Petition for Writ of Certiorari — Darnell Anderson, Petitioner v. Aaron Fuson, et al.

Supreme Court briefAug 15, 2024

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AARON FUSON , et al.,

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se federal prisoner

Darnell Anderson, a pro

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ient of counsel. This c .

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urt that, upon exam

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been referred to a panel of the co

following reasons, we

App- F- 34(a)- For the

(USP) McCreary employees

See Fed. R

Penitentiary

is not needed.

d Lieutenant

d United States

Whitaker, an

2020, Anderson sue

nlLChaney.

Officer

In June

Officer V. Gabbard. Lieuwna

Officer A. Fuson,

According

Anderson was af

for Eighth Amendment violations

Because

rotation,

Posey

11 and the officers

ial housing unit force

l0 a cell in the spec

shed Anderson into the ce

Gabbard then

enter. puson pu

but

Anderson

refused

let

them

cell, he refused to

The officers

inmate in the

n’s hand restraints,

but he was unable to do so

Anderso

ab Anderson,

'-•Fuso:irof*eo,te

sW*Ms.rmte»g

ned the door and pulleh

then ope

deIS0n0ut of the cell.

No. 23-5342

-2-

al of his restraints, officers took

11 and submit to the remov

refusal to enter the ce

chain, and leg restraints.

oint restraints, a waist

After his

suffered an

\\ and placed him in four-p

this time, Anderson

Anderson to a different ce

During

seven to eight hours

ause the restraints were too

traints for

He remained in these res

issed his evening meal bee

was when Whitaker

himself, and m

anxiety attack, urinated on

need during this time

ain” Anderson experie

shed Anderson on the

the bed

b to remove the

“most excruciating p

tight. The

waist chain and pu

to hurt.” Compl- R- R Pagel

and Posey ignored the tightness of the

was “going

» which he endured “all over

leg restraints, which V/hitaker acknow e

into

his

skin,

wire tearing

alleged that it “fell like razorAnderson

lied him from the bed. M.

but that he never

ain" when the officers later pu

week after the events

one

Anderson alleged

^ ^ lawsuh. ^fondants filed a motion to dismiss

motion in part and

received a response In June

. The district court gr anted the

The

summary judgment

for failure to exhaust.

or, in the alternative, for

without prejudice

st Whittaker and Posey

dismissed the claims again

remaining defendants.

or summary

motion as to the

moved for dismissal

district court denied the

defendants again

endation to grant the

the remaining

recomm

After discovery

a magistrate judge’s

In adopting the

court adopted

moot.

The district

motions

judgment.

Anderson’s various

dy for Eighth

and deny

monetary reme

motion

not

provide

defendants’

and overruled

ted that Bivens does

dation,

the

court

received, considered,

recommen

The court then

the court noted that

excessive-force claims,

Amendment

endation. Specifically.

the report and recomm

federal cause of action

Anderson’s objections to

elusion that there*"0

changed its con

d, the district court reasoned that th

objections

nothing in Anderson’s

was

foreclose

the action

for Anderson’s claims. And because

luded that Anderson’s motions were moot.

viable deliberatetrate judge properly cone

that he pled

nsideration, arguing

magis

dure 59(e)

motion for reco

Federal Ruleof Civil Proce

Anderson filed a

d his motion as a

district court treate

recognized deliberatesupporting

indifference claim . The

the circumstances

denied it, reasoning that

motion and

No. 23-5342

-3-

Anderson’s allegations. Memorandum

indifference claim

under Bivens differ

“markedly” from

motion for

Order, R. 200, PagelD 2095.

district court erred in denying his

that the

On appeal, Anderson argues

Min favor of the defendants; and denying his motions

reconsideration; granting summary judgme

t challenge the

, and a fee waiver. He does no

appointment of counsel

not before

for a discovery extension,

dismissal of Whitaker

us. See United States v. Russell, 26 F.4th 371,

--------------- Loans.

44 F.4,h 418.424 (6,h Gr.

dement de novo. Hues, V. Caliber Home

^ moviinl is e„d,,ed to judgment as a

A district court

matter of law. rea.

•

F.3d 605, 619 (6th Cir. 2005)

of discretion. See fnrern Cnrp. v. H-rsnn,428.

overed evidence,

error of law, (2) newly disc

“if there is: (1) a c^ear

ifest injustice.” Id. at

may grant a Rule 59(e) motion

. or (4) a need to prevent man

change in controlling law;

(3) an intervening

lai„tiff must show that he was "deprived of rig ts

620.

claim under Bivens, a p

“the defendants who allegedly

To establish a

of the United States” and that

red by the Constitution or laws

« Mane v. Am. Red Cross, 771

secu

of federal law.

F.3d 344,

Court has e

easonable searches and seizures , Bivens,

may be properly brou

violations of the prohibition against urn

Clause for gender discrimination,

Amendment for

Fifth Amendment Due Process

nt for failing

403 U.S. at 392; (» under the

• and (3) under the Eighth Amendme

U.S. 228,248-49 (1979);

Gree», 446US. 14.14-15 (1980).

Davis v. Passman, 442

, Carlson v.

to provide adequate medical treatment to a prisoner

No. 23-5342

-4disfavored' judicial activity.” Ziglar v. Abbasi,

Expanding the reach of Bivens “is now a ‘

Iqbal, 556 U.S. 662, 675 (2009)); see also Egbert

582 U.S. 120, 135 (2017) (quoting Ashcroft v.

afford relief in a

Thus, in determining whether Bivens can

v. Boule, 596 U.S. 482, 491 (2022)

a new Bivens context.’” Egbert,

a court must first ask “whether the case presents

particular case

. at 492 (quoting Ziglur, 582 U.S. at 139-40). A new Bivens context is where a case ,s

596 U.S

in which the Court has implied a damages action.

“‘meaningfully]’ different from the three cases

at 139). If a case Presents a new Bivens

Id. (alteration in original) (quoting Ziglar, 582 U.S

cial factors’ indicating that the Judiciary is

context, then a court must determine “if there are ‘spe

and benefits of allowing a

at least arguably less equipped than Congress to ‘weigh the costs

•reason to pause before appiying Biveru K • « context,' a court ntay no, recogntxe

a Bivens

” Id. (quoting Hernandez v. Mesa, 140 S. Ct. 735,743 (2020)).

essive-force claims arise in a new context. See Greene

Anderson’s Eighth Amendment exc

*4 (6th Cir. Sept. 13, 2022) (order) ; Silva

ited States, No. 21-5398, 2022 WL 13638916, at

v. Uni

45 F.4th 1134, 1137 (10th Cir. 2022) (declining to expand Bivens to a federal

v. United States,

excessive-force claim). Despite recognizing a deliberateprisoner’s Eighth Amendment

see Carlson, 446 U.S. at 19, the Supreme Court

indifference claim under the Eighth Amendment

. “A claim may arise in a new context even if it is

has never rec ognized an excessive-force claim

was

as a claim in a case in which a damages remedy

the

same

constitutional

provision

based on

remedy

previously recognized. ” Hernandez, 140 S. Ct. at 743.

