Johnson v. Kallis

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ELKINS

DONTEZ JOHNSON,

Plaintiff,

v. CIVIL ACTION NO. 2:17-CV-148

(BAILEY)

S. KALLIS, et al.,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

On this day, the above-styled matter came before this Court for consideration of

Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment [Doc. 80], filed

November 15, 2019. Having been fully briefed, this matter is now ripe for decision. For the

reasons set forth below, the Motion will be granted.

BACKGROUND

Plaintiff was sentenced on July 15, 2005, in the United States District Court for the

Northern District of Ohio to a 110-month term of imprisonment for Conspiracy with Intent to

Distribute and Distribution of Crack Cocaine. Plaintiff was released from Bureau of Prisons

(“BOP”) custody on December 11, 2013, and placed upon supervised release. On May 23,

2017, plaintiff’s supervised release was revoked, and he was recommitted to BOP custody

on June 26, 2017, to serve a 24-month sentence. Plaintiff was designated to FCI Hazelton,

and remained there until February 5, 2018. Plaintiff was released from BOP custody on

March 23, 2018.

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On January 4, 2018, plaintiff filed a Bivens Complaint on the Court-approved form

[Doc. 7]. Plaintiff’s Complaint alleges defendants, who are current and former staff members

at FCI Hazelton, violated his constitutional rights on various occasions while he was

designated to FCI Hazelton. As noted in Magistrate Judge James P. Mazzone’s Order to

Answer, the Complaint contains 36 allegations and is “written in pencil and is difficult to read”

[Doc. 36 at 2]. “Broadly grouped, the Complaint makes allegations of: (1) conditions of

confinement; (2) denial of access to the courts; (3) retaliatory acts; (4) racial discrimination;

(5) sexual harassment; and (6) religious discrimination” [Id.]. Although the Complaint is difficult

to read and interpret, defendants summarize that the following allegations are being asserted

for each broad group:

(1) Conditions of Confinement – Eighth Amendment

Claim 4: Plaintiff alleges, upon transfer to FCI Hazelton, that he was served

food to which the BOP knows he is allergic. ECF 7, PageID# 49.

Claim 6: Plaintiff alleges that he has been denied the ability to buy soap,

deodorant, toothpaste, writing paper, envelopes, pens, and food items. ECF

7-1, PageID# 52.

Claim 10: Plaintiff alleges he was forced to sleep on a “steel slab from 8-21-17

to 8-26-17.” ECF 7-1, PageID# 54.

Claim 13: Plaintiff alleges that he was “locked up for seven days” and only

received a hot cheeseburger for lunch. ECF 7-1, PageID# 55.

Claim 19: Plaintiff again alleges he was served food to which he is allergic.

ECF 7-1, PageID# 57.

Claim 23: Plaintiff alleges it is improper for him to be denied access to pictures

while in the SHU. ECF 7-1, PageID# 58.

Claim 27: Plaintiff alleges he was improperly sanctioned to loss of his mattress.

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ECF 7-1, PageID# 59–60.

Claim 28: Plaintiff alleges he was improperly forced to bathe with shampoo for

“16 or 17 weeks” while in “solitary confinement.” ECF 7-1, PageID# 60.

Claim 33: Plaintiff alleges he was improperly forced to sleep on a freezing steel

slab for 15 hours each day. ECF 7-1, PageID# 63.

Claim 34: Plaintiff alleges he was improperly sanctioned to loss of food items,

hygiene items, pens, writing papers, and envelopes because he was on “A/D

status.” ECF 7-1, PageID# 63.

Claim 35: Plaintiff alleges he was improperly limited to one fifteen minute

phone call per month and forced to bathe with just shampoo for 17 or 18

months. ECF 7-1, PageID# 63–64.

Claim 36(5): Plaintiff alleges he was improperly forced to use a pencil. ECF

7-1, PageID# 65.

(2) Denial of Access to the Courts – First Amendment

Claim 2: Plaintiff alleges he has been denied access to the Court because FCI

Hazelton staff denied the administrative remedies he filed. ECF 7, PageID#

48.

Claim 3: Plaintiff alleges he has three separate lawsuits pending and Plaintiff

claims that he is improperly limited to only one hour per week of library

research. ECF 7, PageID# 48.

Claim 7: Plaintiff alleges that the warden told him that “BP-9s tend to get lost

or thrown away” and that the warden “condones his staff to [purposely] throw my

administrative remedies away.” ECF 7-1, PageID# 52–53.

