Michel v. Federal Bureau of Prison FCI et al

Filing 48

MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/13/2018. (KAM)

FILED
2018 Feb-13 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

HELENE MICHEL,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS FCI,
et al.,

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Case No.: 7:16-cv-00863-RDP-HNJ

Defendants.

MEMORANDUM OPINION
On November 15, 2017, the Magistrate Judge’s Report and Recommendation was entered
and the parties were allowed therein fourteen days in which to file objections to the
recommendations made by the Magistrate Judge.

(Doc. #35).

In his Report and

Recommendation, the Magistrate Judge recommended that the court (1) dismiss without
prejudice Warden Patricia Bradley (“Bradley”) from this action; (2) dismiss without prejudice
the Federal Bureau of Prisons FCI (“BOP”); and (3) deny without prejudice Defendants’ Motion
to Dismiss Plaintiff’s Federal Tort Claims Act (“FTCA”) and Bivens1 claims.

(Id.).

On

December 6, 2017,2 Defendants filed objections to the Magistrate Judge’s Report and
Recommendation. (Doc. #40). Specifically, Defendants object to (1) the Magistrate Judge’s
application of the prison mailbox rule to the FTCA’s presentment requirement and (2) the
finding that the administrative remedy process was unavailable to Plaintiff regarding her Bivens

1

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcostics, 403 U.S. 388 (1971).

2

The court granted Defendants a seven day extension to file objections. (Doc. #37).

claim. (Id.). Plaintiff has not objected to the Report and Recommendation. (Doc. #38). No
objections have been filed regarding the dismissals of Bradley or the BOP.
After careful consideration of the record in this case, the Magistrate Judge’s Report and
Recommendation, and Defendants’ objections thereto, the court hereby ADOPTS the Report of
the Magistrate Judge. The court ACCEPTS the recommendations of the Magistrate Judge that
Bradley and the Federal Bureau of Prisons FCI be dismissed without prejudice from this case.
Despite Defendants’ objections, which are discussed below, the court FURTHER ACCEPTS
the recommendations of the Magistrate Judge that the court deny without prejudice Defendants’
Motion to Dismiss Plaintiff’s FTCA and Bivens claims against the remaining defendants.
I. Application of the Prison Mailbox Rule to the FTCA’s Presentment Requirement
Defendants assert that application of the prison mailbox rule to the presentment
requirement of 28 U.S.C. § 2675(a) is inconsistent with the United States’ limited waiver of
sovereign immunity under the FTCA. (Doc. #40 at 5-20). More specifically, Defendants argue
that the court does not have subject matter jurisdiction over Plaintiff’s claims because first, as a
matter of law, she did not present her claims to the agency because the agency did not obtain
“actual receipt” of her administrative appeal and, second, as a factual matter, Plaintiff does not
sustain her burden of demonstrating presentment of the administrative appeal. (Id.). Defendants
falter on both fronts.
“The FTCA is a specific, congressional exception to the general rule of sovereign
immunity [in that it] allows the government to be sued by certain parties under certain
circumstances for particular tortious acts committed by employees of the government.” Suarez
v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). Title 28 U.S.C. § 2675(a) sets forth one
condition of the government’s waiver of sovereign immunity under the FTCA:

