Crutchfield v. Fleiner (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

BARNEY CRUTCHFIELD, )

Reg. No. 25903-017, )

)

Plaintiff, )

)

v. ) CASE NO. 2:21-cv-515-MHT-JTA

) (WO)

STACEY FLEINER, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. BACKGROUND

On August 4, 2021, while he was an inmate at the Federal Prison Camp in

Montgomery, Alabama (“FPC Montgomery”), Plaintiff Barney Crutchfield filed a pro se

complaint under Bivens v. Six Unknown Fed. Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971).1 In his complaint, Crutchfield alleges that the named Defendants,2 most of

1 A “Bivens action” is a judicially created damages remedy designed to vindicate violations of

constitutional rights by persons acting under color of federal law. See Bivens, 403 U.S. at 395–97.

2 Crutchfield names as Defendants: Stacey Fleiner (former Unit Manager, FPC Montgomery); D.

Taylor (former Case Manager, FPC Montgomery); Kalvin Calhoun (Case Manager, FPC

Montgomery); Barry Briggs (Unit Manager, FPC Montgomery); Denise Rogers (former Case

Manager Coordinator, FPC Montgomery); A. Barnes (Case Manager Coordinator, FPC

Montgomery); Richard Dunbar (former Assoc. Warden, FPC Montgomery); E. Villareal (Assoc.

Warden, FPC Montgomery); Walter J. Wood, Sr. and Alan Cohen (Wardens, FPC Montgomery);

Jeffrey Keller (former Regional Director, BOP); Hugh Hurwitz (Asst. Director of Reentry

Services, BOP); Sonya Thompson (Asst. Director of Reentry Services, BOP); Andre Matevousian

(Asst. Director, BOP); David Brewer (Sr. Deputy Director, BOP); Lisa Ward (Asst. Director of

Admin. Div., BOP); Michael Carvajal (Director, BOP); former United States Attorney General

William Barr; and United States Attorney General Merrick Garland.

whom are employees of the Federal Bureau of Prisons (“BOP”), violated his constitutional

rights by misapplying directives of Attorney General William Barr when denying his

request for placement in home confinement under the CARES Act.3 (Doc. No. 1.)4

Attorney General Barr’s directives were set out in memoranda instructing the BOP to

prioritize the use of home confinement to reduce the effects of the COVID-19 pandemic

on the federal prison system.5 (Doc. No. 28 at 2.) Crutchfield contends that the BOP’s

denial of his home confinement request violated his rights to due process and equal

protection.6 (Doc. No. 1 at 8–12, 25–31.) He also cursorily alleges that the conditions of

confinement and safety protocols at FPC Montgomery increase inmates’ COVID risks and

amount to cruel and unusual punishment under the Eighth Amendment. (Id. at 33–34, 40–

41.) For relief, Crutchfield seeks monetary damages and injunctive relief including an order

directing his placement in home confinement. (Id. at 42–43.)

3 See Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. 116–136, §

12003(b)(2) (2020).

4 Document numbers are as designated on the docket by the Clerk of Court. Pinpoint citations are

to the page numbers electronically affixed by the CM/ECF filing system and may not correspond

to pagination as presented for filing.

5 In determining when to utilize home confinement, the BOP was to consider “the totality of the

circumstances, statutory requirements for home confinement, and a list of non-exhaustive

discretionary factors. Those factors included the vulnerability of the inmate, the security level of

the facility, the inmate’s conduct in prison, the inmate’s PATTERN score, the conditions of and

plan for home confinement, and the inmate’s crime of conviction.” Monk v. United States, No.

1:22-cv-1030-CLM, 2023 WL 5019898, at *1 (N.D. Ala. Aug. 7, 2023).

6 Crutchfield alleges that the BOP preferentially approved a disproportionate number of African-

American inmates at FPC Montgomery for placement in home confinement. (See, e.g., Doc. No.

1 at 26–27.)

Defendants filed a special report, answer, and supporting evidentiary materials

addressing Crutchfield’s complaint. (Doc. No. 28.) Defendants contend that this action

should be dismissed because Crutchfield failed to exhaust his administrative remedies and

because the Bivens remedy does not extend to his claims. (Id. at 12–16, 18–99.) Crutchfield

in turn argues that he exhausted his claims, but that, if he failed to exhaust, he should be

excused from doing so. (Doc. No. 33 at 4–12.) He also argues that the Bivens remedy

applies to his claims. (Id. at 24–25.)

In an order entered on November 3, 2021, the parties were notified that “the court

may at any time after [expiration of the time for Crutchfield to respond to Defendants’

special report] and without further notice to the parties (1) treat the special report and any

supporting evidentiary materials as a dispositive motion and (2) after considering any

response . . . , rule on the motion in accordance with the law.” (Doc. No. 30 at 4.) Under

that disclosure, the court will construe Defendants’ special report (Doc. No. 28) as a Motion

to Dismiss and will recommend that the motion be granted for the reasons explained below.

