process – IDOC Policy and

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Administrative Procedure 00-02-301, Offender Grievance Process – which is intended to permit
inmates to resolve concerns and complaints relating to their conditions of confinement prior to
filing suit in court.
Under the IDOC offender grievance program, offenders can grieve actions of individual
staff or issues regarding conditions, including claims of assault. The grievance process begins
with the offender contacting staff to discuss the matter or incident subject to the grievance and
seeking informal resolution. If the offender is unable to obtain a resolution of the grievance
informally, he may submit a formal grievance (SF 45471) to the Grievance Officer of the facility
where the incident occurred. If the formal written grievance is not resolved in a manner that
satisfies the offender, he may submit an appeal (SF 45473). Exhaustion of the grievance procedure
requires pursuing a grievance to the final step – the appeal of the level 1 response to the formal
grievance. A grievance must be filed within twenty working days from the date of the alleged
incident.

Exhaustion of the grievance procedure also requires complying with the timing

requirements for submitting formal grievances and appeals.
The records maintained by IDOC and NCCF document whether an offender attempted an
informal grievance and filed a formal grievance or grievance appeal. While at NCCF, Meyers has
only filed five grievances. See Dkt. 33-2 at 1. None of the grievances refer to Officer Tutt, and
all of the grievances were filed on or before February 18, 2015, well before the alleged August
2016 assault by Officer Tutt. See Dkt. 33-2.
Meyers’s electronic medical records establish that he was being monitored, continuously,
for suicide during the time period referenced in his complaint, August 7, 2016 through August 15,
2016. See Dkt. 33-6. The medical records reveal attempted self-harm by Meyers, but no other
injury or harm caused by any other person. Id. The only record included within Meyers’s prisoner

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packet referring to Officer Tutt was a Serious Incident Report of July 2, 2016, when Meyers threw
a cup of Ensure on Officer Tutt. See Dkt. 33-4.
III.

Discussion

Officer Tutt argues that Meyers failed to exhaust his available administrative remedies as
required by the PLRA with respect to his claims against him.
The uncontested facts demonstrate that the defendant has met his burden of proving that
Meyers “had available [administrative] remedies that he did not utilize.” Dale v. Lappin, 376 F.3d
652, 656 (7th Cir. 2004). Given his wholesale failure to respond, Meyers has not identified a
genuine issue of material fact supported by admissible evidence that counters the facts offered by
the defendant. One of these facts is that the IDOC and NCCF had an administrative remedy
process in place through which Meyers could have complained about the alleged assault by Officer
Tutt, but did not.
Although Meyers previously availed himself of the administrative remedy process, he
failed to exhaust the grievance process with respect to the complaint. Meyers has never attempted
to follow the administrative remedy process related to his claim regarding the alleged assault.
Because completing all levels of the administrative remedy process is required, the uncontested
evidence shows that Meyers did not exhaust his administrative remedies. See Woodford, 548 U.S.
at 90.
The consequence of Meyers’s failure to exhaust his administrative remedies, in light of 42
U.S.C. § 1997e(a), is that this action must be dismissed without prejudice. See Ford v. Johnson,
362 F.3d 395, 401 (7th Cir. 2004) (holding that “all dismissals under § 1997e(a) should be without
prejudice.”).

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IV.

Conclusion

For the foregoing reasons, the motion for summary judgment, Dkt. No. [31], is granted.
This action is dismissed without prejudice. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date:

6/19/2018

Distribution:
KEVIN MEYERS
195712
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
Adam Garth Forrest
BOSTON BEVER KLINGE CROSS & CHIDESTER
[e-mail]

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