Claim 8: Plaintiff alleges that FCI Hazelton staff are “playing” with his mail sent

from FCI Hazelton to Charleston, West Virginia. ECF 7-1, PageID# 53.

Claim 11: Plaintiff alleges that his case manager at FCI Hazelton refused to

notarize legal documents for him and told him that he doesn’t “understand

French fry talk.” ECF 7-1, PageID# 54.

Claim 14: Plaintiff alleges that his Unit Counselor refused to take a BP-8. ECF

7-1, PageID# 55.

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Claim 15: Plaintiff alleges executive staff refused to take an inmate request.

ECF 7-1, PageID# 55.

Claim 24: Plaintiff alleges Associate Warden Jared Rardin is denying Plaintiff

sufficient time to research and study to prepare a proper defense. ECF 7-1,

PageID# 58.

Claim 26: Plaintiff alleges FCI Hazelton Staff refuses to respond to an

administrative remedy regarding staff improperly reading Plaintiff’s outgoing

mail. ECF 7-1, PageID# 59.

Claim 29: Plaintiff alleges FCI Hazelton Staff refused him administrative

remedies for 18 weeks in a row. ECF 7-1, PageID# 60–61.

Claim 30: Plaintiff alleges FCI Hazelton Staff refused him the ability to use a

pen to draft his legal pleadings as Ordered by the Court. ECF 7-1, PageID#

61.

(3) Retaliatory Acts – First Amendment

Claim 1: Plaintiff alleges he has been subjected to retaliatory acts while housed

in protective custody in the Special Housing Unit (“SHU”) by FCI Hazelton

correctional staff. ECF 7, PageID# 47–48.

Claim 12: Plaintiff alleges he has been subjected to retaliatory acts for filing

administrative remedies that include a correctional officer sticking his fingers

in his food and announcing that he is a “snitch.” ECF 7-1, PageID# 54.

Claim 16: Plaintiff alleges that FCI Hazelton staff falsified a government

document. ECF 7-1, PageID# 55.

Claim 17: Plaintiff alleges that FCI Hazelton staff falsified a report and that he

received improper sanctions. ECF 7-1, PageID# 56.

Claim 18: Plaintiff alleges that, because he is utilizing his right to the courts, FCI

Hazelton staff made a “smart remark” toward him, which caused Plaintiff to yell

obscenities at staff. ECF 7-1, PageID# 57.

Claim 25: Plaintiff alleges that Warden Frederick Entzel falsified a government

document. ECF 7-1, PageID# 59.

Claim 31: Plaintiff alleges that because he filed an administrative remedy

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regarding his right to use the law library he was moved to a cell with a defective

toilet. ECF 7-1, PageID# 62.

(4) Racial Discrimination – Fifth Amendment

Claim 5: Plaintiff alleges that he was subjected to certain loss of privileges

while “fishing on the range” and that other white inmates were not subjected to

the same loss of privileges. ECF 7, PageID# 49.

Claim 20: Plaintiff alleges that white inmates were given preference over black

inmates because “cell 134” was given new paper suits. ECF 7, PageID# 57.

(5) Sexual Harassment – No Constitutional Allegation

Claim 9: Plaintiff alleges FCI Hazelton staff made sexually explicit and offensive

comments about Plaintiff during search protocols. ECF 7-1, PageID# 53.

(6) Religious Discrimination – First Amendment

Claim 32: Plaintiff alleges he is being denied his right to practice religion and

that preferential treatment is given to Christians. ECF 7-1, PageID# 62.

[Doc. 81 at 14–16]. Plaintiff presents no objection to this summarization. For relief, plaintiff

seeks $100,000 in damages and requests to be transferred.1

Defendants argue that plaintiff’s Complaint must be dismissed for the following

reasons:

First, Plaintiff’s Bivens Complaint must be dismissed for failure to exhaust his

administrative remedies. Second, all of Plaintiff’s claims present novel theories

that are precluded from the limited contexts in which the Supreme Court of the

United States has authorized Bivens liability pursuant to Ziglar v. Abbasi, 137

S.Ct. 1843 (2017). Third, Plaintiff’s Bivens Complaint must be dismissed as

all defendants are entitled to qualified immunity. Fourth, Defendants Dunbar,

Kallis, and Entzel must be dismissed as the concept of respondeat superior

does not exist in Bivens litigation.

1 Even if a transfer were relief this Court could provide, as previously noted plaintiff was

released from BOP custody on March 23, 2018.

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[Doc. 81 at 2].

Plaintiff responds that he “did exhaust all [of his] administrative remedies,” [Doc. 88 at

1], but does not provide any documentation of such. Instead, plaintiff argues that his “original

exhibit will clearly show this” [Id.]. Further, plaintiff’s response does not address defendants’

legal arguments regarding Abbasi, qualified immunity, or respondeat superior. In sum,

plaintiff’s response merely reiterates many of the claims from his Complaint.

LEGAL STANDARDS

A. Motion to Dismiss — Rule 12(b)(1)

A party may move to dismiss an action for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). The burden of proving subject matter jurisdiction on

a Rule 12(b)(1) motion to dismiss is on the party asserting federal jurisdiction. A trial court

may consider evidence by affidavit, deposition, or live testimony without converting the

proceeding to one for summary judgment. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.

1982); Mims v. Kemp, 516 F.2d 21 (4th Cir. 1975). Because the court’s very power to hear

the case is at issue in a Rule 12(b)(1) motion, the trial court is free to weigh the evidence to

determine the existence of its jurisdiction. No presumptive truthfulness attaches to the

plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial

court from evaluating for itself the merits of jurisdictional claims. See Materson v. Stokes,

166 F.R.D. 368, 371 (E.D. Va. 1996). Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the

action. See Fed. R. Civ. P. 12(h)(3).

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B. Motion to Dismiss — Rule 12(b)(6)

A complaint must be dismissed if it does not allege “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);

see also Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (applying the Twombly

standard and emphasizing the necessity of plausibility). When reviewing a motion to dismiss

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must assume all

of the allegations to be true, must resolve all doubts and inferences in favor of the plaintiffs,

and must view the allegations in a light most favorable to the plaintiffs. Edwards v. City of

Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999).

When rendering its decision, the Court should consider only the allegations contained

in the Complaint, the exhibits to the Complaint, matters of public record, and other similar

materials that are subject to judicial notice. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d

1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996). In Twombly,

the Supreme Court, noting that “a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do,” id. at 1964–65, upheld the dismissal of a

complaint where the plaintiffs did not “nudge[ ] their claims across the line from conceivable

to plausible.” Id. at 1974.

C. Motion for Summary Judgment — Rule 56

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with

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the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” The party seeking summary

judgment bears the initial burden of showing the absence of any genuine issues of material

fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the moving party meets

this burden, the nonmoving party “may not rest upon the mere allegations or denials of its

pleading, but must set forth specific facts showing there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

“The inquiry performed is the threshold inquiry of determining whether there is the need for a

trial—whether, in other words, there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be resolved in favor of either

party.” Id. at 250.

In reviewing the supported underlying facts, all inferences must be viewed in the light

most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary judgment

“must do more than simply show that there is some metaphysical doubt as to the material

facts.” Id. at 586. That is, once the movant has met its burden to show absence of material

fact, the party opposing summary judgment must then come forward with affidavits or other

evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c);

Celotex Corp., 477 U.S. at 323–25; Anderson, 477 U.S. at 248. “If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson,

477 U.S. at 249 (citations omitted). Although all justifiable inferences are to be drawn in favor

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of the non-movant, the non-moving party “cannot create a genuine issue of material fact

through mere speculation of the building of one inference upon another.” Beale v. Hardy, 769

F.2d 213, 214 (4th Cir. 1985). Further, “the plain language of Rule 56(c) mandates the entry

of summary judgment . . . against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

APPLICABLE LAW

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that

inmates exhaust available administrative remedies prior to filing civil actions, even though the

administrative process may not afford them the relief they might obtain through civil

proceedings.2 Woodford v. Ngo, 548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 532

(2002) (“[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.”); Booth v. Churner, 532 U.S. 731, 731 (2001)

(“Under 42 U.S.C. § 1997e(a), an inmate seeking only money damages must complete any

prison administrative process capable of addressing the inmate's complaint and providing

some form of relief, even if the process does not make specific provision for monetary relief.”).

Exhaustion of administrative remedies is also required when injunctive relief is requested.

Goist v. United States Bureau of Prisons, 2002 WL 32079467, at *4 n.1 (D.S.C. Sep 25,

2 42 U.S.C. § 1997e(a) provides the following: “No 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.”

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2002) (Herlong, J.). “[A] court may not excuse a failure to exhaust” because the PLRA’s

mandatory exhaustion scheme “foreclose[s] judicial discretion.” Ross v. Blake, 136 S.Ct.

1850, 1856–57 (2016) (“[A] court may not excuse a failure to exhaust, even to take [special

circumstances] into account.”). But the plain language of the statute requires that only

“available” administrative remedies be exhausted. Id. at 1855 (“A prisoner need not exhaust

remedies if they are not ‘available.’”). In Ross, the Supreme Court set forth three scenarios

where the administrative process is considered “unavailable”: (1) the administrative process

“operates as a simple dead end—with officers unable or consistently unwilling to provide any

relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary

prisoner can discern or navigate through the process; and (3) the “administrators thwart

inmates from taking advantage of a grievance process through machination,

misrepresentation or intimidation.” Id. at 1859–60.

If an inmate exhausts administrative remedies with respect to some, but not all, of the

claims he raises in a section 1983, Bivens, or Federal Tort Claims Act action, the Court must

dismiss the unexhausted claims and proceed with the exhausted ones. See Jones v. Bock,

549 U.S. 199, 201 (2007) (“The PLRA does not require dismissal of the entire complaint when

a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. . .

. If a complaint contains both good and bad claims, the court proceeds with the good and

leaves the bad.”). It appears to be the majority view as well that exhausting administrative

remedies after a complaint is filed will not save a case from dismissal. See Neal v. Goord,

267 F.3d 116, 121–22 (2d Cir. 2001) (citing numerous cases) (overruled on other grounds).

The rationale is pragmatic. As the court stated in Neal, allowing prisoner suits to proceed,

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so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress’

directive to pursue administrative remedies prior to filing a complaint in federal court.

Moreover, if during the pendency of a suit, the administrative process were to produce results

benefitting plaintiff, the federal court would have wasted its resources adjudicating claims that

could have been resolved within the prison grievance system at the outset. Id. at 123. In

Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999), the court stated: “The plain language

of the statute [42 U.S.C. § 1997e(a)] makes exhaustion a precondition to filing an action in

federal Court. . . . The prisoner, therefore, may not exhaust administrative remedies during

the pendency of the federal suit.” Thus, the PLRA requires that available administrative

remedies must be exhausted before the filing of a suit in federal court.

It is further clear that the PLRA does not require that an inmate allege or demonstrate

that he has exhausted his administrative remedies. See Jones, 549 U.S. 199. Failure to

exhaust administrative remedies is an affirmative defense—prison officials have the burden

of proving that the inmate had available remedies which he did not exhaust. Id. at 216 (finding

that failure to exhaust is an affirmative defense that a defendant must generally plead and

prove); see also Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (“Although exhaustion of

administrative remedies is a precondition to a federal prisoner filing a Bivens suit . . . failure

to exhaust is an affirmative defense that the defendants have the burden of pleading and

proving.” (citations omitted)). This Court is not precluded, however, from considering at the

outset whether an inmate has exhausted administrative remedies. “A court may sua sponte

dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the

inmate failed to exhaust his administrative remedies.” Custis v. Davis, 851 F.3d 358, 361

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(4th Cir. 2017); Anderson v. XYZ Prison Shealth Servs., 407 F.3d 674, 681–82 (4th Cir.

2005); see also Banks v. Marquez, 694 Fed. App’x 159 (4th Cir. 2017) (finding no error in

the district court’s decision to sua sponte dismiss petitioner’s petition where petitioner

explicitly admitted in his petition that he failed to exhaust his administrative remedies).

For Bivens purposes, proper exhaustion of available administrative remedies requires

that “a prisoner must submit inmate complaints and appeals in the place, and at the time, the

prison’s administrative rules require.” Dale, 376 F.3d at 655 (citations omitted); see also

