# Horne v. Coakley

> District Court, N.D. West Virginia · April 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10725746

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** April 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10725746

## How later opinions describe it (automated extraction)

- applying the Twombly standard and emphasizing the necessity of plausibility
- applying the Twombly standard and emphasizing the necessity of plausibility

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
CAMERON HORNE,
Plaintiff,
v. CIVIL ACTION NO. 2:18-CV-119
(BAILEY)
WARDEN JOSEPH COAKLEY, et al.,
Defendants.
ORDER GRANTING MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
On this day, the above-styled matter came before this Court for consideration of
defendants’ Motion to Dismiss or for Summary Judgment [Doc. 54], filed November 25,
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 in the United States District Court for the Eastern District of
Tennessee to a 72-month term of imprisonment for bank robbery. Plaintiff was
incarcerated at USP Hazelton from April 18, 2016, through May 11, 2018, during which time
the incident giving rise to plaintiff’s Bivens Complaint took place.
Plaintiff’s Complaint states that on March 20, 2017, he blocked the window of his
special housing unit (“SHU”) cell in an attempt to compel USP Hazelton staff to remove him
from his cell. See [Doc. 1-1 at 8]. Plaintiff claims he was injured by USP Hazelton staff
while they were escorting him back to his cell, specifically alleging that the staff “slammed
[his] head on the floor, splitting [his] forehead open and making [him] bleed profusely.” [Id.]

1
Plaintiff alleges continuing physical complications and emotional distress, and requests
monetary damages in the amount of $150,000. See [Doc. 1 at 9].
Defendants argue that plaintiff’s Complaint must be dismissed for the following
reasons: (1) plaintiff failed to exhaust his administrative remedies; (2) even if plaintiff had
exhausted is administrative remedies, his claims are not cognizable in a Bivens lawsuit;

(3) even if plaintiff’s claims were cognizable in a Bivens lawsuit, plaintiff has not adequately
pled and cannot support a cognizable legal claim; and (4) defendants are entitled to
qualified immunity. See [Doc. 55 at 6-22]. Plaintiff’s response1 mainly just recounts his
version of the events that took place on March 20, 2017. See [Doc. 58-1 at 1–3]. Plaintiff
also states that he “ha[s] filed all the administrative remedies.” [Id. at 1].
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

1 Plaintiff’s response is titled “Motion to Proceed or for Summary Judgment” [Doc.
58].
2
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).

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.
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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 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.

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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 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

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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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. Sept. 25, 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
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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, 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)

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(“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 (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

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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).
DISCUSSION
Here, defendants put forth evidence that shows plaintiff did not exhaust his available
administrative remedies before filing the instant Bivens Complaint. A review of plaintiff’s
administrative remedy history shows that on May 11, 2017, USP Hazelton staff received
plaintiff’s administrative remedy (901666-F1) alleging staff misconduct regarding the March
20, 2017, incident. See [Doc. 55-1 at 4, 15, 17]. The Warden responded to plaintiff’s

administrative remedy on June 19, 2017, and advised that the staff misconduct would be
reviewed. See [id. at 4, 19].
Plaintiff appealed the Warden’s response, and on August 8, 2017, the Mid-Atlantic
Regional Office received plaintiff’s appeal (901666-R1). See [id. at 5, 15, 23]. On October
26, 2017, the Mid-Atlantic Regional Office closed plaintiff’s administrative remedy, advising
plaintiff that appropriate administrative procedures were taken. See [id.] The Mid-Atlantic
Regional Office also informed plaintiff that if he was “dissatisfied with this response, [he]
may appeal to the General Counsel, Federal Bureau of Prisons . . . within 30 days from the

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date of this response.” [Id. at 23].
Plaintiff did not file any additional administrative remedies related to staff misconduct
at USP Hazelton after filing remedy 901666-R1 and plaintiff failed to appeal administrative
remedy 901666-R1 to the BOP General Counsel, as required by federal regulations and
the BOP administrative grievance policy. See [id. at 5, 15]. Thus, it is clear plaintiff did not

fully exhaust his administrative remedies, as plaintiff did not appeal his grievance to the
BOP General Counsel, which is the final step required for exhaustion. See 28 C.F.R.
§ 542.10–542.15; Gibbs, 986 F. Supp. at 943.
Though plaintiff argues in response that he “ha[s] filed all the administrative
remedies,” [Doc. 58-1 at 1], he provides no documentation of such. The only
documentation plaintiff provides with his response is a form titled “Small Claims for Property
Damage or Loss (31 U.S.C. § 3723)”. See [Doc. 58-2 at 2]. This is clearly not a Form BP-
11, the form on which appeals to the BOP General Counsel must be completed, and does
nothing to show that plaintiff did, in fact, make an appeal to the BOP General Counsel.

Additionally, none of the documents plaintiff attached to his Complaint demonstrate that an
appeal to the BOP General Counsel was made. See [Doc. 1-1 at 1–11]. Indeed, it is
impossible for plaintiff to provide any documentation showing an appeal to the BOP
General Counsel was made, because it is clear from a review of plaintiff’s administrative
grievance history that such never happened.
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. There is no
evidence in the record to suggest plaintiff was prevented from or persuaded against filing
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any administrative remedies. In fact, the record reveals the administrative remedy process
was clearly available to plaintiff, as he completed some of the required steps in the
grievance procedure. Thus, it is clear plaintiff understood the administrative remedy
process and was able to navigate this way through it; he simply failed to complete it. At
bottom, 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, this
Court must dismiss plaintiff’s Complaint.3 See Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There 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 for Summary Judgment [Doc. 54]. Furthermore, plaintiff’s “Motion to Proceed
or for Summary Judgment” [Doc. 58] is hereby DENIED. Accordingly, plaintiff’s Complaint
[Doc. 1] is hereby DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to enter

3 As noted above, defendants also moved to dismiss on the basis that plaintiff’s
claims are not cognizable in a Bivens suit, that plaintiff has not pled a cognizable legal
claim, and that the 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 pursuant to the PLRA.
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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: April 16, 2020.

JOHN PRESTON BAILEY
UNI ATES DISTRICT JU

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725746. Public record. Not legal advice.