El-Amin v. Ringwood et al

Filing 29

RECOMMENDED DISPOSITION recommending that 19 Defendants' Motion for Summary Judgment be granted, and this action be dismissed without prejudice. In addition, the Court recommends that 27 Plaintiff's Motion to File a Supplemental Complaint be denied. Objections to R&R due 14 days from the date the recommended disposition is received. Signed by Magistrate Judge Beth Deere on 1/22/10. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION MUHAMMAD EL-AMIN R e g . #18162-076 v. R I N G W O O D , et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District C o u rt Judge Susan Webber Wright. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of y o u r objections must be received in the office of the United States District Court Clerk no la te r than fourteen (14) days from the date you receive the recommended disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 C A S E NO.: 2:09CV00078 SWW/BD DEFENDANTS PLAINTIFF

II.

I n t r o d u c t io n : P la in tiff, Muhammad El-Amin, a Bureau of Prisons ("BOP") inmate, filed this

a c tio n pro se under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 4 0 3 U.S. 388, 91 S.Ct. 1999 (1971).1 In his Complaint (docket entry #2), Plaintiff alleges th a t Defendants violated his First Amendment rights by serving him food containing pork. Plaintiff states that, as a Muslim, he is prohibited from eating pork. N o w Pending are Defendants' Motion for Summary Judgment (#19) and Plaintiff's M o tio n to File a Supplemental Complaint (#27). Defendants have responded (#28) to P la in tiff's motion. Plaintiff, however, has failed to respond to Defendants' motion, even th o u g h this Court directed Plaintiff to respond (#22), and later granted Plaintiff's request fo r a sixty-day extension of time to respond (#25). For the following reasons, the Court re c o m m e n d s that Defendants' Motion for Summary Judgment (#19) be GRANTED, and th a t Plaintiff's Motion to File a Supplemental Complaint (#27) be DENIED.

Defendants request dismissal of Plaintiff's claim brought under the Federal Tort C la im s Act ("FTCA"). Plaintiff never mentions the FTCA in his Complaint, although he d o e s attach an incomplete FTCA claim form as one of a number of attachments (#2, p. 1 0 ). As noted by Defendants, Plaintiff did not sue the United States, the proper party for c la im s brought under the FTCA. Plaintiff invoked this Court's jurisdiction under 28 U .S .C . § 1331, not 28 U.S.C. § 1346(b)(1). In addition, this Court's screening Order n o te d only a Bivens claim, for alleged violations of Plaintiff's First Amendment religious rig h ts (#5). Since Plaintiff has not brought an FTCA claim in the immediate action, the R e c o m m e n d e d Disposition does not address the FTCA. 2

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III.

B ackground: P la in tiff alleges that BOP officials served him pork products, without his

k n o w le d g e , from May 2008, until September 2008, in violation of his First Amendment rig h t to adhere to his Muslim faith (#2). Defendants do not address the merits of P la in tiff's allegations. Instead, they argue that Plaintiff failed to exhaust his a d m in is tra tiv e remedies through the BOP administrative remedy process. In Plaintiff's motion to file a Supplemental Complaint (#27), he alleges that two B O P employees, who are not Defendants to this action, have retaliated against him for c o m m e n c in g this lawsuit. Defendants object to Plaintiff's motion, noting their pending d is p o s itiv e motion and the fact that Plaintiff is attempting to name additional defendants a n d add a new claim. IV . D is c u s s io n : A. M o tio n for Summary Judgment (#19) 1 . Summary Judgment Standard S u m m a ry judgment is appropriate when the evidence, viewed in the light most fa v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of 3