Bivens claim in this context. First,

special factors advise against recognizing a

And

» Anderson’s Eighth Amendment rights. Callahan v.

exist

for

protecting

“alternative processes

. Anderson has “full access to remedial

Fed Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020)

' isms” through the Federal Bureau of Prisons (BOP), “including suits in federal ccmrt or

median

ces ftled through the BOP's Administrattve Remedy Program. ;

injunctive relief and grievan

534 U.S. 61, 74 (2001). We have recognized tot the BOP's inmate

Servs. Corp. v. Malesko,

of limitations, filing

in that “it contains its own statutes

grievance process “is substantial”

No. 23-5342

-5procedures, and appeals process” and allows for prisoners to retain counsel to assist with the

“alone

process Callahan, 965 F.3d at 524. The presence of one of these alternative processes

may limit the power of the Judiciary to infer a new Bivens cause of action.” Ziglar, 582 U.S. at

137.

Second, Congress enacted the Prison Litigation Reform Act, which “does not provide for

a standalone damages remedy against federal jailers.” Callahan, 965 F.3d at 524 (quoting Ziglar,

582 U.S. at 149). “[TJhis suggests Congress chose not to extend the Carlson damages remedy to

are

cases involving other types of prisoner mistreatment.” Ziglar, 582 U.S. at 149. Lastly, there

“separation of powers concerns” here, because excessive-force claims against federal prison

employees “present a risk of interference with prison administration,” which is a task “peculiarly

within the province of the legislative and executive branches.” Callahan, 965 F.3d at 524 (quoting

Turner v. Safley, 482 U.S. 78, 84-85 (1987)).

In sum, we decline to extend Bivens to Anderson’s Eighth Amendment excessive-force

claims. To the extent that Anderson claims that the district court should have liberally construed

his complaint as a Carlson deliberate-indifference claim, this argument also fails. Anderson did

not attempt to bring his claim within the framework of Carlson. Despite pro se complaints being

entitled to liberal construction, Haines v. Kemer, 404 U.S. 519, 520 (1972) (per curiam), the

district court did not err in declining to construe a Bivens claim where the Supreme Court has

cautioned that expanding the reach of Bivens is “a ‘disfavored’ judicial activity,” Ziglar, 582 U.S.

at 135 (quoting Iqbal, 556 U.S. at 675).

Even if his complaint attempts to state a deliberate-indifference claim, Anderson’s

allegations are “‘meaningful[ly]’ different” from Carlson, such that we would have to infer anew

Bivens cause of action. Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 139-40). In Carlson,

the Court applied Bivens to an Eighth Amendment claim for inadequate medical treatment of a

federal prisoner after he died from an asthma attack due to prison officials being “deliberately

indifferent” to his “serious medical needs.” 446 U.S. at 16 & n.l, 18-19. Here, Anderson alleged

that officers failed to conduct a medical examination when his restraints were removed and that he

No. 23-5342

-6suffered “significant injuries” to his waist area and lasting anxiety. These allegations differ

markedly from a prisoner dying after an asthma attack where his asthma was not properly treated.

See Egbert, 596 U.S. at 492; Hernandez, 140 S. Ct. at 743 (“[0]ur understanding of a ‘new context’

is broad.”).

And for the same reasons stated above, special factors advise against recognizing a Bivens

claim in this context. Thus, the district court did not err in granting summary judgment to the

defendants on Anderson’s excessive-force claims. Nor did the court abuse its discretion in denying

Anderson’s Rule 59(e) motion on the grounds that Anderson’s complaint failed to state a

deliberate-indifference claim similar to Carlson. See Intera Corp., 428 F.3d at 619.

II.

Anderson’s motions

Anderson argues the district court erred in denying his motions for the appointment of

counsel, a discovery extension, and a fee waiver. Anderson does not elaborate on how the district

court erred in denying these motions, and thus he has forfeited these issues. See United States v.

Clark, 469 F.3d 568,570 (6th Cir. 2006) (“[A]n issue is deemed forfeited on appeal if it is merely

mentioned and not developed.”).

Finally, absent exceptional circumstances, there is no right to counsel in a civil case. See

United States v. Augustin, 16 F.4th 227, 234 (6th Cir. 2021).

Because no exceptional

circumstances exist in this case, Anderson’s request for counsel is denied. Id.

For these reasons, we AFFIRM the district court’s judgment and DENY Anderson’s

motion to appoint counsel.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

Apptndix

DARNELL ANDERSON. Plaintiff, v. A. FUSON, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY, SOUTHERN

DIVISION

2023 U.S. Dist. LEXIS 70930

Civil Action No. 6: 20-118-DCR

March 28, 2023, Decided

March 28, 2023, Filed

Editorial Information: Subsequent History

Affirmed by Anderson v. Fuson, 2024 U.S. App. LEXIS 2299 (6th Cir. Ky., Feb. 1, 2024)

Editorial Information: Prior History

Anderson v. Fuson, 2023 U.S. Dist. LEXIS 24629, 2023 WL 1991559 (E.D. Ky., Feb. 14, 2023)

Counsel

{2023 U.S. Dist. LEXIS 1}For D. Gabbard, A. Fuson, L. Chaney,

Defendants: Cheryl D. Morgan, LEAD ATTORNEY, U.S. Attorney's Office EDKY, Lexington,

KY.

Darnell Anderson. Plaintiff, Pro se, Tucson, AZ.

Judges: Danny C. Reeves, Chief United States District Judge.

Opinion

Opinion by:

Danny C. Reeves

Opinion

MEMORANDUM ORDER

Pro se Plaintiff Darnell Anderson has filed a motion for reconsideration of the Court's February 22,

2023 Memorandum Order overruling his objections to the Magistrate Judge's Report and

Recommendation. 1 [See Record Nos. 199, 196.] Anderson has failed to identify any intervening

change in law, evidence not previously available that has become available, or clear error of law.

Therefore, the motion will be denied.

Although the Federal Rules of Civil Procedure do not provide for motions for reconsideration, such

motions typically are considered motions to alter or amend judgment pursuant to Rule 59(e). As

Anderson recognizes, such motions for reconsideration may generally be granted based on an

intervening change in law, evidence that was not previously available, to correct a clear error of law

or to prevent manifest injustice. See Huffv. Met. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). A

motion for reconsideration is not a proper vehicle for rearguing one's case and is not appropriate

simply because{2023 U.S. Dist. LEXIS 2} a party disagrees with the Court's decision. See Sault Ste.

Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).