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An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope
of his office or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by
certified or registered mail.
28 U.S.C. § 2675(a). “A claim is deemed to be presented ‘when a Federal agency receives from
a claimant, his duly authorized agent or legal representative, an executed Standard Form 95
[“SF95”] or other written notification of an incident, accompanied by a claim for money
damages in a sum certain for injury to or loss of property, personal injury, or death alleged to
have occurred by reason of the accident.’” Barnett v. Okeechobee Hosp., 283 F.3d 1232, 123637 (11th Cir. 2002) (quoting 28 C.F.R. § 14.2(a)).
In order to satisfy the presentment requirement in 28 U.S.C. § 2675(a), a plaintiff is not
necessarily required to present affirmative evidence of actual receipt by the agency. Id. at 1239
(“While we agree with the fundamental premise that a claim is presented upon its receipt, we
cannot go so far as to say that affirmative evidence of such receipt is required.”). A plaintiff
creates a presumption that the agency received her SF95 when she demonstrates that her
completed SF95 was (1) properly addressed, (2) stamped, and (3) mailed. Id. at 1240. However,
a plaintiff need not achieve this high level of proof to create such a presumption. Id. at 1238-40.
For instance, in Barnett v. Okeechobee Hospital, a plaintiff’s statement that he mailed a
completed SF95 to the relevant agency, along with copies of his accompanying cover letter and
the prepaid postage reply envelope in which he allegedly mailed it, raised an inference -although not conclusive proof -- that the plaintiff mailed a completed SF95 to the relevant
agency. Id. Declarations from agency employees that the agency did not receive the plaintiff’s
SF95 do not rebut the presumption of receipt because the “court c[an] not rely on the bare
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assertion of one member of the office that the mail was not received, since the mail might have
been received by another.” Id. at 1241-42.
In Garvey v. Vaughn, the Eleventh Circuit extended the prison mailbox rule articulated in
Houston v. Lack 3 “to pro se prisoners filing complaints in section 1983 cases and claims under
the Federal Tort Claims Act.” 993 F.2d 776, 783 (11th Cir. 1993). The Court further explained
that, for these cases, “the date of filing shall be that of delivery to prison officials of a complaint
or other papers destined for district court for the purpose of ascertaining timeliness.”

Id.

(emphasis in original). Although the Eleventh Circuit has established that the prisoner mailbox
rule applies to the FTCA for statute of limitations purposes, no binding precedent for this court
has settled “whether the prison mailbox rule extends to the filing of the administrative claim
itself.” Echemendia v. United States, -- Fed.App’x --, 2017 WL 4334121, at *2 n.3 (11th Cir.
Sept. 29, 2017). However, the principles underlying Garvey -- i.e., there are situations beyond a
prisoner’s control that, depending upon the circumstances of a case, should not be construed
against a prisoner in determining when a pleading is filed -- buttress the reasoning behind
extending the prison mailbox rule to the presentment requirement:
Unskilled in law, unaided by counsel, and unable to leave the
prison, [a pro se prisoner’s] control over the processing of his
notice necessarily ceases as soon as he hands it over to the only
public officials to whom he has access—the prison authorities—
and the only information he will likely have is the date he
delivered the notice to those prison authorities and the date
ultimately stamped on his notice.
Garvey, 993 F.2d at 780 (quoting Houston, 487 U.S. at 271-72); cf. Tapia-Ortiz v. Doe, 171 F.3d
150, 152 (2d Cir. 1999) (“Since, with regard to the difficulties inherent in being a pro se prisoner
litigant, we see no difference between the filing of a court action and the filing of an
3

In Houston, the Supreme Court held that a pro se prisoner’s notice of appeal was filed when it is delivered to
prison authorities for forwarding to the district court. See 487 U.S. 266 (1988).

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administrative claim, we hold that [our prior ruling4 that the filing of a § 1983 complaint occurs
upon delivery to a prison official also] applies to an FTCA administrative filing.”). But see
Censke v. United States, No. 1:16-cv-02761-TWP-MJD, 2017 WL 4099208, at *4 (S.D. Ind.
Sept. 15, 2017)5 (“[B]ecause an administrative filing pursuant to the FTCA is not a court filing,
and because the BOP regulation defines presentment of a claim as when it is received by the
federal agency, the ‘prison mailbox rule’ does not apply to [the plaintiff’s] presentment of his
SF-95 to the BOP in this case.”). The court agrees with the Magistrate Judge that a holding that
the prison mailbox rule applies to the administrative filing of a FTCA claim most closely aligns
with the precedent set forth by the Eleventh Circuit in Barnett, 283 F.3d 1232, and Garvey, 993
F.2d 776.
As an alternative to its argument that the prison mailbox rule does not apply to the FTCA,
Defendants assert that the Report and Recommendation does not include a factual finding that
Plaintiff sent the SF95 through the legal mail system or the prison’s regular mail system. (Doc.
#40 at 14). However, in the Report and Recommendation, the Magistrate Judge stated, “[U]nless
the defendants establish otherwise, the plaintiff’s FTCA form is deemed filed on May 24, 2016.”
(Doc. #35 at 12). In considering the merits of Defendants’ Motion to Dismiss, the Magistrate
Judge relied on Plaintiff’s Amended Complaint, which was submitted under oath, and accepted
Plaintiff’s statement that “[o]n June 10th, 2016, [she] submitted Standard Form 95 Claim for
Damages, Injury or Death to South East Regional Office [of the Bureau of Prisons].” (Doc. #27