II. DISCUSSION

A. Exhaustion Requirement

Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) states 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.” 42 U.S.C. § 1997e(a);

see also Shivers v. United States, 1 F.4th 924, 935 (11th Cir. 2021). The Eleventh Circuit

has recognized that “[t]he plain language of the statute makes exhaustion a precondition to

filing an action in federal court.” Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir.

2000) (quoting Freeman v. Francis, 196 F.3d 641, 643–44 (6th Cir. 1999)). A federal

prisoner thus cannot bring a Bivens action until he has exhausted his administrative

remedies. Porter v. Nussle, 534 U.S. 516, 524 (2002) (“[F]ederal prisoners suing under

Bivens . . . must first exhaust inmate grievance procedures just as state prisoners must

exhaust administrative processes prior to instituting a [42 U.S.C.] § 1983 suit.”).

Evaluating a motion to dismiss for failure to exhaust administrative remedies

involves two potential steps:

When deciding whether a prisoner has exhausted his remedies, the court

should first consider the plaintiff’s and the defendants’ versions of the facts,

and if they conflict, take the plaintiff’s version of the facts as true. If in that

light, the defendant is entitled to have the complaint dismissed for failure

to exhaust administrative remedies, it must be dismissed. If the complaint is

not subject to dismissal at this step, then the court should make specific

findings in order to resolve the disputed factual issues related to exhaustion.

Myles v. Miami-Dade County Corr. and Rehab. Dep’t, 476 F. App’x 364 (11th Cir. 2012)

(citations and internal quotations omitted). If the second step is required, the district court

“may consider facts outside of the pleadings to resolve a factual dispute as to exhaustion

where doing so does not decide the merits, and the parties have a sufficient opportunity to

develop the record.” Trias v. Florida Dep’t of Corr., 587 F. App’x 531, 535 (11th Cir.

2014). The Eleventh Circuit has rejected the argument that disputed facts in the exhaustion

context must be decided after trial. Id. at 534.

“[T]he PLRA’s exhaustion requirement applies 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, 534 U.S. at 532. And because exhaustion is

mandated by statute, a court has no discretion to waive the requirement. Alexander v.

Hawk, 159 F.3d 1321, 1325–26 (11th Cir. 1998).

1. BOP’s Administrative Remedy Process

The BOP has established detailed regulations setting forth the procedures federal

inmates must follow before seeking relief from a district court:

• An inmate must first attempt to resolve his complaint informally with

prison staff. See 28 C.F.R. § 542.13(a).

• If dissatisfied with prison staff’s response, the inmate must submit a

Request for Administrative Remedy to the warden using a “BP-9” form

within 20 days of the date on which the basis for the request occurred.

See 28 C.F.R. § 542.14(a).

• The warden has 20 days to respond to the inmate’s “BP-9.” See 28

C.F.R. § 542.18.

• If dissatisfied with the warden’s response, the inmate must appeal within

20 days to the Regional Director using a “BP-10” form. See 28 C.F.R.

§ 542.15(a).

• The Regional Director has 30 days to respond to the inmate’s “BP-10.”

See 28 C.F.R. § 542.18.

• If dissatisfied with the Regional Director’s response, the inmate must

appeal within 30 days to the Office of the General Counsel (“the Central

Office”) using a “BP-11” form. See 28 C.F.R. § 542.15(a).

• The Central Office must respond to the inmate’s “BP-11” within 40

days. See 28 C.F.R. § 542.18.

If at any stage of the process the inmate does not receive a response within the allotted

time, he may consider the absence of a response to be a denial and proceed to the next

level. 28 C.F.R. § 542.18. The administrative remedy process is not completed until the

Central Office responds on the merits or until expiration of the time allotted for such a

response. (See Doc. No. 28-1 at 3.)

2. Crutchfield’s Administrative Remedies

In a sworn declaration accompanying Defendants’ special report, S. Allison-Love

(BOP Senior Attorney at the U.S. Penitentiary in Atlanta) states she has access to official

records maintained by the BOP and is familiar with the administrative remedy process for

federal inmates set out in BOP Program Statement 1330.18 and 28 C.F.R. part 542, Subpart

B. (Doc. No. 28-1 at 1.) Allison-Love states she is familiar with the BOP’s SENTRY

computer system, which contains institutional records tracking administrative remedy

requests filed by inmates. (Id. at 2–3.) According to Allison-Love, Crutchfield’s

institutional records reflect that, through August 26, 2021, while incarcerated at FPC

Montgomery, Crutchfield submitted four administrative remedies for placement in home

confinement under the CARES Act but failed to exhaust the BOP’s administrative remedy

process under any remedy. (Id. at 3.) Allison-Love bases her determination of non-

exhaustion on the fact that none of the remedies submitted by Crutchfield made any

allegation against any of the individual defendants named in his Bivens complaint or

alleged discrimination or equal protection violations related to home confinement.7 (Id.)