Anderson accepts that actions under Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), have been limited to a few

contexts. He insists, however, that his case is sufficiently similar to Carlson v. Green, 446 U.S. 14,

100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980), in which a Bivens remedy was recognized, such that he

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

should be permitted to proceed with his claims. But contrary to Anderson's suggestion, the

circumstances in Carlson differ markedly from those alleged in his Complaint. See Green v. Carlson,

581 F.2d 669 (7th Cir. 1978) (after being admitted to the hospital with asthma attack, prisoner was

deprived of medication and eventually given contraindicated medication, which led to respiratory

arrest and death). Construed in the light most favorable to him, Anderson's allegations regarding the

defendants' mishandling of him and misuse of four-point restraints are easily distinguishable from

Carlson and, for the reasons the Court has previously explained at length, cannot form the basis of a

new type of Bivens action. [See Record Nos. 192, 193.]

Next, Anderson has not identified any clear error of law regarding the Court's determinations

involving his failure to exhaust administrative remedies. He contends that a genuine factual issue

exists as to whether the defendants' actions rendered the Bureau of Prisons Administrative{2023

U.S. Dist. LEXIS 3} Remedy Program unavailable. However, the Court noted Anderson's own

deposition testimony in which he stated that he did not receive a response to the BP-9 (Request for

Administrative Remedy) he filed on August 18, 2019. Anderson could not recall a reason for waiting

more than three months to file a BP-11 (Central Office Administrative Remedy Appeal). [Record No.

158-3, p. 50] Nonetheless, the lack of a private right of action for damages regarding Anderson's

Eighth Amendment claims is outcome determinative, regardless of his failure to exhaust

administrative remedies.

Based on the foregoing, it is hereby

ORDERED that the motion for reconsideration [Record No. 199] is DENIED.

Dated: March 28, 2023.

Isl Danny C. Reeves

Danny C. Reeves, Chief Judge

United States District Court

Eastern District of Kentucky

Footnotes

The Court received Anderson's objections 22 days after issuance of the R&R. A Memorandum

Opinion and Order and Judgment adopting the R&R in full was filed on February 14, 2023, following

the expiration of the 14-day objection period.

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

DARNELL ANDERSON, Plaintiff, v. A. FUSON, et al„ Defendants.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY, SOUTHERN

DIVISION

2023 U.S. Dist. LEXIS 70947

Civil Action No. 6: 20-118-DCR

February 22, 2023, Decided

February 22, 2023, Filed

Counsel

{2023 U.S. Dist. LEXIS 1}For D. Gabbard, A. Fuson, L. Chaney,

Defendants: Cheryl D. Morgan, LEAD ATTORNEY, U.S. Attorney’s Office EDKY, Lexington,

KY.

Darnell Anderson, Plaintiff, Pro se, Tucson, AZ.

Judges: Danny C. Reeves, Chief United States District Judge.

Opinion

Opinion by:

Danny C. Reeves

Opinion

MEMORANDUM ORDER

Plaintiff Darnell Anderson filed a Complaint alleging that the defendants, correctional staff at USP

McCreary, exerted excessive force against him in violation of Eighth Amendment to the United

States Constitution. United States Magistrate Judge Matthew A. Stinnett issued a Report and

Recommendation (R&R) on January 26, 2023, recommending that the Court grant the defendants'

motion to dismiss Anderson's claims or, in the alternative, grant summary judgment in the

defendant's favor. Anderson had 14 days after being served a copy of the R&R to file objections.

Although the Court did not receive any objections, it reviewed the R&R de novo and adopted the

Magistrate Judge's findings in full on February 14, 2023. Notably, the Magistrate Judge determined,

and the undersigned agreed, that Anderson's claims would impermissibly create a new implied cause

of action in the vein of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). See Egbert v. Boule, 142 S. Ct. 1793, 213 L. Ed.

2d 54 (2022).

The Court has now received correspondence from Anderson styled "Plaintiff's objection to the

Magistrate's{2023 U.S. Dist. LEXIS 2} Report and Recommendation."1 [Record No. 195] The Court

has considered Anderson's objections, but they do not change the undersigned's previous analysis

and conclusions.

Contrary to Anderson's suggestion, his Complaint was not dismissed for failure to prosecute. To the

extent Anderson contends that the Supreme Court previously recognized an implied right of action

for claims like his in Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980), that

case involved a claim of deliberate indifference to an inmate’s serious medical need, not excessive

force as alleged by Anderson. And when considering whether a claim arises in a new Bivens context,

"the context is new if it differs in virtually any way from the Bivens trilogy." Elhady v. Unidentified

CBP Agents, 18 F.4th 880, 883 (6th Cir. 2021) (citing Ziglarv. Abbasi, 582 U.S. 120, 137 S. Ct.

■o

l yfcases

and terms and conditions of the Matthew Bender Master Agreement.

1843, 1859, 198 L. Ed. 2d 290 (2017)). Thus, Anderson’s claims are not among those to which the

Supreme Court has extended Bivens liability.

Anderson also disputes the Magistrate Judge's determination that special factors indicate that

Congress, not the courts, should decide whether a damages action should be allowed. However, the

Court previously explained that the availability of alternative remedies provides a reason to "refrain

from providing a new and freestanding remedy in damages." Ziglar, 137 S. Ct. at 1858. And it does

not matter whether the existing remedies provide complete relief.{2023 U.S. Dist. LEXIS 3} Egbert,

142 S. Ct. at 1804. Here, the Bureau of Prisons Administrative Remedies Program ("ARP") was an

avenue of relief available to Anderson. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 122 S. Ct.

515, 151 L. Ed. 2d 456 (2001) (observing that the ARP provides a "means through which allegedly

unconstitutional actions and policies can be brought to the attention of the BOP and prevented from

recurring.”).

Anderson discussed his pursuit of administrative relief during his deposition on July 8, 2022. He

indicated that he filed a timely Request for Administrative Remedy, Form BP-9 (sensitive), on

August 18, 2019. [Record No. 158-3, p. 47] Months passed and Anderson did not receive a response,

which is deemed a denial under 28 C.F.R. § 542.18. He subsequently was transferred to USP

Atwater, where he filed an administrative appeal in late January 2020. Id. at 50. However, according

to Anderson, he received a rejection notice from Central Office stating that he should "start a staff

misconduct at USP Atwater." Id. Anderson filed a new BP-9, which was returned to him the next day

with instructions to "file that to the regional office" because it included a request to expunge an

incident report. Id. at 51. Anderson did not pursue further administrative relief and, after "waiting] a

few months," filed his Complaint{2023 U.S. Dist. LEXIS 4} in federal court. Id. at 54.

