McNARY v. HUSTON et al
Filing
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ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT - Defendant's motion for summary judgment, [dkt. 53], is granted. Previously, pursuant to its screening function under the PLRA, the Court determined that the claim against Huston was the sole viable claim presented by McNary. Judgment consistent with this Entry, and dismissing all defendants, shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 8/20/2013. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
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DARRELL McNARY,
Plaintiff,
vs.
JERRY HUSTON, librarian,
Defendant.
No. 2:11-cv-00131-JMS-DKL
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT
Background
Presently pending before the Court is the Motion for Summary Judgment filed by
Defendant Jerry Huston (“Huston”) on June 18, 2013. [Dkt. 18.] The motion was served on
Plaintiff Darrell McNary (“McNary”) on June 20, 2013. [Dkt. 23-1.]
No response was filed,
and the deadline for doing so has passed. The consequence is that McNary has conceded
Huston’s 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(a) 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).
The claims that survived screening in this case are brought pursuant to 42 U.S.C. § 1983
against Huston, the prison librarian. [Dkt. 9.] McNary claims that Huston denied him access to
materials in Wabash Valley Correctional Facility’s law library and that Huston denied his
multiple requests for various legal documents. [Dkt. 1 ¶¶ 14, 15, 18, 29, 30.] He claims that this
conduct violates his rights under the First and Fourteenth Amendments to the U.S. Constitution.
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[Dkt. 1 at 3-4.] He also claims that Huston retaliated by filing a disciplinary action against him
for possessing legal documents that McNary claims were authorized.
Huston’s motion has challenged these claims as barred under the exhaustion provision of
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, that requires a prisoner to first
exhaust his available administrative remedies before filing a lawsuit in court.
Facts
That following facts, unopposed by McNary and supported by admissible evidence are
accepted as true: The incidents which form the basis of McNary’s claim occurred between June
and October of 2010. McNary only filed one grievance in 2010, and it was not appealed. The
grievance process established by the Indiana Department of Correction, which applies to
McNary’s grievance, includes an informal complaint, a formal grievance, and a formal appeal –
all of which must be followed through to completion in order for a prisoner to exhaust his
administrative remedies at the facility. McNary did not appeal the only grievance he filed in
2010. [Dkts. 18-2; 18-3.]
Discussion
A. 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). 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, 127 S. Ct. 1769, 1776 (2007). The
Court views the facts in the light most favorable to the non-moving party and all reasonable
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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 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). Here, Huston bears the burden of
demonstrating that McNary failed to exhaust all available administrative remedies before he filed
this suit. Id. at 681.
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Huston has met his burden of proving that McNary “had available remedies that [he] did
not utilize.” Dale, 376 F.3d at 656. Given his wholesale failure to respond, McNary has not
identified a genuine issue of material fact supported by admissible evidence which counters the
facts offered by Huston that establish McNary’s failure to pursue all steps in the grievance
process. The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that
McNary’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.”) (original emphasis).
Conclusion
For the reasons explained above, the motion for summary judgment, [dkt. 53], is
granted. Previously, pursuant to its screening function under the PLRA, the Court determined
that the claim against Huston was the sole viable claim presented by McNary. Judgment
consistent with this Entry, and dismissing all defendants, shall now issue.
IT IS SO ORDERED.
08/20/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
DARRELL McNARY
1106 W. Western Ave.
South Bend, IN 46601
Grant E. Helms
OFFICE OF THE ATTORNEY GENERAL
Grant.Helms@atg.in.gov
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