STOKES v. LOCKETT et al
ORDER granting 40 Motion for Summary Judgment. The defendant seeks summary judgment on the basis that Stokes failed to exhaust available administrative remedies. It is undisputed that Stokes failed to complete the exhaustion process before filin g this action. Therefore, in light of 42 U.S.C. § 1997e(a), Stokes' lawsuit should not have been brought and must now be dismissed without prejudice. The plaintiff's 49 motion to consider his filing of September 18, 2014 is granted. Judgment consistent with this Entry shall now issue. The conference set for December 23, 2014 is vacated. Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 10/10/2014. (AH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TERENCE LEE STOKES, SR.,
Entry Discussing Motion for Summary Judgment
For the reasons explained in this Entry, the defendant’s motion for summary judgment must
be granted and this action must be dismissed without prejudice. The plaintiff’s motion to consider
his filing of September 18, 2014 [dkt 49] is granted.
Plaintiff Terence Stokes is a federal inmate currently in the custody of the Federal Bureau
of Prisons (“BOP”) in Talladega, Alabama. He brings this lawsuit pursuant to the theory
recognized in Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971), alleging that
the defendant subjected Stokes to unduly rigorous treatment in the Special Housing Unit of the
Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”). Arguing that Stokes
failed to exhaust his available administrative remedies with respect to these claims, the defendant
moves for summary judgment. Stokes has not responded to the defendant’s motion with
evidentiary material or with a discussion of the evidence on which the defendant relies.
A. Legal Standard
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, 550 U.S. 372, 380 (2007).
By not responding to the motion for summary judgment with evidentiary material, Stokes
has conceded to the defendant’s version of the facts. Brasic v. Heinemann’s Inc., 121 F.3d 281,
286 (7th Cir. 1997). This is the result of Local Rule 56-1(f)(1), of which the plaintiff was notified.
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 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 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 the motion for summary judgment in this case
is the Prison Litigation Reform Act (“PLRA’”), 42 U.S.C. § 1997e(a), which requires that a
prisoner exhaust his available administrative remedies before bringing a suit concerning prison
conditions. See Porter v. Nussle, 534 U.S. 516, 532 (2002)(“[T]he PLRA’s exhaustion requirement
applies to all inmate suits about prison life . . . .”).
“[T]here is no question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 212 (2007). The exhaustion
requirement of the PLRA is one of “proper exhaustion” 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, 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. at 84.
B. Material Facts
On the basis of the pleadings and the expanded record, and specifically on the portions of
the record which comply with the requirements of Rule 56(c), the following facts, construed in the
manner most favorable to Stokes as the non-movant, are undisputed for purposes of the motion for
At the time pertinent to his claim Stokes was a convicted offender in the custody of the
Federal Bureau of Prisons (“BOP”) and was confined at the FCC Terre Haute. Stokes was a
“prisoner” as defined by applicable statute. 42 U.S.C. § 1997e(h) (“As used in this section, the
term “prisoner” means any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms
and conditions of parole, probation, pretrial release, or diversionary program.”).
The BOP has an administrative remedy system codified at 28 C.F.R. § 542.10 et seq., and
BOP Program Statement 1330.16, Administrative Remedy Procedures for Inmates. To exhaust the
BOP’s administrative remedies, an inmate must first file an informal request (“BP- 8”) with an
appropriate institution staff member. If not satisfied with the proposed informal resolution, the
inmate may file a formal request with the institution Warden (“BP-9”). If not satisfied with the
response to the BP-9, the inmate may appeal to the Regional Director (“BP- 10”). If not satisfied
with the Regional Director’s response, the inmate may appeal to the BOP's General Counsel (“BP11”). Once an inmate receives a response to his appeal from the General Counsel and after filing
administrative remedies at all required levels, the administrative remedy process is complete. An
exception to the initial filing at the institutional level exists if the inmate reasonably believes the
issue is sensitive and the inmate’s safety or well-being would be placed in danger if the request
became known at the institution. 28 C.F.R. § 542.14(d). In this instance, the inmate may submit
the initial request directly to the Regional Director (“sensitive BP-10”). The submission must
contain the word “sensitive” on the envelope, and contain a written explanation of the inmate’s
reasoning for not following the normal course and filing initially at the institutional level. If the
Regional Administrative Remedy Coordinator agrees the issue is sensitive, the request will be
accepted, and processed accordingly. If the Regional Administrative Remedy Coordinator
disagrees, the request will be rejected, the inmate will be advised of the rejection in writing, and
the inmate will be directed to initiate his exhaustion efforts locally at the institutional level by
filing a BP-9 with the Warden.
All codified BOP Program Statements are available for inmate access through the
institution law library. Additionally, administrative remedy filing procedures are outlined in an
Inmate Information Handbook which is available to inmates at their respective BOP facility.
Stokes’ administrative filings were reviewed to determine whether or not he had exhausted
the mandatory administrative remedy process in connection with the allegations contained in his
second amended complaint.
An electronic record is kept showing what grievances are filed by an inmate and what
appeal, if any is filed, as well as the response(s) thereto. The proposed material facts relied on by
the defendant are based in part on the electronic record.
The evidentiary record shows that Stokes did not file a grievance concerning the alleged
excessive use of force against him while he was confined to the Special Housing Unit of the FCC
Terre Haute. While assigned to that Unit Stokes filed several administrative remedy requests—on
subjects such as requesting dental care and concerns with the plumbing in his cell and the adequacy
of the law library—but none of these were filed and appealed to completion in accordance with
the procedures established by the BOP, and none dealt with the subject of the alleged use of
excessive force against him.
As noted, the defendant seeks summary judgment on the basis that Stokes failed to exhaust
available administrative remedies.
It is undisputed that Stokes failed to complete the exhaustion process before filing this
action. Therefore, in light of 42 U.S.C. § 1997e(a), Stokes’ lawsuit should not have been brought
and must now be dismissed without prejudice. See Ford, 362 F.3d at 401 (“We therefore hold that
all dismissals under § 1997e(a) should be without prejudice.”).
For the reasons explained above, the motion for summary judgment [dkt 40] is granted.
Judgment consistent with this Entry shall now issue.
The conference set for December 23, 2014 is vacated.
IT IS SO ORDERED.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
TERENCE LEE STOKES, SR.
Federal Correctional Institution
P.O. Box 1000
Talladega, AL 35160
Electronically Registered Counsel
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