Assuming arguendo that it is proper to conduct a case-specific analysis of these circumstances, the

Court is unpersuaded by Anderson’s argument that the defendants’ "improper actions rendered [the]

Administrative Remedy Program unavailable to him.” See Egbert, 142 S. Ct. at 1810 (J. Gorsuch,

concurring). Anderson's testimony indicates that he did not pursue administrative relief diligently, as

he did not act for several months after allegedly not receiving a response to his initial BP-9. When

asked why he waited until after his transfer to USP Atwater to seek an administrative appeal,

Anderson could not identify a reason. Further, after being transferred, he reportedly was told to

pursue relief with the Regional Office but he opted to "wait a few months" and file a Complaint in

court, instead. Simply put, Anderson has not alleged facts indicating that the defendants or other

third parties preventing him from taking advantage of administrative remedies.2

Because the success of Anderson's Eighth Amendment claims is foreclosed by Egbert, 142 S. Ct.

1793, and related cases, the Magistrate Judge did not err in recommending denial of his remaining

motions for an extension of time, waiver of fees, and the appointment of counsel.(2023 U.S. Dist.

LEXIS 5}

Based on the foregoing analysis, it is hereby

ORDERED that Plaintiff Anderson's objections to the Magistrate Judge's Report and

Recommendation [Record No. 195] are OVERRULED.

Dated: February 22, 2023.

Isl Danny C. Reeves

Danny C. Reeves, Chief Judge

United States District Court

1 yfcases

and terms and conditions of the Matthew Bender Master Agreement.

Eastern District of Kentucky

Footnotes

Anderson reports that he received the R & R on February 1, 2023. The envelope containing the

objections bears the following written notation: "Given to USP Tucson Prison Officials on 2-13-2023."

Anderson contends that there are disputed factual issues regarding administrative exhaustion,

making summary judgment inappropriate. But Anderson's own testimony indicates that he did not

exhaust his administrative remedies. Regardless, it is not dispositive because he cannot proceed on

his Eighth Amendment claims under Bivens.

l yfcases

and terms and conditions of the Matthew Bender Master Agreement.

DARNELL ANDERSON, Plaintiff, v. A. FUSON, et al„ Defendants.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY, SOUTHERN

DIVISION

2023 U.S. Dist. LEXIS 41305

NO. 6:20-cv-00118-DCR-MAS

January 26, 2023, Decided

January 26, 2023, Filed

Editorial Information: Subsequent History

Adopted by, Summary judgment granted by, Motion denied by, As moot, Dismissed by, Judgment

entered by Anderson v. Fuson, 2023 U.S. Dist. LEXIS 24629, 2023 WL 1991559 (E.D. Ky„ Feb. 14,

2023)Objection.overruled by Anderson v. Fuson, 2023 U.S. Dist. LEXIS 70947, 2023 WL 3034331 (E.D.

Ky„ Feb. 22, 2023)

Editorial Information: Prior History

Anderson v. Chanev. 2021 U.S. Dist. LEXIS 72064, 2021 WL 1414211 (E.D. Ky„ Apr. 14, 2021)

Counsel

{2023 U.S. Dist. LEXIS 1}For D. Gabbard, Defendant: Cheryl D.

Morgan, LEAD ATTORNEY, U.S. Attorney's Office EDKY, Lexington KY.

For A. Fuson, Defendant: Cheryl D. Morgan, LEAD ATTORNEY,

U.S. Attorney's Office EDKY, Lexington KY.

Darnell Anderson, Plaintiff, Pro se, Tucson AZ.

For L. Chaney, Defendant: Cheryl D. Morgan, LEAD

ATTORNEY, U.S. Attorney's Office EDKY, Lexington KY.

Judges: MATTHEW A. STINNETT, UNITED STATES MAGISTRATE JUDGE.

Opinion

Opinion by:

MATTHEW A. STINNETT

Opinion

REPORT AND RECOMMENDATION

Plaintiff Darnell Anderson ("Anderson") filed this action against five employees of USP McCreary,

claiming violations of his Eighth Amendment right and seeking damages pursuant to Bivens v. Six

Unknown Named Agents, 403 U.S. 288 (1971), from an incident at USP McCreary on August 11,

2019. [DE 9 (Amended Complaint)]. Defendants previously filed a Motion to Dismiss on February 1,

2021. [DE 32], The Court granted the motion in part, dismissing the claims against Defendants

Posey and Whitaker because Anderson failed to exhaust his administrative remedies with respect to

those claims. [DE 52, Page ID# 958-59]. The Court denied the motion with respect to the claims

against Defendants Fuson, Chaney, and Gabbard (collectively, "Defendants"), however, finding that

there were genuine factual questions as to whether Anderson{2023 U.S. Dist. LEXIS 2} fully

exhausted his administrative remedies. [Id. at Page ID# 959-60]. Additionally, the Court also

determined that it could not yet resolve whether Anderson's claims against Defendants should be

dismissed because it presents a new Bivens context, citing the early stage in the litigation and the

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

lack of discovery. [Id. at Page ID# 961],

Discovery in this case has concluded, and Defendants again move to dismiss the remaining claims,

or, in the alternative, for summary judgment. [DE 158 ("Motion for Summary Judgment")].

Defendants assert that recent Supreme Court precedent, Egbert v. Boule, _ U.S.

142 S. Ct.

1793, 213 L. Ed. 2d 54 (2022), mandates dismissal. Additionally, Defendants again assert that the

remaining claims should be dismissed because Anderson failed to exhaust his administrative

remedies. Chief Judge Reeves referred this matter to the undersigned for a report and

recommendation. [DE 52]. Anderson having failed to respond to the motion to dismiss and the

deadline to do so having since passed, this matter is now ripe for review.

I. FACTUAL BACKGROUND

The District Court previously set forth the facts of this case in its Memorandum Opinion and Order on

Defendants' February 1, 2021, Motion to Dismiss, which are as follows:

Anderson alleges{2023 U.S. Dist. LEXIS 3} that, on August 11, 2019, Officer Fuson escorted

him to a cell in the special housing unit (SFIU) at USP - McCreary. [See Record No. 9 at 2 (citing

Record No. 1).] He asserts that he told Fuson that he was afraid of the other inmate in the cell

because that inmate had been involved in several fights with prior cellmates. [See Record No. 1

at 4.]. Anderson then claims that he refused to enter the cell, but Officer Fuson pushed him

inside and closed the door. [See id. at 5.] Officer Fuson and two of his colleagues, Officer D.

Gabbard and Lieutenant L. Chaney, then allegedly sought to remove the restraints from

Anderson's wrists, but he "refused to submit." [Id.] Anderson says that Officer Gabbard then tried

to grab him through the food tray slot in the cell door but was unable to do so. [Id.]

At this point, Anderson claims that the officers opened the cell door and pulled him out. [Id.]

Anderson alleges that Lieutenant Chaney then "whispered to [him] that 'this is what happens to

people who file on my officers,' a reference to several complaints that [Anderson] had filed

against officers in the SHU.” [Id.] According to Anderson, Officer Gabbard "fabricated an incident

report to allege{2023 U.S. Dist. LEXIS 4} that [Anderson] assaulted him," and, as a result, the

officers moved him to a different cell and placed him in four-point restraints for several hours.

