DAVIS v. KANE
Entry Granting Defendant's Motion for Summary Judgment on Exhaustion and Directing Entry of Final Judgment - It is undisputed that Mr. Davis did not complete the exhaustion process before filing this action. For the above reasons, the defendant's motion for summary judgment, Dkt. No. 19 , is granted. Final judgment consistent with this Entry shall now issue (SEE ENTRY). Signed by Judge William T. Lawrence on 11/29/2017. Copy to Plaintiff via US Mail. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
WILLIAM C. DAVIS,
THOMAS R. KANE,
ACTING DIRECTOR OF THE BUREAU OF
PRISONS, in his official capacity,
Entry Granting Defendant’s Motion for Summary Judgment on Exhaustion
and Directing Entry of Final Judgment
Plaintiff William C. Davis (“Mr. Davis”), is a federal prisoner currently confined at the
Federal Prison Camp (“FPC”) in Terre Haute, Indiana. Mr. Davis filed his complaint on April 4,
2017, bringing a claim under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 702, 706,
alleging that he should have been approved to be placed in a Residential Reentry Center or
halfway house, for twelve months instead of nine.
Defendant Thomas R. Kane, Acting Director of the Bureau of Prisons (“BOP”), in his
official capacity, filed a motion for summary judgment seeking resolution of the claim against
him on the basis that Mr. Davis failed to exhaust his available administrative remedies. Mr.
Davis opposed the motion for summary judgment and the defendant replied. For the reasons
explained in this Entry, the defendant’s motion for summary judgment, Dkt. No. 19, is granted.
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.
It is the defendant’s burden to establish that the administrative process was available to
Mr. Davis. See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) (“Because exhaustion is an
affirmative defense, the defendants must establish that an administrative remedy was available
and that [the plaintiff] failed to pursue it.”). “[T]he ordinary meaning of the word ‘available’ is
‘capable of use for the accomplishment of a purpose,’ and that which ‘is accessible or may be
obtained.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (internal quotation omitted). “[A]n
inmate is required to exhaust those, but only those, grievance procedures that are capable of use
to obtain some relief for the action complained of.” Id. at 1859 (internal quotation omitted).
On the basis of the pleadings and the expanded record, and specifically on the portions of
that record which comply with the requirements of Rule 56(c), the following facts, construed in
the manner most favorable to Mr. Davis as the non-movant, are undisputed for purposes of the
motion for summary judgment:
The Federal Bureau of Prisons (“BOP”) has promulgated an administrative remedy
system which appears at 28 C.F.R. § 542.10, et seq., and BOP Program Statement 1330.18,
Administrative Remedy Program (“P.S. 1330.18”), which was in effect at FPC Terre Haute
during the entire time that Plaintiff was housed there. Dkt. No. 20-1, ¶ 4. The BOP
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 exhaust his
remedies, an inmate must typically first file an informal remedy request through an appropriate
institution staff member via a BP-8 prior to filing a formal administrative remedy request with
the Warden, Regional Director, and General Counsel. 28 C.F.R. § 542.13; P.S. 1330.18 at 4.
If the inmate is not satisfied with the response to his informal remedy (BP-8), he is
required to address his complaint with the Warden via a BP-9. 28 C.F.R. § 542.14; P.S. 1330.18
at 4. An inmate is only permitted to include a single complaint or a reasonable number of closely
related issues on the same form. 28 C.F.R. § 542.14(c)(2); P.S. 1330.18 at 5.
If the inmate is dissatisfied with the Warden’s response, he may appeal to the Regional
Director via a BP-10. 28 C.F.R. § 542.15; P.S. 1330.18 at 6-7. If he is dissatisfied with the
Regional Director’s response, then the inmate may appeal to the General Counsel via a BP-11.
28 C.F.R. § 542.15; P.S. 1330.18 at 7. An inmate who has filed administrative remedies at all
required levels is deemed to have exhausted his administrative remedies as to the specific issues
properly raised therein. See 28 C.F.R. § 542.15 (“Appeal to the General Counsel is the final
administrative appeal.”). Following exhaustion at all three administrative levels, the inmate may
file a civil action in the proper United States District Court with respect to the issues properly
addressed and exhausted at the administrative level. 42 U.S.C. § 1997e(a).
