Fernando Bustillo v. Art Beeler
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for other relief [998853888-2], denying Motion for other relief [998834003-2] Originating case number: 5:08-ct-03097-BO Copies to all parties and the district court/agency. . Mailed to: Fernando Bustillo. [12-6187]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Plaintiff – Appellant,
ART BEELER; ANTHONY SCARANTINO; MAILROOM SUPERVISOR SKS;
KRYSTAL MCCAIGHT; TUCKER HILL; J. GREEN; S. BRANTLEY; MAITE
SERRANO-MERCADO; WALTER WOODROW BURNS, JR.; MACK BONNER;
SPILLER; DEBBIE IVY,
Defendants – Appellees,
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:08-ct-03097-BO)
August 31, 2012
Before MOTZ and
October 16, 2012
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
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Fernando Bustillo, Appellant Pro Se. Edward D. Gray, Assistant
United States Attorney, Joshua Bryan Royster, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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Fernando Bustillo appeals the district court’s orders
denying in part his motion for discovery, denying a preliminary
injunction, and dismissing his claims pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
We affirm in part, vacate in part, and remand for
Bustillo challenges the district court’s dismissal of
“There is no question that exhaustion is mandatory under the
cannot be brought in court.”
Jones v. Brock, 549 U.S. 199, 211
(2007); see 42 U.S.C. § 1997e(a) (2006) (requiring exhaustion of
utilize all available steps of a multi-step grievance process
according to their procedural requirements; exhaustion does not
occur if the prisoner fails to follow these required steps.
28 C.F.R. §§ 542.12 to .15 (2012); Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008).
Exhaustion is an affirmative defense,
but the district court may dismiss for failure to exhaust as
long as the prisoner has been provided an opportunity to address
Moore, 517 F.3d at 725.
Reviewing the record under this standard, we conclude
that the district court did not err in finding that Bustillo
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failed to exhaust his administrative remedies with regard to his
claims that prison officials interfered with his access to the
mail system and spread rumors that he was a “snitch.”
it is apparent from the record that the district court failed to
available record is inadequate to demonstrate that these claims
were properly dismissed.
Thus, we vacate the district court’s
order and remand for consideration, in the first instance, of
Bustillo’s claims that: (1) defendants Andes, Bonner, SerranoMercado,
colostomy bag; and (3) defendants Bonner, Walasin, Moritsugu,
and Andes * wrongfully transferred him to the
segregation in retaliation for his lawsuit and in spite of his
While Bustillo also claimed that two other individuals
were responsible for this violation as well, he does not
challenge the district court’s refusal to permit him to amend
his complaint to include these individuals as parties. See 4th
Cir. R. 34(b) (noting that arguments not raised in informal
brief are waived).
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Bustillo also challenges the district court’s grant of
summary judgment as to his claims that he was denied surgery to
thoroughly reviewed the record and conclude the district court
properly determined that no genuine factual dispute existed and
that Appellees were entitled to summary judgment as to these
LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011)
(standard of review).
We further conclude that the district
court did not abuse its discretion in denying in part Bustillo’s
requests for discovery prior to summary judgment.
See Fed. R.
Civ. P. 56(d); Strag v. Bd. of Trs., 55 F.3d 943, 954 (4th Cir.
district court improperly denied him injunctive relief, that the
dispositive motions and to rely on waived affirmative defenses,
and that certain Appellees committed perjury in the district
court—we have thoroughly reviewed the record as to each of these
claims and have found no reversible error.
Thus, we affirm the
district court’s judgment as to these claims.
Bustillo also moves this court to order the prison
where he is presently housed to provide access to his court
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Bounds v. Smith, 430 U.S. 817, 821-22 (1977); Bryant v.
Muth, 994 F.2d 1082, 1086 (4th Cir. 1993).
However, we conclude
that Bustillo does not (and did not in the district court) make
See Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008); Dewhurst v. Century Aluminum Co.,
649 F.3d 287, 290 (4th Cir. 2011).
Thus, we deny Bustillo’s
motions seeking such relief in this court.
Accordingly, we affirm the district court’s judgment
consistent with this opinion.
We deny Bustillo’s motions to
compel access to his court files and normal correspondence.
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART;
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