ABDULLAH v. BATES et al

Filing 37

Entry - Granting 23 Defendants' Motion for Summary Judgment. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plainitff via US Mail. Signed by Judge William T. Lawrence on 8/27/2013. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

MUTTAQIN FATIR ABDULLAH,
Plaintiff,
vs.
BATES Case Manager,
C.O. HARLOW Correctional Officer,
CAPTAIN VINCENT Correctional Officer,
POUNDS Correctional Officer,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 2:12-cv-00062-WTL-MJD

Entry Granting Motion for Summary Judgment
For the reasons explained in this Entry, the defendants’ motion for summary judgment
must be granted.
Background
The plaintiff in this civil rights action is Muttaqin Fatir Abdullah, formerly an inmate at
the Federal Correctional Complex in Terre Haute, Indiana (“FCC”). The FCC is a prison
complex operated by the Federal Bureau of Prisons (“BOP”). The defendants are Case Manager
Bates and Correctional Officers Harlow, Vincent, and Pounds--all employed by the BOP at the
FCC at the time relevant to Abdullah’s claim.
Abdullah’s allegations are that on April 15, 2010, he returned to the FCC from a nearby
hospital, found that the cell to which he had been assigned prior to his stay in the hospital had
been assigned to a different inmate, confronted Case Manager Bates about the change, became

verbally involved with Case Manager Bates, was physically taken to the ground by all the
defendants, was the victim of excessive force when on the ground, and was sexually assaulted
while on the ground and while being carried to another location. He seeks damages of six million
dollars. His claim is asserted pursuant to the theory recognized in Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Bivens Aauthorizes the filing of constitutional tort suits against
federal officers in much the same way that 42 U.S.C. § 1983 authorizes such suits against state
officers . . . .@ King v. Federal Bureau of Prisons, 415 F.3d 634, 636 (7th Cir. 2005). Jurisdiction
for such a claim is derived from 28 U.S.C. § 1331.
The defendants have appeared by counsel and, as noted, have filed a motion for summary
judgment.
Applicable Law
Summary judgment should be granted Aif 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 Agenuine@ 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 inferences
are drawn in the non-movant=s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
AThe 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 is this: 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). See Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). A[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).
“[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). 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.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). “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)).
Discussion
The BOP has promulgated an administrative remedy system which is the process by
which an inmate may seek formal review of a complaint related to any aspect of his confinement.
See 28 C.F.R. §§ 542.10, et seq., and BOP Program Statement (PS) 1330.17, Administrative
Remedy Program. Inmates have access to BOP Program Statement 1330.17 through the
institution law library and the administrative remedy filing procedures are outlined in an Inmate
Information Handbook provided to all inmates upon initial intake to the FCC. The sequence and
details of the BOP exhaustion procedure are the following:
●
An inmate must first file an informal remedy request through an appropriate
institution staff member via a BP-8.

●
If the informal remedy request does not resolve the inmate’s complaint, the
inmate is required to address his complaint to the Warden via a BP-9. 28 C.F.R. § 542.14.
●
If the inmate is dissatisfied with the Warden’s response, he may appeal to the
Regional Director via a BP-10. 28 C.F.R. § 542.15.
●
If dissatisfied with the Regional Director’s response, the inmate may appeal to the
General Counsel via a BP-11. 28 C.F.R. § 542-15. Once an inmate receives a response to
his appeal from the General Counsel after filing administrative remedies at all three
levels, his administrative remedies are exhausted as to the specific issue raised.
●
The administrative remedy procedure of the BOP also addresses the scenario in
which an inmate who has filed a grievance does not receive a timely response. It does so
by providing that if the inmate does not receive a response within the time allotted for
reply, including extension (20 days at the institution level, 30 days at the regional level,
or 20 days at the Central Office level), the inmate may consider the absence of a response
to be a denial. See 28 C.F.R. § 542.18.
Abdullah’s claims in this lawsuit are within the scope of the BOP grievance procedure just
described. The BOP has a system of records which permits it to determine whether and what
steps were taken through the grievance procedure just described, and with what response if
taken. The evidentiary record shows that Abdullah took the following steps with respect to the
claims in this case:
●
Abdullah filed a request for administrative remedy on June 7, 2010. After initially
being rejected as untimely, Abdullah was permitted to re-file after providing evidence
that he was not at fault for the untimely filing. This evidence consisted of staff delay and
error in responding to his BP-8. Abdullah’s re-filed request for an administrative remedy
(the BP-9) was then denied at the institutional level.
●
On June 23, 2010, Abdullah appealed to the regional office level, which rejected
the appeal because Abdullah did not use the proper form and exceeded the permissible
page limit. On August 11, 2010, Abdullah re-filed his appeal, which was again rejected
because he still failed to use the proper form, exceeded the permissible page limit, and
did not attach a copy of the institutional level administrative remedy. On August 20,
2010, the regional office received Abdullah’s third, re-filed appeal, which was rejected
for the same reasons as had been given previously.
●
On September 1, 2010, the regional office rejected Abdullah’s appeal for the third
time, but allowed him an additional ten days to file the correct paperwork and re-submit
his appeal.

●
Abdullah did not re-submit his appeal for the fourth and final time until October
12, 2010, at which point it which was rejected as untimely. He had made no effort in that
submission to demonstrate that the delay was not his fault.
Abdullah thus failed to properly exhaust by (a) failing repeatedly to properly appeal to the
regional office, and (b) failing to appeal to the General Counsel.
The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that
Abdullah’s action should not have been brought and must now be dismissed without prejudice.
See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)(“We therefore hold that all dismissals
under § 1997e(a) should be without prejudice.”); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th
Cir. 2002) (explaining that "a prisoner who does not properly take each step within the
administrative process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a)
from litigating").
Conclusion
For the reasons explained above, the motion for summary judgment [dkt 23] is granted.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

08/27/2013
Date: __________________

Distribution:
Muttaqin Fatir Abdullah
12465-171
Lewisburg - USP
Inmate Mail/Parcels
P.O. Box 1000
Lewisburg, PA 17837
Electronically Registered Counsel

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana