Petition for Writ of Certiorari — Donald W. Rager, Petitioner v. Paige Augustine, Warden, et al.

Supreme Court briefAug 20, 2019

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In The

Supreme Court of the United States

No.

■

Donald W. Rager (10038-029),

Petitioner,

(

. v

FILED

AUG 2 0 2019

SUPREM°FCOURTLUfS<

Paige Augustine, Warden, FCI Marianna, Federal Bureau of Prisons

Keith Buford, Lieutenant, FCI Marianna, Federal Bureau of Prisons

S. Malone, Lieutenant, FCI Marianna, Federal Bureau of Prisons

Eddie Snell, Case Manager, FCI Marianna, Federal Bureau of Prisons

Connie Copeland, Counselor, FCI Marianna, Federal Bureau of

Prisons R. Honeycutt, Lieutenant, FCI Marianna, Federal Bureau of

Prisons, K. O'Bryan, Officer, FCI Marianna. Federal Bureau of

Prisons, T. Lewis, Captain, FCI Marianna, Federal Bureau of Prisons,

Mr. Simmons. Southeast Region Administrative Remedy Coordinator,

FBOP Harrell Watts, National Administrative Remedy Coordinator,

FBOP, Charles E. Samuels, Jr., Director of Federal Bureau of Prisons,

United States of America,

Respondents.

On Appeal to the United States Court of Appeals

for the Eleventh Circuit (18-10834-HH)

from the United States District Court

For the Northern District of Florida

Civil Action No. 5:15-cv-00035-MW-EMT

PETITION FOR WRIT OF CERTIORARI

Donald W. Rager

Petitioner

In Forma Pauperis

August 20,2019

*\ '

QUESTION PRESENTED FOR REVIEW

Incarcerated inmate Donald W. Rager (Rager) was physically assaulted by Federal

Bureau of Prisons (BOP) Lt. Keith Buford on July 13, 2010. Rager filed multiple grievances

alleging violations of his rights by 13 BOP employees and spent three years exhausting those

grievances. The exhaustion process took between 322 days and 901 days to reach final

disposition, and four of the grievances were never answered. On February 24, 2015 Rager filed

a civil rights lawsuit against the 13 BOP employees alleging multiple violations of his

constitutional rights under 42 USC §1983/Bivens.

The District Court for the Northern District of Florida dismissed most of the claims

brought by Rager as beyond the statute of limitation (SOL) without considering or applying

tolling for exhaustion of administrative remedies (AR’s) as required by the Prison Litigation

Reform Act (PLRA), 42 USC §1997e(a): “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.” Rager specifically argued that tolling applies to exhaustion of AR’s and cited the

following rulings:

Gonzalez v. Hasty 651 F 3d 318 (2nd 111

Pearson v. Secy Dept of Corr 775 F 3d 598, 602-04 (3rd 15)

Harris v. Hermann 198 F 3d 158 (5th 99)

Brown v. Morgan 209 F 3d 595, 596 (6th 00)

Johnson v. Rivera 272 F 3d 519, 522 (7th 01)

Williams v. Pulaski Co. Pet Ctr 278 Fed Appx 695 (8th 08)

Brown v. Valoff422 F 3d 926, 943 (9th 05)

Roberts v. Barreras 484 F 3d 1236 (10th 07)

These eight cases ruled that tolling applies to the time that a prisoner spends exhausting AR’s

under the PLRA. Rager also cited cases from the 11th Circuit which alluded that “the SOL may

have been tolled on account of Leal’s exhaustion of AR’s.” Leal v. Georgia 254 F 3d 1276 (11th

01); “We proffer, but do not hold, as that issue is not before us, that such a result may be

mitigated by the doctrine of equitable tolling, as other Circuits have applied that doctrine to the

administrative exhaustion requirement for prison conditions suits under 42 USC §1997e(a).”

Napier v. Preslicka 314 F 3d 528 n.3 (11th 02).

Upon appeal to the 11th Circuit, Rager again specifically argued for tolling for exhaustion

of AR’s in PLRA suits but the 11th Circuit Panel merely stated: “We have expressly declined to

address the question of whether the SOL can be tolled while a prisoner is in the process of

exhausting his administrative remedies as a mandatory prerequisite for filing a federal lawsuit.”

Raeer v. Augustine 2019 US App Lexis 3279 (11th 19). At around the same time, the 4th Circuit,

becoming the 9th Circuit to make such a ruling, ruled that, under federal tolling principles, tolling

is applicable to the time spent exhausting AR’s as required by the PLRA. “Battle asks that we

apply federal equitable tolling principles to account for the time lost during his 83-day

mandatory exhaustion period. We agree with Battle (and our sister Circuits) that those principles

apply during this period.” Battle v. Ledford 912 F 3d 708 (4th 19).

The ruling by the 11th Circuit, or, more accurately, their refusal to rule on the question of

tolling of the SOL for exhaustion of AR’s, which allows the District Court’s ruling to stand, has

created a Circuit split which in turn pits the 11th Circuit against the ten other Circuits that have

made a ruling on this issue. “We agree with the uniform holdings of the Circuits that have

considered the question that the applicable statute of limitations must be tolled while a prisoner

completes the mandatory exhaustion process.” Brown v. Valoff422 F 3d 926 (9th 04); “Thus,

every Circuit that has confronted a state no-tolling rule and reached this question has applied

federal law to equitably toll §1983 limitations during the PLRA exhaustion period.” Battle

supra.

Rager now asks the Court to take up the question of tolling of the SOL for the time spent

exhausting AR’s as a mandatory prerequisite under the PLRA 42 USC §1997e(a) for

incarcerated prisoners prior to the filing of a suit in federal court and determine that the SOL

begins to run from the final disposition of the administrative procedure.

iii

CERTIFICATE OF INTERESTED PERSONS (CIP)

The Certificate of Interested Persons (CIP) was filed for this appeal per 11th Cir. R. 26.11 on March 23, 2017. I do hereby certify that there have been no changes to the CIP.

Respectfully,

Donald W. Rager

August 20, 2019

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW.......................

CERTIFICATE OF INTERESTED PERSONS.... ............

TABLE OF AUTHORITIES..............................................