[Record No. 9 at 2-3] Anderson states the restraints were too tight, causing him shortness of

breath and an anxiety attack. [See id. at 3] Nevertheless, Anderson contends that the officers

kept him in the restraints for at least seven hours. [See id.]

Anderson then says that two other prison officials, Officer Whitaker and Lieutenant Posey,

entered his cell and ordered him "to lay on the bed so that his leg restraints could be removed."

[Id.] Anderson, however, claims that he was physically unable to lay down "due to the tightness

of the weight chain," which the officers refused to loosen. [Id. at 9] Anderson then alleges that

Officer Whitaker approached him, told him "this is going to hurt," grabbed him by his upper body,

and placed him on the bed. [Id.] Anderson states that "this process was the most excruciating

pain throughout this entire ordeal" and that he "felt like razor-wire [was] tearing into his skin." [Id.]

Anderson then contends that he "was forced to endure this exact same pain all over again upon

being lifted from the{2023 U.S. Dist. LEXIS 5} bed." [Id.] Anderson also alleges that, during his

time in restraints, he could not retrieve his evening meal and was unable to use the toilet,

causing him to urinate on himself. [See id.; see also Record No. 1 at 14).]

Anderson states that he filed a sensitive administrative remedy request just one week later,

complaining about the "staff misconduct" committed by Officer Fuson, Officer Gabbard, and

Lieutenant Chaney. [Record No. 1 at 3; No. 1-5 at 2] He claims he filed this request directly with

the Bureau of Prisons' (BOP's) Mid-Atlantic Regional Office, consistent with the federal

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and terms and conditions of the Matthew Bender Master Agreement.

regulations governing sensitive issues. [See Record No. 1 at 3-4 (citing 28 C.F.R. §

542.14(d)(1)).] Anderson, however, asserts that he did not receive a response. Thus, Anderson

claims that, in January of 2020, shortly after he was transferred from USP - McCreary to USP Atwater, he filed an appeal with the BOP's Central Office, but that office rejected his submission

and directed him to initiate his staff misconduct claims at the institutional level. [See Record No.

1 at 6; No. 1-7 at 2; No. 1-9 at 2; No. 9 at 4] While Anderson argues that this decision was

incorrect, he says he nevertheless continued to pursue his administrative{2023 U.S. Dist. LEXIS

6} remedies, both back at his prison and through submissions to other BOP officials. [See

Record No. 1 at 3-7; No. 1-5 at 2-6; No. 1-6 at 2; and No. 1-8 at 2-3] The status of these

subsequent administrative remedy requests, however, is unclear.

Anderson eventually filed this lawsuit against Officer Fuson, Officer Gabbard, Lieutenant

Chaney, Officer Whitaker, and Lieutenant Posey. [Record No. 1; No. 9]. Anderson argues that

each of the named defendants acted "maliciously and sadistically" [Record No. 1 at 12], And

violated his right under the Eighth Amendment. [Record No. 1 at 12; No. 9 at 4].[DE 52 at Page

ID# 955-56], The District Court denied the motion to dismiss as to all claims, except the District

Court granted the motion to dismiss as to Anderson's claims against Officer Whitaker and

Lieutenant Posey, finding that Anderson did not fully exhaust his administrative remedies with

respect to his claims against these defendants. [DE 52], Following that decision, the parties

engaged in discovery and a copious motion practice, most of which was initiated by Anderson.

The factual narrative as previously described by the District Court has not changed.

II. DISPOSITIVE MOTION STANDARDS

A motion to dismiss{2023 U.S. Dist. LEXIS 7} under Federal Rule of Civil Procedure 12(b)(6) tests

the sufficiency of the complaint. Gardner v. Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir.

2014). In assessing a motion to dismiss under Rule 12(b)(6), the "court construes the complaint in

the light most favorable to the plaintiff, accepts the plaintiff's factual allegations as true, and

determines whether the complaint ’contains] sufficient factual matter, accepted as true to state a

claim for relief that is plausible on its face.'" Id. (quoting Heinrich v. Waiting Angels Adoption Servs.,

Inc., 668 F.3d 393, 403 (6th Cir. 2012)). Anderson is a prisoner proceeding without an attorney, so

the Court reads his complaint liberally and ”accept[s] as true all non-conclusory allegations in the

complaint and determine^] whether they state a plausible claim for relief." Davis v. Prison Health

Servs., 679 F.3d 433, 438 (6th Cir. 2012) (quoting Delay v. Rosenthal Collins Group, LLC, 585 F.3d

1003, 1005 (6th Cir. 2009)).

Defendants move to dismiss the complaint and for summary judgment in the alternative, and they

attach and rely upon materials outside of the pleadings. [See DE 158; DE 158-1, 2, 3], Thus, the

Court treats Defendants' motion as a motion for summary judgment under Rule 56. See Fed. R. Civ.

P. 12(d) (requiring that, in a motion to dismiss under Rule 12(b)(6), "matters outside the pleadings

are presented to and not excluded by the court, the motion must be treated as one of summary

judgment under Rule 56"); Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (stating

that plaintiff is on notice that summary judgment is being requested where defendants move{2023

U.S. Dist. LEXIS 8} both to dismiss and for summary judgment in the alternative).

Summary judgment is appropriate if no genuine disputes of material fact exists and if the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.

317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "The moving party has the initial burden of

showing the absence of a genuine issue of material fact as to an essential element of the

non-moving party's case." Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999) (citing Street v.

J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989)). Once the initial burden is met, the

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

nonmovant must come forward with "specific facts showing that there is a genuine issue for trial."

Celotex, 477 U.S. at 324. The nonmovant may not rest on his pleadings and must instead present

affirmative evidence to support his claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57,

106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In considering a motion for summary judgment, the Court

views all inferences drawn from the underlying facts in the light most favorable to the nonmovant.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d

538, (1986).

III. ANALYSIS

Defendants assert two bases for dismissal of Anderson's claims. First, Defendants argue Anderson's

claims must be dismissed because they present a new context for a Bivens action and there are

special factors counseling against extending a Bivens remedy to that context. Second, Defendants

assert Anderson's claims must be dismissed because he failed to fully exhaust his administrative

remedies.{2023 U.S. Dist. LEXIS 9} The undersigned agrees with both grounds.

A. Availability of a Bivens Remedy Under Egbert

Defendants argue that Anderson's Eighth Amendment claims based on his allegations of excessive

force, including the allegation that Defendants fabricated disciplinary charges against him to place

him in restraints, must be dismissed because they present a new context for a Bivens action and

there are special factors counseling against extending a Bivens remedy to this context. On this point,

Defendants rely heavily on a recent United States Supreme Court case, Egbert v. Boule, _ U.S.

142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022).

