LARD v. TUSSEY et al

Filing 32

ORDER granting Defendants' 27 Motion for Summary Judgment. Judgment consistent with this Entry and with the Entry of April 21, 2014, shall now issue. **SEE ORDER** Copy mailed to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 10/22/2014. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ELLIS JEROME LARD,
Plaintiff,
vs.
LT. TUSSEY, et al.
Defendants.

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Case No. 2:14-cv-0031-WTL-WGH

Entry Granting Motion for Summary Judgment
and Directing Entry of Final Judgment
I. Background
Ellis Jerome Lard (“Mr. Lard”) is a federal prisoner who at all times relevant to the
complaint was confined at the Federal Correctional Complex in Terre Haute, Indiana (“FCCTH”). He is now confined at the Greenville Federal Correctional Institution. Mr. Lard alleges
that on or about January 10, 2013, he was subjected to excessive force by the correctional officer
defendants in violation of his Eighth Amendment rights. He seeks compensatory damages.
The defendants have filed a motion for summary judgment seeking resolution of the
claims against them based on their affirmative defense that Mr. Lard failed to exhaust his
available administrative remedies prior to filing this action. Mr. Lard has not responded to the
motion for summary judgment and the deadline for doing so has passed.
For the reasons explained in this Entry, the defendants’ motion for summary judgment
[dkt. 27] is granted.

II. Legal Standards
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). 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).
“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 is the
Prison Litigation Reform Act (“PLRA’”), which 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). “[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).
“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)). “In order to exhaust administrative remedies, a prisoner must take all steps
prescribed by the prison’s grievance system.” Ford v. Johnson, 362 F.3d 395, 397 (7th Cir.
2004).
III. Discussion
Because exhaustion of administrative remedies is an affirmative defense, “the burden of
proof is on the prison officials,” Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006), to
demonstrate that Mr. Lard failed to exhaust all available administrative remedies before he filed
this suit. The defendants’ motion for summary judgment, brief in support, and Rule 56 notice
were served on Mr. Lard on August 6, 2014. See dkts. 26-28. As noted, no response has been
filed, and the deadline for doing so has passed. The consequence is that Mr. Lard has conceded
to 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.”). This does not alter the standard for assessing a motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure, but does “[r]educ[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).
Applying the standards set forth above, the defendants have shown the following:
Mr. Lard was housed at FCC-TH from June 11, 2008, through October 6, 2009, and again
from November 1, 2012, through May 12, 2014.
The Bureau of Prisons (“BOP”) has promulgated an administrative remedy system which
is codified in 28 C.F.R. § 542.10, et seq., and BOP Program Statement 1330.18, 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. 28
C.F.R § 542.10. To properly exhaust his remedies, an inmate must first file an informal remedy
request through appropriate institution staff members (BP-8). If the inmate is not satisfied with
the informal remedy response, he is first required to address his complaint within twenty (20)
calendar days to the Warden (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 (BP-10) within twenty calendar days
of the date of the Warden’s response. 28 C.F.R. § 542.15. If dissatisfied with the Regional
Director’s response, the inmate may appeal to the General Counsel (BP-11) within thirty (30)
calendar days of the Regional Director’s response. 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 required levels, his administrative remedies are exhausted as to the specific issue(s) raised.
All codified BOP Program Statements are available for inmate access via the institution
law library, including BOP Program Statement 1330.18. Additionally, administrative remedy
filing procedures are outlined in the inmate Information Handbook provided to all inmates upon
initial intake at the FCC-TH.
Mr. Lard filed a total of fifty-five (55) administrative remedy requests since he began his
term of incarceration. The alleged excessive force alleged in the amended complaint occurred in
January 10, 2013. Mr. Lard, however, filed only two requests for administrative remedy between
the alleged date of the occurrence and the filing of this lawsuit. The subject of those remedies do
not pertain to the allegations set forth in the amended complaint.
On October 7, 2013, Mr. Lard filed remedy number 755492-F1 at the institution level
(BP-9) claiming “Wants Jail Time Credit.” This filing was closed November 23, 2013. On
December 26, 2013, Mr. Lard filed remedy 755492-R1 at the regional level (BP-10) appealing

the Warden’s response to his claim of “Wants Jail Time Credit.” This filing was closed on
December 31, 2013. Mr. Lard did not pursue this remedy to the BP 11 stage at the Central Office
and therefore did not exhaust the issue. Since then, Mr. Lard filed no other remedy requests as of
the date this action was filed on February 10, 2014. In addition, in response to the statement on
his amended complaint, “I have previously exhausted available administrative remedies
regarding the events or acts complained of” in this complaint, Mr. Lard stated “No.”
These undisputed facts show that Mr. Lard did not file any administrative remedies
relating to the allegations made in the amended complaint. The defendants have met their burden
of proving that Mr. Lard had available administrative remedies that he did not use. Given his
failure to respond to the motion for summary judgment, Mr. Lard has not identified a genuine
issue of material fact supported by admissible evidence which counters the facts offered by the
defendants. The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Mr.
Lard’s action should not have been brought and must now be dismissed without prejudice. Ford
v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (holding that “all dismissals under § 1997e(a)
should be without prejudice.”).
IV. Conclusion
For the reasons explained above, the defendants’ motion for summary judgment [dkt. 27]
is granted. Judgment consistent with this Entry and with the Entry of April 21, 2014, shall now
issue.
IT IS SO ORDERED.

Date: 10/22/14

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

Distribution:
Ellis Jerome Lard
10137-026
FCI - Greenville
Inmate Mail/Parcels
P.O. Box 5000
Greenville, IL 62246
Electronically registered counsel