ARMSTRONG v. BAILEY

Filing 36

Entry Discussing Motion for Summary Judgment - Plaintiff Herman Armstrong, a former inmate of the Bureau of Prisons ("BOP") at the Federal Correctional Institution in Terre Haute, Indiana, brought this action alleging that the defendant, Dr. T. Bailey, was deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Dr. Bailey moves for summary judgment arguing that Mr. Armstrong failed to exhaust his available administrative remedies with reg ard to this claim. The defendant's motion for summary judgment [dkt 19 ] is granted. Judgment dismissing this action without prejudice shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 12/28/2016. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

HERMAN ARMSTRONG,
Plaintiff,
v.
T. BAILEY Doctor,
Defendant.

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Case No. 2:14-cv-00333-JMS-DKL

Entry Discussing Motion for Summary Judgment
Plaintiff Herman Armstrong, a former inmate of the Bureau of Prisons (“BOP”) at the
Federal Correctional Institution in Terre Haute, Indiana, brought this action alleging that the
defendant, Dr. T. Bailey, was deliberately indifferent to his serious medical needs in violation of
his Eighth Amendment rights. Dr. Bailey moves for summary judgment arguing that Mr.
Armstrong failed to exhaust his available administrative remedies with regard to this claim. 1
I. Standard of Review
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

Dr. Bailey’s motion for summary judgment was previously granted when Mr. Armstrong failed
to respond and judgment was entered in Dr. Bailey’s favor. Dkt 24 and 25. Shortly thereafter, Mr.
Armstrong moved to reopen the case asserting that he had filed a response to the motion for
summary judgment and served a copy on the defendant. The defendant did not object and the Court
granted the motion to reopen the case. Dkt. 28. The fully briefed motion for summary judgment is
now again under consideration.
1

S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no reasonable jury could find for the non-moving party, then
there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d
686 (2007).
II. Facts
The BOP has an administrative remedy system which is codified at 28 C.F.R. § 542.10 et
seq., and BOP Program Statement 1330.16, Administrative Remedy Procedures for Inmates. To
exhaust the BOP’s administrative remedies, an inmate must first file an informal request (“BP-8”)
with an appropriate institution staff member. If not satisfied with the proposed informal resolution,
the inmate may file a formal request with the institution Warden (“BP-9”). If not satisfied with the
response to the BP-9, the inmate may appeal to the Regional Director (“BP-10”). If not satisfied
with the Regional Director’s response, the inmate may appeal to the BOP's General Counsel (“BP11”). Once an inmate receives a response to his appeal from the General Counsel and after filing
administrative remedies at all required levels, the administrative remedy process is complete.
All codified BOP Program Statements are available for inmate access through the
institution law library. Additionally, Administrative Remedy filing procedures are outlined in an
Inmate Information Handbook which is available to inmates at their respective BOP facility.
Mr. Armstrong filed five remedy requests related to his claims in the complaint. First, on
October 27, 2014, Mr. Armstrong filed remedy #799125-F1 claiming “GI Specialist Consult.” The
remedy was closed with explanation on October 31, 2014.
Mr. Armstrong initially filed the complaint in this action on October 29, 2014.
On November 7, 2014 Mr. Armstrong filed an appeal of the October 31 response, identified
as remedy #799125-R1. The filing was rejected on the same date because he failed to provide a
copy of the response, and he was instructed to correct and resubmit within 10 days of the date of

