CASTILLO v. TUTT et al

Filing 28

ORDER granting 24 Motion for Summary Judgment. This action is dismissed without prejudice. Final judgment shall now issue. ***SEE ORDER FOR ADDITIONAL INFORMATION*** Signed by Judge James R. Sweeney II on 11/19/2020. (JDC)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MIGUEL R CASTILLO,

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Plaintiff,
v.
J TUTT, et al.
Defendants.

No. 1:20-cv-01003-JRS-DML

Order Granting Defendants' Motion for Summary Judgment
and Directing Entry of Final Judgment
Plaintiff Miguel Castillo, an inmate currently incarcerated at Indiana State Prison, filed this
civil rights action under 42 U.S.C. § 1983 alleging that the defendants, Sergeant Tutt and
Correctional Officer Elam, used excessive force against Mr. Castillo while he was incarcerated at
New Castle Correctional Facility ("NCCF").
The defendants seek summary judgment arguing that Mr. Castillo failed to exhaust his
available administrative remedies before filing this lawsuit, as required by the Prison Litigation
Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Mr. Castillo has not responded to the defendants'
motion, and the time to do so has passed. For the reasons explained below, the defendants' motion
is granted.
II. Legal Standard
A motion for summary judgment asks the Court to find that the movant is entitled to
judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed.
R. Civ. P. 56(a). A party must support any asserted disputed or undisputed fact by citing to specific
portions of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).
A party may also support a fact by showing that the materials cited by an adverse party do not

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establish the absence or presence of a genuine dispute or that the adverse party cannot produce
admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations
must be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly
support a fact in opposition to a movant's factual assertion can result in the movant's fact being
considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the only disputed facts that matter are material
ones—those that 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). The Court views the record in the light most
favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba
v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make
credibility determinations on summary judgment because those tasks are left to the factfinder.
Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited
materials and need not "scour the record" for evidence that is potentially relevant to the summary
judgment motion. Grant v. Trustees of Indiana University, 870 F.3d 562, 573−74 (7th Cir. 2017)
(quotation marks omitted); see also Fed. R. Civ. P. 56(c)(3).
Mr. Castillo failed to respond to the defendants' summary judgment motion. Accordingly,
facts alleged in the motion are deemed admitted so long as support for them exists in the record.
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

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contends demonstrate a dispute of fact precluding summary judgment."); 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."); Basic v. Heinemanns, Inc., 121 F.3d 281, 285-86 (7th Cir. 1997)
(affirming grant of summary judgment where the nonmovant failed to properly offer evidence
disputing the movant's version of the facts). This does not alter the summary judgment standard,
but it does "[r]educ[e] the pool" from which facts and inferences relative to the 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 most
favorable to Mr. Castillo 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).
A. Administrative Remedy Procedure
At all times relevant to the claims in this case, Mr. Castillo was an inmate at NCCF.
Dkt. 26-1 at ¶ 4. The Indiana Department of Correction ("IDOC") has an Offender Grievance
Process (hereinafter the "Process") which is intended to promote the prompt and effective
resolution of a broad range of issues and complaints that inmates may have. Id. at ¶ 6. NCCF uses
the Process to address inmate complaints. Id. Mr. Castillo received information concerning the
Process upon his entry into IDOC, and all offenders at NCCF have access to the Process through
the law library. Id. at ¶¶ 21-22.
Pursuant to the Process, an inmate must first attempt to informally resolve a complaint. Id.
at ¶ 9. He does so by either requesting State Form 52897 from a casework manager, unit team