Woodford, 548 U.S. at 92–94, 101–102 (finding that the PLRA exhaustion requirement

requires “full and proper exhaustion,” which includes meeting all the time and procedural

requirements of the prison grievance system). The Federal Bureau of Prisons (“BOP”) has

established an Administrative Remedy Program, 28 C.F.R. § 542.10, et seq., through which

an inmate may seek formal review of issues or complaints relating to confinement. The BOP

provides a four-step administrative process beginning with attempted informal resolution with

prison staff (BP-8). See 28 C.F.R. § 542.10, et seq. If the prisoner achieves no satisfaction

informally, he must file a written complaint to the warden (BP-9), within 20 calendar days of the

date of the occurrence on which the complaint is based. If an inmate is not satisfied with the

warden’s response, he may appeal to the regional director of the BOP (BP-10) within 20 days

of the warden’s response. Finally, if the prisoner has received no satisfaction, he may appeal

to the Office of General Counsel (BP-11) within 30 days of the date the Regional Director

signed the response. An inmate is not deemed to have exhausted his administrative

remedies until he has filed his complaint at all levels. 28 C.F.R. § 542.10–542.15; Gibbs v.

Bureau of Prison Office, 986 F.Supp. 941, 943 (D. Md. 1997).

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DISCUSSION

Here, defendants put forth evidence that “[w]hile Plaintiff filed over 237 administrative

remedies while designated to the BOP, the remedies that appear to be relevant to the January

4, 2018, Bivens Complaint were not exhausted, as they were rejected for failure to follow

procedural guidelines, or, in one instance not appealed any further” [Doc. 81 at 10].

Defendants assert that upon review of plaintiff’s administrative remedy history, the following

administrative remedy attempts may be relevant to plaintiff’s Bivens Complaint:

• Administrative Remedy 914540-R1 was received by the Mid-Atlantic

Regional Office on September 16, 2017. Administrative Remedy 914540-R1

broadly alleged staff misconduct and was properly rejected because Plaintiff

was not specific about his claims and did not follow proper procedure. See

Exhibit 1, Williams Decl., ¶ 8, Attachment C.

• Administrative Remedy 916840-R1 was received by the Mid-Atlantic

Regional Office on September 28, 2017. Administrative Remedy 916840-R1

alleged staff misconduct and was rejected because it was not considered

sensitive and Plaintiff failed to observe the requirement that he only be allowed

to submit one continuation page. See Exhibit 1, Williams Decl., ¶ 9,

Attachment C.

• Administrative Remedy 917643-F1 was received by FCI Hazelton on

October 23, 2017. Administrative Remedy 917643-F1 requested that Plaintiff

be allowed five hours in the inmate library per week. This administrative

remedy was denied as a review of Plaintiff’s claims showed he was allowed

sufficient time to use the library. See Exhibit 1, Williams Decl., ¶ 10,

Attachment C. Plaintiff did not appeal this denial. Id.

• Administrative Remedy 929178-R1 was received by the Mid-Atlantic

Regional Office on January 30, 2018. Administrative Remedy 929178-R1

alleged staff misconduct and was rejected because Plaintiff was first required

to submit his request to FCI Hazelton. See Exhibit 1, Williams Decl., ¶ 11,

Attachment C.

• Administrative Remedy 929181-R1 was received by the Mid-Atlantic

Regional Office on January 30, 2018. Administrative Remedy 929181-R1

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alleged staff misconduct and was rejected because Plaintiff’s issue was not

sensitive and Plaintiff was therefore required to first file a BP-9 request with the

institution. See Exhibit 1, Williams Decl., ¶ 12, Attachment C.

[Id. at 10–11]. Defendants’ evidence also supports their assertion that plaintiff “did not file any

additional remedies after January 30, 2018, related to staff members at FCI Hazelton or

addressing any alleged incidents giving rise to the Complaint” [Id. at 11]. Thus, defendants

argue that “it is clear that Plaintiff did not exhaust all of his remedies for any of the numerous

allegations set forth in Plaintiff’s January 4, 2018, Bivens Complaint” and note that “two of the

administrative remedies possibly encompassing the claims set forth in the January 30, 2018,

Bivens Complaint were filed after Plaintiff’s current lawsuit was transferred to the Northern

District of West Virginia on December 14, 2017, and after Plaintiff submitted the January 30,

2018, Bivens Complaint, along with the proper forms” [Id.]. Therefore, defendants argue

“[b]ecause Plaintiff has failed to properly exhaust his administrative remedies, Plaintiff’s

Bivens Complaint must be dismissed” [Id.].

