CLOUD et al v. NICHOLS et al
Entry Discussing Motion for Summary Judgment - Defendants' motion for summary judgment 77 is granted. Plaintiff's motion for excusable neglect 81 is denied. Judgment dismissing this case without prejudice shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 5/18/2012. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
T. NICHOLS, et al.,
Entry Discussing Motion for Summary Judgment
For the reasons explained in this Entry, the motion for summary judgment
filed by the defendants must be granted.
Thomas Cloud brings this action pursuant to the theory recognized in
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971). His claim is that the defendants used constitutionally excessive force
against him on April 2, 2010, at the United States Penitentiary at Terre Haute,
Indiana (“USP”). The USP is a prison operated by the Federal Bureau of Prisons
(“BOP”). The defendants have appeared and seek resolution of Cloud’s claim
through the entry of summary judgment. Cloud opposes the motion for summary
Summary Judgment Standard
A motion for summary judgment must be granted Aif the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
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).
After the movant has met its burden under Rule 56(a), the burden of
production shifts and the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Electronic
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).The nonmoving
party bears the burden of demonstrating that such a genuine issue of material fact
exists. See Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir.
2008) (citing cases). “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing to particular parts of materials in
the record . . . or showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) and (B).
The BOP has promulgated an administrative remedy system, codified at 28
C.F.R. § 542.10 et seq., pursuant to which an inmate may seek administrative
review of nearly every aspect of his imprisonment.
That remedy system prescribes that the inmate first submit an informal
remedy request (“BP-8”) to appropriate penitentiary staff. If the inmate is not
satisfied with the response to his informal remedy request, he may initiate the
formal remedy procedure. The formal remedy procedure requires the inmate to
first address his complaint (“BP-9”) to the institution’s Warden. If dissatisfied with
the Warden’s response to the BP-9, the inmate may file an appeal (“BP-10”) to the
BOP’s Regional Director. If not satisfied with the response of the Regional
Director, the inmate may file an appeal (“BP-11”) to the BOP’s General Counsel
(“Central Office”). The response of the Central Office to the BP-11 is the final step
in the BOP’s administrative remedy procedure process.
The BOP maintains a searchable record of administrative remedy requests
and responses. Those records show the following with respect to the incident
forming the basis of Cloud’s claim of excessive force.
Cloud filed a BP-9 on April 29, 2010. This BP-9 was denied at the institution
level on May 7, 2010.
On May 26, 2010, Cloud filed an appeal (the BP-10) to the Regional
Cloud’s appeal was rejected on a technical ground by the Regional Director,
but Cloud was provided an opportunity to correct the defect by refilling his
Cloud then filed an appeal to the Central Office (BP-11) on August 18, 2010.
This appeal was denied on January 20, 2011.
Meanwhile, Cloud filed On May 24, 2010, Cloud filed this lawsuit. In other words,
this lawsuit was filed two days before Cloud filed his first appeal, a BP-10, from
the denial of his BP-9.
In acting on a motion for summary judgment, “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.
The Prison Litigation Reform Act (APLRA@) requires that a prisoner exhaust
his available administrative remedies before bringing a suit concerning prison
conditions. 42 U.S.C. § 1997e(a); 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.” Id., at 532 (citation
The exhaustion requirement of the PLRA is one of “proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 84 (2006). This means that the prisoner plaintiff
must have completed “the administrative review process in accordance with the
applicable procedural rules, including deadlines, as a precondition to bringing suit
in federal court.” Id.
The substance of the defendants’ motion for summary judgment is that
Cloud filed this lawsuit prematurely, meaning not “properly.” Cloud admits that
he filed this lawsuit before the administrative remedy process was complete, but
argues that the case should not be dismissed because he has now completed the
Cloud’s response, just described, might appear to arrive at the same
destination as that which is commanded by the PLRA. It is decidedly not the path
required by the PLRA, however, because proper exhaustion is required. "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.'" Dale v. Lappin,
376 F.3d 652, 655 (7th Cir. 2004)(quoting Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002)). Indeed, the purpose of the exhaustion requirement is to
allow prison officials the time and opportunity to respond to complaints internally
before an inmate starts litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th
Cir. 2001). This purpose is defeated if an inmate files suit before an available
administrative exhaustion procedure is completed. Thus, following the sequence
commanded by Congress is an important part of the statutory scheme.
The scenario here was presaged in Ford v. Johnson, 362 F.3d 395, 398 (7th
Cir. 2004), wherein the Court of Appeals explained:
Ford's real problem . . . is timing. Section 1997e(a) says that
exhaustion must precede litigation. “No action shall be brought” until
exhaustion has been completed. . . . And these rules routinely are
enforced . . . by dismissing a suit that begins too soon, even if the
plaintiff exhausts his administrative remedies while the litigation is
pending . . . . To prevent this subversion of efforts to resolve matters
out of court, it is essential to keep the courthouse doors closed until
those efforts have run their course.
Because it is undisputed here that Cloud failed to exhaust his available
administrative remedies before filing this lawsuit, the defendants’ motion for
summary judgment  is granted. Cloud’s motion for excusable neglect  is
Judgment dismissing this case without prejudice shall now issue.
IT IS SO ORDERED.
Gerald A. Coraz
UNITED STATES ATTORNEY'S OFFICE
Lewisburg - USP
P.O. Box 1000
Lewisburg, PA 17837
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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