PETITION FOR WRIT OF CERTIORARI.......................

OPINION BELOW.............................................................

STATEMENT OF JURISDICTION...................................

STATUTORY AND OTHER PROVISIONS INVOLVED

SECTION 1: CIRCUIT SPLIT........................................

SECTION 2: SUMMARY................................................

CONCLUSION...................................................................

CERTIFICATE OF WORD COUNT.................................

APPENDIX.........................................................................

DECISION OF THE 11th CIRCUIT COURT OF APPEALS

Roger v. Augustine, et al, 18-10834-HH, February 1, 2019....

DECISION OF THE 11™ CIRCUIT COURT OF APPEALS

PETITION FOR REHEARING AND PETITON FOR REHEARING EN BANC

Roger v. Augustine, et al, 18-10834-HH, May 23, 2019........ ...............................

DECISION OF THE DISTRICT COURT, NORTHERN DISTRICT OF FLORIDA

Roger v. Augustine, et al, 5:15-cv-00035-MW-EMT, (DOC.103),

November 29, 2016 ......................................................................:.............................

ORDER ON REPORT AND RECOMMENDATION FROM THE DISTRICT COURT,

NORTHERN DISTRICT OF FLORIDA

Roger v. Augustine, et al, 5:15-cv-00035-MW-EMT, (DOC.106),

January 10, 2017

§542.18 Response Time........................................................

DECISION OF THE 4™ CIRCUIT COURT OF APPEALS

Battle v. Ledford Y1-62&1, January 8, 2019..........................

PETITIONER’S EXHAUSTIVE REMEDY TIMELINES W/AFFIDAVITS

(DR’s 1-11).....................................................................................................

TABLE OF AUTHORITIES

Page(s)

Cases

Abney v. McGinnis

380 F 3d 663

American Pipe & Construction Co. v. Utah

414 US 538, 38 L Ed 2d 713, 94 S CT 756 (74)

Aron v. US

291 F 3d 708

Artis v. Dist. of Columbia

583 US, 138 S CT 594,199 L Ed 2d 473 (18)

Auto Workers v. Hoosier Corp.

383 US 696,16 L Ed 2d 192, 86 S CT 1107 (66)

Battle v. Ledford

912 F 3d 708

passim

Board of Resents v. Tomanio

446 US 478, 64 L Ed 2d 440,100 S CT 1796 (80)

Brown v. Morgan

209 F 3d 595 .

1, 8,9

Brown v. Valoff

422 F 3d 926

1,3,9

Burnett v. New York Central& Co.

380 US 424,13 L Ed 2d 941, 85 S CT 1050 (65),

Cabello v. Fernandez-Larios

402 F 3d 1148

Chardon v. Fumero-Soto

462 US 650, 77 L Ed 2d 74,103 S CT 2611 (83)

Crown Coat Front Co. v. US

386 US 503, 18 L Ed 2d 256, 87 S CT 1177 (67)

19,20

Gonzalez v. Hasty

651 F 3d 318

1, 9,18,19

Hardin v. Straub

490 US 536,109 S CT 1998,104 L Ed 2d 582 (89),

Harris v. Hesmann

198 F 3d 158...

1, 8,19

Harris v. Hesmann

supra (Louisiana)

Howell v. Proctor

136 Fed Appx 267

8,20

Hushes v. Lott

350 F 3d 1157

8,20

Jerome v. United States

318 US 101, 87 L Ed 640, 43 S CT 483 (43)

Johnson v. Railway Express Asency, Inc.

421 US 454, 44 L Ed 2d 295, 95 S CT 1716 (75)

11,14

Johnson v. Rivera

272 F 3d 519

1, 8,12

Leal v. Georsia

254 F 3d 1276

passim

Lewis v. Washinston

300 F 3d 829.....

Mississippi Band of Choctaw Indians v. Holy field

490 US 30,104 L Ed 2d 29,109 S CT 1597 (89)

Napier v. Preslicka

314 F 3d 528...

passim

NLRB v. Pittsburgh S.S. Co.

340 U.S. 498, 71 S CT 453, 95 L Ed (51)

Occidental Life Ins. Co of Calif v. EEOC

432 US 355 (77)................................

Owens v. Okore

488 US 235,102 L Ed 2d 594,109 S CT 573 (89)

Patsy v. Board of Resents

457 US 496, 73 L Ed 2d

Pearson v. Secy Dept ofCorr

775 F 3d 598...................

1,9

Pressley v. Huber

562 Fed Appx 67

Raser v. Augustine

2018 US App Lexis 3279

6,18

Raser v. Augustine

2019 US App Lexis 3279

.2, 5,6

Roberts v. Barreras

484 F 3d 1236

2, 8, 9

Shropshear v. Corp Counsel of Chi

275 F 3d 593..................... .......

Socop-Gonzalez v. INS

272 F 3d 1176.......

Soto v. Unknown Sweetman

882 F 3d 865 (Napier)

U.S. v. Healv

376 US 75, 84 S CT 553,11 L Ed 2d 527 (64)

US v. Pelzer

312 US 399 61 S CT 659 (41)

Williams v. Pulaski Co. Pet Ctr

278 Fed Appx 695

Wilson v. Garcia

471 US 261, 85 L Ed 2d 254,105 S CT 1938 (88),

Woodford v. Ngo

548 US 81....

10,12,15

15,16

Statutes

28 USC §40.7(e)

28 USC §47(e)

28 USC §541.18

16,17

42 USC § 1983/Bivens

viii

42 USC §1988

Prison Litigation Reform Act, 42 USC §1997e(a)

passim

Other Authorities

28 CFR §542, P.S. 1330.18

14 th Amendment

.5,14

U.S. Constitution

IN THE

SUPREME COURT OF THE UNITED STATES

No. 18-10834-H

DONALD W. RAGER,

Petitioner,

PAIGE AUGUSTINE, et al

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

Petition for Writ of Certiorari

Mr. Donald W. Rager respectfully petitions the Supreme Court of the United States for a

Writ of Certiorari to review the judgment of the United States Court of Appeals for the Eleventh

Circuit, rendered and entered case number 18-10834-H in that Court on February 1, 2019, Rager

v. Augustine, et al, which affirmed the judgment and commitment of the United States District

Court for the Northern District of Florida, Case No. 5:15-cv-00035-MW-EMT.

OPINION BELOW

A copy of the decision of the United States Court of Appeals for the Eleventh Circuit

(Appendix A) which affirmed the decision and commitment of the District Court of the Northern

District of Florida (Appendix C) is contained in the Appendix.

STATEMENT OF JURISDICTION

The Court, to whom this petition is directed, has jurisdiction to hear and mle on the

matters addressed in the petition.

The instant case was originally filed in the Northern District of Florida in Pensacola,

Florida on February 24, 2015 (Case No. 5:15-cv-00035-MW-EMT). The District Court

(Doc.106) on January 10, 2017 accepted the Report and Recommendation of the Magistrate

Judge (Doc.103) dated November 29, 2016 as to the dismissal of most of the claims presented by

Rager in the Amended Complaint—specifically those which pre-dated February 24, 2011.

On August 14, 2018, Rager filed a notice of appeal to the 11th Circuit Court of Appeals in

Atlanta, GA. The District Court transmitted the notice of appeal to the 11th Circuit. The appeal

was docketed as appeal number 18-10834-HH. On February 01, 2019, a Panel of the 11th Circuit

issued judgment affirming the District Court’s judgment. Rager filed a petition for rehearing En

Banc (and Panel rehearing) on March 27, 2019. The petitions were denied by the 11th Circuit on

May 23, 2019.

Rager now files the Petition for Writ of Certiorari to the United States Court of Appeals

for the 11th Circuit under Supreme Court rule 10(a).

This court having jurisdiction over this appeal from a ruling of the 11th Circuit Court of

Appeals (11th Circuit) declined to rule on the question of tolling for exhaustion of administrative

remedies (AR’s) prior to filing a suit in federal court under 42 USC §1997e(a). The District

Court for the Northern District of Florida denied Donald Rager’s request to apply automatic

tolling for the exhaustion of AR\ On appeal to the 11th Circuit, the 11th Circuit “declined to rule

on tolling for exhaustion. Rager submitted a request for rehearing and petition for hearing en

banc. The 11th Circuit issued an order denying both request on May 23, 2019.

The ruling of the 11th Circuit is contrary to the rulings of the 2nd, 3rd, 4th 5th, 6th, 7th, 8th,

9th, 10th, and DC Circuits who all have made precedential rulings granting tolling for exhaustion

of AR’s required by the PLRA. The rulings of the sister Circuits have proclaimed that the

Statute of Limitation runs from the final response of prison administrators.

This appeal has import for all incarcerated prisoners governed by the PLRA who wish to

bring claims of constitutional violations by prison officials and who may have their claims in

jeopardy due to the dilatory tactics, intentional or otherwise, that extend the exhaustion of AR’s

to the point of reducing the time available to investigate, prepare, and file a civil action in court

under the applicable statute of limitation. “Certiorari is only granted in cases involving

principles, the settlement of which is of importance to the public as distinguished from the

parties and in cases where there is real and embarrassing conflict of opinion and authority

between Courts of Appeals.” NLRB v. Pittsburgh S.S. Co. 340 U.S. 498, 71 S CT 453, 95 L Ed,

479 (51); “Period for seeking review by Certiorari began to run from date of lower Court’s denial

of petition for rehearing by parties seeking review, rather than from date of original entry of

judgment.” U.S. v. Healv 376 US 75, 84 S CT 553,11 L Ed 2d 527 (64).

Now comes Donald W. Rager (Rager), petitioner, an incarcerated prisoner proceeding

pro se and in forma pauperis, appealing to the United States Supreme Court (the Court) pleading

for a writ of Certiorari on the issues of 1) the Constitutionality of the Prison Litigation Reform

Act of 1995 (PLRA), and 2) the ruling of the 11th Circuit Panel (Panel) in declining to address

the question of tolling of the statute of limitation (SOL) for the exhaustion of administrative

remedies (AR’s) by an incarcerated prisoner as a mandatory prerequisite to filing a suit in federal

court in a 42 US §1983 or Bivens case as per the PLRA. Additionally the ruling, or more

accurately the refusal to rule, which allows the decision of the District Court to reject tolling of

the SOL for exhaustion of AR’s to stand, is contrary to previous statements by the 11th Circuit in

Leal and Napier. and this ruling creates a Circuit split, pitting it against the rulings of every other

Circuit to have addressed the issue granting automatic tolling of the prescriptive period for

exhaustion of AR’s.

STATUTORY AND OTHER PROVISIONS INVOLVED

Petitioner intends to rely on the following statutory and Constitutional provisions:

42 USC §1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a judicial officer for an

act or omission taken in such officer’s judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 USC §1997e(a)

Applicability of administrative remedies

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.

28 CFR §542, P.S. 1330.18

If accepted, a Request or Appeal is considered filed on the date it is logged into the

Administrative Remedy Index as received. Once filed, response shall be made by

the Warden or CCM within 20 calendar days; by the Regional Director within 30

calendar days; and by the General Counsel within 40 calendar days. If the Request is

determined to be of an emergency nature which threatens the inmate's immediate health

or welfare, the Warden shall respond not later than the third calendar day after filing. If

the time period for response to a Request or Appeal is insufficient to make an appropriate

decision, the time for response may be extended once by 20 days at the institution level,

30 days at the regional level, or 20 days at the Central Office level. Staff shall inform

the inmate of this extension in writing. Staff shall respond in writing to all

filed Requests or Appeals. If the inmate does not receive a response within the time

allotted for reply, including extension, the inmate may consider the absence of a response

to be a denial at that level.

U.S. Constitution, Amendment 5

“No person shall be deprived of life, liberty, or property without due process of law.”

U.S. Constitution, Amendment 14

“No state shall make or enforce any law which shall abridge the privileges or immunities

of a citizen of the United States; nor shall any state deprive any person of life, liberty,

or property without due process of law; nor deny to any person within its jurisdiction

the equal protection of its laws.”

SECTION 1: RESOLVING THE CIRCUIT SPLIT BETWEEN THE 11th CIRCUIT AND

EVERY OTHER CIRCUIT TO HAVE ADDRESSED THE ISSUE OF

TOLLING FOR EXHAUSTION OF ADMINISTRATIVE REMEDIES AS

REQUIRED BY THE PLRA. AS WELL AS SEVERAL OF THE 11™

CIRCUIT’S OWN FINDINGS.

On January 10, 2017 (Doc. 106), the U.S. District Court for the Northern District of

Florida ruled in Raser v. Augustine 5:15-CV-00035-MW-EMT that Rager’s complaint of

violations of his 1st, 4th, 5th, 8th and 14th Amendment rights regarding his having been assaulted

by Bureau of Prison’s Lt. K. Buford on July 13, 2010 and his subsequent confinement in the

Special Housing Unit (SHU) being served with a fraudulent incident report, retaliatory actions by

Ofc. K. O’Bryan, Lt. Hunnicutt, Lt. Malone, Counselor Copeland, Case Manager Snell, Captain

Lewis, Warden Augustine, Regional AR Coordinator Simmons and Central Office AR

Coordinator Watts, denial of medical care, failure to provide access to recreation, religious

services, education, due process, etc. was filed outside of Florida’s SOL of four years. The

District Court determined that the cause of action accrued on November 12, 2010. Rager filed

his suit on February 24, 2015. Rager exhausted his available AR’s on 11 grievances

encompassing all of the above violations and others. Rager, in his pleadings, detailed the stepby-step exhaustion of each grievance (see grievance timelines DRI-DRI 1, Appendix #1). The

grievance process, which policy and Code of Federal Regulations (CFR) 28 CFR §542, P.S.

1330.18 state must be completed within 180 days (28 USC §47(e)), took over three years and

four of the grievances were never answered. Rager made extensive argument and citation that

the SOL should have been tolled for the exhaustion of AR’s as required by the PLRA before he

could file his suit in federal court. Rager timely appealed to the 11th Circuit Court of Appeals

and again pled and extensively argued that the SOL should be tolled for exhaustion of AR’s. On

February 1, 2019, the Circuit Court in its ruling addressed the issue only by saying “we have

expressly declined to address the question of whether the SOL can be tolled while a prisoner is in

the process of exhausting his AR’s as a mandatory prerequisite for filing a federal lawsuit.”

Raser v. Augustine 2018 US App Lexis 3279 (11th 19). This refusal to rule on this issue allowed

the District Court’s opinion to stand, thereby creating the unofficial standard for the 11th Circuit.

Rager requested reconsideration and a hearing en banc, both of which were denied on May 23,

2019. Rager now timely files this petition for writ of certiorari.

When properly presented, briefed, and argued an issue which is at the heart of a legal

dispute, which has been ruled upon in the lower Court, and is a primary basis, or as in this case,

is the sole basis for the upper Court’s ruling, must be addressed by the Appellate Court. The

Appellate Court cannot be allowed to simply decline to address that issue without some

substantive legal reasoning. Raser v. Augustine. Supra: “We have expressly declined to rule on

this issue.” Having previously “declined to rule” on an issue is not a precedent which must be

followed until overruled by a higher Court or by the Circuit sitting en banc. Indeed, when the

Circuit had “declined to rule” on the issue of tolling for exhaustion of remedies in Leal and

Napier, the Panels implied that it supported tolling and had cited the rulings of other Circuits

which had granted tolling for exhaustion of AR’s, and in both cases, in their declinations to rule,

it was explained that the issue had not been decided below. Both Panels remanded the cases to

the District Court with strong cues that tolling should have been granted. By their declining to

rule on the issue of tolling, the Panel in this case affirmed the ruling of the District Court in their

decision that tolling does not apply. The 11th Circuit has, in fact, made a ruling.

The question of tolling for the exhaustion of AR’s is a very important one which impacts

all incarcerated prisoners subject to the PLRA who wish to present to the Courts violations of

their constitutional rights regarding prison conditions.

The ruling of the 11th Circuit, or more accurately, their refusal to rule, is in contravention

to their own statements and implications in several previous cases. In Leal v. Georgia Dept, of

Corr. 254 F 3d 1276 (11th 01) they stated, “Because the SOL may have been tolled on account of

Leal’s exhaustion of AR’s, it does not appear beyond a doubt from the complaint that Leal can

prove no set of facts which would avoid an SOL bar.” (Remanded to District Court as the issue

was not decided below.) A year later they again alluded to the SOL being tolled for exhaustion

of AR’s: “We proffer but do not hold, as that issue is not before us, that such a result might be

mitigated by the doctrine of equitable tolling as other Circuits have applied that doctrine to the

administrative exhaustion requirement for prison condition suits.” Napier v. Preslicka 314 F 3d

528, 534 n.3 (11th 02). Once again, in 2005: “The Magistrate Judge (MJ) failed to address

whether the time period may have been tolled while Howell pursued his AR’s. Howell argued

before the MJ and argues to this Court, that the SOL should have been tolled while he pursued

AR’s, and that officials never responded to his grievances. Based on the factual record before

us, we cannot make a determination as to whether tolling might be appropriate.” Howell v.

Proctor 136 Fed Appx 267, 270 (11th 05); Hushes v. Lott 350 F 3d 1157,1163 (11th 03).

In Leal and Napier, the reason given for their decision not to make a final ruling was that

the issue had not been decided in the lower court. They remanded the cases and direct the

District Court to make a ruling in “the first instance.” “If the District Court resolves this issue in

favor of tolling, then the Court should address the factual issue of whether Leal pursued AR’s

such that sufficient tolling occurred to enable Leal to avoid a SOL bar.. .Because none of these

issues were decided initially, we decline to address them for the first time on appeal.” Leal

supra. In their ruling, the Circuit Court cited Brown v. Morsan 209 F 3d 595, 596 (6th 00) and

Harris v. Hesmann 198 F 3d 158 (5th 99) as authority for its agreement and support of the tolling

for exhaustion of AR’s. Although Leal and Napier were not precedential rulings, several of the

sister Circuits have cited those rulings as support for their rulings granting tolling for exhaustion

of AR’s: Roberts, supra {Leal); Soto v. Unknown Sweetman 882 F 3d 865 (9th 17) {Napier);

Shropshear v. Corp Counsel of Chi 275 F 3d 593 (7th 01); Battle lNapier1, and by the 11th Circuit

itself: Howell v. Proctor 136 Fed Appx 267 (11th 05) {Leal); Hushes v. Lott 350 F 3d 1157 (11th

03) {Leal).

