AL-KASSAR v. BUREAU OF PRISONS et al.
ENTRY SUSTAINING DEFENDANTS' AFFIRMATIVE DEFENSE OF EXHAUSTION AFTER PAVEY HEARING - The motion in limine, dkt. 162 , is denied in part and granted in part, consistent with the Court's discussion of how it weighed the evidence throughout this Entry. The defendants' affirmative defense of failure to exhaust available administrative remedies relating to Mr. Al-Kassar's Bivens claims is sustained. The Bivens claims are dismissed without prejudice. This leaves for resolut ion the Federal Tort Claim Act claim. The parties shall have through April 9, 2021, in which to report whether it would be beneficial to set the matter for a settlement conference with the Magistrate Judge. If a settlement conference is not requ ested, the parties shall have through April 30, 2021, in which to either file a dispositive motion on the Federal Tort Claim Act claim or report that genuine issues of material facts preclude such a filing. If a motion for summary judgment is filed, briefing shall proceed in accordance with Local Rule 56-1. Copy to Plaintiff via US Mail. Signed by Judge James Patrick Hanlon on 3/31/2021. (KAA)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
S. JULIAN Warden, FCC-Terre Haute,
FNU RIGSBY Captain, FCC Terre Haute,
CLINT SWIFT Case Manager, FCC-Terre Haute, )
EVELYN KELLER Intelligence Research
Specialist, FCC-Terre Haute CMU,
FNU RODRIGUEZ Lieutenant, FCC-Terre Haute, )
ROBERT ROLOFF Chaplain, FCC-Terre Haute, )
FNU MCCOY C/O, FCC-Terre Haute,
FNU DUBBINS C/O, FCC-Terre Haute,
CORY MILLER C/O, FCC- Terre Haute,
FNU SULLIVAN C/O, FCC-Terre Haute,
FRANK HART C/O, FCC-Terre Haute,
AMY ADAMS Recreation Supervisor, FCC-Terre )
UNITED STATES OF AMERICA,
ENTRY SUSTAINING DEFENDANTS' AFFIRMATIVE DEFENSE OF EXHAUSTION
AFTER PAVEY HEARING
Monzer Al-Kassar, who was formerly confined at the Federal Correctional Complex in
Terre Haute, Indiana (FCC-Terre Haute), brings claims under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971) and the Federal Tort Claim Act (FTCA). He alleges that 1)
the defendants violated his Eighth Amendment rights by knowingly confining him in a filthy
windowless hotbox/sweatbox from September 16, 2016, until October 20, 2016; 2) the defendants
denied him treatment for high blood pressure and diabetes; and 3) defendant Keller retaliated
against him by writing false incident reports, authorizing the use of force, and ordering the denial
of medical care because he had sought legal advice from his attorney. Dkt. 45.
As to the Bivens claims, the defendants asserted the affirmative defense that Mr. Al-Kassar
failed to comply with the exhaustion requirement of the Prison Litigation Reform Act (PLRA). On
summary judgment, the Court concluded that Mr. Al-Kassar had exhausted his FTCA claim and
allowed that claim to proceed on the merits. Dkt. 94. As to the Bivens claims, the Court determined
that there was a genuine issue of material fact as to whether the administrative remedy process was
available to Mr. Al-Kassar. Id.
Because the defendants' motion for summary judgment was denied as to Mr. Al-Kassar's
Bivens claims, a hearing in accordance with Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008) was
scheduled. Pro bono counsel was recruited to assist Mr. Al-Kassar in preparation for and
participation in the hearing.
Although the Court granted summary judgment in favor of defendant Keller on the
retaliation claim, the Court later granted Mr. Al-Kassar's motion to reconsider and reinstated that
claim to the extent that the retaliation claim would also be addressed at the Pavey hearing. 1 Dkt.
The Pavey hearing was conducted on September 3, 2020. Mr. Al-Kassar was present by
videoconference. He was ably represented by recruited counsel. 2 Defendants were present and
appeared by counsel. Documentary evidence was submitted as well as testimony from twelve
There was no evidence presented at the Pavey hearing that Mr. Al-Kassar attempted to exhaust his
administrative remedies as to the claim of retaliation. The three letters addressed to the Warden at issue in
this case do not mention retaliation on the part of defendant Keller.
The Court is grateful for the significant time and efforts of volunteer counsel David Carr, Paul Sweeney,
and Joana Ampofo of Ice Miller LLP, in representing Mr. Al-Kassar.
