WILLIAM T. LAWRENCE, District Judge.
Plaintiff David Runyon, an inmate at the United States Penitentiary — Terre Haute (USP-TH), brings this action pursuant the theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Mr. Runyon alleges that while he was incarcerated at USP-TH, the defendants caused him to be labeled a "snitch" placing his life in danger. Dkt. No. 8. The Court screened his complaint and permitted his Bivens claim against the defendants to proceed. Dkt. No. 9.
The defendants seek resolution of Mr. Runyon's claim through the entry of summary judgment. Although one defendant, Michael Sample, has not appeared in the action, the motion for summary judgment is applicable as to him as well as the moving defendants. See Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986) ("[W]here one defendant files a motion for summary judgment which the court grants, the district court may sua sponte enter summary judgment in favor of additional non-moving defendants if the motion raised by the first defendant is equally effective in barring the claim against the other defendants and the plaintiff had an adequate opportunity to argue in opposition to the motion."). The plaintiff opposes the motion for summary judgment.
A motion for summary judgment asks that the court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. P. 56(e). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003). Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id., at 901.
"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 Prison Litigation Reform Act of 1995 ("PLRA") requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies. The PLRA was enacted "to reduce the quantity and improve the quality of prisoner suits" by "afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." 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.
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); McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081 (1992) ("Where Congress specifically mandates, exhaustion is required."). Moreover, the PLRA requires "proper 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); see also Dale v. Lappin, 376 F.3d at 655 ("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)).
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 reasonably most favorable to Mr. Runyon as the non-moving party with respect to the motion for summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
The BOP promulgated an administrative remedy system which is codified in 28 C.F.R. §§ 542.10, et seq., and BOP Program Statement 1330.18, Administrative Remedy Procedures for Inmates. Dkt. No. 20-1, ¶ 4.
The Administrative Remedy process is a method by which an inmate may seek formal review of a complaint related to any aspect of his imprisonment. To exhaust his remedies, an inmate must first file an informal remedy request through an appropriate institution staff member via a BP-8. If the inmate is not satisfied with the informal remedy response, he is required to first address his complaint with the Warden via a BP-9. If the inmate is dissatisfied with the Warden's response, he may appeal to the Regional Director via a BP-10. If dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel via a BP-11. Once an inmate receives a response to his appeal from the General Counsel, after filing administrative remedies at all required levels, his administrative remedies are deemed exhausted as to the specific issues properly raised therein. Dkt. No. 20-1, ¶ 7.
All administrative remedy requests filed by inmates are logged and tracked in the SENTRY computer database, an electronic record keeping system used by the BOP. That database shows the filings of administrative remedy requests by Mr. Runyon and the responses to those requests. Dkt. No. 20-1.
The claim in this action is based on an event which occurred at the USP-TH on November 20, 2015. On November 30, 2015, Mr. Runyon filed BP-8 Administrative Remedy No. 845384-F1 alleging that defendant Edwards coerced him to participate in an interview with FBI staff on November 20, 2015. Dkt. No. 20-4, pp. 12-13. In the BP-8, Mr. Runyon states, "After being on death row for almost a decade now I am fluent with the quagmire Edwards' trickery had placed me in, whereas now I will have a snitch jacket placed on me for coming out and being interviewed by the FBI." Id. A response denying that remedy was issued on December 5, 2015. Dkt. No. 20-4, p. 11. On December 14, 2015, Mr. Runyon submitted a BP-9, assigned Remedy No. 845384-F1 disputing and disagreeing with defendant Sample's response to his informal remedy request. Dkt. No. 20-4, pp. 8-9. A response denying the remedy was issued on December 22, 2015. Dkt. No. 20-4, p. 5.
Mr. Runyon did not appeal this matter further. Dkt. No. 20-1, ¶ 10.
It is well settled that exhaustion is a precondition to filing suit and that a prisoner must fully exhaust his administrative remedies before filing suit, which includes filing "complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025 (emphasis added); see, e.g., Jones v. Bock, 549 U.S. 199, 202 (2007) (stating that the PLRA "requires prisoners to exhaust prison grievance procedures before filing suit"); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (noting that "`[no] action shall be brought until exhaustion has been completed" (emphasis added)). Although Mr. Runyon filed a BP-8 and BP-9 concerning his allegations that Edwards had coerced him to participate in an interview with the FBI, Dkt. No. 20-4, he failed to exhaust at the institution level and never appealed the institution's response to either the Regional or Central Office levels. Dkt. No. 20-1; Dkt. No. 20-3. Appealing to the appropriate Regional Director and then to General Counsel at the Central Office are required steps for exhaustion under the BOP's regulations, see 28 C.F.R. § 542.15(a), and Program Statement 1330.18. In failing to comply with the second and third steps of the BOP's administrative remedy program, Mr. Runyon failed to exhaust his administrative remedies regarding the allegations set forth in his complaint. See Jones, 549 U.S. at 211 ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); Pozo, 286 F.3d at 1025; Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999) ("[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment.").
