UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LAMAR FOSTER, )

)

Plaintiff, )

) CAUSE NO. 3:12-CV-651 RM 

vs. )

)

SGT. POTTS, et al., )

)

Defendants. )

OPINION AND ORDER

Lamar Foster, a pro se prisoner, is proceeding on a claim that four

correctional officers at Indiana State Prison (“ISP”) used excessive force against

him during an incident occurring in July 2012. (DE 8.) The defendants move for

summary judgment on the ground that Foster didn’t properly exhaust his

administrative remedies before filing suit.1

 (DE 23.) 

Summary judgment must be granted when “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). A genuine issue of material fact exists when “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute

between the parties makes summary judgment inappropriate; “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will

1 The defendants improperly designated their motion as being brought underFED.R.CIV.P.12(b)(6),

despite that they submitted outside evidence in support of the motion. The motion was previously converted

to a motion for summary judgment (DE 25), and the pro se plaintiff was given proper notice in accordance

with N.D. IND. L.R. 56-1(f) (DE 26).
properly preclude the entry of summary judgment.” Id. To determine whether a

genuine issue of material fact exists, the court must construe all facts in the light

most favorable to the non-moving party and draw all reasonable inferences in that

party’s favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party

opposing a properly supported summary judgment motion can’t rely merely on

allegations or denials in his or her own pleading, but rather must “marshal and

present the court with the evidence she contends will prove her case.” Goodman

v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).

Under the Prison Litigation Reform Act, prisoners are prohibited from

bringing an action in federal court with respect to prison conditions until “such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The

exhaustion requirement applies to claims alleging the use of excessive force. Porter

v. Nussle, 534 U.S. 516, 532 (2002). “To exhaust remedies, a prisoner must file

complaints and appeals in the place, and at the time, the prison’s administrative

rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). “[U]nless

the prisoner completes the administrative process by following the rules the state

has established for that process, exhaustion has not occurred.” Id. at 1023.

Failure to exhaust is an affirmative defense on which the defendant bears the

burden of proof. Dole v. Chandler., 438 F.3d 804, 809 (7th Cir. 2006). 

This summary judgment record shows that ISP has a three-step grievance

process: the initial step is to try to informally resolve the issue with staff;

thereafter, the inmate must initiate the formal grievance process by submitting a

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written grievance to the executive assistant of the facility; the third and final step

is an appeal to the Indiana Department of Correction final reviewing authority.

(DE 24-1, Morton Decl. ¶ 4; DE 24-2, Grievance Policy, § V, XIV.) A record is kept

of offender grievances, and those records reflect that Mr. Foster tried to resolve his

grievance informally, and then on July 25, 2012, submitted a formal written

grievance regarding the incident giving rise to this lawsuit. (DE 24-1, Morton Decl.

¶ 7; DE 24-3, Grievance.) Facility staff responded to the grievance on August 30,

2012, deciding that there had been no wrongdoing by the officers. (DE 24-4,

Grievance Response.) Mr. Foster was advised that if he didn’t agree with the

response, he had the right to appeal to the final reviewing authority within ten

working days. (Id.) He didn’t file an appeal to the final reviewing authority. (DE 24-

1, Morton Decl. ¶ 9; DE 24-5, Grievance History.) Based on this omission, the

defendants argue that Mr. Foster didn’t exhaust his administrative remedies

before filing suit. 

Mr. Foster doesn’t dispute that he didn’t file an appeal with the final

reviewing authority. (DE 27.) Instead, he argues as follows: 

The final step is only if the prison grievance process does not look

into the problem, and done nothing to resolve the issue. I received the

response I needed from the formal grievance, and felt like I did not

need to address Central Office the final authority. I was planning on

filing a federal lawsuit anyway because my rights were violated by

these officers. 

(DE 27 at 1.) His argument is unavailing, because a prisoner must take each

available step within the administrative process in order to properly exhaust. Pozo

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v. McCaughtry, 286 F.3d at 1024. Any other interpretation “would leave § 1997e(a)

without any oomph” by allowing prisoners to “thumb their noses” at the grievance

process. Id. In some circumstances, a prisoner may be excused from proceeding

further in the grievance process if he obtained all the relief he was seeking. See

Thornton v. Snyder, 428 F.3d 690, 695 (7th Cir. 2005) (inmate was not required

to file a grievance appeal where he complained about the poor condition of his

mattress and was given a new mattress in response to his initial grievance). But

Mr. Foster didn’t obtain any relief; instead the matter was investigated and it was

determined that the officers did nothing wrong. (DE 24-4, Grievance Response.)

Mr. Foster clearly disagreed with this determination, as evidenced by this suit in

which he alleges that the officers violated his Eighth Amendment rights.

It appears that once his initial grievance was denied, Mr. Foster decided that

he would rather proceed directly to federal court, where he might obtain an award

of damages. But the PLRA requires exhaustion if any form of relief is available

through the grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001) (even

when a prisoner seeks relief not available in grievance proceedings, such as money

damages, exhaustion is a prerequisite to filing suit as long as some form of relief

is available). The record shows that the final reviewing authority could have

granted Foster some form of relief, including reporting improper staff conduct to

the Indiana Attorney General or changing facility procedures. (DE 24-2, Grievance

Policy, § VI.) Mr. Foster chose not to pursue this available remedy. Therefore, he

didn’t properly exhaust before filing suit. Pozo v. McCaughtry, 286 F.3d at 1025.

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For these reasons, this action must be dismissed pursuant to 42 U.S.C. §

1997e(a). It isn’t clear that Foster still has the ability to exhaust, but because the

state might allow him to cure his omission, the dismissal will be without

prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“[A]ll dismissals

under § 1997e(a) should be without prejudice.”). 

For these reasons, the defendant’s motion (DE 23) is GRANTED, and this

action is DISMISSED WITHOUT PREJUDICE pursuant to 42 U.S.C. § 1997e(a).

SO ORDERED.

ENTERED: August 29 , 2013. /s/ Robert L. Miller, Jr. 

Judge

United States District Court

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