7 Besides Allison-Love’s declaration, Defendants’ special report contains copies of Crutchfield’s

SENTRY administrative remedy log for the relevant period. (Doc. No. 28-1 at 10–32.)

3. Crutchfield Failed to Exhaust His Eighth Amendment

Conditions of Confinement Claim.

Addressing first Crutchfield’s claim that the conditions of his confinement and

safety protocols at FPC Montgomery were cruel and unusual under the Eighth Amendment

because he and other inmates were exposed to heightened COVID risks at the facility,8 the

undersigned finds that Crutchfield never undertook the BOP’s administrative remedy

process for such a claim. Crutchfield resorted to the administrative remedy process only

for his request for placement in home confinement under the CARES Act. He failed to

exhaust his Eighth Amendment conditions of confinement claim, thus that claim is due to

be dismissed.

Crutchfield suggests that the COVID pandemic itself was a special circumstance

that prevented him from pursuing his administrative remedies, so he should be excused

from the exhaustion requirement. (Doc. No. 33 at 4–5.) But courts may not waive the

exhaustion requirement based solely on the COVID pandemic. See Swain v. Junior, 961

F.3d 1276, 1292 (11th Cir. 2020); Valentine v. Collier, 978 F.3d 154, 161 (5th Cir. 2020).

See also McClure v. White, No. 5:20-cv-267-MTT-CHW, 2020 WL 4194992, at *3 (M.D.

Ga. July 21, 2020); Osterback v. Inch, No. 1:20-cv-84-AW-GRJ, 2021 WL 2303130, at *2

(N.D. Fla. Feb. 25, 2021). Crutchfield also presents no facts showing a link between the

COVID pandemic and his failure to exhaust his Eighth Amendment conditions of

confinement claim. The court finds that his unsupported cursory assertions establish no

basis for waiving the exhaustion requirement for this claim.

8 (See Doc. No. 1 at 33–34, 40–41.)

Because Crutchfield failed to exhaust the BOP’s administrative remedy process for

his Eighth Amendment conditions of confinement claim, dismissal of this claim is

warranted under 42 U.S.C. § 1997e(a). Shivers, 1 F.4th at 936.

B. Bivens Does Not Extend to Home Confinement Requests Under CARES Act.

The undersigned finds that Crutchfield adequately exhausted the BOP’s

administrative remedy process for his request for placement in home confinement under

the CARES Act. Under Remedy No. 1052997, Crutchfield pursued his home confinement

request from the institutional (warden) level, to the Regional Director level, to the Central

Office level, receiving a ruling on the merits at each level.9 This was sufficient to exhaust

his claim.

But even though Crutchfield exhausted his administrative remedies for denial of his

home confinement request under the CARES Act, his claim for relief under that theory is

due to be dismissed because he cannot justify the extension of Bivens to his claim.

Recently, in Daley v. Sanders, No. 2:20-cv-881-ECM, 2024 WL 1261886 (M.D. Ala. Mar.

25, 2024), this court recognized that the Bivens remedy is unavailable for challenges to

9 See specifically, Remedy No. 1052997-F1, Remedy No. 1052997-R1, and Remedy No. 1052997-

A2. (Doc. No. 28-1 at 3–4). Administrative remedy requests filed with the warden at the

institutional level (BP-9s) are identified in the SENTRY database by the notation “F1” following

the remedy identification number. (Doc. No. 28-1 at 2.) Regional Director level remedy filings

(BP-10s) are identified by the notation “R1” following the remedy identification number. (Id.)

Appeals to the Central Office (BP-11s) are identified by the notation “A1” following the remedy

identification number. (Id.) If amended or successive filings are filed at the same level, the numeral

following the alphabetical letter changes accordingly. (Doc. No. 28-1 at 3.) For example, a second

filing at the Central Office level is identified in SENTRY by the notation “A2” following the

remedy identification number.