The PLRA was enacted in 1995 and almost immediately the Courts recognized the

conflict between the requirements of exhaustion of AR’s and the statutes of limitation of the

individual states for bringing a cause of action in federal court. Several states, including Illinois,

Louisiana, Texas, and Pennsylvania, have statutes that include tolling of SOL for the exhaustion

of AR’s: Harris v. Hesmann supra (Louisiana); Johnson v. Rivera 272 F 3d 519 (7th 01)

(Illinois); Pearson v. Sec V Pent, of Corr. 775 F 3d 598 (3rd 14) (Pennsylvania). The Circuit

Courts, applying the state SOL and tolling statutes, have thus granted automatic tolling for

exhaustion for prisoner suits. Several other Circuits have ruled, based only on federal law and

principles and despite the state law not providing a tolling statute for exhaustion of AR’s, that

tolling is appropriate based upon the PLRA being a bar to commencement of a §1983 action.

Gonzalez v. Hasty 651 F 3d 318 (2nd 09); Brown v. Valoff422 F 3d 926 (9th 04) “We agree with

the uniform holdings of the Circuits that have considered the question that the applicable SOL

must be tolled while a prisoner completes the mandatory exhaustion process.”; Brown v. Morgan

209 F 3d 595 (6th 00) “This language unambiguously requires exhaustion as a mandatory

threshold requirement in prison litigation. Prisoners are therefore prevented from bringing suit in

federal court for the period of time required to exhaust ‘such AR’s as are available.’ For this

reason, the SOL which applied to Brown’s civil rights action was tolled for the period during

which his available state remedies were being exhausted.”; Roberts v. Barreras 484 F 3d 1236

(10th 07) “In order to determine how long Mr. Robert’s claim should be tolled, we must know

how long his grievance remained viable under the institution’s grievance procedures in effect at

the time of Robert’s grievance.” “We know that every Circuit to address the issue has held that

the filing of a mandatory administrative grievance tolls the SOL for §1983 and Bivens claims.

We remanded to the District Court with instructions to consider whether the SOL should have

been tolled.” Zd Finally, in a case decided just this year, the 4th Circuit has emphatically ruled:

“Where due to circumstances external to the party’s own conduct,

it would be unconscionable to enforce the limitation period against

the party and gross injustice would result... Finally, in joining this

consensus, we note that the ordinary arguments against equitable

tolling do not apply...We therefore reject the officers’ invitation to

deviate from the path followed by seven other Circuits. Battle’s

limitations period must be tolled for the 83 days in which he

exhausted his AR, as he was required to do before bringing

suit...In sum, Battle’s §1983 complaint is timely; it was filed

within two years of the date he exhausted AR’s required by the

PLRA.” Battle v. Ledford 912 F 3d 708, 718, 720 (4th 19).

The Court has had to address the failure of Congress to have included in the PLRA a

statute of limitations and the resultant problems. “In this case we again confront the

consequences of Congress’ failure to provide a specific SOL to govern §1983 actions.” Owens

v. Okore 488 US 235, 239, 102 L Ed 2d 594,109 S CT 573 (89); “In Wilson v. Garcia 471 US

261, 85 L Ed 2d 254, 105 S CT 1938 (88) we sought to end the ‘conflict, confusion, and

uncertainty.’ 471 US at 266. Recognizing the problems inherent in the case by case approach,

we determined that 42 USC §1988 requires Courts to borrow and apply §1983 claims to the one

most analogous state SOL. Id.at 275 (‘Federal interests in uniformity, certainty and the

minimization of unnecessary litigation supports the conclusion that Congress favored this simple

approach.’)”; “Our decision in Wilson that one ‘simple broad characterization of all §1983

actions was appropriate under §1988 was, after all, grounded in the realization that the potential

applicability of different state SOL had bred chaos and uncertainty.’ Id. at 275.” Owens at 243.

Likewise, the applicability of the tolling rules has created the same “conflict, confusion, and

uncertainty.” And the application of a single tolling rule for §1983 would resolve those issues

once and for all and level the playing field for all inmates subject to the PLRA.

The Court has addressed the issue of tolling for exhaustion in other contexts and ruled

that when a statute requires exhaustion of administrative reviews or procedures that tolling for

the period of exhaustion suspends the running of the SOL. “These exceptions to the SOL

generally referred to as ‘tolling,’ (see Johnson v. Railway Express Agency, Inc. 421 US 454, 44 L

Ed 2d 295, 95 S CT 1716 (75), are an integral part of the limitation system... Applying the

converse of this reasoning, this Court found in Occidental Life Ins. Co of Calif v. EEOC 432 US

355 (77), that it would be inconsistent with federal law to apply a state statute of limitation to

actions instituted by the EEOC under Title VII since the EEOC was ‘required by law to refrain

from commencing a civil action until it had discharged its administrative duties.” 432 US at 368,

53 L Ed 2d 402, 97 S CT 2447; “Unless the doctrine that SOL’s are not tolled pending

exhaustion were overruled, see Board of Resents v. Tomanio 446 US 478, 64 L Ed 2d 440,100 S

CT 1796 (80), a judicially imposed exhaustion requirement might result in the effective repeal of

§1983.” Patsy v. Board of Resents 457 US 496, 514 n.17, 73 L Ed 2d, 172; “In light of the

federal policy requiring employment discrimination claims to be investigated by the EEOC and

whenever possible administratively resolved before suit is brought in federal court, it is hardly

appropriate to rely on the State’s wisdom in setting a limitation on the prosecution.. .For the

State’s wisdom in setting a limitation period could not have taken into account the decision of

Congress to delay judicial action while the EEOC performs its administrative responsibilities.”