In certain contexts, a plaintiff may recover damages for a constitutional violation by a federal actor

under the doctrine announced in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91

(1971). In that case, the Supreme Court held that, "even absent statutory authorization, it would

enforce a damages remedy to compensate persons injured by federal officers who violated the

prohibition against unreasonable search and seizures." Ziglarv. Abbasi, 582 U.S. 120, 137 S. Ct.

1843, 1854, 198 L. Ed. 2d 290 (2017) (citing Bivens, 402 U.S. at 397). The Court acknowledged that

the Fourth Amendment did not expressly provide for a damages remedy. Bivens, 403 U.S. at 396.

Nonetheless, because Congress had not explicitly declared "that person's injured by federal officer's

violation of the Fourth Amendment may not recover money damages from agents" and because the

case "involved{2023 U.S. Dist. LEXIS 10) no special factors counseling hesitation in the absence of

affirmative action by Congress[,]" the Court concluded that it could authorize such a remedy under

general principles of federal jurisdiction. Id. at 396-97.

However, including Bivens, the Court has approved of an implied damages remedy under the

Constitution itself in only three instances: (1) where federal agents searched a private residence

without probable cause and in the process manacled the plaintiff and threatened his family in

violation of the Fourth Amendment, Id. at 389, 296; (2) where a congressman terminated an

employee because she was a woman in violation of the Fifth Amendment Due Process Clause,

Davis v. Passman, 442 U.S. 228, 249, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); and (3) where federal

prison officials displayed deliberate indifference by failing to treat a prisoner's asthma in violation of

the Eighth Amendment's Cruel and Unusual Punishments Clause, Carlson v. Green, 446 U.S. 14, 19,

100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980).

Since fashioning these new causes of action, the Court has "come 'to appreciate more fully the

tension between' judicially created causes of action and 'the Constitution's separation of legislative

and judicial power.'" Egbert, 142 S. Ct. at 1802 (quoting Hernandez v. Mesa, 140 S. Ct. 735, 741

(2020)) ("At bottom, creating a cause of action is a legislative endeavor."). As a result, over the past

1 yfcases

and terms and conditions of the Matthew Bender Master Agreement.

42 years, the Court has "declined 11 times to imply a similar cause of action for other alleged

constitutional violations." Id. at 1799 (collecting{2023 U.S. Dist. LEXIS 11} cases). Thus, "[w]hat

started out as a presumption in favor of implied rights of action has become a firm presumption

against them." Callahan v. Federal Bureau of Prisons, 965 F.3d 520, 523 (6th Cir. 2020). The

Supreme Court "has made clear that expanding the Bivens remedy is now a 'disfavored' judicial

activity." Ziglar, 137 S. Ct. at 1857 (citing Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173

L. Ed. 2d 868 (2009)).

Now, after decades of demarcating the Bivens doctrine, the Court must employ the two-step test

under Ziglar to determine whether an implied damages remedy for alleged constitutional misconduct

by federal officials is available. First, the Court must determine whether the plaintiff's claim presents

a "new context" or involves a "new category of defendants" for application of Bivens." Hernandez,

140 S. Ct. at 743 (citations omitted). A "new context" is understood broadly as "'new' if it is 'different

in a meaningful way from previous Bivens cases decided by this Court."' Id. (quoting Ziglar, 137 S.

Ct. at 1859). A case might differ in a meaningful way because of "the constitutional right at issue; the

generality or specificity of the official action; the extent of judicial guidance as to how an officer

should respond to the problem or emergency to be confronted; the statutory or other legal mandate

under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the{2023

U.S. Dist. LEXIS 12} functioning of other branches; or the presence of potential special factors that

previous Bivens cases did not consider[,j" for example. Ziglar, 137 S. Ct. at 1860.

Second, if the Court concludes that a claim arises in a new context, then it must consider whether

there are "special factors counselling hesitation in the absence of affirmative action by Congress." Id.

at 1857 (quoting Carlson, 446 U.S. at 18). At this step, the Court "must concentrate on whether the

Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs

and benefits of allowing a damages action to proceed." Id. at 1857-58. "[I]f there are sound reasons

to think Congress might doubt the efficacy or necessity of a damages remedy[,j the [C]ourt[] must

refrain from creating [it]." Ziglar, 137 S. Ct. at 1858. "Put another way, 'the most important question is

who should decide whether to provide for a damages remedy, Congress or the courts?" Egbert, 142

S. Ct. at 1803 (quoting Hernandez, 140 S. Ct. at 750). "If there is a rational reason to think that the

answer is 'Congress'-as it will be in most every case-no Bivens action may lie." Id. (citation omitted)

(citing Ziglar 137 S. Ct. at 1857-58). See also Egbert, 142 S. Ct. at 1803 ('"[E]ven a single sound

reason to defer to Congress' is enough to require a court to refrain from creating such a remedy."

(quoting Nestle USA, Inc. v. Doe, 141 S. Ct. 1931, 1937, 210 L. Ed. 2d 207 (2021) (plurality

opinion))).(2023 U.S. Dist. LEXIS 13}

1. Anderson's claims present a new Bivens context.

In this case, Anderson's Eighth Amendment claims based on his allegations that officers used

excessive force against him, including the allegation that Defendants fabricated disciplinary charges

against him to place him in restraints, presents a context that is new and meaningfully different from

those previously recognized by the Supreme Court as cognizable under Bivens. Although Anderson's

claims, like those in Carlson, are based on the Eighth Amendment, "[a] claim may arise in a new

context even if it is based on the same constitutional provision as a claim in a case in which a

damages remedy was previously recognized." Hernandez, 140 S. Ct. at 743. "Plainly, a prisoner's

claim that excessive force was used against him by a prison staff is a different context than the claim

in Carlson of deliberate indifference to a prisoner's medical needs." Morel v. Dep't of Justice, No.

7:22-015-DCR, 2022 U.S. Dist. LEXIS 162900, 2022 WL 4125070, at *5 (Sept. 9, 2022). See also

Howerv. Damron, No. 2105996, 2022 U.S. App. LEXIS 24676, 2022 WL 16578864, at *3 (6th Cir.

Aug. 31, 2022) ("[Plaintiff's] Eighth Amendment claim presents a new context because it involves

Damron's alleged harassment and threats and Streeval's alleged failure to protect him from the

1 yfcases

and terms and conditions of the Matthew Bender Master Agreement.

same, whereas Carlson involved the alleged failure to provide adequate medical care to a prisoner."

(citing Carlson, 446 U.S. at 16 n.1)). The official actions in this case and in Carlson are significantly

different, so this case seeks{2023 U.S. Dist. LEXIS 14} to extend Carlson to a new context. Given

that even a "modest extension" of a prior judicially implied remedy constitutes a new context, Ziglar,

137 S. Ct. at 1864, the first step of the Ziglar test is met.

2. Special factors counsel against creating a new Bivens cause of action in this context.

Anderson's claims also fail under Ziglar's second step, as there are several special factors that

counsel against extending the Bivens remedy to this new context. Ziglar, 1367 S. Ct. at 1857. See

also Elhady v. Unidentified CBP Agents, 18 F.4th 880, 883 (6th Cir. 2021) ("The Supreme Court. . .

has explained that the separation of powers should be a guiding light. . . and has told us that we

must not create a cause of action if there's 'a single sound' reason to leave that choice to Congress."