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Notably, the Tapia-Ortiz decision focused on whether the prison mailbox rule rendered a filing timely, not whether
the filing was actually presented to the agency; nevertheless, the principles underlying the Second Circuit’s
extension of the prison mailbox rule to FTCA administrative filings supports the ruling in this case. See TapiaOrtiz, 171 F.3d at 152 (citing Dory v. Ryan, 999 F.2d 679 (2d Cir. 1993)).
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Defendants use Censke as support for their argument that the prison mailbox rule does not apply to the FTCA.
(Doc. #40 at 16-17). However, Censke is at odds with Eleventh Circuit precedent in that the Censke ruling is based
on “substantial” Seventh Circuit authority “that presentment occurs not when a claim is mailed but when it is
received by the agency.” 2017 WL 4099208, at *3.

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at 3). Defendants did not provide the court with sufficient evidence6 to rebut this presumption of
receipt. See Barnett, 283 F.3d at 1241-42 (finding that declarations from employees that an
agency did not receive an administrative claim do not, on their own, rebut the presumption of
receipt). As such, the court deems it appropriate to deny Defendants’ Motion to Dismiss without
prejudice as to Plaintiff’s FTCA claims.
II. Finding that the Administrative Remedy Process Was Unavailable to Plaintiff
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust her available
administrative remedies prior to bringing a suit regarding prison conditions. See 42 U.S.C.
§ 1997e(a). In deciding a motion to dismiss for failure to exhaust administrative remedies, the
court follows the following process:
First, the court looks to the factual allegations in the defendant’s
motion to dismiss and those in the plaintiff’s response, and if they
conflict, takes the plaintiff’s version of the facts as true. If, in that
light, the defendant is entitled to have the complaint dismissed for
failure to exhaust administrative remedies, it must be dismissed. . .
. . If the complaint is not subject to dismissal at the first step,
where the plaintiff’s allegations are assumed to be true, the court
then proceeds to make specific findings in order to resolve the
disputed factual issues related to exhaustion. . . . . The defendants
bear the burden of proving that the plaintiff has failed to exhaust
his available administrative remedies. . . . . Once the court makes
findings on the disputed issues of fact, it then decides whether
under those findings the prisoner has exhausted his available
administrative remedies.
6

In Houston, the Supreme Court noted that the prison, and not the plaintiff, is the party with access to evidence so as
to resolve issues regarding whether a prisoner timely tendered a claim to prison authorities for mailing. 487 U.S. at
276. The prison -- FCI Aliceville -- could have provided the court with its mail logs to establish it did not receive
any documents from Plaintiff on the date she allegedly mailed her SF95.
In arguing that Plaintiff’s FTCA claims are barred for failure to exhaust administrative remedies, Defendants have
presented a factual attack to the court’s subject matter jurisdiction over Plaintiff’s claims. When a court is
confronted with a factual attack, “the trial court is free to weigh the evidence and satisfy itself as to the existence of
its power to hear the case.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (quoting Williamson v. Tucker, 645 F.2d
404, 412 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
Upon this court’s referral of the remaining claims in this case to the Magistrate Judge for further proceedings, the
Magistrate Judge should allow limited discovery on subject matter jurisdiction and whether Plaintiff submitted the
SF95 as she alleges.

