FERRELL v. MASON et al
Filing
31
Entry Granting Defendants' Unopposed Motion for Summary Judgment - For the reasons explained above, defendants' motion for summary judgment, dkt. 26 , is granted. This action is dismissed without prejudice. Final judgment shall iss ue accordingly. The clerk is directed to correct the docket to reflect the spelling of defendants' names as shown in the caption on this Entry (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 12/13/2017. Copy to Plaintiff via US Mail. (DW) Modified on 12/14/2017 (DW).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TYLER FERRELL,
Plaintiff,
v.
CAPT. MASON, SGT. STINER,
SGT. McKINNEY, SGT. JEFFRIES,
SGT. CUSTIS,
Defendants. 1
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No. 2:16-cv-00415-JMS-MJD
Entry Granting Defendants’ Unopposed Motion for Summary Judgment
I. Introduction
Plaintiff Tyler Ferrell, an Indiana prison inmate incarcerated in the Pendleton Correctional
Facility, brought this 42 U.S.C. § 1983 action on October 26, 2016, contending defendants used
excessive force on him and failed to protect him from excessive force on November 18 and 19,
2015. All five defendants now seek summary judgment contending that this action is barred by
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), because plaintiff failed to
exhaust available administrative remedies prior to commencing his suit.
II. Summary Judgment Standard
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). The movant bears the initial responsibility of informing the district court of the basis of
The spelling of defendants’ names have been corrected in the caption to reflect the spellings
contained in their waivers of service of summons and as requested in their motion for summary
judgment. The clerk is directed to correct the docket to reflect the spelling of defendants’ names
as shown in the caption on this Entry.
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its motion, and identifying those portions of designated evidence that demonstrate the absence of
a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After “a
properly supported motion for summary judgment is made, the adverse party must set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (quotation marks and citation omitted).
A factual issue is material only if resolving the factual issue might change the outcome of
the case under the governing law. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A
factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict
in favor of the non-moving party on the evidence presented. See Anderson, 477 U.S. at 248. In
deciding a motion for summary judgment, the court “may not ‘assess the credibility of witnesses,
choose between competing reasonable inferences, or balance the relative weight of conflicting
evidence.’” Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 808 (N.D. Ill. 2010) (quoting Stokes v.
Bd. of Educ. of the City of Chi., 599 F.3d 617, 619 (7th Cir. 2010)). Instead, it must view all the
evidence in the record in the light most favorable to the non-moving party and resolve all factual
disputes in favor of the non-moving party. See Anderson, 477 U.S. at 255.
Plaintiff has not responded to defendants’ motion and the deadline for doing so has passed.
The consequence is that plaintiff has conceded defendants’ version of the events. See 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.”); see S.D. Ind. Local Rule 56-1 (“A party opposing a
summary judgment motion must . . . file and serve a response brief and any evidence . . . that the
party relies on to oppose the motion. The response must . . . identif[y] the potentially determinative
facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary
judgment.”). This does not alter the standard for assessing a Rule 56 motion, but it does “reduc[e]
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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).
III. Exhaustion Requirement
The 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)).
“[A] court may not excuse a failure to exhaust, even to take such [special] circumstances
into account.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (citing Miller v. French, 530 U.S. 327,
337 (2000)). This is true even if the plaintiff seeks a remedy that is not available through the
administrative process. Id. (citing Booth v. Churner, 532 U.S. 731 (2001)).
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IV. Defendants’ Evidence
Defendants’ evidence in support of their motion for summary judgment reflects that
plaintiff failed to properly follow and exhaust his administrative remedies.
The relevant grievance procedures are contained in the Indiana Department of Correction
Policy and Administrative Procedures, number 00-02-301, effective January 1, 2010.
Section XIII.A requires the grievance process to start with an informal grievance accomplished by
the offender discussing the situation with the persons responsible for it, or with a counselor,
caseworker, manager, or other team unit member. Dkt. 26-5, p. 14 (IDOC Offender Grievance
Process). Section XIII.C requires the informal grievance to be attempted no later than five days
after the incident. Id. at p. 15. Section XIII.E addresses the appeal procedures, which is a required
step in exhausting administrative remedies.
The grievance specialist with the Pendleton Correctional Facility submitted her affidavit
averring that plaintiff first failed to commence an informal grievance. Dkt. 26-3 (affidavit of
Camay Francum). The formal grievance he filed, the first and only grievance he attempted, was
filed well after the deadline to commence the grievance process. Id. The grievance was rejected
on two grounds – that it was untimely and an informal grievance had not first been attempted. Id.
Finally, the grievance specialist noted that plaintiff failed to appeal the denial of his formal
grievance. Id.
Plaintiff, by failing to file a response to the motion for summary judgment, offers nothing
to rebut the factual aversions of defendants. Thus the undisputed evidence is that plaintiff did not
exhaust his administrative remedies as required by the Department of Correction Offender
Grievance Process.
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V. Discussion
The undisputed facts are that plaintiff failed to exhaust his administrative remedies prior to
filing this civil action. Thus defendants have met their burden of proving that plaintiff “had
available [administrative] remedies that he did not utilize.” Dale v. Lappin, 376 F.3d 652, 656 (7th
Cir. 2004). Given his wholesale failure to respond, plaintiff has not identified a genuine issue of
material fact supported by admissible evidence that counters the facts offered by defendants. The
consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that the 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.”).
VI. Conclusion
For the reasons explained above, defendants’ motion for summary judgment, dkt. [26], is
granted. This action is dismissed without prejudice. Final judgment shall issue accordingly.
IT IS SO ORDERED.
Date: 12/13/2017
Distribution:
TYLER FERRELL
212720
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Jefferson S. Garn
INDIANA ATTORNEY GENERAL
Jefferson.Garn@atg.in.gov
Rebecca L. McClain
INDIANA ATTORNEY GENERAL
rebecca.mcclain@atg.in.gov
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