In response, plaintiff argues that he “did exhaust all [of his] administrative remedies”

[Doc. 88 at 1], but does not provide any documentation of such. Instead, plaintiff argues that

his “original exhibit will clearly show this” [Id.]. Further, plaintiff argues that “BOP policy allows

inmates to file sensitive remedies straight to the Regional Director[,] and they can accept or

deny it” [Id. at 3]. Finally, plaintiff argues that defendants’ statement that plaintiff “filed over 237

administrative remedies while designated to the BOP” is in “clear contradiction” to

defendants’ assertion that plaintiff “didn’t file all of [his] administrative remedies” [Id. at 4].

First, with regard to plaintiff’s argument that he “did exhaust all [of his] administrative

remedies,” [id. at 1], it is again noted that plaintiff does not provide any documentation of such

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in his response, but instead argues that his “original exhibit will clearly show this” [Id.].

Plaintiff’s December 14, 2017, Bivens Complaint only contains one request for administrative

remedy, Administrative Remedy 917643-F1, which requested that plaintiff be allowed five

hours in the inmate library per week. See [Doc. 7-1]. That administrative remedy was denied

by the Acting Warden, as a review of plaintiff’s claims showed he was allowed sufficient time

to use the library. This same administrative remedy is also included in defendants’ Motion.

See [Doc. 81-1 at 29]. However, despite the Acting Warden pointing out to plaintiff in his

denial that “[i]f [plaintiff is] dissatisfied with this response, [plaintiff] may appeal to the Mid-

Atlantic Regional Director . . . within 20 days of the date of this response,” [id.], defendants’

evidence shows that this administrative remedy was appealed no further. Thus, this Court

finds that plaintiff failed to exhaust available administrative remedies with regard to this claim.

Additionally, giving plaintiff the benefit of the doubt because he states in his Complaint

that his “facts and evidence” are included in his “original petition” because he “only had that

one copy” as he “does not have access to a copy machine,” [Doc. 7-3 at 1], this Court

reviewed plaintiff’s previous Complaints for any evidence that he exhausted his administrative

remedies. Plaintiff’s original Complaint filed in this case, which had deficiencies leading to

the filing of plaintiff’s present Complaint, contains no supporting documentation regarding

administrative remedies. See [Doc. 1]. Thus, this Court believes plaintiff must be referring

to his Complaint that was filed on October 30, 2017, in the Southern District of West Virginia,

[Civil Action No. 5:17-cv-164, Doc. 1], which was transferred to the Northern District of West

Virginia and placed on the docket of the Honorable Frederick P. Stamp, Jr., on November 1,

2017, [Civil Action No. 5:17-cv-164, Doc. 5], and dismissed by Judge Stamp on December

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15, 2017, after plaintiff filed his Complaint on the Court-approved form and the instant case

was opened [Civil Action No. 5:17-cv-164, Doc. 9].

In that Complaint, plaintiff included five (5) requests for administrative remedies. See

[Civil Action No. 5:17-cv-164, Doc. 3 at 20–24]. Three of the requests are directed to the

“Warden or Regional Director,” [id. at 20–22], and two are directed to the “Regional Director”

[id. at 23–24]. Upon review, those requests only discuss some of the claims raised by plaintiff

in his Complaint, and none of them have any responses or even show that they were received

by any BOP staff member. Accordingly, this Court finds these documents do nothing to rebut

the defendants’ evidence showing that plaintiff failed to exhaust his administrative remedies.

Even if plaintiff did submit these remedies and simply received no response, which seems

doubtful given that there is no signature indicating receipt, the BOP’s administrative process

instructs prisoners to “consider the absence of a response to be a denial at that level.” 28

C.F.R. § 542.18. Thus, if plaintiff did not receive a response within the time allotted for reply,

he should have considered the absence of a response to be a denial and appealed to the next

level. However, there is no evidence that plaintiff did file any appeal of these alleged ignored

requests, and it remains clear that plaintiff did not appeal any requests to the final level, as no

BP-11s appear anywhere in the record of this case or plaintiff’s previous one.

Second, plaintiff’s argument that “BOP policy allows inmates to file sensitive remedies

straight to the Regional Director[,] and they can accept or deny it,” [Doc. 88 at 3], is true. See

28 C.F.R. § 542.14(d)(1) (“If the inmate reasonably believes the issue is sensitive and the

inmate’s safety or well-being would be placed in danger if the Request became known at the

institution, the inmate may submit the Request directly to the appropriate Regional Director.”).