For the reasons explained in this Entry, the Court finds that the defendants have met their
burden of showing that Mr. Al-Kassar failed to exhaust his available administrative remedies prior
to filing this lawsuit with respect to his Bivens claims.
I. Motion in Limine
Defendants filed a motion in limine asking the Court to preclude Mr. Al-Kassar from
offering several categories of evidence at the Pavey hearing: (1) testimony from Mr. White who
admitted under oath he has no personal knowledge of the relevant facts; 3 (2) various declarations,
affidavits, and other out-of-court statements, on the basis of hearsay; and (3) character evidence
regarding alleged prior acts of the defendants or other Bureau of Prisons (BOP) witnesses. Dkt.
The Pavey hearing was not before a jury, which "would be far less equipped to understand
the limitation against the use of propensity evidence." United States v. Reed, 744 F.3d 519, 525
(7th Cir. 2014). "Judges often hear improper argument and other forms of inadmissible evidence
that they are presumed to disregard when deciding matters of importance." United States v.
Stinefast, 724 F.3d 925, 931 (7th Cir. 2013). In a bench trial, it is assumed that "the district court
was not influenced by evidence improperly brought before it unless there is evidence to the
contrary." United States v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000). Here, there is no evidence
to the contrary. The motion in limine, dkt. , is, therefore, denied in part and granted in
part, consistent with the Court's discussion of how it weighed the evidence throughout this Entry.
The Court finds that Mr. White's testimony provided no relevant information, other than the fact that he
often helped Mr. Al-Kassar and other inmates with their administrative remedies and lawsuits. Tr. 280:14285:6.
Standard of Review
The PLRA requires that "[n]o action shall be brought with respect to prison conditions . . .
by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. §
1997e(a). 42 U.S.C. § 1997e(a); 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." Porter, 534 U.S. at 532.
"To exhaust available remedies, a prisoner must comply strictly with the prison's
administrative rules by filing grievances and appeals as the rules dictate." Reid v. Balota, 962 F.3d
325, 329 (7th Cir. 2020); 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.") (internal quotation omitted). Strict compliance
includes "tak[ing] all steps prescribed by the prison's grievance system." Ford v. Johnson, 362
F.3d 395, 397 (7th Cir. 2004).
It is the defendants' burden to establish that the administrative process was available to Mr.
Al-Kassar and that he failed to use it. Reid, 962 F.3d at 329; see also 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).
III. Findings of Fact and Conclusions of Law
The following facts are found by the Court to be true based on the parties' stipulation, dkt.
167, and the testimony and documents presented during the hearing.
Mr. Al-Kassar is and was at all relevant times a federal inmate in the custody of the BOP.
Dkt. 167, ¶ 1. From December 12, 2011, until October 19, 2016, Mr. Al-Kassar was incarcerated
in the Communications Management Unit (CMU) at the Federal Correctional Institution in Terre
Haute, Indiana (FCI–Terre Haute). Id., ¶ 8.
The CMU is a housing unit in which all inmate communications, email, and telephone calls
are monitored. Tr. 118:10-17. As part of that communications monitoring, each CMU inmates'
written communications, including cop-outs (written requests from inmates to staff), grievance
request forms (BP-9, BP-10, and BP-11), and all other incoming and outgoing mail and documents
are scanned and saved to the inmate's electronic file. Tr. 99:14-17; 121:2-13; 122:4-22.
FCI-Terre Haute is one of the three correctional facilities that compose FCC-Terre Haute.
Dkt. 167, ¶ 9. On September 16, 2016, Mr. Al-Kassar was moved from the general population
CMU to the Special Housing Unit (SHU) at FCI–Terre Haute, where he stayed until October 19,
2016. Id., ¶ 18. On October 19, 2016, Mr. Al-Kassar was transferred from FCI-Terre Haute to the
CMU at the U.S. Penitentiary in Marion, Illinois (USP – Marion). Id., ¶ 23.
During the time from September 16, 2016, through October 19, 2016, Defendant Stephen
Julian was the Warden of FCI-Terre Haute. Id., ¶ 19. Defendant Clint Swift was a Case Manager
in the FCC-Terre Haute CMU. Id., ¶ 20. Defendant Jeffrey Dobbins was a correctional officer and
Defendant Evelyn Keller was an Intelligence Research Specialist at the FCC–Terre Haute CMU.