All BOP Program Statements are available for inmate access via the institution law
library, including BOP Program Statement 1330.18. Dkt. No. 20-1, ¶ 5. Additionally,
administrative remedy filing procedures are outlined in the Inmate Information Handbook, which
is available at the inmate’s respective BOP facility. Dkt. No. 20-1, ¶ 5; Dkt. No. 20-2, pp. 9-10.
Mr. Davis has been housed at FPC Terre Haute since November 14, 2016, and has been
housed within the federal prison system since November 14, 2005. He acknowledges that he first
learned of the decision to place him in a Residential Reentry Center for nine months after he
“was transferred to the Terre Haute Camp for medical reasons on November 15th of 2016” and
that he learned of the decision “[a]t my first Team meeting in Terre Haute.” Addendum to
Complaint, dkt. 13, at 1. Therefore, to have exhausted his claim based on his Residential Reentry
Center placement, he would have had to have filed an administrative remedy request after he
arrived at FPC Terre Haute on November 14, 2016.
Mr. Davis submitted a BP-9, No. 903317, to the Warden regarding his Residential
Reentry Center placement that was dated March 23, 2017, deemed filed on May 25, 2017, and
denied on July 3, 2017. Dkt. No. 20-1, ¶ 10; dkt. 20-2, p. 26. The record shows that Mr. Davis
did not complete any of the other steps in the administrative remedy process. He did not appeal
to the Regional and Central Offices. Id. Mr. Davis filed his complaint in this action on April 4,
2017, less than two weeks after submitting his BP-9.
It is undisputed that Mr. Davis did not complete the exhaustion process for Grievance
903317. He submitted the grievance, but he did not appeal to the next steps using a BP-10 or BP11. He filed his complaint in this action before he received a response to his BP-9 and before it
would have even been possible to fully complete the administrative remedy process.
While in his reply, Dkt. No. 24, Mr. Davis argues that the exhaustion requirement does
not apply to the APA, and also requests that he be excused from the exhaustion requirement, in
his surreply filed on September 6, 2017, Mr. Davis states that because his release date was
September 27, 2017, he no longer wished to pursue his claim. He asked that the Court dismiss
his case. Dkt. No. 26.
In light of the work that has already been put into briefing the issue of exhaustion, rather
than dismiss the action pursuant to Mr. Davis’ request, the Court will issue its ruling on the
defendant’s motion for summary judgment. Mr. Davis’ contention that the exhaustion
requirement does not apply to APA claims lacks merit. See Richmond v. Scibana, 387 F.3d 602,
607 (7th Cir. 2004); Staadt v. Bezy, 119 Fed. Appx. 784 (7th Cir. Dec. 16, 2004). To the extent
Mr. Davis sought a waiver from the exhaustion requirement, there are no circumstances under
which the Court can accommodate that request in this case. The exhaustion requirement
established by Congress is mandatory. See Booth v. Churner, 532 U.S. 731, 741 (2001)
(“Congress has mandated exhaustion clearly enough, regardless of the relief offered through
administrative procedures.”). Moreover, to the extent Mr. Davis argues that he was told the
process would be futile, that type of argument has been rejected as well. King v. McCarty, 781
F.3d 889, 893 (7th Cir. 2015) (Prisoners must comply with exhaustion requirements under the
PLRA “even if he expects the process will ultimately be futile.”). In sum, Mr. Davis has
presented no admissible evidence sufficient to create a genuine issue of fact as to whether the
process was available to him or as to whether he completed the exhaustion process before filing
The consequence of Mr. Davis’ failure to exhaust his administrative remedies, in light of
42 U.S.C. § 1997e(a), is that this action must be dismissed without prejudice. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (holding that “all dismissals under § 1997e(a) should
be without prejudice”).
It is undisputed that Mr. Davis did not complete the exhaustion process before filing this
action. For the above reasons, the defendant’s motion for summary judgment, Dkt. No. 19, is
granted. Final judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
WILLIAM C. DAVIS
TERRE HAUTE - FCI
P.O. BOX 33
TERRE HAUTE, IN 47808
Electronically registered counsel
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