BOP officials’ denials of home confinement requests under the CARES Act. In dismissing

a claim nearly identical to Crutchfield’s, the district court stated:

[T]he Court finds that the damages action is nonetheless due to be dismissed

because the Plaintiff has not sufficiently justified an extension of the Bivens

remedy to the circumstances of this case. See generally Egbert v. Boule, 596

U.S. 482 (2022). In Egbert, the United States Supreme Court reiterated that

“recognizing a cause of action under Bivens is ‘a disfavored judicial

activity.’” Id. at 491 (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017));

(doc. 42 at 22–23) (making this observation). The Supreme Court further

explained that if the claim “arises in a new context, a Bivens remedy is

unavailable if there are ‘special factors’ indicating that the Judiciary is at

least arguably less equipped than Congress to ‘weigh the costs and benefits

of allowing a damages action to proceed.’” Egbert, 596 U.S. at 492 (quoting

Ziglar, 582 U.S. at 136). “If there is even a single ‘reason to pause before

applying Bivens in a new context,’ a court may not recognize a Bivens

remedy.” Id. (citation omitted). In light of this guidance from the Supreme

Court, the Court finds that the Plaintiff has not shown entitlement to a Bivens

remedy in this new context, i.e., BOP officials’ denial of a home confinement

request under the CARES Act. See id.

Daley, 2024 WL 1261886, at *1.

Thus, consistent with Daley, the undersigned finds that Crutchfield’s Bivens claim

seeking damages based on the denial of his home confinement request under the CARES

Act is due to be dismissed.10 See also, e.g., Washburn v. Renick, No. 1:23-cv66, 2023 WL

10 Although this court pretermitted discussion of Crutchfield’s Eighth Amendment conditions of

confinement claim apart from the question of Crutchfield’s failure to exhaust (since the claim was

never raised by Crutchfield before he asserted it in his Bivens complaint) the undersigned notes

that in Monk v. United States, No. 1:22-cv-1030-CLM, 2023 WL 5019898, at *9–10 (N.D. Ala.

Aug. 7, 2023), the U.S. District Court for the Northern District of Alabama held that the Bivens

remedy does not extend to Eighth Amendment conditions of confinement claims alleging

heightened COVID risks stemming from inadequate prison safety protocols. See also, e.g., Files

v. Rivers, No. 3:23-cv-1534-K (BT), 2024 WL 816267, at *4 (N.D. Tex. Feb. 7, 2024) (plaintiff’s

Eighth Amendment conditions of confinement claim under Bivens fails because it arises in a new

context, and there are special factors counseling against extending Bivens to that context).

9112476, at *10 (S.D.W. Va. Mar. 8, 2023) (finding that Bivens remedy does not extend

to denials of requests for placement in home confinement under the CARES Act).

Furthermore, placement in home confinement is not an available remedy under

Bivens. See Bruce v. Carvajal, 2020 WL 7334502, at *3 (M.D. Fla. Dec. 14, 2020)

(injunctive relief in the form of an order directing the BOP to transfer qualifying inmates

to home confinement is unavailable under Bivens); Washburn, 2023 WL 9112476, at *10.

The district court lacks the authority to order the BOP to place Crutchfield in home

confinement. See Touizer v. U.S. Att’y Gen., No. 21-10761, 2021 WL 3829618, at *2 (11th

Cir. Aug. 27, 2021); Brown v. Att’y Gen., No. 3:20-cv-661-J-32JBT, 2020 WL 4582732,

at *2 (M.D. Fla. Aug. 10, 2020) (collecting authority).

III. CONCLUSION

Accordingly, Defendants’ special report (Doc. No. 28) is CONSTRUED as a

Motion to Dismiss.

Further, the Magistrate Judge RECOMMENDS as follows:

1. Defendants’ Motion to Dismiss (Doc. No. 28) be GRANTED.

2. Crutchfield’s Eighth Amendment conditions of confinement claim be

DISMISSED without prejudice because Crutchfield failed to exhaust his

available administrative remedies for this claim.

3. Crutchfield’s claim challenging BOP officials’ denial of his home confinement

request under the CARES Act be DISMISSED with prejudice because the

Bivens remedy is unavailable for such claims.

It is further ORDERED that the parties shall file any objections to this

Recommendation by June 26, 2024. A party must specifically identify the factual findings

and legal conclusions in the Recommendation to which objection is made; frivolous,

conclusive, or general objections will not be considered. Failure to file written objections

to the Magistrate Judge’s findings and recommendations under 28 U.S.C. § 636(b)(1) shall

bar a party from a de novo determination by the District Court of legal and factual issues

covered in the Recommendation and waives the right of the party to challenge on appeal

the District Court’s order based on unobjected-to factual and legal conclusions accepted or

adopted by the District Court except upon grounds of plain error or manifest injustice.

Nettles v. Wainwright, 677 F.2d 404 (Sth Cir. 1982); 11TH CIR. R. 3-1. See Stein v.

Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard,

661 F.2d 1206 (1 1th Cir. 1981) (en banc).

DONE this 11th day of June, 2024.

= i! T. ADAMS

TED STATES MAGISTRATE JUDGE

11