Id., ¶¶ 21-22. Defendant Sample was a Unit Manager at the FCC–Terre Haute CMU. Tr. 183:9–
12. The CMU unit team consisted of Case Manager Swift, Intelligence Research Specialist Keller,
and Unit Manager Sample. Tr. 65:1-8.
The Grievance Policy
The BOP has promulgated a formal administrative remedy system, codified at 28 C.F.R. §
542.10, et seq. and BOP Program Statement 1330.18, Administrative Remedy Procedures for
Inmates (P.S. 1330.18), through which an inmate may seek formal review of a complaint related
to any aspect of his imprisonment. 28 C.F.R. § 542.10; Dkt. 167, ¶ 2; Ex. 31. 4 P.S. 1330.18, ¶
8(c)(1) states: "The inmate shall obtain the appropriate form from CCC staff or institution staff
(ordinarily, the correctional counselor)." Ex. 31 at 5. P.S. 1330.18 goes on to say that BP-9, BP10, and BP-11 are appropriate forms. Id.
To exhaust his remedies pursuant to 28 C.F.R. § 542.13(a), "an inmate shall first present
an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before
an inmate submits a Request for Administrative Remedy. Each warden shall establish procedures
to allow for the informal resolution of inmate complaints." Ex. 31 at 4 (¶ 7a.); dkt. 167, ¶ 3.
The BOP typically utilizes a form called a BP-8 for the informal resolution process. The
"informal resolution attempt may be waived in individual cases at the Warden or institution
Administrative Remedy Coordinator's discretion when the inmate demonstrates an acceptable
reason for bypassing informal resolution." 28 C.F.R. § 542.13(b); Ex. 31 at 4; dkt. 167, ¶ 3.
An inmate who is dissatisfied with the result of his attempt at informal resolution or wishes
to bypass informal resolution may begin the formal administrative process by submitting "the
appropriate form (BP-9)" to "the institution staff member designated to receive such Requests
(ordinarily a correctional counselor)" within 20 calendar days of the incident giving rise to the
request. 28 C.F.R. § 542.14(a); Ex. 31 at 4; dkt 167, ¶ 4. BP-9 submissions are recorded in the
Any reference to "Ex." refers to an exhibit introduced at the September 3, 2020 Pavey hearing.
BOP's electronic record system, the SENTRY database, with the notation "F" after the remedy
identification number. Tr. 26:14-16.
If the inmate is dissatisfied with the response to his BP-9, he may appeal to the Regional
Director by submitting "the appropriate form (BP-10)" to the appropriate Regional Director
"within 20 calendar days of the date the Warden signed the response" to the BP-9. 28 C.F.R. §
542.15(a); Ex. 31 at 6–7; dkt. 167, ¶ 5; Tr. 24:22–25:5. BP-10 submissions are recorded in the
SENTRY database with an "R" notation following the remedy identification number. Tr. 39:4-8.
If the inmate is dissatisfied with the Regional Director's response to his BP-10, he may
appeal to the General Counsel by submitting "the appropriate form (BP-11)" by mail to the BOP
Central Office "within 30 calendar days of the date the Regional Director signed the response." 28
C.F.R. § 542.15(a); Ex. 31 at 7; dkt. 167, ¶ 6. The BP-11 is the final level of administrative appeal.
28 C.F.R. § 542.15(a).
When an inmate submits a formal administrative remedy request, facility staff log it into
the SENTRY database. Tr. 25:21–27:11. All submitted BP-9, BP-10, and BP-11 forms are entered
into the SENTRY system, even if they are rejected, Tr. 27:8-11, and BOP staff can use the
SENTRY system to generate a report that shows every administrative remedy request an inmate
has ever submitted. Tr. 34:6-13; see also Ex. 43 (Plaintiff's SENTRY report). Each entry in the
database includes a remedy identification number, the inmate's Federal Register Number, and a
short description of the request. Tr. 26:10-27:2. After the remedy is assigned an identification
number, BOP staff write that number on the submitted form, typically in the lower right corner.
Tr. 27:3-7. Informal attempts at resolution, regardless of whether they are memorialized on a BP8 form, are not recorded in the SENTRY database. Tr. 36:23–37:4. Similarly, neither cop-outs nor
email messages sent by inmates using the TRULINCS email system are recorded in the SENTRY
database. Tr. 35:17-36:22.