(quoting Nestle USA, Inc., 141 S. Ct. at 1937)).

First, "legislative action suggesting that Congress does not want a damages remedy" counsels

hesitation to extend the Bivens remedy in this case. Ziglar, 137 S. Ct. at 1865. Specifically, Congress

passed the Prison Litigation Reform Act of 1995 some 15 years after Carlson was decided. Id. The

Act "made comprehensive changes to the way prisoner abuse claims must be brought in federal

court." Id. (citing 42 U.S.C. § 1997e). With the passage of this legislation, Congress presumably "had

specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy

those wrongs[,]" yet "the{2023 U.S. Dist. LEXIS 15} Act itself does not provide for a standalone

damages remedy against federal jailers." Id. As Ziglar recognized, this alone may suggest "Congress

chose not to extend the Carlson damages remedy to cases involving other types of prisoner

mistreatment." Id.

Second, an alternative remedial structure exists in the form of BOP regulations. See Egbert, 142 S.

Ct. at 1807 (noting that a remedial scheme created by "Congress or the Executive" which those

branches find sufficient to secure an adequate level of deterrence precludes the Judiciary from

superimposing a Bivens remedy (emphasis added)). For federal inmates, the BOP's Administrative

Remedy Program (ARP) "provides a ready and viable mechanism to challenge alleged misconduct

by staff.” Morel, 2022 U.S. Dist. LEXIS 162900, 2022 WL 4125070, at *6 (citing Correctional Serv's

Corp. v. Malesko, 534 U.S. 61, 61 (2001)); 28 CFR § 542.10 (2001) (explaining that the ARP

provides "a process through which inmates may seek formal review of an issue which relates to any

aspect of their confinement"). Even assuming the ARP does not provide the complete relief

Anderson seeks or that it would leave unaddressed a wrong Anderson asserts, its existence

demonstrates that political branches other than the Judiciary are better equipped to create a

damages remedy in this new context. See Egbert, 142 S. Ct. at 1804 (”[T]he relevant question is not

whether a Bivens{2023 U.S. Dist LEXIS 16} action would 'disrupt[tj' a remedial scheme, or whether

the court 'should provide for a wrong that would otherwise go unaddressed[.]' Nor does it matter that

'existing remedies do not provide complete relief. Rather, the court must ask only whether it, rather

than the political branches, is better equipped to decide whether the existing remedies 'should be

augmented by the creation of a new judicial remedy.'" (citations omitted)). As such, the ARP alone is

reason enough to decline to infer a new Bivens claim in this context. Egbert, 142 S. Ct. at 1804. And

"courts have consistently held that the BOP's inmate grievance program provides a viable alternative

remedy counseling against inferring a remedy under Bivens." Morel, 2022 U.S. Dist. LEXIS 162900,

2022 WL 4125070, at *6 (collecting cases).

In addition to the BOP's inmate grievance program, the Federal Tort Claims Act, 28 U.S.C. § 2670,

et seq. ("FTCA"), provides another alternative remedial structure. The FTCA "is a limited waiver of

the federal government's sovereign immunity permitting an action against the United States for

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

negligent or intentional acts committed by its employees during the course of their employment."

Morel, 2022 U.S. Dist. LEXIS 162900, 2022 WL 4125070, at *6 (citing 28 U.S.C. § 1346(b)(1)). Like

the ARP regulations, the existence of the FTCA counsels against extending the Bivens remedy to

this context.

Third, extending{2023 U.S. Dist. LEXIS 17} a Bivens claim to this prison-based context risks unduly

interfering with prison administration under separation-of-powers principles. "Running a prison is an

inordinately difficult undertaking that requires expertise, planning, and the commitment of resources."

Callahan, 965 F.3d at 524 (quoting Turner v. Safley, 482 U.S. 78, 84-85, 107 S. Ct. 2254, 96 L. Ed.

2d 64 (1987)). "Given the array of challenges facing prison administration and the complexity of

those problems, 'separation of powers concerns counsel a policy of judicialj.]"' Id. (quoting Safley,

482 U.S. at 85). In other words, separation-of-powers principles counsel against the judiciary creating

new causes of action for prison-based claims, like the ones Anderson asserts here. Id.

In sum, Anderson's claims involve alleged excessive force by federal prison officials, which present

a context that is new and meaningfully different from those previously recognized by the Supreme

Court as cognizable under Bivens, the closest of which appearing in Carlson some 30 years ago.

Moreover, the considerations discussed above offer plenty of reasons to "hesitate" about extending a

Bivens remedy to Anderson's claims. Ziglar, 137 S. Ct. at 1858. The Court must therefore decline to

extend a new Bivens action for Anderson's excessive force claims. And because the Court finds that

Bivens does(2023 U.S. Dist. LEXIS 18} not provide a monetary remedy for Anderson's Eighth

Amendment claims based on his allegations of excessive force, his Complaint fails to state a claim

for which the relief he seeks may be granted. The undersigned thus recommends the District Court

grant Defendants' Motion for Summary Judgement [DE 158] and dismiss Anderson's remaining

claims.

B. Administrative Exhaustion

The undersigned's recommendation that the District Court dismiss Anderson's remaining claims

because Egbert and Ziglar require the Court to decline to extend a Bivens remedy to this context is

dispositive of this case. In the interest of complete consideration of Defendants' arguments, however,

the Court also recommends dismissal of Anderson's remaining claims because he has failed to show

that he exhausted his administrative remedies. 1

Defendants argue that Anderson's claims must be dismissed because he failed to exhaust his

administrative remedies prior to filing his lawsuit. The statutory language of the PLRA unequivocally

requires that "[n]o action shall be brought with respect to prison conditions under. . . any other

Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

administrative{2023 U.S. Dist. LEXIS 19} remedies as are available are exhausted." 42 U.S.C. §

1997e(a). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted

claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 166 L. Ed. 2d

798 (2007). See also Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)

("Exhaustion is no longer left to the discretion of the district court, but is mandatory.") (citation

omitted); Napier v. Laurel Cty., Ky., 636 F.3d 218, 222 (6th Cir. 2011) (the exhaustion requirement is

a "strong one"); Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006).

