United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge
Standing Order, this action was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of findings
and recommendation regarding disposition pursuant to 28
U.S.C.A. § 636(b)(1)(B). Magistrate Judge Aboulhosn
submitted to the court his Findings and Recommendation
(“PF&R”) on March 17, 2017, in which he
recommended that the district court deny plaintiff's
application to proceed in forma pauperis, dismiss
plaintiff's complaint, and remove this matter from the
court's active docket.
accordance with the provisions of 28 U.S.C.A. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Aboulhosn's Findings and Recommendation. The failure of
any party to file such objections constitutes a waiver of
such party's right to a de novo review by this
court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.
April 24, 2017, plaintiff filed objections to the PF&R.
Those objections were not timely nor did plaintiff seek leave
of the court to file objections outside the operative
Nevertheless, the court has conducted a de novo
review of plaintiff's complaint and his objections to the
magistrate judge's PF&R.
4, 2014, plaintiff, an inmate formerly incarcerated at FCI
McDowell, filed the instant complaint seeking relief under
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388, 395-97 (1971).
Plaintiff's complaint arises out the treatment he
allegedly received while at FCI McDowell. In his PF&R,
Magistrate Judge Aboulhosn recommended that plaintiff's
Bivens claims be dismissed for failure to exhaust
respect to his failure to exhaust, in his objections (ECF No.
13), plaintiff stated:
They said I didn't exhaust my remedies, which is
completely untrue, the remedies that I could Exhaust I did
them fully, but the ones that the staff interfered with there
wasn't much I can do. I submitted proof of me writing
several complaints about my process being hindered to the
regional director K. Williams which went ignored as well, it
seems they find one or two that weren't fully exhausted
and they argue those but the other dozen or so they leave
alone. So I think the case in point is that I filled every
instance, and the one or two which weren't fully
exhausted was only based on the defendants.
Plaintiff's Objections at p. 1 (ECF No. 13).
Notwithstanding plaintiff's allegations to the contrary,
the foregoing does not establish that plaintiff has exhausted
his administrative remedies.
under Bivens and claims under the FTCA are separate
and distinct causes of action. Under Bivens inmates
may assert claims of personal liability against individual
prison officials for violations of their constitutional
rights but may not assert claims against the government or
prison officials in their official capacities. Howard v.
Federal Bureau of Prisons, 198 F.3d 236, 1999 WL 798883,
*1 (4th Cir. Oct. 7, 1999). Both Bivens and the FTCA
require that a claim thereunder be exhausted prior to
bringing suit. However, the exhaustion requirements under
Bivens are different than the exhaustion
requirements under the FTCA. Jiminez v. United
States, No. 11 Civ. 4593(RJS), 2013 WL 1455267, *5
(S.D.N.Y. Mar. 25, 2013) (“[T]he exhaustion
requirements under the FTCA are different from those required
for a Bivens action.”); Smith v. United
States, No. 09-CV-314-GFVT, 2011 WL 4591971, *4 (E.D.
Ky. Sept. 30, 2011) (“In other words, the FTCA and
Bivens each have their own exhaustion procedures,
and Smith has a duty to fully exhaust the administrative
remedies required by the two different claims.”);
Fulwylie v. Waters, Civil Action No. 2:08cv76, 2009
WL 3063016, *5 (N.D. W.Va. Sept. 22, 2009) (“The
exhaustion requirement for a Bivens claim is
separate and distinct from the exhaustion requirements under
the Federal Tort Claims Act. . . .”); Tolliver v.
Edgefield Correctional Institution, No. 0:060903-PMD,
2006 WL 1391447, *4 (D.S.C. May 16, 2006) (“While
Plaintiff's filings indicate he may have exhausted the
BOP grievance procedure, which is a prerequisite to filing a
Bivens action, exhaustion of administrative remedies
for an action under the FTCA is vastly different.”).
“[E]xhaustion of a Bivens claim requires a
prisoner to fully comply with all four stages of the internal
prison grievance procedure. In contrast, to exhaust an FTCA
claim, a prisoner must file an administrative claim directly
with the BOP, and obtain a final ruling. No further appeals
are required.” Bradley v. Meadows, No.
2:11CV00153 JMM/JTR, 2012 WL 1831459, *2 n.7 (E.D. Ark. May
respect to the exhaustion of plaintiff's Bivens
claims, the record supports Magistrate Judge Aboulhosn's
conclusion that such claims were not properly exhausted.
Plaintiff's contention that they were fully exhausted or
that the BOP interfered with his efforts are belied by the
record. Barnes states that he has “utilized the FBOP
Administrative procedure at McDowell on over 35 occasions
over the course of 7 months.” ECF No. 2 at p.23. He
goes on to write about his frustration with the grievance
process and, in particular, the fact that some of his
complaints went unanswered. See id. According to
Barnes, FCI McDowell's “administrative policy is
inadequate and not viewed as credible by Plaintiff.”
PLRA “requires proper exhaustion.” Woodford
v. Ngo, 548 U.S. 81, 93 (2006). In order to properly
exhaust his claims, a prisoner must “us[e] all
steps” in the administrative process; he must also
comply with any administrative “deadlines and other
critical procedural rules” along the way.”
Id. at 90-91. The record does not support
Barnes' assertion that he fully exhausted his
administrative remedies as to any of his Bivens
claims. Furthermore, to the extent he argues that his failure
to exhaust should be excused based upon the lack of response
from the BOP, such an argument is without merit.
The BOP's administrative remedy program contemplates such
a scenario per the following regulation: “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.” 28
C.F.R. § 542.18. Thus, the warden's alleged failure
to respond constitutes a denial, and if Petitioner is
dissatisfied, he must still pursue the next two levels of
administrative review by appealing to the appropriate
regional director, and if necessary, to the general counsel.
See 28 C.F.R. §§ 542.14 and 542.15.
Taylor v. Warden, Satellite Prison Camp at Edgefield,
South Carolina, Civil Action No.: 2:16-cv-01826-RBH,
2017 WL 359497, *3 (D.S.C. Jan. 25, 2017) (internal footnote
admitted); see also Douglas v. Johns, No.
5:09-CT-3180-FL, 2011 WL 2173627, *2 (E.D. N.C. Jun. 2, 2011)
(“Plaintiff argues that his failure to exhaust should
be excused because the Regional Office did not respond to his
BP-10 Administrative Remedy Request. (Or at least, the he
never received the BOP's response.) . . . [P]laintiff
should have treated the lack of response as a denial of his
request, and was obligated to appeal that denial to the next
level of the administrative process in order to completely
exhaust his remedies.”). Because Barnes has not fully
exhausted his administrative remedies with the BOP, his
Bivens claim must be dismissed.
these reasons, plaintiff's objections regarding
exhaustion are OVERRULED. As this issue is
dispositive, the court does ...