Pursuant to Institution Supplement Number THX-1330.18A, dated January 22, 2016, "[i]t
shall be the practice at FCC Terre Haute to informally resolve inmate complaints whenever
possible. Inmates will present their complaints verbally to their unit team, ordinarily the
correctional counselor. In the absence of the correctional counselor, inmates will be permitted to
present their issue to any staff member assigned to their unit team." Ex. 30 at 2; dkt. 167, ¶ 10.
If a BP-9, BP-10, or BP-11 is submitted after the applicable deadline, it is subject to
rejection. 28 C.F.R. § 542.17(a); Tr. 23:6-13. When a submission is rejected as untimely, the
inmate receives a written notice of the rejection notifying them of the reason for the rejection and
instructions on how to cure the defect. 28 C.F.R. § 542.17(b); Tr. 23:14-17. "Where the inmate
demonstrates a valid reason for delay, an extension in filing time may be allowed." 28 C.F.R.
§ 542.14(b). "In general, valid reason for delay means a situation which prevented the inmate from
submitting the request within the established time frame." Id. Valid reasons for delay include an
extended period of being in-transit, an extended period of time during which the inmate was
physically incapable of preparing a request or appeal, an unusually long period taken for informal
resolution attempts, and indications by an inmate, verified by staff, that a response to the inmate's
request for copies of remedy responses was delayed or the delay in submission was otherwise not
the inmate's fault. Id.; see also Tr. 23:18-24:10 (describing circumstances in which untimely
administrative remedy requests would be accepted).
Mr. Al-Kassar's Grievance History
From 2012 through February 20, 2015, Mr. Al-Kassar submitted numerous BP-8s, BP-9s,
and BP-10s utilizing the forms provided at FCI–Terre Haute. Dkt. 167, ¶¶ 11-17. These grievances
are unrelated to his Bivens claims at issue in this case. They demonstrate that he was aware of how
to use the BOP's administrative remedy system, and the correct forms. Exs. 34-40, 43; dkt. 167,
¶¶ 11–17; Tr. 37:5– 44:10.
On May 16, 2012, Mr. Al-Kassar submitted a completed BP-9 form with various
attachments, including a completed BP-8 form. The matter was resolved, so Mr. Al-Kassar
withdrew his BP-9. Dkt. 167, ¶ 11; Tr. 38:6-10; Ex. 34; Ex. 43 at 5.
On April 4, 2013, he submitted a completed BP-9 with an attached BP-8, and ultimately
appealed to the proper Regional Office using a BP-10. Dkt. 167, ¶ 12; Tr. 38:23-39:8; Ex. 35; Ex.
43 at 6. That same day, he submitted another completed BP-9 form. Dkt. 167, ¶ 13; Tr. 39:9-25;
Ex. 36. When the Warden denied the grievance, Mr. Al-Kassar appealed by timely mailing a
completed BP-10 to the appropriate Regional Office, but he did not appeal further. Dkt. 167, ¶ 13;
Ex. 43 at 7.
On July 2, 2013, Mr. Al-Kassar submitted another completed BP-9 form with attachments,
including a completed BP-8 form. Dkt. 167, ¶ 14; Tr. 40:12-41:1; Ex. 37; Ex. 43 at 8. Mr. Swift
initialed the BP-8 form showing the date he gave it to Mr. Al-Kassar, the date Mr. Al-Kassar
returned it to him, the date he gave Mr. Al-Kassar a BP-9 form, and the date Mr. Al-Kassar
submitted the BP-9 form to him. Ex. 37 at 2.
On November 22, 2013, Mr. Al-Kassar submitted a BP-9 form with attachments, including
a completed BP-8 form that again bore Mr. Swift's initials on the dates of issuance and return. Dkt.
167, ¶ 15; Tr. 41:2-15; Ex. 38; Ex. 43 at 9. The Warden denied the grievance. Dkt. 167, ¶ 15; Ex.
38 at 1.
On July 18, 2014, Mr. Al-Kassar submitted a completed BP-9 form with a completed BP8 form attached. Dkt. 167, ¶ 16; Tr. 41:18-42:7; Ex. 39; Ex. 43 at 9. His complaint was informally
resolved, and he withdrew his BP-9. Ex. 167, ¶ 16; Tr. 41:25-42:7; Ex. 39 at 1.
