United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
MOTION TO DISMISS
BRAMLETTE UNITED STATES DISTRICT JUDGE.
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,  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.
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
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
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)).
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.”
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.
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).
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.
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.
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.
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.
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.
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