GRAHAM v. KRUEGER et al

Filing 86

Order Granting Defendants' Motion for Summary Judgment, Denying Plaintiff's Supplemental Motion, and Directing Entry of Final Judgment - Plaintiff Fredrick Graham, an inmate currently incarcerated at the United States Penitentiary in Lewis burg, Pennsylvania, asserts multiple claims based on events that are alleged to have occurred while he was incarcerated at the Federal Correctional Complex in Terre Haute, Indiana (FCC-TH). The defendants seek summary judgment as to all claims, ar guing that Mr. Graham failed to exhaust his available administrative remedies before filing this lawsuit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Mr. Graham has responded to the defendants' motion, a nd the defendants' have submitted a reply. For the following reasons, the motion for summary judgment, dkt. 69 , is granted. This action is dismissed without prejudice. The plaintiff's supplemental motion, dkt. 83 , is denied as moot. Final judgment shall now issue. (See Order.) Copy to plaintiff via US Mail. Signed by Judge James Patrick Hanlon on 10/3/2019. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
FREDRICK GRAHAM,

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Plaintiff,
v.
J. E. KRUEGER, et al.
Defendants.

UNITED STATES OF AMERICA,
Interested Party.

No. 2:18-cv-00276-JPH-DLP

Order Granting Defendants’ Motion for Summary Judgment,
Denying Plaintiff’s Supplemental Motion, and Directing Entry of Final Judgment
Plaintiff Fredrick Graham, an inmate currently incarcerated at the United States
Penitentiary in Lewisburg, Pennsylvania, asserts multiple claims based on events that are alleged
to have occurred while he was incarcerated at the Federal Correctional Complex in Terre Haute,
Indiana (FCC-TH). The defendants seek summary judgment as to all claims, arguing that Mr.
Graham failed to exhaust his available administrative remedies before filing this lawsuit, as
required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Mr. Graham has
responded to the defendants’ motion, and the defendants’ have submitted a reply. For the following
reasons, the motion for summary judgment, dkt. 69, is granted.
I.
Legal Standards
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 judgment as a matter of law.” Fed. R. Civ. P.
56(a). “Material facts are those that might affect the outcome of the suit under applicable
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substantive law.” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (internal quotation omitted).
“A genuine dispute as to any material fact exists ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d 606, 609-10 (7th
Cir. 2018) (quoting 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. See Barbera v. Pearson Education, Inc., 906 F.3d 621, 628 (7th
Cir. 2018).
The substantive law applicable to the motion for summary judgment is the 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.” Porter, 534 U.S. at 532 (citation omitted).
II.
Statement of Facts
The following statement of facts was evaluated pursuant to the standard 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. Graham as the non-moving party with respect to the motion for summary
judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
A. Evidence Considered
As a preliminary matter, the Court addresses Mr. Graham’s responses to the defendants’
motion for summary judgment. Mr. Graham makes factual assertions in his surreply, but does not
designate supporting admissible evidence. “Admissibility is the threshold question because a court
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may consider only admissible evidence in assessing a motion for summary judgment.” Gunville v.
Walker, 583 F.3d 979, 985 (7th Cir. 2009). An unsworn pleading that is not signed under the
penalty of perjury is inadmissible for purposes of defeating a motion for summary judgment. See
Owens v. Hinsley, 635 F.3d 950, 954-55 (7th Cir. 2011); Dale v. Lappin, 376 F.3d 652, 655 (7th
Cir. 2004). Similarly, the Local Rules of the Southern District of Indiana require that each fact
asserted must be supported with a citation to admissible evidence. See S.D. Ind. Local Rule 561(e); see also dkt. 71 (notice providing text of Local Rule 56-1). Because Mr. Graham’s responses
are neither affidavits nor verified, the Court cannot consider the factual allegations contained
therein.
B. Federal Administrative Remedy Procedure
The Federal Bureau of Prisons (“BOP”) maintains an administrative remedy procedure,
see 28 C.F.R. §§ 542.10 et seq., and FCC-TH has promulgated an Institution Supplement with
additional information. Upon arrival at FCC-TH, an inmate participates in an orientation that
includes an explanation of the administrative remedy process and instructions on how to use the
law library to access BOP policy and the facility-specific supplements.
When an inmate submits an administrative remedy request, facility staff log it into the
BOP’s electronic record system, the SENTRY database. Each entry receives a remedy
identification number and includes the inmate’s Federal Register Number and a short description
of the request that often contains abbreviations due to limited space. Through the SENTRY
database, facility staff have access to all of an inmate’s administrative remedies in a single
document.
The federal administrative remedy procedure requires inmates to first attempt to resolve a
complaint informally through a submission commonly referred to as a “BP-8.” Because this is an