On October 22, 2014, Mr. Al-Kassar submitted a BP-9 form with various attachments,
including handwritten and typewritten pages with the caption "BP-8" at the top. Dkt. 167, ¶ 17;
Tr. 42:8-44:4; Ex. 40; Ex. 43 at 10. In his BP-9, he complained that he "made the request for a BP8 from Case Manager Mr. C. Swift" but he "was not given the proper BP-8 form to properly file
and attach hereto." Ex. 40 at 1. The BP-9 was received at the facility level, but the Administrative
Remedy Clerk rejected it—not because Mr. Al-Kassar failed to attach a "proper BP-8" form, but
because the issue he was complaining about (his extradition request) was "an issue for the courts"
rather than the BOP. Ex. 40 at 11; Tr. 43:16-44:4; Ex. 43 at 10. Mr. Al-Kassar appealed to the
Regional Office, and when that was unsuccessful, to the Central Office. Dkt. 167, ¶ 17; Ex. 43 at
After he was moved to the SHU on September 16, 2016, Mr. Al-Kassar still had access to
mailing and writing supplies. While in the SHU, he purchased a pen, two legal envelopes, two
writing pads, and 58 stamps. Tr. 54:22-55:25; Ex. 33. Officer Dobbins also gave Mr. Al-Kassar
pens and paper while he was in the SHU. Tr. 107:22-24. In addition, Mr. Al-Kassar had access to
a law library upon request. Tr. 73:22–74:7.
C. Letters to the Warden of FCI-Terre Haute
Mr. Al-Kassar claims to have exhausted the administrative process by writing three letters.
Specifically, Mr. Al-Kassar testified that while he was in the SHU, he wrote three letters to Warden
Julian in which he complained about the conditions of his confinement. Tr. 192:14-15; 193:7-12;
194:17-19; 195:3-6; 195:20-21; 196:1-2; 196:10. He testified that he considered the first letter,
dated September 21, 2016, to be a BP-8 and that he gave it either to Officer Dobbins or to Mr.
Swift (he could not recall which) shortly after he wrote it. Tr. 193:9-12, 194:12; Ex. 9.
Mr. Swift, Officer Dobbins, and Warden Julian testified that they never saw the September
21, 2016, letter before this lawsuit was filed. Tr. 88:14-19; 107:25-108:14; 143:13-22; 148:25149:2. Also, Officer Dobbins testified he did not accept documents from inmates except law library
requests and cop-outs. Tr. 105:4-21. Mr. Swift confirmed that correctional officers do not play any
role in the administrative remedy process. Tr. 70:16-18. Based on their demeanor and consistent
testimony, the Court finds Officer Dobbins' and Mr. Swifts' testimony about the first letter credible.
The second letter, dated September 29, 2016, was attached to an administrative remedy
request that Mr. Al-Kassar submitted in February 2017, several months after he had been
transferred to USP–Marion. Ex. 4 at 4; Ex. 10. Mr. Al-Kassar testified that he considered this letter
to be a BP-9 and that he gave it to Warden Julian shortly after he wrote it and then gave a copy of
it to Officer Dobbins. Tr. 194:16-195:19. The letter indicates that Mr. Al-Kassar gave it to Officer
Dobbins at 3:19 p.m. on September 29, 2016. Ex. 10.
Officer Dobbins testified that he had no role in the administrative remedy process and that
if an inmate tried to give him an administrative remedy form, he "would not take it." Tr. 104:1520; 105:8-10. In addition, Officer Dobbins' shift ended at 3 p.m. Tr. 104:2-6, 115:19-23. Finally,
neither he nor the Warden had seen the letter before this action was filed. Tr. 113:8-23; 149:8-14.
Based on his demeanor and consistent testimony, the Court finds Officer Dobbins' testimony
The third letter, dated October 10, 2016, was most likely found in Mr. Al-Kassar's property
after he was transferred to USP–Marion on October 19, 2016. Tr.126:8-25; 127:1-17; Ex. 11; Ex.
42. Pursuant to FCI–Terre Haute CMU policy, it was scanned into his electronic file on October
21, 2016. Ex 42 at 3; Tr. 82:9-19; 127:5–17. Although Mr. Al-Kassar testified he gave the letter
to a BOP employee, Tr. 232:11-233:3, he did not identify who. It could not have been Mr. Swift
because he was on vacation that day. Tr. 65:25-66:12; 81:8-12. The Court finds credible the
testimony of Warden Julian and Mr. Swift that they had not seen the letter before the lawsuit was
filed. Tr. 94:7-21; 150:6-14.
