KIRKLEY v. NEW CASTLE CORRECTIONAL FACILITY et al

Filing 33

Entry Granting Unopposed Motions for Summary Judgment and Directing Entry of Final Judgment - Allan J. Kirkley filed this action on February 7, 2017, contending that his constitutional rights were violated while he was incarcerated at the New Cast le Correctional Facility ("New Castle"). Specifically, Mr. Kirkley alleges that on August 5, 2016, Mr. Kirkley was assaulted by another offender in I-1 pod at New Castle Correctional Facility. During the assault, Mr. Kirkley was injured and he continues to suffer from headaches, dizziness, jaw pain, and loss of vision. Defendant Nurse Johnson allegedly failed to provide Mr. Kirkley with necessary medical care after the assault and defendant Lt. Storms refused to give Mr. Kirkley health care forms, grievance forms or attorney calls effectively obstructing Mr. Kirkley's access to medical attention. As a result, Mr. Kirkley was denied necessary medical care from August 5, 2016, until he was released from segregation on or about August 22, 2016. For the reasons explained above, the unopposed motions for summary judgment, dkts 27 and 32 , are granted. Judgment consistent with this Entry shall now issue. (See Entry). Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 10/30/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALLAN J. KIRKLEY,
Plaintiff,
v.
NURSE JOHNSON AND LT. STORMS,
Defendants.

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Case No. 1:17-cv-00399-JMS-MJD

Entry Granting Unopposed Motions for Summary Judgment
and Directing Entry of Final Judgment
Allan J. Kirkley filed this action on February 7, 2017, contending that his constitutional
rights were violated while he was incarcerated at the New Castle Correctional Facility (“New
Castle”). Specifically, Mr. Kirkley alleges that on August 5, 2016, Mr. Kirkley was assaulted by
another offender in I-1 pod at New Castle Correctional Facility. During the assault, Mr. Kirkley
was injured and he continues to suffer from headaches, dizziness, jaw pain, and loss of vision.
Defendant Nurse Johnson allegedly failed to provide Mr. Kirkley with necessary medical care after
the assault and defendant Lt. Storms refused to give Mr. Kirkley health care forms, grievance
forms or attorney calls effectively obstructing Mr. Kirkley’s access to medical attention. As a
result, Mr. Kirkley was denied necessary medical care from August 5, 2016, until he was released
from segregation on or about August 22, 2016.
Both the State defendant, Lt. Storms and the medical defendant, Nurse Johnson move for
summary judgment arguing that Mr. Kirkley 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 unopposed motion for summary judgment, dkts [27],
and motion to join the State defendant’s motion for summary judgment [32], are 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).
“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
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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 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).
“[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).
Because 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. Kirkley failed to exhaust all available administrative remedies
before he filed this suit. Id. at 681.

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II. Undisputed Facts
No response to the motions for summary judgment was filed by Mr. Kirkley and the
deadline for doing so has passed. The consequence is that Mr. Kirkley 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).
Accordingly, the following facts are accepted as true:
At all times relevant to this action, Mr. Kirkley was confined at New Castle. Offenders
housed at New Castle are informed about and provided access to the Offender Grievance Process
policy.
The offender grievance process begins with the offender contacting staff person involved
in the complaint or, if that person is not available, a person in charge of the area where the
complaint arose, or, if there is some fear of reporting, to a Counselor, Casework Manager, or
other Unit Team Member, all in an effort to discuss the matter or incident subject to the grievance
and secure an informal resolution. The informal resolution period ends ten (10) days after the first
attempted contact to the grieved upon staff member regardless of whether or not that staff member
responds to the informal grievance.
If the offender is unable to obtain a resolution of the grievance informally, he shall submit
a formal grievance to the Grievance Officer of the facility where the incident occurred. If the

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formal written grievance is not resolved in a manner that satisfies the offender, he may submit an
appeal.
A grievance must be filed within twenty (20) working days from the date of the alleged
incident.
During the time Mr. Kirkley was incarcerated at New Castle, he filed two (2) formal
grievances, although neither related to the claims in this case. The first grievance related to the
requirements of the SOMM program and his participation therein. Mr. Kirkley’s second
grievance related to his request that he be provided a cane or a walker. Neither grievance was
appealed after the first level response was provided and, as such, neither grievance was fully
exhausted per the Offender Grievance Process.
Lt. Storms, not only instructed Mr. Kirkley about the Offender Grievance Process, but also
directed him to the Law Library for further review.
Mr. Kirkley failed to submit a timely formal grievance and appeal regarding his allegations
in the complaint.
III. Discussion
The defendants have met their burden of proving that Mr. Kirkley had available remedies
that he did not utilize. Mr. Kirkley failed to file any formal grievance relating to the alleged actions,
or inactions, of the defendants. Dale v. Lappin, 376 F.3d at 655 (“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)). Given his wholesale failure to respond to the motion for summary judgment, Mr. Kirkley

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has not identified a genuine issue of material fact supported by admissible evidence which counters
the facts offered by the defendants.
The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Mr.
Kirkley’s action should not have been brought and must now be dismissed without prejudice. Ford
v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (holding that “all dismissals under § 1997e(a) should
be without prejudice.”).
IV. Conclusion
For the reasons explained above, the unopposed motions for summary judgment, dkts [27]
and [32], are granted. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date: 10/30/2017

Distribution:
ALLAN J. KIRKLEY
232790
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]
Adam Garth Forrest
BOSTON BEVER KLINGE CROSS & CHIDESTER
[e-mail]
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