6

Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008).
A prisoner’s exhaustion requirement “hinges on the ‘availab[ility]’ of administrative
remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable
ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (emphasis added). “[A]n administrative
procedure is unavailable when (despite what regulations or guidance materials may promise) it
operates as a simple dead end -- with officers unable or consistently unwilling to provide any
relief to aggrieved inmates.” Id. at 1859. Similarly, “an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use.” Id. Administrative remedies are
also considered “unavailable” when “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
Defendants (1) challenge the Magistrate Judge’s conclusion that the BOP remedy process
was “unavailable” to Plaintiff and (2) assert that the Magistrate Judge incorrectly applied the
two-step process in Turner, 541 F.3d 1077. (Doc. #40 at 27-33). Those arguments miss the
mark.

To begin, the current record demonstrates that the BOP unilaterally and randomly

assigned Plaintiff’s grievances -- which all focused on the same medical problems -- to one of
three remedy series. Officials gave some grievances new remedy series numbers and deemed
others appeals and rejected them for filing at the wrong level, regardless of how Plaintiff
attempted to label the grievances.7 (Doc. #35 at 22-27). Because this process created an
untimely appeal or a new remedy request (where a filing also may have been viewed as a timely
appeal), the Magistrate Judge concluded that these seemingly random assignments to remedy
7

The decision to assign a grievance to a new remedy series rather than an existing series affected the timeliness of
Plaintiff’s appeals as well as the determination of whether Plaintiff timely filed a remedy request. For example,
Plaintiff filed an administrative remedy on March 12, 2014, which officials rejected as filed at the wrong level.
(Doc. #29-2 at 4). Plaintiff refiled that claim at the proper (institutional) level, but officials assigned it a new
remedy number and rejected it for being both too long and not containing enough detail. (Id. at 4-5). After several
more rejected filings, Plaintiff submitted a regional appeal in the second remedy series, which was assigned to the
first series and rejected as a refiling of the March 12, 2014 grievance. (Id. at 4).

7

series defeated Plaintiff’s ability to exhaust her administrative procedures. (Id. at 23-29). At this
stage, without explaining how the agency assigned Plaintiff’s filings, Defendants cannot escape
the preliminary finding that they prevented Plaintiff from exhausting her administrative
remedies.
Furthermore, the Magistrate Judge considered every administrative remedy submitted by
Plaintiff, the date of the submission, the assignment of the submission to one of three remedy
series, the content of the submission, and the stated reason(s) for rejection. (Id. at 24-28). After
a detailed review of the parties’ respective factual assertions, the Magistrate Judge concluded
that Defendants “limit[ed] access to a procedure and then protect[ed] themselves from suit by
alleging the prisoner failed to use that specific procedure.” (Id. at 29 (citing Presley v. Scott, 679
F. App’x 910, 912 (11th Cir. 2017) (reversing district court dismissal for lack of exhaustion,
because administrative procedures were unavailable when not listed on law library computer)).
Ultimately, after rendering specific factual findings to resolve disputed factual issues as required
by Turner, 541 F.3d 1077, the Magistrate Judge recommended denial of Defendants’ Motion to
Dismiss for failure to exhaust administrative remedies. The court agrees that Defendants did not
uphold their burden “of proving that the plaintiff has failed to exhaust [her] available
administrative remedies.”

Turner, 541 F.3d at 1082.

Accordingly, the court adopts the

Magistrate Judge’s rulings.
III. Conclusion
For the reasons explained above, the court OVERRULES Defendants’ objections and
ACCEPTS the Magistrate Judge’s Report and Recommendation.

The court REFERS the

remaining claims to the Magistrate Judge for further proceedings. An Order in accordance with
this Memorandum Opinion will be entered.

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DONE and ORDERED this February 13, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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