Administrative remedy forms are scanned into the inmate's electronic file the day they are
submitted. Tr. 127:5-7. Neither of the first two letters were scanned into Mr. Al-Kassar's electronic
file. The Court does not find persuasive Mr. Al-Kassar's theory that Mr. Swift received the letters
and threw them away. 5
None of the handwritten letters initiated the administrative remedy process because they
were not received by the proper authorities. On this point, the Court finds Mr. Al-Kassar's account
not credible. In Mr. Al-Kassar's complaint and amended complaint, he stated in a sworn declaration
that he gave all three letters to Mr. Swift. Ex 6 at 7; dkt. 1 at 7; dkt. 45 at 7. He also stated that the
Warden told him on October 18, 2016, that he had received all three letters on the days they were
tendered. Id. These sworn statements conflict with Mr. Al-Kassar's testimony at the hearing to the
extent he testified that he gave the second letter to the Warden and a copy to Officer Dobbins the
day he wrote it. Tr. 194:16-195:19. This weakens Mr. Al-Kassar's credibility as to what he did
with the letters.
It is undisputed that Mr. Al-Kassar did not otherwise timely file a BP-8 or BP-9 asserting
the allegations he brings in this case before he filed his lawsuit. He testified that he requested BP8 and BP-9 forms from Mr. Swift in September and October 2016, but Mr. Swift refused to give
them to him. Tr. 193:1-6; 195:10-15; 198:20-24. The Court finds Mr. Al-Kassar's testimony on
this point not credible. In at least one instance Mr. Al-Kassar submitted a BP-9 form complaining
Inmate Scott Rendelman testified that he sometimes received responses to his BP-8s but when he didn't,
he would "assume that they were thrown away." Tr. 274:5-11. Mr. Rendelman's personal assumption is not
that he "made the request for a BP-8 from [Mr. Swift]" but he "was not given the proper BP-8
form." Ex. 40 at 1.
Further, Mr. Swift testified that if inmates requested administrative remedy forms, which
include the BP-9, BP-10, and BP-11, he would provide them to them. Tr. 66:19-21. If an inmate
in the CMU requested an informal resolution, Mr. Swift would fill out the part of the form that had
the inmate's name, identification number, the date, a brief summary of their grievance, and what
relief they wanted. Tr. 66:21-25. Once a BP-8 was completed, it would be scanned into the
electronic files and emailed to the appropriate department head. Tr. 67:1-4; 70:1-6. All an inmate
in the CMU had to do was ask him or another member of the case management team for a form
and they would give the form to the inmate. Tr. 67:15-22. Mr. Swift did not recall Mr. Al-Kassar
ever giving him any handwritten letters in September or October 2016. Tr. 81:4-7.
Mr. Swift recalls Mr. Al-Kassar asking him for BP-9 forms in September and October
2016, and he gave them to him. Tr. 80:20-25. He testified that Mr. Al-Kassar did not give him a
completed BP-9 during that time. Tr. 81:1-3.
The Court finds Mr. Swift credible based on his demeanor, consistent testimony, and his
answers to counsels' questions, including that he did not always understand what counsel was
asking. The Court finds that Mr. Swift was forthright, sincere and honest. The distribution and
collection of the administrative remedy forms is part of his daily routine and the Court finds no
basis on which to discredit his testimony, especially in light of the fact that the record reflects
several previous instances of administrative remedy forms being provided to Mr. Al-Kassar. See
Exs. 37, 38, 40. Mr. Al-Kassar wrote that Mr. Swift had refused to give him a BP-8 on the first
page of Exhibit 40, but that administrative remedy was processed, even with the allegation against
Mr. Swift notably in the first sentence. Tr. 79:2-9. The Court finds that if the letters to the Warden
had been given to Mr. Swift, they would have been scanned into Mr. Al-Kassar's electronic file
because of his closely monitored communications. Tr: 99:11-17; 122:4-22.
When Mr. Al-Kassar arrived at USP Marion on October 19, 2016, Kathy Hill, Intelligence
Research Specialist, handled his initial intake. Tr. 158:2-6. During the intake process, Mr. AlKassar began telling Ms. Hill about his time at FCI-Terre Haute and his complaints there. Ms. Hill
testified that she "cut him off pretty short and said, you know, you are not at Terre Haute anymore,
you are at Marion, let's start fresh here." Tr. 159:8-14.
