RIGGLEMAN v. KRUEGER et al

Filing 141

Entry Granting Motion for Summary Judgment and Directing Entry of Final Judgment - Elisha Riggleman filed this action on August 7, 2017, contending that his constitutional rights were violated while he was incarcerated at the United States Peniten tiary in Terre Haute, Indiana. The defendants move for summary judgment, arguing that Mr. Riggleman failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e( a), before filing this lawsuit. It is therefore undisputed that Mr. Riggleman failed to exhaust his available administrative remedies as required by the PLRA before filing this lawsuit. The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Mr. Riggleman's action should not have been brought and must now be dismissed without prejudice. The defendants' motion for summary judgment, Dkt. No. 135 is granted. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to Plaintiff via U.S. Mail. Signed by Judge William T. Lawrence on 10/15/2018. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ELISHA RIGGLEMAN,
Plaintiff,
v.
MATTHEW TUSSEY,
C ZIPPERLE,
A WIBLE,
D PORTER,
A. SCHOEFFEL,
R MOSLEY,
Defendants.

UNITED STATES OF AMERICA,
Interested Party.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 2:17-cv-00380-WTL-MJD

Entry Granting Motion for Summary Judgment
and Directing Entry of Final Judgment
Elisha Riggleman filed this action on August 7, 2017, contending that his constitutional
rights were violated while he was incarcerated at the United States Penitentiary in Terre Haute,
Indiana. Mr. Riggleman claims that the defendants used excessive force against him and failed to
protect him from the excessive force of their fellow correctional officers. The defendants move for
summary judgment, arguing that Mr. Riggleman failed to exhaust his available administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), before
filing this lawsuit.
Summary Judgment Standard
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). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying” designated evidence which
“demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
Once the moving party has met its burden, the non-movant may not rest upon mere
allegations. Instead, “[t]o successfully oppose a motion for summary judgment, the nonmoving
party must come forward with specific facts demonstrating that there is a genuine issue for trial.”
Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir. 2008). “The non-movant
will successfully oppose summary judgment only when it presents definite, competent evidence to
rebut the motion.” Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir. 2002) (internal
quotation and citation omitted).
Discussion
A. Facts
The following statement of material facts was evaluated pursuant to the standards set forth
above. That is, this statement of facts is not necessarily objectively true, but as the summary
judgment standard requires, the undisputed facts and the disputed evidence are presented in the
light most favorable to Mr. Riggleman as the non-moving party. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
At all times relevant to his complaint, Mr. Riggleman was confined at the United States
Penitentiary in Terre Haute, Indiana. The Federal Bureau of Prisons (“BOP”) operates an
administrative remedy process. All administrative remedy requests filed by inmates are logged and
tracked in the SENTRY computer database, which is an electronic record keeping system utilized
by the BOP.

The BOP administrative remedy process consists of three steps. To initiate the process an
inmate first submits a BP-9 form to the warden at his facility. These requests receive an F1 notation
in the SENTRY database. If he is dissatisfied with the response, the inmate can submit an appeal
on a BP-10 form to the regional office. This level of appeal receives an R1 notation in the SENTRY
database. Finally, the inmate can file a BP-11 with the central office. This final appeal receives an
A1 notation in the SENTRY database.
On June 20, 2018, the Bureau of Prisons ran a full SENTRY report of Mr. Riggleman’s
administrative remedy requests from December 26, 2016, the date of the alleged incident, through
August 7, 2017, the date Mr. Riggleman’s complaint was filed.
According to the SENTRY report, the first form filed by Mr. Riggleman after the alleged
incident was a BP-10 on January 6, 2017. That form received the remedy number 887950-R1. The
form was rejected because Mr. Riggleman had not first filed a BP-9 with the warden of his facility.
Mr. Riggleman next filed a BP-9 at his facility on February 8, 2017, remedy number 891335-F1,
but it was denied because it was unsigned and untimely.
On February 21, 2017, Mr. Riggleman filed a BP-11 form with the central office appealing
remedy number 887950-R1. This form was assigned number 887950-A1. It was rejected for the
same reason 887950-R1 had been rejected by the regional office—Mr. Riggleman had not started
the process with an BP-9 form at his facility.
On March 21, 2017, Mr. Riggleman filed another BP-11 form with the central office which
received the remedy number 896502-A1. The SENTRY report does not reflect that any BP-9 or
BP-10 was filed with the remedy number 896502. The abstract of this remedy states that it is
related to remedy number 887950-A1. It was therefore rejected because it had been filed at the
wrong level.