(internal citations omitted) Occidental at 368. This citation and ruling are eerily similar to the

restrictions of the PLRA §1997e(a) which requires an incarcerated inmate to exhaust AR’s

“before a suit can be brought in federal court.” Since the Court ruled that the limitation period

should not begin to run until the final administrative decisions is made, it can only logically

follow that the same ruling must apply in §1983 or Bivens cases governed by the PLRA.

Although the above citations refer to a different statute than the case at bar, §1997e(a)—

PLRA, the end result of both statutes is the same—a party seeking redress is barred by statute

from bringing an action in federal court until the administrative requirements have been

completed. The principle here is clearly defined by the Court—a federal rule which, when

Congress has determined that administrative action is a prerequisite to filing a suit in federal

court, automatically tolls the SOL for the period of time during which the party has spent

exhausting those administrative requirements and the SOL begins to run from the point of final

disposition of the administrative action. “State tolling law is applicable in a §1983 action if it is

not inconsistent with federal law or policy.” Hardin v. Straub 490 US 536, 542,109 S CT 1998,

104 L Ed 2d 582 (89); “Although state law is our primary guide in this area [tolling], it is not, to

be sure, our exclusive guide. As the Court noted in Auto Workers v. Hoosier Corp. 383 US 696,

706-07,16 L Ed 2d 192, 86 S CT 1107 (66), considerations of state law may be displaced where

their application would be inconsistent with the federal policy underlying the cause of action

under consideration.” Johnson at 465 “So here the interests in uniformity and the interest in

having ‘firmly defined, easily applied rules (see Chardon v. Fumero-Soto 462 US 650, 667, 77 L

Ed 2d 74,103 S CT 2611 (83)) support the conclusion that Congress intended the

characterization of §1983 to be measured by federal rather than state standards.” Wilson v.

Garcia 471 US at 269. The initiation of a single tolling rule would relieve the courts of the time,

energy, and resources by applying a single standard to PLRA cases and require the answering of

two questions:

1) Did the inmate exhaust the available AR’s prior to filing suit as required by the PLRA?

2) On what date did he exhaust his AR’s?

Courts would then run the SOL from that date to determine if the filing of the suit in

court was timely. The current system requires extensive argument as to what, if any, tolling

rules apply in the state in which the violations occurred, a detailed analysis of whether any of

those state tolling rules applied to that particular case, as well as argument over whether the

general and/or specific wording can be interpreted—all of this to be determined by that particular

MJ or judge and the competing interpretations of each of the parties. If the state does not have a

controlling tolling rule, then courts must evaluate and determine whether to apply general federal

equitable tolling rules regarding misconduct, concealment or any other bias. Judicial economy

argues emphatically in favor of the blanket tolling rule for exhaustion of AR’s: proof of

exhaustion and date of final reply and the issue is settled. The Court has stated, “In the absence

of a plain indication to the contrary.. .Congress, when it enacts a statute, is not making the

application of the Federal Act dependent on state law.” Mississippi Band of Choctaw Indians v.

Holy field 490 US 30, 43,104 L Ed 2d 29,109 S CT 1597 (89) (quoting Jerome v. United States

318 US 101, 87 L Ed 640, 43 S CT 483 (43))”; “One reason for this construction is that federal

statutes are generally intended to have uniform nationwide application.” Id. “That assumption is

based on the fact that the application of federal legislation is nationwide (US v. Pelzer 312 US

399, 402, 85 913, 915 61 S CT 659 (41)) and at times on the fact that the federal program would

be impaired if the state law were to control.” Jerome at 104.

Under the rulings of the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and DC Circuits, the SOL is

tolled during the period that an inmate is actively pursuing his AR’s and the SOL period begins

to run once the final answer is received. The fact that none of the above cases has been reviewed

by the Court, or had certiorari denied much less overturned, speaks volumes to the validity and

strength of these rulings, going back to 1999. In the ensuing twenty years, up to and including

Battle v. Ledford (4th 19), the Circuits across the country have recognized the inequity of the

PLRA in its denial of an incarcerated plaintiffs right of access to the Courts in petitioning the

government for redress of grievances. (14th Amendment, U.S. Constitution). “The inquiry here

is objective. All a court must do is determine the point of exhaustion and run the limitations

period from that date.” Battle at 720; “Pressley received a final disposition of his March 23,

2005 grievance on May 20, 2005...The tolled SOL period would have expired no later than May

20, 2007.” Pressley v. Huber 562 Fed Appx 67 (3rd 13); “When a SOL is tolled, the days during

a tolled period are not counted against the limitation period.” Socop-Gonzalez v. INS 272 F 3d

1176,1195 (9th 01); “Our Circuits precedent indicated that the statutory clock is stopped while

tolling is in effect. In Knisht v. Schofield we addressed the SOL question in the habeas context.

There we held that ‘tolling means just what it says—the clock is stopped while tolling is in

effect.’ 292 F 3d 709, 712 (11th 02)... We find that it is equally applicable in the context of other

statutes.” Cabello v. Fernandez-Larios 402 F 3d 1148 (11th 05); “When a statute is equitably

tolled, the statutory period does not begin to run until the impediment to filing a cause of action

is removed.” Id.; “We hold that §1367(d)’s instruction to ‘toll’ a statute of limitations period

means to hold it in abeyance, i.e., to stop the clock.” Artis v. Dist. of Columbia 583 US , 138 S

CT 594,199 L Ed 2d 473 (18). As a normal consequence tolling works to suspend the operation

of an SOL during the pendency of an event or condition. See American Pipe & Construction Co.

v. Utah 414 US 538, 560, 561, 38 L Ed 2d 713, 94 S CT 756 (74); Burnett v. New York Central&

Co. 380 US 424, 427, 13 L Ed 2d 941, 85 S CT 1050 ('651.” Johnson v. Railway Express Agency

421 US 454, 474, 44 L Ed 2d 295, 95 S CT 1716 (75). The inmates in each of these Circuits is

therefore entitled, as is every other non-incarcerated plaintiff who files a §1983 suit for violation

of Constitutional rights, to the entirety of the SOL period that the state in which the violation

occurred deemed appropriate. Conversely, in the 11th Circuit, an inmate is only entitled to the

length of the state SOL minus whatever time the prison administrators consume in processing

and answering the inmates’ grievances. We join the 5th and 8th Circuits on this issue because we

refuse to interpret the PLRA ‘so narrowly as to.. .permit [prison officials] to exploit the

exhaustion requirement through indefinite delay in response to grievances.’” Lewis v.