Contrary to Mr. Al-Kassar's testimony, Ms. Hill testified that she did not tell him during
mail call a few days after his arrival that he could not submit an administrative remedy form
regarding an incident that occurred at his previous facility. Tr. 162:1-11. She testified that she
would have told anyone who asked about that to talk to Mr. Burgess, the Case Manager, who knew
more about the administrative remedy process. Id. 6 She further testified that she has provided
administrative remedy forms to Mr. Al-Kassar at his request many times and never refused to give
him a form or to collect a completed form. Tr. 161:12-13; 164:24–165:9. Based on her demeanor
and consistent testimony, the Court finds Ms. Hill credible.
Mr. Al-Kassar testified that he did not know he could pursue an administrative remedy
about an FCI-Terre Haute incident until January 2017, but this is contradicted by the fact that he
The Court has considered inmate Falice's testimony that he overheard Ms. Hill tell Mr. Al-Kassar that he
could not exhaust his administrative remedies for something that happened at FCI-Terre Haute. Tr. 254:112. No weight has been given to this testimony because not only did Mr. Falice not hear the entire
conversation between Mr. Al-Kassar and Ms. Hill but Mr. Falice admitted to having a "negative opinion"
of Ms. Hill based on her putting him in the SHU and other issues he has had with her. Tr. 256:14-258:3.
Similarly, inmate Al-Smadi's testimony that he overheard Ms. Hill deny Mr. Al-Kassar a BP-8 at mail call
is given no weight because Ms. Hill had disciplined Mr. Al-Smadi for writing a sexually explicit letter to
her. Tr. 270:14-25; 164:4-5.
submitted an administrative remedy about his legal mail at FCI-Terre Haute on November 28,
2016. Ex. 3; Tr. 219:12-19; 223:23-224:2. Moreover, he did not file a BP-9 (with an attached BP8) about the conditions at FCI-Terre Haute until February 23, 2017. Exs. 4, 5. That grievance was
denied as untimely, but the denial form instructed Mr. Al-Kassar to "have staff provide a memo
stating the late filing was not your fault, then re-submit" the BP-9. Ex. 5 at 6. Mr. Al-Kassar failed
to follow these directions. When asked why he did not follow the directions, he said because he
thought he could not do it at USP-Marion, but by that time, he did know he could pursue such
grievances because he had done so on November 28, 2016 regarding his legal mail. Tr. 228:1323; Ex. 3. He also testified that he did not file grievances during the first month or two at USP–
Marion, in part, because he was concerned about his health. Tr. 224:5-6. He did not testify that he
was incapable of submitting grievances, just that his focus was elsewhere.
This circuit takes "a strict compliance approach to exhaustion." Lockett v. Bonson, 937
F.3d 1016, 1025 (7th Cir. 2019) (internal quotation omitted). "An inmate must comply with the
administrative grievance process that the State establishes, at least as long as it is actually available
to the inmate." Wilborn v. Ealey, 881 F.3d 998, 1004 (7th Cir. 2018). Here, Mr. Al-Kassar was
aware of the administrative process. He had used it before the incidents alleged in this case
occurred. The Court finds credible the evidence showing that the defendants did not prevent him
from accessing the grievance process at either prison. The process was available to Mr. Al-Kassar,
but he failed to use it.
The defendants' affirmative defense of failure to exhaust available administrative remedies
relating to Mr. Al-Kassar's Bivens claims is sustained. The Bivens claims are dismissed without
prejudice. See Ford, 362 F.3d at 401 (holding that "all dismissals under § 1997e(a) should be
This leaves for resolution the Federal Tort Claim Act claim. The parties shall have through
April 9, 2021, in which to report whether it would be beneficial to set the matter for a settlement
conference with the Magistrate Judge.
If a settlement conference is not requested, the parties shall have through April 30, 2021,
in which to either file a dispositive motion on the Federal Tort Claim Act claim or report that
genuine issues of material facts preclude such a filing. If a motion for summary judgment is filed,
briefing shall proceed in accordance with Local Rule 56-1.
P.O. BOX 1000
MARION, IL 62959
Joana O. Ampofo
ICE MILLER LLP (Indianapolis)
David J. Carr
ICE MILLER LLP (Indianapolis)
Lara K. Langeneckert
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Justin R. Olson
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Paul Conrad Sweeney
ICE MILLER LLP (Indianapolis)
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