On March 29, 2017, Mr. Riggleman filed a BP-10 appealing remedy number 891335-F1.
This appeal was given the number 891335-R1. It was rejected because remedy number 891335F1 had been rejected and Mr. Riggleman had not corrected the errors causing its rejection. Finally,
Mr. Riggleman filed a BP-11 to the central office which was given the remedy number 891335A1. The remarks note that this remedy is repetitive of 887950-A1. This remedy was also rejected
for the same reasons it had been rejected by the regional office and by the facility—it was unsigned
and untimely. Mr. Riggleman filed three additional remedy forms before filing this suit, but those
submissions did not relate to the subject of his complaint in this case.
Mr. Riggleman asserts that he exhausted his remedies by filing a form at each of the three
levels and that the rejections of these forms are proof that he has exhausted the administrative
remedy process. Mr. Riggleman states that he gets the run around from prison officials who
continue to tell him that he has filed his grievances at the wrong level. He also states that
“grievance procedures at the prison level [are] ignored or left unanswered.” Dkt. No. 138, p. 2.
B. Exhaustion
The PLRA requires that a prisoner exhaust his available administrative remedies before
bringing a suit concerning prison conditions. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516,
524-25 (2002). “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)). Strict compliance is required with respect to exhaustion, and a prisoner must

properly follow the prescribed administrative procedures to exhaust his remedies. Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). The PLRA’s exhaustion requirement is not subject
to either waiver by a court or futility or inadequacy exceptions. Booth v. Churner, 532 U.S. 731,
741, n.6 (2001).
C. Discussion
The SENTRY report demonstrates that Mr. Riggleman never filed an acceptable BP-9 form
regarding the allegations contained in his complaint. He first attempted to file a BP-10 which was
rejected because he had skipped the first step. It appears that when he attempted to file a BP-9 on
February 8, 2017, it was rejected because Mr. Riggleman failed to sign it and because it was
untimely. Although Mr. Riggleman appealed this rejection to both the regional and central offices,
those appeals did not exhaust his administrative remedies because he had still never properly filed
a BP-9. Instead of appealing the rejected forms, he should have started the process with a BP-9
form or immediately filed a signed BP-9 when he received the rejection of his first appeal to the
regional office.
The Seventh Circuit “has taken a strict compliance approach to exhaustion.” Wilborn v.
Ealey, 881 F.3d 998, 1004 (7th Cir. 2018). The defendants’ records reflect that Mr. Riggleman
did not comply with the requirements of the grievance process to exhaust his administrative
remedies for the allegations contained in his complaint. Mr. Riggleman’s general assertion that
he exhausted his administrative remedies and that grievances are ignored at the facility-level are
inadequate to create a dispute of material fact. Such “conclusory allegations devoid of factual
support do not preclude summary judgment.” Gessert v. United States, 703 F.3d 1028, 1035 (7th
Cir. 2013); Vukadinovich, 278 F.3d at 699 (“definite, competent evidence” is required to
successfully oppose summary judgment).

Furthermore, his allegations fail to demonstrate that the administrative remedy process
was unavailable. An administrative remedy is unavailable when “it operates as a simple dead
end,” when it “might be so opaque that it becomes, practically speaking, incapable of use” or
when “prison administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1860, 195 L.
Ed. 2d 117 (2016). Here, Mr. Riggleman simply failed to complete the first step of the grievance
process within the time allowed by the BOP administrative remedy process.
It is therefore undisputed that Mr. Riggleman failed to exhaust his available administrative
remedies as required by the PLRA before filing this lawsuit.
The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Mr.
Riggleman’s action should not have been brought and must now 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.”).
Conclusion
The defendants’ motion for summary judgment, Dkt. No. 135 is granted. Judgment
consistent with this Entry shall now issue.
IT IS SO ORDERED.
Date: 10/15/18
Distribution:
ELISHA RIGGLEMAN
07411-088
LEWISBURG U.S. PENITENTIARY
Special Mail-Open Only in the Presence of the Inmate
P.O. BOX 1000
LEWISBURG, PA 17837

Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]