Washington 300 F 3d 829, 833 (7th 02); “A no-tolling rule would even create perverse incentives

for prison commissioners to extend regulatory deadlines and for wardens and investigators to

stall in their review of individual grievances, for doing so might limit government officials’

exposure.” Battle at 716. “Nor would the no-tolling rule advance §1983 [Bivens] subsidiary

interest in uniformity. But a rule that calculates the limitations deadline from the date of

exhaustion is just as ‘firmly defined’ and ‘easily applied.’ Wilson 471 US at 270. Moreover, a

no-tolling rule would destroy any semblance of meaningful uniformity by creating dramatic

claim-to-claim variance in the actual filing time available to different §1983 litigants. Between

prisoners, a no-tolling rule would afford a prisoner whose grievance was processed with delay

less time to file than one whose grievance received speedy resolution. It would also create a

disparity between those who are incarcerated and those who are not.” Id. The Court pondered

the question of the intentional abuse of the grievance process while considering the “proper

exhaustion rule” in Woodford v. Nso 548 US 81, 90-91. “Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules because no

adjudicative system can function effectively without imposing some orderly structure on the

course of its proceedings.” Id. at 90; “Respondent contends that requiring proper exhaustion will

lead prison administrators to devise procedural requirements that are designed to trap unwary

prisoners and thus to defeat their claims. Respondent does not claim, however, that anything like

this occurred in his case and it is speculative that this will occur in the future. We have no

occasion here to decide how such situations may be addressed.” Id. at 102-03.

The BOP’s AR policy, 28 USC §541.18, PS 1330.18 provides the guidelines and

deadlines for filing AR’s:

If accepted, a Request or Appeal is considered filed on the date it is

logged into the Administrative Remedy Index as received. Once

filed, response shall be made by the Warden or CCM within 20

calendar days; by the Regional Director within 30 calendar days;

and by the General Counsel within 40 calendar days. If the

Request is determined to be of an emergency nature which

threatens the inmate’s immediate health or welfare, the Warden

shall respond not later than the third calendar day after filing. If

the time period for response to a Request or Appeal is insufficient

to make an appropriate decision, the time for response may be

extended once by 20 days at the institution level, 30 days at the

regional level, or 20 days at the Central Office level. Staff shall

inform the inmate of this extension in writing. Staff shall respond

in writing to all filed Requests or Appeals. If the inmate does not

receive a proper response within the time allotted for reply,

including extension, the inmate may consider the absence of a

response to be a denial at that level.

Given the above stated timetables, the reality is that the process takes much more time

and considerable effort and diligence to navigate. The process is designed and operated in such a

manner as to frustrate and discourage all but the hardiest of souls. One look at Rager’s timelines

of grievance (DR1-DR11) in the appendix will open the Court’s eyes as to the machinations of

the BOP administrators to defeat an inmate’s attempts to properly exhaust AR’s. The additional

table below (table 1) will show the actual time Rager spent in exhausting the AR’s he filed.

Table 1

Exhibit#

AR#

Date

Submitted

DR 1

629355

09/16/10

03/05/13

DR 3-

629354

09/16/10

DR 5

604713

DR 6

Actual Date of Due Date of

Final Answer Final Answer

Total Days

Exhausting

Days remaining on

4-vrSOLw/tolling

SOL expiration

date w/tolling

07/14/12

901

801

07/14/16

03/05/13

07/14/12

901

801

07/14/16

09/16/10

no answer

09/02/11

351

251

09/02/15

604713

07/19/10

06/06/11

06/10/11

322

222

06/10/15

DR 7

624146

10/18/10

no answer

02/16/12

496

396

02/16/16

DR 8

629349

10/14/10

no answer

02/09/13

849

749

02/09/17

DR 9

624142

10/14/10

no answer

03/06/12

509

409

03/06/16

In a system that must be completed from initiation to final disposition within 180 days (28 USC

§40.7(e)), Rager’s timelines, Table 1, and the BOP’s own AR Index (Doc.129-2) demonstrate

that the answers at both the Regional and Central Offices were rejected, replied to or answered

beyond the due date in nearly every instance. Their delivery delayed Rager’s receipt until the

time for reply and return was nearly or completely consumed. The final reply to Rager’s

grievances ranged from 312 days to 901 days beyond the due dates on the notices provided to

Rager, even after extensions were taken. Rager attempted to follow the policy in that “if an

inmate does not receive a response within the time allotted for reply, including extensions, the

inmate may consider the absence of a response as a denial at that level. §541.18 Rager attempted

to advance his grievances 71 times under this policy and was rejected every time (by Simmons

35 times, by Watts 36 times). He continued to diligently pursue the grievances following every

rejection, return and unsatisfactory answer finally exchanging the 11 grievances over 130 times,

including securing memos 15 times to excuse tardiness caused by the BOP’s dilatory actions in

delivering the replies to Rager. The Courts have recognized that the actual pursuit of grievances

is much different than the AR guidelines drafted in the vacuum of an executive office. In fact,

four of Rager’s grievances were never answered at all—a matter of fact admitted to by the AR

Regional and Central Office Coordinators (Simmons & Watts) (Doc.129-3,129-4) and held by

the Panel that “It is true that several of Rager’s administrative grievances were never answered.”

Raeer v. Augustine 2018 US App Lexis 3279 (11th 19); “The time for achieving a resolution

under the PLRA [BOP Grievance Policy] could be considerably longer than 140 days. In some

instances, it is certainly possible that a full three years could pass while an inmate exhausts his

AR’s.” Gonzalez supra.; “Exhaustion may be achieved in situations where prison officials fail to

timely advance the inmate’s grievances or otherwise prevent him from seeking his AR’s.”

Abnev v. McGinnis 380 F 3d 663, 667 (2nd 04).

The application of the federal equitable tolling rule is judged on the diligence of the

claimant in pursuing his rights. This evaluation is subjective to the individual circumstances of

the particular case.

