UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
July 2, 2003
DAVID KAISER, PLAINTIFF,
NANCY BAILEY, WARDEN ET AL., DEFENDANTS.
The opinion of the court was delivered by: Irenas, Senior District Judge
Defendants move to dismiss Plaintiff's Bivens claim pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment. For the reasons set forth below, the Defendants motion is granted.
Plaintiff David A. Kaiser, an inmate presently incarcerated at the Federal Correctional Institution in Fort Dix, New Jersey ("Fort Dix"), brings this action in forma pauperis, alleging violations of his constitutional rights under the First and Eighth Amendments. He seeks an award of monetary damages and injunctive relief.
Plaintiff claims that in May 2001, he became aware of certain federal crimes being committed by Bureau of Prison ("BOP") guards at Fort Dix. (Pl.'s Compl. ¶ 3). On August 2, 2001, he brought the relevant facts to U.S. Attorney's office (Pl.'s Compl. ¶ 3) and agreed to provide further information and testimony in return for transfer to a halfway house and the submission of a motion on his behalf under Fed. R. Crim. P. 35(b). (Pl.'s Compl. ¶ 4). Plaintiff contends that from August 9, 2001, through November 15, 2001, he met with Defendants Blackman, Odell, Maoriana, Cooney, Hernandez, Hubbard-Engels, Shreck, Bailey, and Reiser, and another prisoner, who was their accomplice, in excess of fifty times at great risk of discovery and danger to himself. (Pl.'s Compl. ¶ 5-7).
On September 14, 2001, Plaintiff alleges "that it became obvious . . . that the defendants were conspiring to obstruct justice," so he complained to Sgt. Pearce of the Department of Defense ("DOD") police station at Fort Dix, where he worked at the time. On that same day, Defendants Odell and Captain Charles Maoriana allegedly confronted Plaintiff and threatened him after the DOD questioned them as to why the BOP was not acting on information Plaintiff provided regarding security breaches at Fort Dix. (Pl.'s Compl. ¶ 10-11).
Thereafter, Plaintiff contends that the Defendants retaliated against him by failing to transfer him to a halfway house as agreed and placing him in administrative detention. Defendants allegedly further retaliated against Plaintiff by denying him permission to attend religious observances, removing him from his job, and making false disciplinary charges against him, resulting in placement in segregation, loss of telephone privileges, loss of visitation, and an increase in security classification. (Pl.'s Compl. ¶ 5-21).
On January 14, 2002, Plaintiff brought this action in forma pauperis, pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), claiming violations of his constitutional rights. The Court construed Plaintiff's Complaint as alleging a denial of due process for breach of agreement in violation of the Fifth Amendment, a claim of retaliation for exercising his right to communicate grievances in violation of the First Amendment, and an Eighth Amendment claim for Defendants' deliberate indifference to Plaintiff's safety by labeling him a "snitch." (Opinion, p. 9, filed Oct. 4, 2001). An Order, dated January 14, 2002, granted Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). In the same order, the Court dismissed Plaintiff's Complaint without prejudice for failure to exhaust administrative remedies.
On July 1, 2002, Plaintiff wrote a letter informing the Court that he exhausted administrative remedies to no avail and seeking to reinstate his complaint. The Court determined from the face of the July 1, 2002, letter that there appeared to be substantial compliance with the administrative remedy scheme, and reinstated Plaintiff's Complaint. At the same time, the Court dismissed Plaintiff's breach of agreement claim for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and allowed Plaintiff's First Amendment retaliation claim and his Eighth Amendment deliberate indifference claim to proceed. (Order, filed Oct. 4, 2002; Opinion, P. 2, filed Oct.4, 2002).
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants move to dismiss Plaintiff's claim, or in the alternative, for summary judgment. Defendants argue that Plaintiff's claim must be dismissed because he did not exhaust the available administrative remedies prior to bringing suit as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the allegations contained in the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Fed. R. Civ. P. 12(b)(6), the court must determine whether the allegations contained in the complaint, construed in the light most favorable to the plaintiff, show a set of circumstances which, if true, would entitle the plaintiff to the relief he requests. Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)(citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). A complaint will be dismissed only if the plaintiff could not prove any set of facts which would entitle him to relief. Nami, 82 F.3d at 65 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). If, on a motion to dismiss matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Fed. R. Civ. P. 12(b).
"Summary judgment is appropriate when, after considering the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains in dispute and 'the moving party is entitled to judgment as a matter of law.'" Hines v. Consolidated Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991) (citations omitted). "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact. Big Apple BMW, Inc. v. BMW of North Am., Inc., 974 F.2d 1358, 1362 (3d Cir. 1992). Once the moving party has produced evidence in support of summary judgment, the nonmoving party must go beyond the allegations set forth in its pleadings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63.
Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). While pro se complaints are entitled to liberal construction, the plaintiff must still set forth facts sufficient to survive summary judgment. Shabazz v. Odum, 591 F.Supp. 1513 (M.D.Pa. 1984)(citing King v. Cuyler, 541 F.Supp. 1230, 1232 n. 3 (E.D.Pa. 1982)).
