Terrell v. Reese et al

Filing 72

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/21/2012. (KAM, )

FILED
2012 Sep-21 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BROOKS TERRELL,
Plaintiff
vs.
CONSTANCE REESE, et al.,
Defendants

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Case No. 1:09-cv-01613-SLB-HGD

MEMORANDUM OF OPINION
The magistrate judge filed a report on September 4, 2012, recommending that
the defendants’ special report be treated as a motion for summary judgment and, as
such, that it be granted with respect to the exhaustion of remedies defense and that
this action be dismissed without prejudice in order to allow the plaintiff to exhaust
the administrative remedies available to him as a federal prisoner. (Doc. 70). The
plaintiff filed objections to the report and recommendation on September 17, 2012.
(Doc. 71). In his objections, the plaintiff contends that prison officials at FCI
Talladega failed to maintain the “established” BP-8 informal resolution forms, but
used a substitute form instead, which somehow “hampered” his exhaustion efforts.
The plaintiff’s contentions are frivolous. The record reflects that the plaintiff
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attempted to pursue two separate direct appeals to the Regional Administrative
Remedy Coordinator, not because of any deficiency in forms themselves, but because
he maintained that the issues being appealed were “sensitive” matters and therefore
excepted from the requirement that he pursue an initial remedy at his place of
incarceration. (Doc. 59-20 and 59-21).1 Furthermore, other than to vaguely allege
that the “inadequate” informal resolution forms somehow resulted in a situation
where his grievances were “never returned,” the plaintiff has failed to present a
rational argument as to how a technical difference in the form prevented him from
pursuing his administrative remedies or made those remedies unavailable, especially
in light of the fact that the BOP afforded him that option following the unsuccessful
Regional filings.
The plaintiff also appears to argue that any attempts to pursue administrative
remedies after the Regional Office rejections would have been futile because the
initial time limits would have expired at that point. (Doc. 71, pp. 5-6). This
contention is wholly without merit. Where an initial appeal to the Region is rejected
1

In Administrative Remedy #561331, filed with the Region, the plaintiff refers to “BP-8”
and “BP-9” forms he alleges were filed with FCI Talladega officials, and makes no mention of any
deficiency in the forms. (Doc. 59-21, p. 3). This is in direct contradiction to the argument asserted
in the objections here. Additionally, the affidavit attached by the plaintiff in support of his
objections states that he attempted to obtain BP-8 forms from his counselor on May 11, 2009; a day
which pre-dates the events made the basis of the claims in the complaint. In any event, unlike the
administrative appeal process, the regulations establishing the informal resolution process do not call
for a specific or formal form for pursuing resolution at that level. 28 C.F.R. § 542.13.
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as not being sensitive, the regulations allow for the inmate to pursue the matter by
submitting an administrative remedy request to the Warden, who is required to “allow
a reasonable extension of time for such resubmission.” 28 C.F.R. § 542.14(d)(1).
With respect to the claims asserted in the complaint here, the defendants have
presented proof that the plaintiff never attempted to re-file his administrative
remedies at the institutional level after they were initially rejected by the Regional
Office, despite being advised of that option in both instances. The plaintiff has
submitted nothing that refutes this proof, and there is nothing before the court which
presents a plausible argument that the plaintiff was prevented from pursuing his
grievances via the established BOP administrative appeal process after his direct
Regional appeals were rejected.
Accordingly, having carefully reviewed and considered de novo all the
materials in the court file, including the report and recommendation and the
objections filed by the plaintiff, the court is of the opinion that the magistrate judge’s
report is due to be and hereby is ADOPTED and his recommendation is
ACCEPTED. The court EXPRESSLY FINDS that there are no genuine issues of
material fact with respect to the exhaustion of remedies defense and that this matter
is due to be dismissed without prejudice in order to allow the plaintiff to exhaust the

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administrative remedies available to him as a federal prisoner. A Final Judgment will
be entered.
DONE this 21st day of September, 2012.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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