Dale v. Lappin

Decision Date15 July 2004
Docket NumberNo. 03-1023.,03-1023.
Citation376 F.3d 652
PartiesCurtis L. DALE, Plaintiff-Appellant, v. Harley G. LAPPIN, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Southern District of Indiana, Sarah Evans Barker, J David K. Chapman (argued), Fort Worth, TX, for Plaintiff-Appellant.

Gerald A. Coraz (argued), Thomas E. Kieper, Office of the United States Attorney, Indianapolis, IN, for Defendants-Appellees.

Before COFFEY, ROVNER, and EVANS, Circuit Judges.

PER CURIAM.

Federal inmate Curtis Dale filed suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that the warden and several other Bureau of Prisons employees at the penitentiary in Terre Haute, Indiana, violated his Eighth Amendment right to be free from cruel and unusual punishment when they failed to protect him from an attack by fellow inmates. The district court screened the complaint under 28 U.S.C. § 1915A, dismissed the warden, and later granted summary judgment for the remaining defendants on the ground that Dale had failed to exhaust his administrative remedies. Because the defendants did not meet their burden of establishing the absence of disputed issues of material fact concerning this question, we vacate the judgment and remand to the district court for further proceedings.

In his complaint Dale alleges that the warden and two others at Terre Haute knew he had been threatened with physical attack but failed to protect him from other inmates who stabbed him seven times in the prison yard. Dale was attacked on September 22, 2000, and 19 days later prison administrators initiated the process of transferring him to the Federal Transfer Center in Oklahoma City, where he stayed for seven days before being transferred again. The record is silent as to the severity of his wounds or the amount of time he was hospitalized at Terre Haute before his transfer.

Initially, the district court screened the complaint under § 1915A and ordered Dale to supplement his complaint because he had not pleaded exhaustion. Dale responded that "he attempted to utilize the administrative remedey [sic] process at UNITED STATES PENITENTIARY TERRE HAUTE" and at the penitentiary in Lompoc, California, where he was then housed. Dale attached documents showing that he requested grievance forms at Lompoc in March 2002 but had been told that the 20-day time limit for submitting a grievance had passed and thus his only recourse was to file a claim under the Federal Tort Claims Act. The district court was not satisfied with this response, so it sua sponte dismissed Dale's complaint, reasoning that he had not shown that he exhausted his administrative remedies. Dale moved for reconsideration, explaining that any failure to exhaust was due to the defendants' refusal to provide him with the BP-8 form that he believed was necessary to prepare a grievance. The district court granted the motion for reconsideration and vacated its earlier order.

The district court then dismissed the warden because Dale had not pleaded his personal involvement in failing to prevent the stabbing. Dale responded by moving to amend his complaint to add two more defendants and to reinstate the warden as a defendant. The district court allowed Dale to add the new defendants but took his request to reinstate the warden under advisement and ordered Dale to "supplement his assertion" within 10 days to show that the warden had personal knowledge that Dale was in danger. Dale never complied. Meanwhile, the four remaining defendants moved for summary judgment, arguing that Dale had failed to exhaust his administrative remedies because he never filed a grievance. The district court agreed.

Although Dale is the appellant, his first argument is that we lack jurisdiction over this appeal because, he says, the district court never entered a final judgment as to the warden. The district court's grant of summary judgment applied only to the four defendants who still remained in the case; the warden had been dismissed early in the litigation. Dale, though, seems to believe that the case is still active as to the warden.

A final, appealable decision is one that disposes of all claims against all parties, with the exception (not applicable here) where the district court complies with the requirements to enter a partial final judgment. See Fed.R.Civ.P. 54(b). A district court's decision is final under 28 U.S.C. § 1291 if the court "has finished with the case," Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir.2003), and "finished" is the only way to describe this litigation as it currently stands in the district court. Dale sought to reinstate the warden as a defendant, but the district court never granted the motion. Rather, the court took Dale's request "under advisement" and instructed him to file a supplemental pleading explaining how the warden was personally responsible for his injuries. Dale did not comply, so he effectively abandoned his claim against the warden by never mentioning him again. See, e.g., Heft v. Moore, 351 F.3d 278, 281-82 (7th Cir.2003); Laborers' Pension Fund v. A & C Envtl., Inc., 301 F.3d 768, 774 n. 4 (7th Cir.2002); Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 667 (7th Cir.1986). The district court's early dismissal of the warden was never vacated, and the court's later summary judgment order resolved the case as to the four remaining defendants. When the court entered its judgment dismissing the complaint, all parties and all claims had indeed been disposed of. Thus Dale's jurisdictional argument fails.

On the merits, Dale argues that the district court erred in granting summary judgment for the defendants because his pleadings and affidavits show that he requested the administrative grievance form within the 20-day time limit. Dale contends that Bureau of Prisons employees "fail[ed] to provide the necessary forms to file for administrative remedies timely as prescribed by BOP policy." Thus, Dale believes that he provided sufficient evidence to show that prison officials "made administrative remedies so unavailable as to deprive Dale of his rightful access to the grievance process."

Although exhaustion of administrative remedies is a precondition to a federal prisoner filing a Bivens suit, 42 U.S.C. § 1997e(a); Massey v. Helman (Massey II), 259 F.3d 641, 645-46 (7th Cir.2001), failure to exhaust is an affirmative defense that the defendants have the burden of pleading and proving, Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002); Massey v. Helman (Massey I), 196 F.3d 727, 735 (7th Cir.1999). 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." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002); see Riccardo v. Rausch, No. 02-1961, 2004 WL 1545241, at *1, 375 F.3d 521, 524 (7th Cir. July 12, 2004). The Bureau of Prisons regulations require that an inmate submit an administrative complaint on the appropriate form within 20 days of the underlying event. 28 C.F.R. § 542.14(a); see McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir.2001); Smith v. Zachary, 255 F.3d 446, 448 (7th Cir.2001).

In his response to the defendants' motion for summary judgment, Dale explains that he requested the proper grievance forms several...

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