42 U.S.C. § 1997e(a), as amended by the PLRA, requires prisoners to exhaust all available administrative remedies prior to bringing a federal action challenging prison conditions. Specifically, the PLRA amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a)(amended by Pub.L. 104-134, Title I, § 101(a), 110 Stat. 1321-71 (1996)). As the Third Circuit stated in Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000), "Congress amended 1997e(a) largely in response to concerns about the heavy volume of frivolous prison litigation in the federal courts." Id. at 73 (quoting Alexander v. Hawk, 159 F.3d 1321, 1326 n.11 (6th Cir. 1999) (citing 141 Cong. Rec. H14078-02, H14105 (daily ed. Dec. 6, 1995))).
Section 1997e(a) was designed to reduce the quantity and improve the quality of prisoner lawsuits and afford corrections officials an opportunity to address complaints internally before allowing the initiation of a federal case. Additionally, internal review filters out frivolous claims and facilitates adjudication of those claims that are ultimately brought to federal court by providing an administrative record outlining the controversy. Booth v. Churner, 532 U.S. 731, 739 (2001). "Congress desired `to wrest control of our prisons from the lawyers and the inmates and return that control to competent administrators appointed to look out for society's interests as well as the legitimate needs of prisoners.'" Nyhuis, 204 F.3d at 73-74 (quoting Alexander, 159 F.3d at 1326 n.11 (quoting 141 Cong. Rec. S14408-01, S1 4418 (daily ed. Sept. 27, 1995))). Section 1997e(a), which requires inmates to exhaust administrative remedies prior to bringing federal actions with respect to prison conditions, applies to Bivens claims. Nyhuis, 204 F.3d at 68. In Booth, the Third Circuit explained that the phrase "conditions of confinement" applies to actions that "relate to the environment in which prisoners live, and the nature of the services provided therein." Booth v. Churner, 206 F.3d 289, 300-301 (3d Cir.2000). The Third Circuit further held that the exhaustion requirement applies to civil actions ranging from excessive force claims to all claims that "make [prisoners'] lives worse." Id.; see also Freeman v Francis, 196 F.3d 641, 644 (6th Cir. 1999)(applying a similar analysis); Wendell v. Asher, 162 F.3d 887, 889, 891-92 (5th Cir. 1998) (applying § 1997e(a) to excessive force claims); Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir. 1997).
The PLRA amended § 1997e(a) in such a way as to make exhaustion of all administrative remedies mandatory. The Third Circuit has refused to apply a futility exception to the exhaustion requirement of 42 U.S.C. § 1997e(a). See, e.g., Nyhuis, 204 F.3d at 71; Booth, 206 F.3d at 300. In other words, the PLRA requires an inmate to exhaust all administrative remedies prior to bringing a federal action challenging prison conditions, whether or not they provide the inmate with the relief the inmate says he or she desires in the federal action. Nyhuis, 204 F.3d at 71. However, "[c]compliance with the administrative remedy scheme will be satisfactory if it is substantial." Id. at 77-78. see also Miller v. Tanner, 196 F.3d 1190, 1194 (11th Cir. 1999) (applying the substantial compliance doctrine, determining that although plaintiff did not appeal an initial review of his grievance, plaintiff had exhausted his administrative remedies as he was told "[w]hen any grievance is terminated at the institutional level you do not have the right to appeal. The above listed grievance(s) is closed").
Dismissal of a plaintiff's complaint without prejudice is appropriate when a plaintiff/inmate has failed to exhaust his available administrative remedies before bringing an action in federal court. See Booth, 206 F.3d at 300. Failure to exhaust administrative remedies is an affirmative defense that must be plead and proven by defendants. Ray v. Kortes, 285 F.3d 287, 295 (3d Cir. 2002).
In the instant matter, Defendants move to dismiss Plaintiff's claim, or in the alternative, for summary judgment, and assert, as an affirmative defense, that Plaintiff failed to exhaust his available administrative remedies. In support of their argument, Defendants submitted to the Court the affidavit of Fort Dix Attorney Advisor, Kisha Hebbon, and other exhibits relating to Plaintiffs use of the remedy process.