“Equitable tolling is ‘reserved for those rare instances where, due

to circumstances external to the party’s own conduct, it would be

unconscionable to enforce the limitation period against the party

and gross injustice would result, (internal cite omitted) The

Supreme Court has explained that ‘generally a litigant seeking

tolling bears the burden of establishing two elements: 1) that he

has been pursuing his rights diligently, and 2) that some

extraordinary circumstance stood in his way.’ Pace v. Disuslielmo

544 US 408, 418,125 S CT 1807,161 L Ed 2d 669 (05). See also

Holland v. Florida 568 US 621, 657,130 S CT 2549,177 L Ed 2d

130 (16) (clarifying that ‘the diligence required for equitable

tolling is reasonable diligence, not maximum feasible diligence.’)

Battle at 718.

“Due diligence does not require a prisoner to undertake repeated exercises in futility or to

exhaust every available option or to exhaust every imaginable option, but rather to make

reasonable efforts. Moreover, the due diligence inquiry is an individualized one that ‘must take

into account the conditions of confinement and the realities of the prison system.’ (internal cite

omitted) Aron v. US 291 F 3d 708, 712 (11th 02); “Tellingly, not one of these courts has required

a claimant to prove additional extraordinary circumstances beyond the exhaustion requirement or

to show constant diligence until the moment of filing. In fact, the 2nd Circuit even acknowledged

‘substantial delay’ arising from [plaintiffs] failure to ‘properly litigate the claim before it,’ but

still equitably tolled the AR period in light of §1983’s well established policies. Gonzalez 651 F

3d at 320, 323.” Battle at 270; “Finally, in joining the consensus, we note that the ordinary

arguments against equitable tolling do not apply. For example, there is no ‘potential

for.. .endless tolling’ of a prisoner’s claim, because the clock would only stop for the length of

the state’s exhaustion period.” Id.; “A clear rule that tolls limitations during the grievance

process also avoids the risk of ‘loosening the rule of law to whims about the adequacy of

excuses, divergent responses to claims of hardship, and subjective notions of fair

accommodation.’ Harris 209 F ed at 330. The inquiry here is objective. All a court must do is

determine the point of exhaustion and run the limitation period form that date.” Id.

The Court has ruled in cases involving tolling for mandatory completion of

administrative cases under other statutes and granted tolling in each of them: Crown Coat Front

Co. v. US 386 US 503, 575, N.l 1, 18 L Ed 2d 256, 87 S CT 1177 (67) “We should in this

respect heed the Court of Claims: ‘To say abruptly at this moment that limitation runs from the

contract’s completion, regardless of subsequent mandatory administrative proceedings, would

undoubtedly cut off scores of contractors who, relying on our past decisions, have waited to

bring suit until the end of the administrative process. There is no adequate reason to disrupt

these justified expectations. 177 CT CL at 253-54, 386 F 2d at 860 (2nd 06).’”; “If the time bar

starts running from the completion date, the contractor could thus be barred from the courts by

the time his administrative appeal is finally decided.. .This is not an appealing view or one, in

our opinion, Congress intended.” Id. at 514; “We therefore conclude.... 1) Its right to bring a

civil action first accrued when the Armed Services Board of Contract Appeals finally ruled on its

claim, and 2) Its suit in District Court was timely filed.” Id. at 522.

SECTION 2: SUMMARY

In summary, the Prison Litigation Reform Act 42 USC §1997e(a) which requires

exhaustion of administrative remedies prior to an incarcerated inmate filing suit in federal court

for claims involving conditions of confinement has placed those inmates in a disadvantageous

circumstance wherein they are allowed less time under the applied state statute of limitation to

prosecute their case in court than other non-incarcerated plaintiffs. The only available saving

grace for incarcerated prisoners is a tolling rule that suspends running of the statute of limitation

during the prisoner’s exhaustion of available administrative remedies. A few states, to whom the

courts look for statutes of limitation and tolling rules, have statutes that allow tolling for

exhaustion of administrative remedies. In addition, nine Federal Circuits have ruled that tolling

for exhaustion of AR’s is appropriate in PLRA cases. The 11th Circuit has implied in several

cases that tolling is appropriate in PLRA cases: Leal. Napier. Howell. Hushes. The 11th

Circuit and other Circuits have cited those 11th Circuit cases in making argument and rulings

supporting their own rulings on tolling. Rager’s Bivens case, because it was filed in Florida in

the 11th Circuit, was dismissed by the District Court for being outside the Florida SOL of four

years. Had this case been filed in any other Federal Circuit, tolling for the 312 to 901 days (see

table 1) spent exhausting AR’s would have been applied and the filing of the suit would have

been ruled timely. Rager diligently pursued the grievances through 130 submissions, replies, and

responses, 15 staff memos to excuse tardiness caused by the administrators’ untimely responses

and delays in delivering responses to Rager. Rager sought assistance from prison administrators

repeatedly when responses were not timely received or not received at all. When he received no

reply on the four unanswered grievances and determined no answer was forthcoming, Rager

proceeded to court. During the grievance process, Rager attempted to advance grievances for

failure to respond at previous levels 71 times and was rejected every time.

Rager spent 312 days to 901 days exhausting grievances in this incident. Using the

tolling rule as applied in the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and DC Circuits, the SOL would

not have begun to run until those grievances were properly exhausted; therefore, the earliest date

that the SOL for any of the violations of Rager’s constitutional rights would have been June 6,

2015, thus making all claims for the original complaint filed February 24, 2015 timely—with

over three months to spare.

Rager asks this Court to take up this issue on certiorari and to rule that under the PLRA,

an inmate’s time spent exhausting available AR’s is automatically tolled and that the statute of

limitations for the issues grieved begins to run upon receiving the final answer to the grievance.

Rager seeks to have the ruling of the District Court, which was not ruled upon by the 11th

Circuit, overturned and the case remanded, and the case ruled timely filed.

CONCLUSION

Based on the foregoing petition, the Court should grant a writ of certiorari to the Court

of Appeals for the 11th Circuit.

Respectfully submitted,

Donald W. Rager

Pro Se Petitioner

August 20, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.