Summary
stating that the “Administrative Remedy Program applies to inmates confined in institutions operated by the Bureau of Prisons (“BOP”), to inmates designated to contract Community Corrections Centers under BOP's responsibility, and to former inmates for issues that arose during their confinement.”
Summary of this case from Nevers v. United States Dep't of JusticeOpinion
No. C 01-0004 VRW (PR) (Docs # 29, 48, 49 50)
August 22, 2002
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff, a federal prisoner currently incarcerated at the United States Penitentiary in Lompoc, California ("USP-Lompoc"), filed a pro se civil rights complaint under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), on January 2, 2001. He subsequently filed a First Amended Complaint ("FAC") in which he seeks damages from several officials at the Federal Detention Center in Dublin, California ("FDC-Dublin). Plaintiff alleges that between December 16, 2000 and December 22, 2000, defendants falsely accused him of disciplinary violations, placed him in segregation without adequate clothing or bedding, confiscated his legal materials, and transferred him to the Alameda County Jail without a hearing in retaliation for plaintiffs attempts to file administrative grievances.
Per order filed on November 30, 2001, the court found that plaintiffs allegations, when liberally construed, appeared to state cognizable claims under Bivens and ordered the United States Marshal to serve the named defendants. Defendants now move for dismissal/summary judgment arguing, among other things, that the undisputed facts show that plaintiff did not exhaust available administrative remedies under 42 U.S.C. § 1997e(a) before he filed suit. Plaintiff filed an opposition and defendants filed a reply. (Plaintiff recently also filed an unsolicited response to defendants' reply.)
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R Civ P 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed R Civ P 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 US at 323.
B. Analysis
The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
Although once within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v Nussle, 1225 Ct 983, 988 (2002). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be `plain, speedy, and effective."' Id (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id; Booth v. Churner, 532 U.S. 731, 741 (2001). Similarly, exhaustion is a prerequisite 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, 122 S Ct at 992.
And unlike the previous exhaustion provision, which encompassed only suits under 42 U.S.C. § 1983, exhaustion is now required for all "action[s] . . . brought with respect to prison conditions," whether under § 1983 or "any other Federal law." Id 988 (citations and internal quotation marks omitted). "Thus federal prisoners suing under Bivens . . . must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit." Id.
The United States provides an administrative process through which inmates may seek formal review of an issue relating to any aspect of their confinement if less formal procedures do not resolve the matter. 28 C.F.R. § 542.10. The Administrative Remedy Program applies to inmates confined in institutions operated by the Bureau of Prisons ("BOP"), to inmates designated to contract Community Corrections Centers under BOP's responsibility, and to former inmates for issues that arose during their confinement. Id.
In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written administrative remedy request (form BP-9), (3) appeal to the Regional Director (form BP-10), and (4) appeal to the General Counsel (form BP-11). See 28 C.F.R. § 542.13 — 542.15. A final decision from the General Counsel completes the Administrative Remedy Program. See id § 542.15(a).
Exhaustion under § 1997e(a) is an affirmative defense. Wyatt v Terhune, 280 F.3d 1238, 1246 (9th Cir 2002). Accordingly, it may be raised in a motion to dismiss only if it raises no disputed issues of fact and ordinarily must be raised in a motion for summary judgment. See id at 1246-47. Here, defendants correctly raise exhaustion in a motion for summary judgment and argue that the undisputed facts show that plaintiff did not exhaust available administrative remedies under § 1997e(a) before he filed suit. In support, they submit a declaration from BOP Assistant General Counsel Valerie Stewart, and accompanying exhibits, showing that plaintiff filed a total of 35 remedy requests/appeals between May 1996 and December 2001, and that none of them involved the issues in the instant suit.
Defendants are entitled to summary judgment unless plaintiff sets forth specific facts showing that there is a genuine issue for trial on whether he exhausted administrative remedies before filing in federal court. Plaintiff does not. His claim that he could not exhaust because his requests for grievance forms at FDC-Dublin went unanswered will not do. The undisputed facts in the record (including the attachments to plaintiffs opposition papers) show that plaintiff requested BP-9 forms from FDC-Dublin Correctional Counselor Tony Rivas shortly after plaintiff was placed in administrative segregation on December 16, 2000, and that on December 21, 2000, after plaintiff learned that Rivas was unavailable, plaintiff wrote FDC-Dublin Administrator Kenneth Arnold regarding the issues raised here and asked Arnold for BP-9 forms. The next day, the United States Marshal transferred plaintiff to the Alameda County Jail (which occasionally houses federal prisoners temporarily) and, several days after that, to USP-Lompoc. That plaintiff did not obtain a BP-9 form before he was transferred out of FDC-Dublin on December 22, 2000 does not excuse his failure to exhaust available administrative remedies after he arrived at the Alameda County Jail on December 22, 2000 or at USP-Lompoc in early January 2001. See 28 C.F.R. § 542.10 (Administrative Remedy Program applies to issues that arose during federal confinement even if prisoner is no longer incarcerated). After all, in view of the circumstances, the requirement for an informal resolution attempt could have been waived and a formal written remedy request could have been filed in a timely fashion. See id §§ 542.13, 542.14. Plaintiff instead chose not to bother attempting to pursue administrative remedies any further and promptly filed this action.
Plaintiff has not established any extraordinary circumstances which might compel that he be excused from not having exhausted the BOP's Administrative Remedy Program before he filed suit on January 2, 2001. Cf Booth, 532 US at 741 n6 (courts should not read "futility or other exceptions" into § 1997e(a)). Defendants are "entitled to judgment as a matter of law" on their exhaustion defense. Celotex Corp. v Cattrett, 477 U.S. 317, 323 (1986).
Even if plaintiffs December 21, 2000 letter to Arnold is liberally construed as a remedy request to which Arnold never responded, plaintiff filed this action too early because Arnold had 20 days from December 21, 2000 to respond to plaintiffs letter/request. See, e.g., Jackson v District of Columbia, 254 F.3d 262, 269 (DC Cir 2001) (holding that prisoner who never received a response to his first-level grievance failed to satisfy exhaustion requirement because time period for prison response had not expired before he filed suit).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc # 29) is GRANTED as to their exhaustion defense and the action is DISMISSED without prejudice.
The Clerk shall terminate all other pending motions as moot (see, e.g., docs # 48, 49 50), enter judgment in favor of defendants, and close the file.
SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of defendants.