When matters outside pleadings are presented and not excluded by the court, the court is required to treat a motion to dismiss as one for summary judgment and to dispose of it as provided by Rule 12(b). Carter v. Stanton, 405 U.S. 669 (1972). In Greer v. Smith, 2003 WL 1090708 *1 (3d Cir. March 10, 2003), in a non-precedential opinion, the Third Circuit held that a motion to dismiss for failure to exhaust administrative remedies as required by the PLRA should be converted to a motion for summary judgment because the court relied on representations made in Defendants' affidavit, which constituted material outside plaintiff/inmate's pleadings. Similarly, the affidavit Defendants submitted to the Court constitutes material outside of the pleadings, and, pursuant to Fed. R. Civ. P 12(b), Defendants' motion will be treated as a motion for summary judgment. In both his July 1, 2002, letter to the Court and his opposition to Defendants motion to dismiss, Plaintiff alleges that he properly addressed all of the issues raised in his First and Eighth Amendment claims. Plaintiff alleges that Defendants violated his First and Eighth Amendment rights by 1)failing to transfer him to a halfway house as agreed; 2)placing him in administrative detention; 3)denying him permission to attend religious observances; 4)removing him from his job assignment; 5)making false disciplinary charges against him, resulting in placement in segregation, loss of telephone privileges, loss of visitation, and an increase in security classification; and 6)placing him at risk by identifying him as a "snitch" to other inmates and prison staff. (Pl.'s Compl. ¶ 10-21).
The Administrative Remedy Program is a three-tier process that is available to inmates confined in institutions operated by the BOP for "review of an issue which relates to any aspect of their confinement," except tort claims, inmate accident compensation claims, and Freedom of Information or Privacy Act requests. 28 C.F.R. §§ 542.10, 542.12(b). An inmate must initially attempt to informally resolve the issue with institutional staff. 28 C.R.F. § 542.13(a). If informal resolution fails or is waived, an inmate may submit a BP-9 Request to "the institution staff member designated to receive such requests (ordinarily a correctional counselor)" within 20 days of the date on which the basis for the Request occurred, or within any extension period. 28 C.F.R. § 542.14. An inmate who is dissatisfied with the Warden's response to his BP-9 Request may submit a BP-10 Appeal to the Regional Director of the BOP within 20 days of the date the Warden signed the response. 28 C.F.R. § 542.15(a). The inmate may appeal to BOP's General Counsel on a BP-11 form within 30 days of the day the Regional Director signed the response. Id. Appeal to the General Counsel is the final administrative appeal. Id. At each level, if the inmate does not receive a response within the allotted time, "the inmate may consider the absence of a response to be a denial at that level." 28 C.F.R. § 542.18. An inmate has not exhausted his available remedies until he has properly filed a complaint at all three levels and been denied at all three levels. 28 C.F.R. §§ 542.10 et. seq.
Review of BOP records indicates that Plaintiff did not exhaust any of the issues raised in his First Amendment and Eighth Amendment claims. Plaintiff did not exhaust his claim concerning placement in administrative detention. After an attempt at informal resolution Plaintiff submitted an administrative remedy with the institution, Fort Dix, the first level of the grievance scheme. The Warden rejected Plaintiff's administrative remedy request and Plaintiff filed a Regional Administrative Remedy Appeal, which was rejected because Plaintiff did not provide a requisite copy of his Institution Remedy Request. Plaintiff was advised that he could resubmit the his appeal in proper form within ten days of the date of the rejection notice. Because Plaintiff failed to resubmit his appeal he did not complete the second or third levels of the remedy scheme and did not exhaust his claim concerning placement in administrative detention.
The BOP record also shows that Plaintiff did not exhaust his claims relating to his transfer to a halfway house and denial of permission to attend a religious furlough. In both instances, the Warden denied Plaintiff's remedy request and Plaintiff filed a Regional Office Administrative Appeal. The Regional Director's Office denied Plaintiff's remedy request and Plaintiff did not appeal the decision to the General Counsel by filing a Central Office Administrative Remedy. By failing to appeal to the third level of the remedy scheme Plaintiff did not exhaust the issues of transfer to a halfway house or denial or a religious furlough.
Plaintiff did not exhaust his claim that Defendants falsified disciplinary charges against him. Plaintiff appealed the Warden's decision denying his remedy request to the Regional Office. On appeal, the Regional Director denied Plaintiff's request and Plaintiff appealed to the General Counsel, the third level, by filing a Central Office Administrative Remedy. The Central Office rejected his appeal because it was not received within thirty days of the Regional Director's response. Plaintiff was advised that he needed staff verification on BOP letterhead to document that his untimeliness was not his fault, but never submitted such verification.
The administrative record further indicates that Plaintiff never initiated the grievance procedure regarding his job assignment or his claim that guards called him a "snitch" in the presence of other inmates. Because Plaintiff did not file an administrative remedy with the institution, the first level in the three tier process, these claims were never addressed.
The Third Circuit has interpreted § 1997e(a) as establishing a bright line rule; "we are not prepared to read ... § 1997e(a) as meaning anything other than what it says--i.e., that no action shall be brought in federal court until such administrative remedies as are available have been exhausted." Nyhuis, 204 F.3d at 78. Plaintiff's claims were not submitted and rejected to each of the three levels of the remedy process when he filed this action in federal Court. Accordingly, Plaintiff did not exhaust his available administrative remedies before bringing this lawsuit as required by § 1997e(a). See Booth, 206 F.3d at 292-93, 299. Because Plaintiff did not exhaust prior to filing his complaint in federal court, Defendants' motion for summary judgment will be granted and Plaintiff's Complaint will be dismissed without prejudice.
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