United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
Detrine Hudson ("Hudson") brings this pro se action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging a violation of his constitutional rights while he was incarcerated at Federal Prison Camp Montgomery ("FPC Montgomery") in Montgomery, Alabama. Hudson names as defendants FPC Montgomery and Katina Stewart, a trust fund manager at the prison. He alleges that Stewart sexually assaulted him and "used her authority to abuse and put [his] job and time at jeopardy, " and that officials at FPC Montgomery conspired to deprive him of his right to due process in order to cover up Stewart's actions. Doc. No. 1 at 3. The defendants have filed a written report and answer asserting, among other things, that Hudson's complaint should be dismissed because he failed to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Doc. No. 45 at 10-13; Doc. No. 46 at 2.
"[A]n exhaustion defense... is not ordinarily the proper subject for a summary judgment; instead it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment." Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (internal quotations omitted); Trias v. Florida Dept. of Corrections, 587 Fed.App'x 531, 2014 WL 4693841 at *3 (11th Cir. Sep. 23, 2014) (district court properly construed defendant's "motion for summary judgment as a motion to dismiss for failure to exhaust administrative remedies"). Therefore, this court will treat the defendants' written report as a motion to dismiss.
II. STANDARD OF REVIEW
Section 1997e(a) of the PLRA states 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). The Eleventh Circuit has recognized that "[t]he plain language of the statute makes exhaustion a precondition to filing an action in federal court." Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (quoting Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999)). Because exhaustion is mandated by the statute, a court has no discretion to waive this requirement. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998); see Myles v. Miami-Dade County Correctional and Rehabilitation Dept., 476 Fed.App'x 364, 366 (11th Cir. 2012).
Under the PLRA, a federal prisoner cannot bring a Bivens action until he has exhausted his available administrative remedies. See Alexander, 159 F.3d at 1323-24; Porter v. Nussle, 534 U.S. 516, 524 (2002) ("[F]ederal prisoners suing under Bivens ... must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a [42 U.S.C.] § 1983 suit."). "[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." Porter, 534 U.S. at 532.
"[T]he PLRA exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006) (emphasis added). "Construing § 1997e(a) to require proper exhaustion... fits with the general scheme of the PLRA, whereas [a contrary] interpretation would turn that provision into a largely useless appendage." Id. Because proper exhaustion of administrative remedies is required, an inmate cannot satisfy the PLRA's exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal, or by effectively bypassing the administrative process simply by waiting until the grievance procedure is no longer available to him. Id. at 83-84; see Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005).
The question of exhaustion under the PLRA is a "threshold matter" that federal courts must address before considering the merits of the case. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004). When determining whether a prisoner has exhausted his administrative remedies, the court should first consider the plaintiff's and the defendants' versions of the facts, and, if they conflict, take the plaintiff's version of the facts as true. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). "If in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed." Id. (citing Bryant, 530 F.3d at 1373-74). If the complaint is not subject to dismissal at this step, then the court should make "specific findings in order to resolve the disputed factual issues related to exhaustion." Id. (citing Bryant, 530 F.3d at 1373-74, 1376).
"A district judge may resolve disputed factual issues where necessary to the disposition of a motion to dismiss for failure to exhaust. The judge properly may consider facts outside of the pleadings to resolve a factual dispute as to exhaustion where doing so does not decide the merits, and the parties have a sufficient opportunity to develop the record." Trias, 2014 WL 4693841 at *4 (citations omitted). The Eleventh Circuit has rejected the argument that disputed facts as to exhaustion should be decided by a jury. See id. at *3.
Upon review of the complaint, the defendants' written report, the evidentiary materials filed by the defendants, and Hudson's response to the report, the court concludes that the defendants' motion to dismiss should be granted.
The defendants contend that Hudson's complaint should be dismissed because he failed to exhaust his available administrative remedies as required by the PLRA. Doc. No. 45 at 10-13; Doc. No. 46 at 2. With their written report, the defendants submitted an affidavit from Terry A. Collins, Senior Counsel, Federal Bureau of Prisons ("BOP"), Southeast Region, in which Collins avers that he has reviewed the computerized administrative remedy log for Hudson and the log reflects that Hudson failed to file any administrative remedies related to his complaint. Doc. No. 45-7 at 1-2.
The BOP has established regulations setting forth the procedures a prisoner must follow before seeking relief from a district court. Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992); see 28 C.F.R. § 542.10-.15. These regulations, which provide a three-tiered review process, govern formal review of inmate complaints relating to any aspect of their imprisonment and specify the procedures inmates must pursue before attempting to seek relief in federal court. Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994); United States v. Herrera, 931 F.2d 761, 764 (11th Cir. 1991). According to these regulations, within 20 days from the date on which the action complained of occurred, an inmate seeking redress must first file a written grievance with the warden of the facility where he is housed, using the appropriate administrative remedy form ("BP-9") and describing his complaint as well as his requested remedy; the warden then has 20 days to respond. 28 C.F.R. §§ 542.11(4) and 542.15. See Doc. No. 45-7 at 2. If the inmate is dissatisfied with the warden's response, he has 20 days to file an appeal with the Regional Director of the region in which he is housed. 28 C.F.R. § 542.15(a). See id. Finally, if the inmate is not satisfied with the Regional Director's response, he has 30 days to file an appeal with the General Counsel for the BOP. 28 C.F.R. § 542.15(a). Id. Once ...