ACON v. UNITED STATES OF AMERICA et al

Filing 32

Entry Discussing Motion for Summary Judgment - The defendants' motion for summary judgment [dkt. 29] is granted. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 6/13/2013. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

GLENN ACON,
Plaintiff,
vs.
MS. S. BEIGHLEY, et al.,
Defendants.

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Case No. 2:12-cv-135-JMS-WGH

Entry Discussing Motion for Summary Judgment
In this action brought pursuant to the theory recognized in Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), plaintiff Glenn Acon alleges that the defendants
have been deliberately indifferent to his serious medical needs. The defendants move for
summary judgment arguing that Acon failed to exhaust his available administrative remedies
with respect to these claims. Acon has not responded.
I. Standard of Review
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. 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).

Acon has not responded to the defendants’ motion for summary judgment. The
consequence of these circumstances is that he has conceded the defendants’ 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.”).
II. Discussion
A. Undisputed Facts
Consistent with the foregoing, therefore, the following statement of facts is not
necessarily objectively true, but as the summary judgment standard requires, the undisputed facts
are presented in the light reasonably most favorable to Acon as the non-moving party with
respect to the motion for summary judgment.
Acon is a federal inmate housed at the United States Penitentiary in Terre Haute, Indiana.
He alleges in this case that the defendants were deliberately indifferent to his serious medical
needs.
The Federal Bureau of Prisons (“BOP”) has promulgated an administrative remedy
system applicable to Acon’s claims. To exhaust his remedies, an inmate must first file an
informal remedy request through an appropriate institution staff member via a BP-8. If the
inmate is not satisfied with the informal remedy response, he is required to then address his
complaint with the Warden via a BP-9. If the inmate is dissatisfied with the Warden’s response,
he may appeal to the Regional Director via a BP-10. If dissatisfied with the Regional Director’s
response, the inmate may appeal to the General Counsel via a BP-11. Once an inmate receives a
response to his appeal from the General Counsel, after filing administrative remedies at all
required levels, his administrative remedies are deemed exhausted as to the specific issue or
issues properly raised therein. Following exhaustion at all three administrative levels, the inmate

may file a civil action in the proper United States District Court with respect to these issues.
All codified BOP Program Statements are available for inmate access via the institution
law library. Additionally, Administrative Remedy filing procedures are outlined in an Inmate
Information Handbook, which is provided to all inmates upon initial intake at the Federal
Correctional Center in Terre Haute.
Acon has submitted several administrative remedies to staff regarding his medical
treatment. As to the remedy requests related to his medical care in 2012 (remedies pre-dating the
date the complaint was filed), Acon initiated Remedy Number 678254 on March 1, 2012,
regarding wanting to see a doctor about “meds/psych,” but did not pursue it beyond the Regional
level to the Central Office level. Acon also initiated Remedy Number 678256 on the same day,
March 1, 2012, again about wanting to see a doctor. This request was untimely and not properly
presented at the Regional or Central Office level and was therefore rejected, a decision that Acon
did not further appeal or pursue. On September 21, 2012, Acon initiated Remedy Number
705781, regarding receiving copies of his medical records, which is not an allegation against the
defendants in this case. Nevertheless, Acon did not pursue this remedy past the Institution level.
B. Analysis
The Prison Litigation Reform Act (“PLRA”) 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). The 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.” Porter, 534
U.S. at 532. “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); see also Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)
(“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.’”) (quoting Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002)).
Here, it is undisputed that while Acon submitted administrative remedy requests
regarding his medical care, he did not pursue any of these remedy requests through each step
required by the BOP. Because he failed to submit his remedy requests in the place and time
required by the BOP, he has failed to exhaust his available administrative remedies. See Dale,
376 F.3d at 655. The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is
that Acon’s claims should not have been brought and must now be dismissed without prejudice.
See 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”); Ford v. Johnson, 362 F.3d 395,
401 (7th Cir. 2004)(“We therefore hold that all dismissals under § 1997e(a) should be without
prejudice.”).
III. Conclusion
The defendants’ motion for summary judgment [dkt. 29] is granted. Judgment consistent
with this Entry shall now issue.
IT IS SO ORDERED.

_______________________________

06/13/2013
Date: __________________

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
All electronically registered counsel
GLENN ACON
15217-041
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808