Northwoods, 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c ific facts which create a genuine issue for trial.") If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). 2 . Failure to Exhaust C o n g re s s enacted the Prison Litigation Reform Act ("PLRA") to "reduce the q u a n tity and improve the quality of prisoner suits." Porter v. Nussle, 534 U.S. 516, 524 (2 0 0 2 ). The PLRA requires administrative exhaustion prior to the commencement of a la w s u it challenging prison conditions. "No action shall be brought with respect to prison c o n d itio n s under § 1983 of this title, or any other Federal law, by a prisoner confined in a n y jail, prison, or other correctional facility until such administrative remedies as are a v a ila b le are exhausted." 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738 (2 0 0 1 ) (holding that available remedies "must be exhausted before a complaint under § 1983 may be entertained"). If exhaustion is not completed at the time the lawsuit is file d , dismissal is mandatory. Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003). The purposes of the exhaustion requirement include "allowing a prison to address c o m p la in ts about the program it administers before being subjected to suit, reducing 4

litigation to the extent complaints are satisfactorily resolved, and improving litigation that d o e s occur by leading to the preparation of a useful record." Jones v. Bock, 549 U.S.199, 1 2 7 S.Ct. 910, 923 (2007); see also Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2385 (2 0 0 6 ). In their motion, Defendants argue that Plaintiff failed to exhaust administrative re m e d ie s available through the BOP grievance process. In support of this argument, D e fe n d a n ts submit the Declaration of James D. Cook, Supervisory Attorney assigned to th e BOP's Consolidated Legal Center at the Federal Transfer Center in Oklahoma City, O k la h o m a (#20-2). In his Declaration, Mr. Cook sets out the requirements of the BOP a d m in is tra tiv e remedy procedure. Essentially, the BOP's administrative remedy p ro c e d u re consists of an officer's attempt to informally address an inmate's grievance or c o m p la in t, followed by three formal levels of administrative review. At the first level, an inmate is required to file a Request for Administrative R e m e d y , commonly referred to as a BP-9, with the Warden at the local institutional level. The second level requires an appeal to the Regional Director in the Regional Office, c o m m o n ly referred to as a BP-10. The third and final level requires an appeal to the O ffic e of the General Counsel of the BOP. This is a Central Office Administrative R e m e d y Appeal, or a BP-11. D e fe n d a n ts presented evidence that Plaintiff failed to properly exhaust his a d m in is tra tiv e remedies. Plaintiff has failed to respond to this evidence, despite a sixtyd a y extension to do so. Although Plaintiff attached exhibits to his Complaint showing he 5

attempted to exhaust his administrative remedies, the evidence currently before the Court s h o w s beyond genuine dispute that he did not follow the established grievance procedure. L e g a lly sufficient administrative exhaustion requires compliance with administrative p ro c e d u ra l rules. See Woodford, 126 S.Ct. at 2386 (proper exhaustion demands c o m p lia n c e with agency's deadlines and other critical procedural rules). Accordingly, P la in tiff's Bivens action should be dismissed without prejudice. B. M o tio n to File a Supplemental Complaint (#27)

In Plaintiff's motion to file a Supplemental Complaint (#27), he alleges that two B O P employees, who are not Defendants to this action, have retaliated against him in v io la tio n of his First Amendment right to access the courts. Defendants object to P la in tiff's motion, noting their pending dispositive motion, and the fact that Plaintiff is a tte m p tin g to name additional defendants and add a completely new claim. P la in tiff states that the alleged retaliatory conduct occurred after he began this la w s u it. Plaintiff could not have exhausted his administrative remedies before filing this a c tio n . If exhaustion is not completed at the time the lawsuit is filed, dismissal is m a n d a to ry . Johnson, 340 F.3d at 627-628. Since dismissal of this potential claim would b e mandatory, amending Plaintiff's current action would be futile. Accordingly, P la in tiff's motion to File a Supplemental Complaint (#27) should be DENIED. See R o b e rso n v. Hayti Police Dept., 241 F.3d 992, 995 (8th Cir. 2001) (denial of leave to a m e n d pleadings is appropriate when futility of the amendment can be demonstrated).

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V.

C o n c lu s io n : T h e Court recommends that Defendants' Motion for Summary Judgment (#19) be

G R A N T E D , and this action be DISMISSED WITHOUT PREJUDICE. In addition, the C o u rt recommends that Plaintiff's Motion to File a Supplemental Complaint (#27) be D E N IE D . D A T E D this 22nd day of January, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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