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informal attempt at dispute resolution, it is not recorded in the SENTRY database. If the informal
resolution is not successful, an inmate may file a formal complaint with the Warden within twenty
days of the date on which the alleged underlying incident occurred by filing a “BP-9.” The
SENTRY database identifies BP-9 submissions with the notation “F1” after the remedy
identification number.
If an inmate is not satisfied with the Warden’s response to his BP-9 submission, he may
appeal to the Regional Office through a submission referred to as a “BP-10.” The SENTRY
database records BP-10 submissions with an “R1” notation following the remedy identification
number. If the Regional Office’s response is unsatisfactory, an inmate may further appeal to the
General Counsel through a submission called a “BP-11.” The SENTRY database identifies BP-11
submissions with the notation “A1” after the remedy identification number. This is the final
administrative appeal.
C. Mr. Graham’s Use of the Administrative Remedy Procedure
Mr. Graham was incarcerated at FCC-TH from October 23, 2017, to October 16, 2018. He
submitted nine administrative remedy requests between October 23, 2017, and June 19, 2018—
the day he filed this action. Five of those requests are relevant to the allegations in Mr. Graham’s
complaint.
1. Remedy Request No. 925190
Mr. Graham initiated Request No. 925190 on December 2, 2017, with a handwritten
informal resolution request. He alleged that he was deprived of “basic life necessities while on ARange in hard cell.” Dkt. 85-1 at 2. Four days later, on December 6, 2017, Mr. Graham submitted
a BP-9 to the Warden raising the same concerns about the conditions of his confinement. In the
BP-9, he asked that the named staff be fired and that hard cell status and A-Range be shut down.

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The Warden responded on January 25, 2018, and informed Mr. Graham that the allegations against
staff would be reviewed, but that Mr. Graham would not receive information regarding the
investigation. Mr. Graham was notified of his right to appeal and reminded of the timeline to do
so.
Construing the facts in the light most favorable to Mr. Graham, he appealed the Warden’s
response to the BP-9 by submitting the BP-9, not a BP-10, to the Regional Office on March 14,
2018. The submission was rejected as untimely, and Mr. Graham was instructed to provide staff
verification that the untimeliness was not his fault. Mr. Graham took no further action with respect
to Request No. 925190.
2. Remedy Request No. 932399
On January 29, 2018, Mr. Graham completed a BP-9 concerning the handling of his mail,
alleging that staff members refused to mail his legal mail. He asked that these staff members be
reprimanded, fired, or “face liability promptly.” Dkt. 85-3 at 3. The Warden informed Mr. Graham
that the allegations would be investigated but that he would not receive information regarding the
outcome. The Warden also notified Mr. Graham of his right to appeal and the timeline for doing
so. Mr. Graham took no further action with respect to Request No. 932399.
3. Remedy Request No. 933356
Mr. Graham submitted a BP-8 on February 16, 2018, asserting that two correctional
officers hid legal materials, including trial transcripts, during the direct appeal of his criminal
conviction. He asked that the correctional officers be reprimanded or fired. The correctional
officers denied having any of Mr. Graham’s property.
Mr. Graham completed a BP-9 about these same allegations. The Warden indicated the
matter would be reviewed and notified Mr. Graham that monetary damages are not available

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through the administrative remedy process. Again, Mr. Graham was notified of his right to appeal
and the timeline for doing so. He took no further action with respect to Request No. 933356.
4. Remedy Request No. 934227
On February 19, 2018, Mr. Graham completed a BP-9 containing several complaints about
facility staff. As relevant to this action, Mr. Graham claimed that the BP-9 he completed on
December 6, 2017 (Request No. 925190) was not processed because he never received a response.
This BP-9 was rejected as incorrectly filed with the Regional Office because it contained no
sensitive material. Mr. Graham took no further action with respect to Request No. 934227.
5. Remedy Request No. 944132
Mr. Graham submitted a BP-9 on June 7, 2018, claiming that Lieutenant Wingerd and
Correctional Officer Robertson had entered his cell on May 21, 2018, and physically assaulted
him. He requested that Lieutenant Wingerd and Correctional Officer Robertson be fired. The
Warden responded, notifying Mr. Graham that the matter would be investigated and that Mr.
Graham would not receive information about the outcome of the investigation. The response
referenced Mr. Graham’s right to appeal and the timeline for doing so. Mr. Graham took no further
action with respect to Request No. 944132.
III.
Discussion
The defendants assert that Mr. Graham’s claims are procedurally barred due to his failure
to exhaust the administrative remedies available to him. Mr. Graham responds that he exhausted
his claims and to the extent he failed to do so, such failure was caused by prison officials preventing
him from completing the process. Dkt. 78 at 4-5.

