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Fortuna v. FBOP

United States District Court, N.D. West Virginia, Wheeling

October 9, 2019

MICHAEL RAY FORTUNA, Plaintiff,
v.
FBOP, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          John Preston Bailey United States District Judge.

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James P. Mazzone [Doc. 6]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Mazzone filed his R&R on September 19, 2019, wherein he recommends that plaintiff's Complaint [Doc. 1] be dismissed without prejudice and that plaintiff's Motion for Leave to Proceed in forma pauperis [Doc. 2] be denied as moot.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Plaintiff timely filed his Objections on September 27, 2019 [Doc. 11]. Accordingly, this Court will review the portions of the R&R to which the plaintiff objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         BACKGROUND

         Plaintiff does not object to Magistrate Judge Mazzone's recitation of the factual background. In sum, plaintiff alleges that he fell from his top bunk-injuring his shoulder, back, neck, and hip-and blames various prison officials for either causing the fall, by ignoring his “bottom bunk pass, ” or for improper aid following the fall. For relief, plaintiff is seeking medical treatment for his injuries, $5 million for pain and suffering, payment for future lost wages and earning capacity, payment for future medical expenses and mental distress, and $200/day for the rest of his life. Plaintiff acknowledges in his Complaint that there is a prison grievance procedure at FCI Gilmer, however plaintiff also acknowledges that he has not exhausted the grievance process because “it takes time to complete all of them” [Doc. 1 at 4]. As plaintiff freely admits that he has not completed the grievance process, Magistrate Judge Mazzone recommends dismissal of plaintiff's Complaint without prejudice for failure to exhaust available administrative remedies.

         APPLICABLE LAW

         The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that inmates exhaust available administrative remedies prior to filing civil actions, even though the administrative process may not afford them the relief they might obtain through civil proceedings.[1] Woodford v. Ngo, 548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”); Booth v. Churner, 532 U.S. 731, 731 (2001) (“Under 42 U.S.C. § 1997e(a), an inmate seeking only money damages must complete any prison administrative process capable of addressing the inmate's complaint and providing some form of relief, even if the process does not make specific provision for monetary relief.”). Exhaustion of administrative remedies is also required when injunctive relief is requested. Goist v. United States Bureau of Prisons, 2002 WL 32079467, at *4 n.1 (D.S.C. Sep 25, 2002) (Herlong, J.). “[A] court may not excuse a failure to exhaust” because the PLRA's mandatory exhaustion scheme “foreclose[s] judicial discretion.” Ross v. Blake, 136 S.Ct. 1850, 1856-57 (2016) (“[A] court may not excuse a failure to exhaust, even to take [special circumstances] into account.”). But the plain language of the statute requires that only “available” administrative remedies be exhausted. Id. at 1855 (“A prisoner need not exhaust remedies if they are not ‘available.'”). In Ross, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation.” Id. at 1859-60.

         If an inmate exhausts administrative remedies with respect to some, but not all, of the claims he raises in a section 1983, Bivens, or Federal Tort Claims Act action, the Court must dismiss the unexhausted claims and proceed with the exhausted ones. See Jones v. Bock, 549 U.S. 199, 201 (2007) (“The PLRA does not require dismissal of the entire complaint when a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. . . . If a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad.”). It appears to be the majority view as well that exhausting administrative remedies after a complaint is filed will not save a case from dismissal. See Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001) (citing numerous cases) (overruled on other grounds). The rationale is pragmatic. As the court stated in Neal, allowing prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress' directive to pursue administrative remedies prior to filing a complaint in federal court. Moreover, if during the pendency of a suit, the administrative process were to produce results benefitting plaintiff, the federal court would have wasted its resources adjudicating claims that could have been resolved within the prison grievance system at the outset. Id. at 123. In Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999), the court stated: “The plain language of the statute [42 U.S.C. § 1997e(a)] makes exhaustion a precondition to filing an action in federal Court. . . . The prisoner, therefore, may not exhaust administrative remedies during the pendency of the federal suit.” Thus, the PLRA requires that available administrative remedies must be exhausted before the filing of a suit in federal court.

         It is further clear that the PLRA does not require that an inmate allege or demonstrate that he has exhausted his administrative remedies. See Jones, 549 U.S. 199. Failure to exhaust administrative remedies is an affirmative defense-prison officials have the burden of proving that the inmate had available remedies which he did not exhaust. Id. at 216 (finding that failure to exhaust is an affirmative defense that a defendant must generally plead and prove); see also Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (“Although exhaustion of administrative remedies is a precondition to a federal prisoner filing a Bivens suit . . . failure to exhaust is an affirmative defense that the defendants have the burden of pleading and proving.” (citations omitted)). This Court is not precluded, however, from considering at the outset whether an inmate has exhausted administrative remedies. “A court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust his administrative remedies.” Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017); Anderson v. XYZ Prison Shealth Servs., 407 F.3d 674, 681-82 (4th Cir. 2005); see also Banks v. Marquez, 694 Fed. App'x 159 (4th Cir. 2017) (finding no error in the district court's decision to sua sponte dismiss petitioner's petition where petitioner explicitly admitted in his petition that he failed to exhaust his administrative remedies).

         For Bivens purposes, proper exhaustion of available administrative remedies requires that “a prisoner must submit inmate complaints and appeals in the place, and at the time, the prison's administrative rules require.” Dale, 376 F.3d at 655 (citations omitted); see also Woodford, 548 U.S. at 92-94, 101-102 (finding that the PLRA exhaustion requirement requires “full and proper exhaustion, ” which includes meeting all the time and procedural requirements of the prison grievance system). The Federal Bureau of Prisons (“BOP”) has established an Administrative Remedy Program, 28 C.F.R. § 542.10, et seq., through which an inmate may seek formal review of issues or complaints relating to confinement. As Magistrate Judge Mazzone described:

The Bureau of Prisons provides a four-step administrative process beginning with attempted informal resolution with prison staff (BP-8). See 28 C.F.R. § 542.10, et seq. If the prisoner achieves no satisfaction informally, he must file a written complaint to the warden (BP-9), within 20 calendar days of the date of the occurrence on which the complaint is based. If an inmate is not satisfied with the warden's response, he may appeal to the regional director of the BOP (BP-10) within 20 days of the warden's response. Finally, if the prisoner has received no satisfaction, he may appeal to the Office of General Counsel (BP-11) within 30 days of the date the Regional Director signed the response. An inmate is not deemed to have exhausted his administrative remedies until he has filed his complaint at all levels. 28 C.F.R.§ 542.10-542.15; Gibbs v. Bureau of Prison Office, 986 F.Supp. 941, 943 (D. Md. 1997).

[Doc. 6 at 3-4].

         DISCUSSION

         Magistrate Judge Mazzone recommends dismissal of plaintiff's Complaint without prejudice for failure to exhaust available administrative remedies, as plaintiff's Complaint freely admits that plaintiff did not exhaust the grievance process because “it takes time to complete all of them, ” [Doc. 1 at 4], and plaintiff has made no claim that he was somehow prevented from exhausting his administrative remedies. See Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (“[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.”). In his Objections, plaintiff states that he filed his Complaint without exhausting his administrative remedies because it would take “at the least . . . 80 days” to do such and he “wasn't ...


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