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member, or grievance specialist or discussing the complaint with the staff member responsible for
the situation or the staff member in charge of the area where the situation occurred. Id. at ¶ 9;
dkt. 26-2 at 8-9. An inmate that is unable to resolve a complaint informally must then proceed to
a Level I grievance. Dkt. 26-1 at ¶ 11; dkt. 26-2 at 9.
An inmate proceeds to a Level I grievance by submitting a completed State Form 45471 to
the grievance specialist no later than 10 business days after the incident giving rise to the
complaint. Dkt. 26-1 at ¶ 11; dkt. 26-2 at 9. The grievance specialist screens each Level I grievance
for compliance with IDOC policy. Dkt. 26-1 at 13. If a Level I grievance is accepted, the grievance
specialist logs the grievance into the Offender Grievance Review and Evaluation System
("OGRE"), the grievance is assigned a number, and the inmate receives a receipt. Id. at ¶ 14. If a
Level I grievance is rejected, the grievance specialist returns it to the inmate with a form indicating
the reason for the rejection. Id. at ¶ 13. An inmate then has five business days to resubmit a
corrected grievance. Id.
If an inmate is not satisfied with the response to his Level I grievance, or he does not receive
a response, he may initiate a Level II appeal. Id. at ¶ 15; dkt. 26-2 at 11-12. An inmate must initiate
a Level II appeal within five business days of receiving the response to his Level I grievance.
Dkt. 26-1 at ¶ 15; dkt. 26-2 at 12. An inmate may take one more appeal after the Level II appeal.
Dkt. 26-2 at 12-13. The decision on this appeal is final. Id. at 13.
B. Mr. Castillo's Use of Administrative Remedy Process
Records from OGRE indicate that Mr. Castillo has used the Process to file grievances in
the past. Dkt. 26-3. These records also indicate that Mr. Castillo did not file a grievance related to
the incident in March 2018 involving Sergeant Tutt and Correctional Officer Elam. Id.

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In his complaint, Mr. Castillo stated that he did not file a grievance because "the counselors
were in transition [and he] had no stable unit team to send grievances to." Dkt. 1 at 4. The
defendants have submitted evidence that Mr. Castillo could have started the process by contacting
correctional officers, pod representatives, or other staff. Dkt. 26-1 at ¶ 20. He did not need to use
a counselor or unit team manager to file a grievance. Id.
III. Discussion
The defendants assert that Mr. Castillo's claims are procedurally barred due to his failure
to exhaust the administrative remedies available to him. The uncontested facts demonstrate that
the defendants have met their burden of proving that Mr. Castillo "had available [administrative]
remedies that he did not utilize." Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
A. Exhaustion
"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). "To exhaust remedies, a prisoner must file complaints and appeals in the place,
and at the time, the prison's administrative rules require." Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)); see also Ross
v. Blake, 136 S. Ct. 1850, 1057-58 (2016) (explaining why "all inmates must now exhaust all
available remedies" and concluding that "[e]xhaustion is no longer left to the discretion of the
district court" (internal quotation marks and citation omitted)).
The defendants have submitted evidence to show that Mr. Castillo did not complete the
administrative remedy process as required by the PLRA. Although Mr. Castillo has filed
grievances in the past, he did not file a grievance concerning his claims that Sergeant Tutt and

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Correctional Officer Elam used excessive force while transporting him in March 2018. Mr. Castillo
has not fully exhausted the administrative remedy process.
B. Availability
While the PLRA has a strict exhaustion requirement, it also "contains its own, textual
exception to mandatory exhaustion. Under § 1997e(a), the exhaustion requirement hinges on the
'availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but
need not exhaust unavailable ones." Ross, 136 S. Ct. at 1858.
"[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.'" Id. at 1858 (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). It is the defendants’ burden to establish that the administrative process was available to
Mr. Castillo. 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.").
The defendants have met their burden of proving that the administrative remedy process
was available to Mr. Castillo. Although Mr. Castillo stated in his complaint that counselors and
his unit team manager were unavailable, dkt. 1 at 4, the defendants have submitted evidence that
Mr. Castillo could have submitted a grievance via correctional officers, pod representatives, and
other staff, dkt. 26-1 at ¶ 20. Mr. Castillo has not refuted this factual assertion. Mr. Castillo's failure
to submit a grievance to other, available prison officials does not render the administrative remedy
process unavailable.

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IV. Conclusion
As explained above, the defendants have demonstrated that Mr. Castillo failed to exhaust
the administrative remedies available to him before filing this lawsuit. The consequence, in light
of § 1997e(a), is that this 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").
The defendants' motion for summary judgment, dkt. [24], is granted. This action is
dismissed without prejudice. Final judgment shall now issue.
IT IS SO ORDERED.

Date:

11/19/2020

Distribution:
MIGUEL R CASTILLO
161169
Indiana State Prison
One Park Row
Electronic Service Participant – Court Only
Adam Garth Forrest
BBFCS ATTORNEYS
[e-mail]

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