HOLLOWAY v. SPENDENBURG et al

Filing 21

Entry Granting Defendant's Motion for Summary Judgment - The defendant has shown that Mr. Holloway failed to avail himself of all administrative remedies before filing this civil action. Therefore, the defendant's motion for summary judgment, dkt. 18 , is granted. Judgment consistent with this Entry shall now issue (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge Jane Magnus-Stinson on 7/2/2018. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DWAYNE HOLLOWAY,
Plaintiff,
v.
DR. SPENDENBURG,
Defendant.

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No. 2:18-cv-00063-JMS-DLP

Entry Granting Defendant’s Motion for Summary Judgment
Plaintiff Dwayne Holloway, an Indiana prisoner incarcerated at the Putnamville
Correctional Facility, brings this civil rights action alleging that Dr. Spendenburg delayed
treatment of Mr. Holloway’s urinary tract infection by not placing a request for emergency surgery.
Mr. Holloway alleges that he was in pain and the delay in treatment led to additional scar tissue
that was later removed.
Presently pending before the Court is the defendant’s motion for summary judgment which
argues that the plaintiff’s claims are barred under the exhaustion provision of the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e, that requires a prisoner to first exhaust his available
administrative remedies before filing a lawsuit in court. Mr. Holloway has not responded to the
motion and the time to do so has passed, leaving the defendant’s motion unopposed. For the
reasons that follow, the defendant’s motion for summary judgment, dkt. [18], is granted
I. Standard of Review
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). 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).
As noted above, Mr. Holloway failed to respond to the defendant’s motion for summary
judgment, and the deadline for doing so has passed. The consequence is that Mr. Holloway has
conceded the defendant’s 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] 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).
Accordingly, the following facts, unopposed by Mr. Holloway and supported by admissible
evidence, are accepted as true.
II. Facts
At all times relevant to his claims, Mr. Holloway was incarcerated at Putnamville
Correctional Facility (“Putnamville”). Putnamville maintained a grievance policy regarding
complaints about prison conditions. The grievance process requires an inmate to attempt to resolve
the grievance informally through officials at the facility by contacting staff to discuss the matter
or incident subject to the grievance and seeking informal resolution. If the inmate is unable to

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obtain a resolution of the grievance informally, he may submit a formal written complaint to the
Grievance Specialist of the facility where the incident occurred. If the formal written complaint is
not resolved in a manner that satisfies the inmate, he may submit an appeal within ten working
days from the date of receipt of the formal grievance response. If the inmate receives no grievance
response within twenty working days of the day he submitted the grievance, he may appeal as
though the grievance had been denied.
Chris Williams is the grievance specialist at Putnamville and is the custodian of the
facility’s grievance records including, but not limited to, the initial grievance documents filed by
inmates as well as responses and appeals. Mr. Holloway’s grievance history log shows that he has
only properly submitted one grievance during his incarceration, concerning a corrections officer
at the Reception and Diagnostic Center in 2006. Furthermore, Mr. Holloway’s informal and
rejected grievance file contains only one informal grievance regarding laundry in October 2016.
Dkt. 18-1.
III. Discussion
The PLRA requires that “[n]o action shall be brought with respect to prison conditions
under section 1983 . . . until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e; 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 requirement to exhaust provides “that no one is entitled
to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has
been exhausted.” Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (citation omitted). Exhaustion of

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available administrative remedies “‘means using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).’” Id. at 90 (quoting Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Proper use of the facility’s grievance system
requires a prisoner “to file complaints and appeals in the place, and at the time [as] the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025; see also Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006).
Because exhaustion is an affirmative defense, “the burden of proof is on the prison
officials.” Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). The burden is also on the defendant
to establish that the administrative process was available to Mr. Holloway. 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).
The undisputed facts demonstrate that Mr. Holloway did not complete the grievance
process. The consequence of Mr. Holloway’s 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.”).

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IV. Conclusion
The defendant has shown that Mr. Holloway failed to avail himself of all administrative
remedies before filing this civil action. Therefore, the defendant’s motion for summary judgment,
dkt. [18], is granted. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date: 7/2/2018

Distribution:

DWAYNE HOLLOWAY
129117
PUTNAMVILLE CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Douglass R. Bitner
KATZ KORIN CUNNINGHAM, P.C.
[e-mail]
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]

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