ADAMS v. BOBO et al

Filing 40

Entry Discussing Motion to Dismiss or in the Alternative for Summary Judgment - The defendants' motion for summary judgment [dkt. 21] 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 8/5/2013. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DE’LON JOSEPH ADAMS,
Plaintiff,
vs.
M. BOBO, et al.,
Defendants.

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Case No. 2:12-cv-00283-JMS-WGH

Entry Discussing Motion to Dismiss or in the Alternative for Summary Judgment
Plaintiff De’Lon Joseph Adams, an inmate of the Federal Bureau of Prisons (“BOP”) at
the United States Penitentiary in Florence, Colorado, brings this action pursuant to the theory
recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that
defendants M. Bobo, W. Roberts, and Tyler used excessive force against him on November 12,
2010, while he was housed at the Federal Correctional Complex in Terre Haute, Indiana (“FCC
Terre Haute”) and that defendant Corey Pointer failed to provide him adequate medical care for
his injuries. The defendants move to dismiss, or in the alternative for summary judgment,
arguing that Adams failed to exhaust his available administrative remedies with respect to his
claims as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997 (“PLRA”).
I. 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. 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).
Adams has responded to the defendants’ motion, but has not provided the Statement of
Material Facts in Dispute or any admissible evidence as required by Local Rule 56-1. By not
responding properly and with evidentiary materials, Adams has conceded the defendants’ 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(e), of which Adams was notified. This does not alter the standard for assessing a
Rule 56(c) 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).
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 Adams as the non-moving party with
respect to the motion for summary judgment.
The BOP promulgated an administrative remedy system which is codified in 28 C.F.R.
§§ 542.10, et seq., and BOP Program Statement 1330.16, Administrative Remedy Procedures for
Inmates. The Administrative Remedy process is a method by which an inmate may seek formal
review of a complaint related to any aspect of his imprisonment. 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 first
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 issues
properly raised therein.
All codified BOP Program Statements are available for inmate access via the institution
law library, including BOP Program Statement 1330.16. Additionally, Administrative Remedy
filing procedures are outlined in an Inmate Information Handbook, which is provided to all
inmates upon initial intake at FCC Terre Haute.
Adams alleges in his complaint that defendants M. Bobo, W. Roberts, Tyler, exercised
excessive force against him on November 12, 2010, and that defendant Nurse Corey Pointer
failed to properly treat his injuries. Adams submitted several administrative remedy requests at
FCC Terre Haute after this incident. Some of these requests are appeals of decisions made by the
Discipline Hearing Officer and some related to a “missing book” or “book issues.” Two requests
are potentially related to the incident alleged in the complaint: one submitted on January 14,
2011, related to “staff misconduct,” and one submitted on March 2, 2011, claiming “assaulted by
staff.”
The January 14, 2011, remedy request claiming “staff misconduct” was given number
622577-F1. Adams submitted it at the Institution (BP-9) and Regional level (BP-10), number
622577-R1, but did not appeal it further to the General Counsel.
With respect to his March 2, 2011 remedy, Adams filed a sensitive BP-10 at the Regional
level, number 629492-R1. This remedy was rejected on March 7, 2011, because Adams did not
first attempt informal resolution and did not file a BP-9 and because the matter was not deemed
sensitive. On April 4, 2011, Adams filed remedy number 629492-A1 making the same
allegations. This request was rejected on April 7, 2011, because he submitted it to the wrong
level. Adams did not submit any other remedy requests with respect to this remedy number.

B. Analysis
The 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. This includes claims, like
Adams’ claim here, of a singular incident of excessive force. See Smith v. Zachary, 255 F.3d
446, 451-52 (7th Cir. 2001). “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, while Adams submitted administrative remedy requests apparently regarding the
incident alleged in the Complaint, he did not pursue any of these remedy requests through each
level as required by the BOP. Although Adams asserts that he filed all required remedy requests
with regard to administrative remedy request 622577-R1, he provides no admissible evidence to
support this assertion. Further, it is undisputed that there is no record in the BOP’s database that
remedy request 622577-R1 was filed with the General Counsel as required. 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.
Adams further argues that regardless of whether he exhausted his administrative remedies
as required by the BOP, he satisfied the exhaustion requirement by pursing his claims through

the administrative process for filing suit under the Federal Tort Claims Act (“FTCA”). Even if
Adams has satisfied the requirements of the FTCA, this does not fulfill the exhaustion
requirement of the PLRA. See Macias v. Zenk, 495 F.3d 37, 44 (2nd Cir. 2007) (Notice of a
claim alone is not sufficient to exhaust administrative remedies); see also Dale, 376 F.3d at 655
(“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.’”).
It is undisputed that Adams did not fully exhaust his available administrative remedies as
required by the PLRA. The consequence of these circumstances, in light of 42 U.S.C. §
1997e(a), is that Adams’ 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. 21] is granted. Judgment consistent
with this Entry shall now issue.
IT IS SO ORDERED.

08/05/2013
Date: __________________

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

Distribution:
De’Leon Joseph Adams
Reg. No. 04193-036
Florence High USP
P.O. Box 7000
Florence, CO 81226
All electronically registered counsel