Mr. Runyon sets forth several arguments in his response in opposition to summary judgment.
Mr. Runyon admits that he did not exhaust his administrative remedies, but argues that prison staff delayed the delivery of his mail from his attorney which preventing him from timely filing a regional administrative appeal. Dkt. No. 26, pp. 6-9. Specifically, an email Mr. Runyon attached as evidence shows that the following communication occurred between Mr. Runyon and Dana, his death penalty attorney.
—Chavis, Dana on 1/14/2016 2:51 PM wrote:
Hi, David. I received this email from you today (Jan. 14th). I don't understand why you have not received the package we mailed to you on January 5th.
We kept a copy of everything. The grievance response is dated December 22 and says "an appeal must be received within 24 calendar days of the date of this response." You signed a receipt for the response on December 23rd. Twenty days from December 22nd would have been January 11th.
The government filed its answer to the 2255 and a copy of that is being mailed to you today. You should receive it in two days. If not, please let me know. Dana
Dkt. No. 26-7.
The response to Mr. Runyon's BP-9 is dated December 22, 2015. He had 20 days from the date of the response to file an appeal to the Regional Director. Dkt. No. 20-4, p. 5. That meant Mr. Runyon's response was due by Monday, January 11, 2016. Mr. Runyon did not timely file a regional appeal and blames it on BOP staff purposely withholding the delivery of his mail from his attorney as the reason. He argues the email shows that he "mysteriously" received his legal mail one day after the filing deadline. Dkt. No. 26, p. 7.
In a declaration of support
In Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016), the Supreme Court discussed three situations in which administrative remedies are unavailable to inmates. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. Next, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. And, finally, remedies may be deemed unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. Thus, administrative remedies are primarily unavailable to inmates where "affirmative misconduct" prevents prisoners from pursuing administrative remedies. Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016). Such misconduct may include prison officials failing to respond to a properly filed grievance, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); telling a prisoner that he cannot file a grievance when he in fact can do so, Thomas v. Reese, 787 F.3d 845, 847-48 (7th Cir. 2015); denying a prisoner grievance forms, threatening him, and soliciting other inmates to attack him for filing grievances, Kaba v. Stepp, 458 F.3d 680, 686 (7th Cir. 2006); and preventing prisoner access to grievance forms, Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004). At the same time, unavailability can extend beyond affirmative misconduct to omissions by prison personnel, such as failing to inform the prisoner of the grievance process. Hernandez, 814 F.3d at 842.
None of these situations are present here. The e-mail conversation shows that Mr. Runyon was notified as of January 5, 2016—six days before his deadline to file a BP-10—that his attorney would not be assisting him in drafting or editing the draft BP-10. As such, Mr. Runyon could have filed his BP-10 then, and it would have been timely filed.
Ultimately, as evidenced by his draft BP-10, Dkt. No. 26-6, Mr. Runyon had access to the appropriate administrative remedy forms and, as demonstrated in his January 14, 2016, email to his attorney, knew his deadline was approaching. There is no dispute that he was notified in the Warden's response that he had 20 calendar days to file a regional appeal. Dkt. No. 20-4, p. 5. Moreover, BOP Program Statement 1331.18, Administrative Remedy Program, clearly provides that:
28 C.F.R. § 542.16(a); see BOP Program Statement 1331.18 ("PS 1331.18"), Administrative Remedy Program, at 8.
Mr. Runyon has not designated any evidence that BOP staff purposely delayed his mail to prevent him from timely filing his regional appeal.
Additionally, there is no dispute that Mr. Runyon did not file a BP-11 with the Central Office in Remedy Case No. 845384, which is the last required step of the administrative remedy process, see 28 C.F.R. § 542.15.
Finally, any argument that the filing would have been futile because the remedy would have been rejected as untimely does not excuse Mr. Runyon's failure to file it. See, e.g., Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000) ("[T]here is no `futility exception' to the PLRA exhaustion requirement."). Indeed, as the Seventh Circuit has recognized, "no one can know whether administrative requests will be futile; the only way to find out is to try." Perez, 182 F.3d at 536-37.
Because Runyon failed to exhaust his mandatory administrative remedies regarding the Eighth Amendment claim he advances against Edwards and Sample in this action, those claims are barred as a matter of law, justifying the dismissal of this action. See Jones, 549 U.S. at 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.").
The consequence of these circumstances, in light of 42 U.S.C. § 1997e(a), is that Mr. Runyon's FBI claim should not have been brought and must now be dismissed without prejudice. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) ("We therefore hold that all dismissals under § 1997e(a) should be without prejudice."); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (explaining that "a prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies, and thus is foreclosed by § 1997e(a) from litigating"). The motion for summary judgment, Dkt. No. 20, is therefore
The motion to file late documents, Dkt. No. 31, is
The plaintiff's motion to seal documents, Dkt. No. 26, is