The BOP's Administrative Remedy Program requires a federal prisoner to follow a four-step process

to administratively exhaust his remedies. 28 C.F.R. §§ 542.10-542.19. First, the inmate must seek

informal resolution of any issue with staff. 28 C.F.R. § 542.13. If a matter cannot be resolved

informally, the prisoner must file an Administrative Remedy Request Form (form "BP-9"). See 28

C.F.R. §§ 542.14(a). If the prisoner is not satisfied with the Warden's response, he must use a BP-10

Form to appeal to the applicable Regional Director. See 28 C.F.R. §§ 542.15. If the prisoner is not

] yfcases

and terms and conditions of the Matthew Bender Master Agreement.

satisfied with the Regional Director's response, he may use a BP-11 Form to appeal to the General

Counsel. See 28 C.F.R. §§ 542.15. See also BOP Program Statement 1300.16. At each of these

steps, the prison officials have strictly proscribed times by which to respond to the grievance. See 28

C.F.R. § 542.18. At any level, "[i]f the inmate does not receive a response within the time

allotted{2023 U.S. Dist. LEXIS 20} for reply, including extension, the inmate may consider the

absence of a response to be a denial at that level." 28 C.F.R. § 542.18. "Proper exhaustion demands

compliance with an agency's deadlines and other critical procedural rules[.]" Woodford, 548 U.S. at

90.

Failure to exhaust administrative remedies is an affirmative defense. Jones, 549 U.S. at 212. "When

the defendants in prisoner civil rights litigation move for summary judgment on administrative

exhaustion grounds, they must prove that no reasonable jury could find that the plaintiff exhausted

his administrative remedies." Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Surles v.

Andison, 678 F.3d 452, 455-56 (6th Cir. 2012)). Once an inmate makes "some affirmative efforts to

comply with the administrative procedures," the Court will analyze "whether an inmate's efforts to

exhaust were sufficient under the circumstances." Napier, 636 F.3d at 223-24. Summary judgment is

appropriate where "a defendant establishes that there is no genuine dispute of material fact that the

plaintiff failed to exhaust." Doe 8-10 v. Snyder, 945 F.3d 951, 961 (6th Cir. 2019).

On this record, the Court finds that Anderson did not exhaust his administrative remedies as required

by the PLRA prior to filing this case. Anderson indicated in his Amended Complaint that he submitted

remedy requests at the Regional Director and Office of General Counsel levels on August 18, 2019,

and February{2023 U.S. Dist. LEXIS 21} 2, 2020, respectively. [DE 9, Page ID# 99]. He also

provided details concerning these submissions in his deposition testimony. Specifically, Anderson

stated that he filed a "sensitive request" BP-9 on August 18, 2019. [DE 158-1, Page ID# 1751]. If

true, the regional office would have had up to 60 days in which to submit its response. 28 C.F.R. §

542.18. Defendants claim the regional office never received a B-9, and Anderson acknowledged in

his deposition that he did not receive a response from the BOP regional office within 60 days. [DE

158-1, Page ID# 1752],

However, Anderson acknowledged in his deposition that, despite not receiving a response to the

sensitive submission, he did not take further action until January 2020, when he finally followed up

on the sensitive submission. [Id. at Page ID# 1752-53]. The BOP's Administrative Remedy Program

requires that ”[i]f 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." 28

C.F.R. § 542.18. This means that once mid-October 2019 came and went, Anderson should have

assumed that his BP-9 was denied, and if he wished to pursue his administrative remedies,(2023

U.S. Dist. LEXIS 22} he had to use a BP-10 Form to appeal to the applicable Regional Director.

Anderson failed to do so in the timeframe required by the regulation and offers no excuse for his

delay.

Failure to exhaust is an affirmative defense upon which defendants bear the burden. A defendants'

initial burden is satisfied by showing that there was a generally available administrative remedy that

the prisoner did not exhaust. Albino v. Baca, 747 F.3d 1152, 1172 (9th Cir. 2014). Once the

defendants put forth evidence of a valid administrative process, a plaintiff must present evidence to

rebut the availability of that remedy to defeat the defendants' motion for summary judgment. Napier,

636 F.3d at 225-26. Anderson, in failing to respond to the Motion for Summary Judgment, has not

sustained this burden. His lack of response on his failure to exhaust dooms his claims. Nali v.

Ekman, 355 F. App'x 909, 912 (6th Cir. 2009) (Sutton, J., dissenting) ("No doubt, we expect less of

pro se litigants than we do of counseled litigants - and appropriately so. But those modest

expectations are not non-existent. '[P]ro se parties must still brief the issues advanced with some

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

I—>

I <J .

effort at developed argumentation.'") (quoting Coleman v, Shoney's, Inc., 79 F. App'x 155, 157 (6th

Cir. 2003)).

Accordingly, the undersigned alternatively recommends the District Court grant Defendants' Motion

for Summary Judgment [DE{2023 U.S. Dist. LEXIS 23} 158] and dismiss Anderson's remaining

claims on the grounds that he failed to exhaust his administrative remedy prior to filing his civil

action as required by 42 U.S.C. § 1997e(a).

I. CONCLUSION

For the reasons discussed above, the Court RECOMMENDS as follows:

1. That the District Court GRANT Defendants' Motion for Judgement on the Pleadings, or in the

Alternative for Summary Judgment [DE 158]; and

2. That the District Court DENY AS MOOT the following motions:

a. Anderson's Motion to Determine Sufficiency of Answer or Objection [DE 150];

b. Anderson's Motion for Extension [DE 180];

c. Anderson's Motion for Waiver of Fees [DE 188];

d. Anderson's Motion to Amend and/or Supplement [DE 189]; and

e. Anderson's Motion to Appoint Counsel [DE 190],

The undersigned enters this Memorandum Opinion pursuant to 28 U.S.C. § 636(b)(1)(A). Within

fourteen (14) days after being served with a copy of this Memorandum Opinion, either party may

appeal this decision to the presiding District Judge pursuant § 636(b)(1)(A) and Fed. R. Civ. P. 72(a).

Entered this 26th day of January, 2023.

1st Matthew A. Stinnett

MATTHEW A. STINNETT

UNITED STATES MAGISTRATE JUDGE

EASTERN DISTRICT OF KENTUCKY

Footnotes

The undersigned recognizes the general principle that federal courts should decline to address

alternative grounds of dismissal when no cause of action exists, especially in cases, like this one,

where precedent can easily resolve Biven's applicability. See Elhady, 18 F.4th 880, 884-85

("Plaintiffs like Elhady often have no cause of action unless we extend Bivens. And if there is no

cause of action, courts should stop there. After all, Article III bars federal courts from giving 'opinions

advising what the law would be upon a hypothetical state of facts.'"). However, the undersigned

addresses Defendants' alternative argument to provide an alternate recommendation to which the

District Court may turn in the event it rejects the first recommended basis of dismissal.

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

/fyyin 1/V c

No. 23-5342

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DARNELL ANDERSON,

Plaintiff-Appellant,

AARON FUSON, ET AL.

Defendants-Appellees.

■'v

)

Apr 9, 2024

KELLY L. STEPHENS, Clerk

ORDER

BEFORE: STRANCH, BUSH, and MATHIS, Circuit Judges.

•

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

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