DUPREE v. CARAWAY et al

Filing 45

ORDER granting 30 Motion for Summary Judgment. The defendants have met their burden of proving that Mr. Dupree had available administrative remedies that he did not fully exhaust before filing his lawsuit. Given his failure to respond to the mo tion for summary judgment, Mr. Dupree has not identified a genuine issue of material fact supported by admissible evidence which counters the facts offered by the defendants. Judgment consistent with this Entry and with the Entries of May 7, 2014, and May 11, 2015, shall now issue. The telephonic status conference set for September 14, 2015, is vacated. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 5/13/2015. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOHN DUPREE,
Plaintiff,
v.
ANDREW RUPSKA, et al.
Defendants.

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Case No. 2:14-cv-0092-JMS-WGH

Entry Granting Remaining Defendants’ Unopposed Motion for Summary Judgment
and Directing Entry of Final Judgment
I.

Background

Plaintiff John Dupree (“Mr. Dupree”), a federal inmate formerly confined at the United
States Penitentiary in Terre Haute, Indiana, alleges that his constitutional rights were violated when
the defendants refused to properly treat his serious medical needs. He brings his claims under the
theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Bivens “authorizes
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).
The five remaining defendants, Andrew Rupska, Heather Mata, Tammy McDaniel, Ryan
Drummy, and Audrea Sandusky, filed a motion for summary judgment arguing that Mr. Dupree’s
claims are barred because he failed to exhaust his available administrative remedies. Mr. Dupree
has not opposed the motion for summary judgment.
For the reasons explained in this Entry, the defendants’ motion for summary judgment [dkt.
30] 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. Dupree 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. Dupree on October 15, 2014. See dkt nos. 30-22. As noted, no response has been filed, and
the deadline for doing so has passed. The consequence of Mr. Dupree’s failure to respond is that
he has conceded the defendants’ version of the facts. 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.”); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). This
does not alter the standard for assessing a Rule 56(a) 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).
Applying the standards set forth above, the defendants have shown the following:
This action was filed on March 28, 2014, and Mr. Dupree filed an amended complaint on
April 24, 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 (“PS”) 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. See 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 within twenty (20) 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 (BP-11), after filing administrative remedies at all three required levels,
his administrative remedies are exhausted as to the specific issue(s) raised. 1
All codified BOP Program Statements are available for inmate access in 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 prison. All administrative requests filed by inmates are logged and tracked in the
SENTRY computer program, which is an electronic record keeping system utilized by the BOP.
Mr. Dupree did fully exhaust two administrative remedies, but not until after this action
was filed. Mr. Dupree filed Remedy 771704-F1 on March 18, 2014, alleging problems with his

An administrative remedy request filed at the institution level is referred to as a BP-9 and is identified in
the SENTRY database by the notation F1 following the remedy identification number. A Regional Office
filing is referred to as a BP-10 and is identified by the notation R1 following the remedy identification
number. A Central Office filing is referred to as a BP-11and is identified by the notation A1 following the
remedy identification number. If amended or successive remedy requests are filed at the same level, the
numeral following the alphabetical letter will change accordingly in SENTRY, i.e., F2, R2 or A2, following
the remedy identification number.
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prostate. When that remedy was denied, Mr. Dupree appealed to the Regional Director on April
21, 2014, and resubmitted the appeal on May 9, 2014. He also appealed to the General Counsel on
June 16, 2014. The appeal was accepted and deemed denied on August 15, 2014. Mr. Dupree filed
Remedy 772172-F1 requesting medical attention on March 20, 2014. He appealed that remedy to
the Regional Director on April 4, 2014, and resubmitted the appeal on April 25, 2014. He appealed
to the General Counsel on June 3, 2014.
By failing to complete the exhaustion process before this action was filed, Mr. Dupree
failed to exhaust his administrative remedies. See Cannon v. Washington, 418 F.3d 714, 719 (7th
Cir. 2005) (A prisoner “may not file a lawsuit before exhausting his administrative remedies, even
if he exhausts those remedies while the litigation is pending.”).
The defendants have met their burden of proving that Mr. Dupree had available
administrative remedies that he did not fully exhaust before filing his lawsuit. Given his failure to
respond to the motion for summary judgment, Mr. Dupree 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. Dupree’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. 30]
is granted. Judgment consistent with this Entry and with the Entries of May 7, 2014, and May 11,
2015, shall now issue.
The telephonic status conference set for September 14, 2015, is vacated.
IT IS SO ORDERED.

Date: __________________
05/13/2015

Distribution:
John Dupree
#28615-004
FCC Allenwood
Inmate Mail/Parcels
P. O. Box 3000
White Deer, PA 17887
Electronically registered counsel
Magistrate Judge William G. Hussmann, Jr.