GORE v. BUREAU OF PRISONS

Filing 51

Entry Discussing Motion for Summary Judgment - Plaintiff Kevin M. Gore, an inmate of the Federal Bureau of Prisons ("BOP") at the United States Penitentiary in Terre Haute, Indiana, brings this civil action alleging that he has received i nadequate care for his serious medical needs. The defendants move to dismiss, or in the alternative for summary judgment, arguing that Gore failed to exhaust his available administrative remedies with respect to his claims as required by the Priso n Litigation Reform Act. The defendant's motion for summary judgment 15 is granted and Gore's motion in opposition 19 is denied. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 2/7/2014. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
KEVIN M. GORE,
Plaintiff,
vs.
BUREAU OF PRISONS,
Defendant.

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Case No. 2:13-cv-157-WTL-DKL

Entry Discussing Motion for Summary Judgment
Plaintiff Kevin M. Gore, an inmate of the Federal Bureau of Prisons (“BOP”) at the
United States Penitentiary in Terre Haute, Indiana, brings this civil action alleging that he has
received inadequate care for his serious medical needs. The defendants move to dismiss, or in the
alternative for summary judgment, arguing that Gore 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).

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 Gore as the non-moving party with
respect to the motion for summary judgment.
Gore is a federal inmate currently in the custody of the BOP at the United States
Penitentiary in Terre Haute, Indiana. 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 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.

All administrative remedy requests filed by inmates are logged and tracked in the
SENTRY computer program, an electronic record keeping system used by the BOP. A review of
the SENTRY database with respect to administrative remedy requests filed Gore revealed that
Gore has filed a total of seven administrative remedy requests, including two related to medical
care. Gore filed a BP-9 at the Institution Level on November 8, 2010, alleging complaints
regarding Medication and Services. (Remedy No. 614627-F1). A response closing this
administrative remedy was issued to Gore on January 6, 2011. Plaintiff filed another BP-9 at the
Institution Level on August 31, 2012, alleging “Medical Issues.” (Remedy No. 703130-F1). A
response closing this administrative remedy because it was withdrawn at the inmate’s request
was issued on September 4, 2012.
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
Gore’s claim here, alleging the denial of medical care. See Poirier v. Casperson, 17 Fed.Appx.
450, 463 (7th Cir. 2001) (“there is no support of Mr. Poirier’s contention that ongoing medical
complaints are not subject to the exhaustion requirement”) (citing Perez v. Wis. Dept. of
Corrections, 182 F.3d 532, 536 (7th Cir. 1999)). “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 Gore submitted administrative remedy requests apparently regarding the
allegations of his complaint, he did not pursue those requests past the institutional level. He
asserts that he “exhausted [his] administrative remedies when the FBOP already gave approval
for my neurosurgery and narcotic analgesics.” But Gore has not shown that he has pursued his
administrative remedies as required by the BOP’s Administrative Remedy Procedures for
Inmates. If the BOP approved Gore’s surgery and medication and he has not received it, he is
still required to attempt to resolve this denial of care through the administrative remedy process
prior to filing a complaint. See Woodford, 548 U.S. at 90-91. Gore also appears to argue that
because he is in imminent danger of harm, he is excused from pursuing the administrative
remedy procedure. But the PLRA does not recognize this type of exception to the administrative
remedy process. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (holding that the Court
“will not read futility or other exceptions into [the PLRA’s] statutory exhaustion requirements.”).
It is undisputed that Gore 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 his 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 defendant’s motion for summary judgment [dkt 15] is granted and Gore’s motion in
opposition [dkt 19] is denied. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

02/07/2014
Date: _________________
_______________________________

Distribution:
Kevin M. Gore
02938-093
United States Penitentiary
P.O. Box 33
Terre Haute, IN 47808
All electronically registered counsel

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