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However, many of plaintiff’s requests that were submitted directly to the Regional Director

where found to not be sensitive, and plaintiff was instructed to file first with the institution, yet

failed to do so. Not only did plaintiff not then file his request with FCI Hazelton, but he also did

not appeal the Regional Director’s decision regarding sensitivity, as again no BP-11s appear

anywhere in the record of this or any other case. Accordingly, this Court finds this argument

unhelpful to plaintiff.

Third, this Court finds plaintiff’s argument that defendants’ statement that plaintiff “filed

over 237 administrative remedies while designated to the BOP” is in “clear contradiction” to

defendants’ assertion that plaintiff “didn’t file all of [his] administrative remedies,” [id. at 4], to

also be unpersuasive and unhelpful to plaintiff. The fact that plaintiff filed numerous

administrative remedies while in BOP custody has no impact on whether or not plaintiff

properly exhausted his administrative remedies with regard to the claims presented in

plaintiff’s Complaint here. In short, the number of administrative remedies plaintiff filed has

nothing to do with whether administrative remedies relevant to plaintiff’s Complaint were “full[y]

and proper[ly]” exhausted. Woodford, 548 U.S. at 92–94, 101–102.

Finally, this Court notes that plaintiff only argues that he did, in fact, exhaust available

administrative remedies. Plaintiff does not argue administrative remedies were unavailable,

nor does a review of the record reveal such to this Court. While plaintiff’s Complaint may hint

at some instances that could potentially fit into one of the scenarios where the Supreme Court

has recognized the administrative process is considered “unavailable”—such as alleging that

certain staff members refused to take or respond to his administrative remedies and that he

has faced retaliation for filing administrative remedies—there is no evidence in the record,

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other than these few conclusory allegations, to suggest plaintiff was prevented from or

persuaded against filing any administrative remedies. In fact, the record reveals that the

administrative remedy process was very available to plaintiff, as evidenced by plaintiff’s filing

of over 237 administrative remedies while designated to the BOP. All of the administrative

remedy attempts that may be relevant to plaintiff’s Bivens Complaint here received a

response and explained why they were properly rejected, other than the requests attached to

plaintiff’s original Complaint in Civil Action No. 5:17-cv-164, for which this Court, as discussed

above, cannot be sure were even submitted. In sum, plaintiff does not argue, nor does the

record demonstrate, that there was no potential for any relief through the administrative

remedy process or that plaintiff was prevented from using the grievance process through

machination, misrepresentation, or intimidation. See Ross, 136 S.Ct. at 1859–1860.

Accordingly, for the reasons stated above, this Court finds defendants have met their

burden to prove the affirmative defense of failure to exhaust available administrative

remedies. Therefore, as the PLRA prohibits bringing unexhausted claims in court,3 this Court

must dismiss plaintiff’s Complaint.4 See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There

3 This Court notes that it is irrelevant that plaintiff is no longer in BOP custody, as “[t]he

circuit courts of appeals have uniformly found that it is the custody status of a plaintiff at the

time an action is filed, i.e., when it is ‘brought,’ that determines the applicability of the PLRA.”

Stanley v. United States, 2013 WL 256023, at *3 (N.D. W.Va. Jan. 23, 2013) (Keeley, J.)

(listing cases) (emphasis in original).

4 As noted above, defendants also moved to dismiss on the basis that all of plaintiff’s

claims present novel theories that are precluded from the limited contexts in which the

Supreme Court of the United States has authorized Bivens liability pursuant to Ziglar v.

Abbasi, 137 S.Ct. 1843 (2017), as well as arguing that all defendants are entitled to qualified

immunity. This Court, however, need not address the merits of those arguments because

plaintiff’s claims are dismissed for failure to exhaust available administrative remedies

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is no question that exhaustion is mandatory under the PLRA and that unexhausted claims

cannot be brought in court.”) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).

CONCLUSION

For the reasons set forth above, this Court hereby GRANTS Defendants’ Motion to

Dismiss or, in the Alternative, for Summary Judgment [Doc. 80]. Accordingly, plaintiff's

Complaint [Doc. 7] is hereby DISMISSED WITHOUT PREJUDICE. Furthermore, plaintiff's

“Motion to Answer to Bivens Claim” [Doc. 89] is hereby DENIED AS MOOT. The Clerk is

DIRECTED to enter judgment in favor of the defendants and to STRIKE this action from the

active docket of this Court.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to any counsel of record herein

and to mail a copy to the pro se plaintiff.

DATED: December 19, 2019.

UNI ATES DISTRICT JU

pursuant to the PLRA.

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