the rejection notice. On November 28, 2014, Mr. Armstrong resubmitted his appeal in remedy
#799125-R2. The filing was rejected because it was a duplicate to filing #799125-R3, and remedy
#799125-R3 was rejected as untimely since it was submitted more than 10 days after remedy
#799125-R1 was rejected. On December 22, 2014, Mr. Armstrong filed remedy # 799125-R4, and
that submission was again rejected as untimely. Mr. Armstrong was instructed to provide staff
verification within 10 days on BOP letterhead stating that the untimeliness of #799125-F1 and
#799125-R3 were not his fault.
Mr. Armstrong asserts that he received a rejection of his regional appeal as untimely on
January 6, 2015. The next day, he asked his counselor what his next step should be and his
counselor told him that he would have to file a reason for the appeal to the Central Office. On the
21st of January, 2015, Mr. Armstrong received a letter from the United States Supreme Court
stating that he had submitted his grievance to the wrong address. He then asked his counselor again
for advice and was told that nothing could be done.
III. Discussion
The defendant argues that Mr. Armstrong’s claims must be dismissed because he failed to
exhaust his available administrative remedies with respect to those claims. 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). 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). The exhaustion
requirement of the PLRA is one of “proper exhaustion” 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, 84 (2006). This means that the prisoner plaintiff must have
completed “the administrative review process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court.” Id. at 84; 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, Mr. Armstrong filed his initial administrative remedy request on October 27, 2014.
He filed this lawsuit on October 29, 2014, and received a response to his administrative remedy
request on October 31, 2014. It is undisputed, therefore, that he failed to exhaust his available
administrative remedies before filing this lawsuit. This lawsuit can be dismissed for this reason
alone. See Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
The defendant also argues that Mr. Armstrong failed to exhaust his available administrative
remedies at any time. Mr. Armstrong argues that he should excused from failing to exhaust his
administrative remedies before he filed this lawsuit because he was misled and thwarted by prison
officials in his attempt to exhaust his administrative remedies. But the undisputed facts construed
in the light most favorable to Armstrong show that his administrative remedies were not made
unavailable to him. First, he filed remedy #799125-F1 requesting a GI specialist consult on
October 27, 2014. This remedy was rejected on October 31, 2014. He filed an appeal, identified
as #799125-R1, which was rejected for failing to include a copy of the BP-9 response and he was
provided an opportunity to re-file his appeal and given 10 days to do so. He then re-filed his appeal,
in remedies ##799125-R2 and 799125-R3. Remedy #799125-R2 was rejected as duplicative and
#799125-R3 was rejected as untimely. He again attempted to appeal on December 22, 2014, in
remedy #799125-R4. This appeal was also rejected as untimely and Armstrong was instructed in

the rejection notice to provide staff verification on BOP letterhead stating that the untimeliness of
his prior appeals was not his fault. In other words, each time his appeal was rejected, Armstrong
was permitted to refile an appeal and instructed how to do so. With regard to the last appeal,
#799125-R4, he was instructed that to continue, he needed an explanation by staff on BOP
letterhead for why his appeals were filed late.
Mr. Armstrong suggests that his appeals were late because there was a delay in his receipt
of the responses to his remedy requests. But there is no evidence that Armstrong attempted to
obtain a letter from staff explaining this delay, as he was explicitly instructed to do in the response
to remedy #799125-R4. Mr. Armstrong apparently attempted to file an appeal to the Central Office
but states that he was thwarted in this attempt by his counselor who provided him with the wrong
address for the Central Office. But this does not show that Mr. Armstrong was thwarted in his
administrative remedy attempts. Even assuming that he was provided the wrong address, he
submits no evidence that he did not, and could not, have resubmitted that appeal with the proper
documentation and an explanation of the untimeliness of the delay in his appeals. He asserts that
he was then told by his counselor that there was nothing else he could do and that he had exhausted
his administrative remedies and that he therefore then filed this lawsuit. First, this statement is
belied by the record because Mr. Armstrong states that he received the letter from the United States
Supreme Court stating that his grievance was filed in the wrong place on January 21, 2015, and
the record in this case reflects that this action was filed on October 29, 2014, nearly two months
before January 21, 2015. In addition, every time Mr. Armstrong field a remedy appeal which was
rejected, the denial contained an explanation of the proper steps to take in curing the deficiency.
Instructions regarding the administrative remedy process were also available in the law library and
the Inmate Handbook. Mr. Armstrong has not submitted sufficient evidence to show that

statements from his counselor were sufficient to contradict the express directions provided to him
in the rejection notices and available to him elsewhere.
For these reasons, Mr. Armstrong has failed to show that the exhausted his available
administrative remedies before this lawsuit was filed or that he was thwarted in his attempts to
exhaust his available administrative remedies. The defendant’s motion for summary judgment is
therefore granted.
IV. Conclusion
For the foregoing reasons, the defendant’s motion for summary judgment [dkt 19] is
granted. Judgment dismissing this action without prejudice shall now issue.
IT IS SO ORDERED.

December 28, 2016
Date: _________________

Distribution:
Herman Armstrong
17980-021
Atlanta RRM
719 McDonough Blvd. S.E.
Atlanta, GA 30315
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