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A. Exhaustion
“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). “To exhaust remedies, a prisoner must file complaints and appeals in the place,
and at the time, the prison’s administrative rules require.” Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)); see also Ross
v. Blake, 136 S. Ct. 1850, 1857-58 (2016) (explaining why “all inmates must now exhaust all
available remedies” and concluding that “[e]xhaustion is no longer left to the discretion of the
district court” (internal quotation marks and citation omitted)).
The defendants have met their burden of establishing that Mr. Graham did not complete
the administrative remedy process as required by the PLRA. Although Mr. Graham filed several
administrative remedy requests addressing the claims in his complaint, he failed to pursue those
requests to completion. Of the five relevant requests, only one, Request No. 925190, was appealed
to the Regional Office, and that appeal was neither on the proper form nor timely. Additionally,
none of the requests were appealed to the General Counsel. Mr. Graham did not exhaust his
administrative remedy requests.
B. Availability
While the PLRA has a strict exhaustion requirement, it also “contains its own, textual
exception to mandatory exhaustion. Under § 1997e(a), the exhaustion requirement hinges on the
‘availab[ility]’ of administrative remedies: An inmate, that is, must exhaust available remedies,
but need not exhaust unavailable ones.” Ross, 136 S. Ct. at 1858.

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“[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.’” Id. at 1858 (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). It is the defendants’ burden to establish that the administrative process was available to
Mr. Graham. See Thomas v. Reese, 787 F.3d 845, 847 (7th Cir. 2015) (“Because exhaustion is an
affirmative defense, the defendant must establish that an administrative remedy was available and
that [the plaintiff] failed to pursue it.”).
The defendants have satisfied their burden of showing that the administrative process was
available to Mr. Graham. An inmate receives an explanation of the administrative remedy process
and instructions on how to use the law library to access BOP policy and the facility-specific
supplements upon arrival at FCC-TH, and the defendants submitted evidence that Mr. Graham
used the BOP system and procedures to submit administrative remedy requests. Therefore, the
administrative remedy process was “available” to Mr. Graham.
Mr. Graham’s factual allegations do not change the result. First, he contends that
Lieutenant Sherman “withheld” over fourteen remedy requests for the entire exhaustion period.
Dkt. 78 at 4. But Mr. Graham does not explain whether the withheld requests are the same requests
that are relevant to the claims in his complaint. The unauthenticated printout of requests that Mr.
Graham attached to his response include some of the relevant requests, but this printout does not
indicate which requests were withheld. Mr. Graham’s vague allegation, which is unsupported by
admissible evidence, does not create a triable issue of fact.
Similarly, Mr. Graham asserts that facility staff “refuse to follow [the] grievance process.”
Dkt. 78 at 4-5. Although exhaustion is not required when “prison administrators thwart inmates

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from taking advantage of a grievance process,” Ross, 136 S. Ct. at 1860, Mr. Graham does not
explain how or when facility staff refused to follow the procedures. Consequently, it is unclear
whether the alleged refusal made the administrative remedy process unavailable prior to Mr.
Graham filing this action.
For example, as part of this allegation, Mr. Graham states that he asked to “e-file” his
grievances and to have a Regional Office staff member stationed at every BOP facility to ensure
prison staff did not tamper with grievances. Dkt. 78 at 4. These requests are not part of the
administrative remedy process developed by the BOP, and Mr. Graham must follow the procedures
developed by the prison. See Dole, 438 F.3d at 809 (recognizing a “strict compliance approach to
exhaustion” that requires a prisoner to “properly use the prison’s grievance process”). A refusal to
accommodate Mr. Graham’s requests does not render the process unavailable to him.
Additionally, it is unclear whether the alleged refusal to comply with the process occurred
when Mr. Graham originally filed his requests or whether the refusal to comply occurred after he
filed this action. Mr. Graham states that facility staff “can refuse” to provide and mail forms and
that his current counselor “refuses to allow [him] to exhaust.” Because the PLRA requires a
prisoner to exhaust his administrative remedies before filing an action, Ross, 136 S. Ct. at 1856,
the fact that Mr. Graham’s counselor is currently refusing to allow him to exhaust or could refuse
to provide or mail forms in the future does not excuse his failure to completely exhaust the
available administrative remedy process with respect to the requests he submitted before filing this
action.
IV.
Conclusion
The defendants have designated evidence showing that Mr. Graham failed to exhaust
available administrative remedies before filing this lawsuit. Under Section 1997e(a), this action
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should not have been brought and must 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”).
The defendants’ motion for summary judgment, dkt. [69], is granted. This action is
dismissed without prejudice.
The plaintiff’s supplemental motion, dkt. [83], is denied as moot.
Final judgment shall now issue.
SO ORDERED.
Date: 10/3/2019

Distribution:
FREDRICK GRAHAM
27970-044
LEWISBURG - USP
LEWISBURG U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 1000
LEWISBURG, PA 17837
Lara K. Langeneckert
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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