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Leon v. Martin

United States District Court, S.D. Mississippi, Northern Division

September 24, 2018




         This cause is before the Court on the plaintiff Ivan Leon's Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (docket entry 1); on the Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (docket entry 21); and on United States Magistrate Judge Linda R. Anderson's Report and Recommendation (“R&R”) (docket entry 25). All moving defendants, [1] including the defendant who was served with process, Warden Martin, assert that the claims of Ivan Leon (“Leon” or “plaintiff”) should be dismissed because of his failure to exhaust the administrative remedies that were available to him through the Bureau of Prison (“BOP”)'s mandatory process set forth in 28 C.F.R. § 542.13(a). Defendants also contend that the Complaint should be dismissed because it fails to state a claim upon which relief may be granted.

         After a review of the pleadings and exhibits, as well the applicable law, Magistrate Judge Anderson recommends that the motion to dismiss, or for summary judgment, be granted based upon Leon's non-exhaustion.

         Leon is a federal inmate incarcerated at the Federal Correctional Complex (“FCC”) Coleman located in Coleman, Florida. When the incident which forms the basis of his Complaint occurred, on May 14, 2016, Leon was an inmate at FCC Yazoo, in Yazoo City, Mississippi, with an expected release date of June 7, 2024. Leon filed this civil rights action on April 17, 2017, claiming that he was stabbed by other inmates on May 14, 2016, in the recreation cage of the United States Penitentiary (“USP”)'s Special Housing Unit (“SHU”). In his Complaint, Leon contends that he and his SHU cellmate, Albert Donald, were placed in an outside recreation cage by Bureau staff members with two other inmates. According to Leon, these other two inmates had “not been searched for weapons” and they immediately began attacking him. Leon claims that they stabbed him multiple times about the head and upper torso area. He also contends that he was in SHU because he sought protective custody, so these inmates should have been screened and searched before he was placed in a cage with them.

         Failure to exhaust is an affirmative defense, so the defendants have the burden of demonstrating that Leon failed to exhaust his administrative remedies. See Jones v. Bock, 549 U.S. 199, 216 (2007). At the summary judgment stage, this means that the defendants “must establish beyond peradventure all of the essential elements of the defense of exhaustion to warrant summary judgment in their favor.” Dillon v. Rogers, 596 F.3d 260, 266 (5thCir. 2010). The court shall grant summary judgment “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). “The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court it would be insufficient to permit the nonmoving party to carry its burden.” Beck v. Tex. St. Board of Dental Exam'rs, 304 F.3d 629, 633 (5th Cir. 2000)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

         The burden then shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Allen v. Rapides Parish Sch. Bd., 304 F.3d 619, 621 (5th Cir. 2000). As the defendants point out, the applicable section of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997(e), provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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.”

         The exhaustion requirement extends to Bivens suits by federal prisoners. Porter v. Nussle, 534 U.S. 516, 524 (2002). The statute clearly requires an inmate bringing a civil rights action in this Court to first exhaust his available administrative remedies. Booth v. Churner, 532 U.S. 731, 739 (2001). Exhaustion is no longer left to the discretion of the district court, but is mandatory. Porter, 534 U.S. at 524. Exhaustion will not be excused when an inmate fails to timely exhaust his administrative remedies; the exhaustion requirement also means “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). It is not enough merely to initiate the grievance process or to put prison officials on notice of a complaint; the grievance process must be carried through to its conclusion. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). This is necessary regardless of whether the inmate's ultimate goal is a remedy not offered by the administrative process, such as money damages. Id.

         In Jones v. Bock, 549 U.S. 199, 211 (2007), the Supreme Court confirmed that exhaustion was mandatory under the PLRA and that “unexhausted claims cannot be brought in court.” The United States Supreme Court reiterated in Ross v. Blake, 136 S.Ct. 1850, 1856-57 (2016), that exhaustion is mandatory and that a court may not excuse a failure to exhaust, “even to take ‘special circumstances' into account.” Judicial discretion is foreclosed. Id. “Time and again, this Court has rejected every attempt to deviate from the PLRA's textual mandate.” Id. (citations omitted).

         The Fifth Circuit has confirmed that “the PLRA pre-filing exhaustion requirement is mandatory and non-discretionary, ” and that “district courts have no discretion to waive the PLRA's pre-filing exhaustion requirement.” Gonzalez v. Seal, 702 F.3d 785, 787-88 (5th Cir. 2012)(per curiam). The Fifth Circuit case of Wilson v. Epps, 776 F.3d 296, 299-300 (5th Cir. 2015), also confirms that strict compliance with the administrative remedy programs is required. Filing the federal lawsuit before the time having ended for the response by the ARP program is impermissible for proper exhaustion. Id.

         The defendants show that 28 C.F.R. § 542.13(a) provides for the levels of review if the attempt of informal resolution is unsuccessful. First, the inmate must submit a Request for Administrative Remedy to the Warden of the facility in which he is incarcerated. § 542.14(a). If unsatisfied, he may appeal to the appropriate BOP Regional Director by submitting a Regional Administrative Remedy Appeal. Finally, if unsatisfied with the Regional Director's response, he may appeal to the General Counsel of the BOP by submitting a Central Office Administrative Remedy Appeal. Id. There are time limits for each step in the review. Only after the inmate has completed each level of this process has he exhausted his administrative remedies with the BOP.

         The defendants submitted the Affidavit of Lisa Singleton, a Deputy Case Management Coordinator at FCC Yazoo, in support of their motion. Ms. Singleton is responsible for processing the administrative remedy requests filed by inmates. She has access to and knowledge of the computer records known as “SENTRY, ” which contain electronic records for tracking inmates in the federal system, including their ARP usage. Ms. Singleton explained the program described in 28 C.F.R. § 542.10 et seq., advising that each initial form filing, a BP-9, is assigned a number known as a “Remedy ID.” This number is unique to that filing and may be used to follow the progression of a remedy from the BP-9 stage through the BP-10 and BP-11 stages.

         Ms. Singleton conducted a search of the Bureau's SENTRY system for all administrative remedies filed by Leon. She found that Leon had initiated, but not completed, ten remedy series with the BOP, including seven that were submitted after the stabbing. Of these seven, only two appear to be related to the stabbing, remedy series 863011 and 869484. The others are irrelevant to this case, inasmuch as in those Leon requests a transfer, criticizes the remedy process, appeals disciplinary hearings, and seeks sentencing credits.

         The first remedy series was number 863011, filed on May 20, 2016, six days after the May 14th attack on Leon and the only one filed within § 542.14's twenty-day timeline. Leon bypassed the informal and institutional level and filed the grievance directly with the Southeast Regional Office. (Docket entry 21-2, pp. 4-5). Leon contended that his remedy request was of a “sensitive” nature, which justified bypassing the informal and institutional levels. The regional officials disagreed and rejected his request. Leon failed to seek administrative review of this determination at the general counsel level, and he failed to return to the institutional level to begin the informal resolution and institutional-level exhaustion process. Leon therefore failed to exhaust his remedies in accordance within the time limitations required by § 542.14.

         On July 18, 2016, Leon filed a second remedy series concerning the stabbing, alleging that the SHU staff allowed him to be assaulted in the SHU recreation cage. This was remedy series number 869484. The Warden responded on September 6, 2016, that Leon's allegations of staff misconduct were reviewed for “appropriate disposition, ” and that if Leon ...

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