DRAPER v. IPPEL et al

Filing 50

ORDER GRANTING DEFENDANT DR. ROBERTSON'S MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT - The motion for summary judgment. dkt. 44 , is granted. All claims against Dr. Robertson are dismissed without prejudice. Judgment consi stent with this Order, the Order Granting Defendant Dr. Ippel's Motion for Summary Judgment (dkt. 40), the Order Granting Defendant Lieutenant Sexton's Motion for Summary Judgment (dkt. 39), and the Order Screening Amended Complaint (dkt. 12) shall now issue. Signed by Judge Jane Magnus-Stinson on 10/4/2019. (JDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MONTANA L. DRAPER,
Plaintiff,
v.
DR. ROBERTSON,
Defendant.

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No. 1:18-cv-02215-JMS-DLP

ORDER GRANTING DEFENDANT DR. ROBERTSON’S
MOTION FOR SUMMARY JUDGMENT
AND DIRECTING ENTRY OF FINAL JUDGMENT
Plaintiff Montana Draper, an inmate currently housed at Pendleton Correctional Facility
(Pendleton), filed this civil action based on events that occurred while Mr. Draper was incarcerated
at New Castle Correctional Facility (New Castle). Mr. Draper broke his hand on May 17, 2018,
when he punched a window. The claim remaining in this case is Mr. Draper’s claim that Dr.
Robertson lied about his hand being partially healed when Dr. Robertson saw him on June 13,
2018. Dr. Robertson seeks summary judgment arguing that Mr. Draper 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. Mr. Draper has not opposed the motion for summary
judgment. For the reasons explained below, the motion for summary judgment is granted.
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 burden shifts to the nonmoving party to
‘come forward with specific facts showing that there is a genuine issue for trial.’” Cincinnati Life
Inc. Co. v. Beyrer, 722 F.3d 939 (7th Cir. 2013) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). A disputed fact is material if it might affect the outcome
of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016).
“A genuine dispute as to any material fact exists ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d 606, 609-10 (7th
Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Mr. Draper failed to respond to the defendant’s motion for summary judgment, and the
deadline for doing so has passed. The consequence is that Mr. Draper has conceded the 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(b) (“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 Mr. Draper 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 Mr. Draper’s complaint
as evidence opposing the motion for summary judgment. Although pro se filings are construed
liberally, pro se litigants such as Mr. Draper 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).
Statement of Facts
The following statement of facts was evaluated pursuant to the standards 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 Mr. Draper as the non-moving party with respect to the motion for
summary judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).1
At all times relevant to the claims in this case, Mr. Draper was an inmate within the Indiana
Department of Correction (IDOC). The IDOC has an Offender Grievance Process which is
intended to permit inmates to resolve complaints relating to their conditions of confinement before
filing suit in court. All inmates are made aware of the offender grievance process upon their arrival
at an IDOC institution and a copy of the grievance process is available in the inmate handbook
provided to inmates and in the law libraries.
Pursuant to the Grievance Process, an inmate must first attempt to resolve his complaint
informally. If the informal grievance process is unsuccessful, the inmate must file a Level I formal
grievance with the Grievance Specialist. Once a response is given to the Level I formal grievance,

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In support of his motion for summary judgment, Dr. Robertson states that the evidence and argument
presented by co-defendants Lt. Sexton and Dr. Ippel that Mr. Draper did not exhaust his available
administrative remedies applies equally to the claims against Dr. Robertson. Because he failed to respond
to the motion for summary judgment, Mr. Draper failed to present any evidence to rebut Dr. Robertson’s
contention.

an inmate may decide if the grievance has been satisfied. If the decision made on a Level I formal
grievance is not satisfactory, the inmate may file a Level I appeal to the Warden. If the inmate is
not satisfied with the resolution of the Level I appeal to the Warden, the inmate may then file a
Level II appeal to the Department Offender Grievance Manager. Successful exhaustion of the
grievance procedure by an inmate includes timely pursuing each step or level of the informal and
formal process.
Mr. Draper has filed two grievances related to the incident on June 13, 2018. First, on June
28, 2018, Mr. Draper filed a grievance with the Grievance Specialist at New Castle alleging that
he did not receive proper medical treatment for his fractured hand. This grievance was returned to
Mr. Draper because it was not filed timely.
Mr. Draper submitted another grievance on July 25, 2018, to the Grievance Specialist at
Pendleton. In this grievance, Mr. Draper claims that he has been denied medical care and subjected
to pain and suffering. This grievance was returned to Mr. Draper because it was incomplete and
Mr. Draper had not tried to informally resolve his complaint.
According to the review completed by the Grievance Specialist at Pendleton, Mr. Draper
did not appeal either grievance. He also did not attempt to file any additional grievances regarding
the care and treatment he received for his fractured hand.
Discussion
Dr. Robertson asserts that Mr. Draper failed to exhaust his available administrative
remedies as required by the PLRA with respect to the claims against him. Mr. Draper did not
respond to Dr. Robertson’s motion for summary judgment, and the time to do so has passed.
The PLRA 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 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 Mr.
Draper. See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) (“Because exhaustion is an
affirmative defense, the defendant 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).

The uncontested facts demonstrate that Dr. Robertson has met his burden of proving that
Mr. Draper “had available [administrative] remedies that he did not utilize.” Dale, 376 F.3d at 656.
Mr. Draper previously availed himself of the administrative remedy process which supports the
assertion that he was informed of the process and knew how to use it.
Mr. Draper filed two grievances about his broken hand. However, he did not further pursue
the grievance process after either grievance was returned to him. Dr. Robertson has therefore met
his burden of showing that Mr. Draper failed to exhaust his administrative remedies before filing
this lawsuit. The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that the
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.”).
Conclusion
For the foregoing reasons, the motion for summary judgment. dkt. [44], is granted. All
claims against Dr. Robertson are dismissed without prejudice. Judgment consistent with this
Order, the Order Granting Defendant Dr. Ippel’s Motion for Summary Judgment (dkt. 40), the
Order Granting Defendant Lieutenant Sexton’s Motion for Summary Judgment (dkt. 39), and the
Order Screening Amended Complaint (dkt. 12) shall now issue.
IT IS SO ORDERED.

Date: 10/4/2019

Distribution:
MONTANA L. DRAPER
983869
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
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