Freeze v. Outlaw
ORDER re pltf's 23 Motion for Reconsideration of the Court's Order 20 and Judgment 21 dismissing this action, because he did not exhaust his administrative remedies, he is not entitled to maintain an action in federal court. Signed by Chief Judge J. Leon Holmes on 6/15/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
No. 2:11CV00005 JLH
T.C. OUTLAW, Warden,
FCI Forrest City, Arkansas
As stated in the Court’s prior order, Matthew Freeze commenced this action pursuant to
28 U.S.C. § 2241 on the basis that a prison employee, Ms. T. Hall, retaliated against him for
complaining about her performance of her duties by seeking to have him disciplined. Freeze alleged
that he had submitted an emergency BP-9 (Request for Administrative Remedy) form on
December 5, 2010 and another on December 20, 2010. He stated that both were in response to two
different incident reports filed by Hall. The only BP-9 request in the prison’s Administrative
Remedy Index which matches Freeze’s description is one entered on January 5, 2011. Freeze now
asserts that request is his December 20, 2010 BP-9 form.
The Court dismissed the action on the basis that Freeze had failed to exhaust his
administrative remedies. The Court relied on 28 C.F.R. § 542.18 which states, in part, “If the inmate
does not receive a response within the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level.” Freeze had stated that he never
received a response to either request, but conceded that, instead of appealing to the Regional Director
pursuant to the regulations, 28 C.F.R. § 542.15, he filed suit in federal court. The Court concluded
that Freeze should have treated the lack of responses as denials and appealed pursuant to section
542.15. For this reason, the Court found that Freeze failed to exhaust his administrative remedies.
Freeze asks the Court to reconsider its order. Freeze argues that the Court’s reliance on
section 542.18 is legally erroneous. Specifically, Freeze argues that section 542.18 only applies to
a request which is “accepted” and “considered filed[,]” namely, “logged into the Administrative
Remedy Index as received.” 28 C.F.R. § 542.18. Freeze contends that since his December 5, 2010
BP-9 request does not appear on the Administrative Remedy Index, it was never filed. Further, he
contends that his December 20, 2010 BP-9 request was not accepted, but rather was rejected and no
ruling was made on its merits. Therefore, Freeze concludes, section 542.18 does not apply to either
Regardless of this argument’s merit, the latest briefs filed by both parties demonstrate that
Freeze failed to comply with the prison’s administrative grievance process. Outlaw states that the
prison rejected Freeze’s second BP-9 request because he failed to attempt to resolve the complaint
informally as required by the regulations, 28 C.F.R. § 542.13, and prison guidelines. Freeze
concedes that he did not file an informal resolution attempt,1 known as a BP-8, but argues that he
was not required to do so because it was an emergency request. The prison guidelines state that
prisoners are not required to attempt informal resolution regarding requests for remedies which “are
EMERGENCY in nature.” The guidelines do not, however, define what constitutes an emergency.
The Court is convinced that a request for an administrative remedy is not an emergency
merely because the prisoner includes the words “emergency” on his BP-9 request. If that were so,
any prisoner could avoid the mandatory informal resolution attempt by merely writing “emergency”
on the BP-9 request. Freeze asserts that he believes “that repeated retaliation by staff is of an
Similarly, the evidence reveals that Freeze did not attempt to resolve his first grievance
informally before submitting the December 5, 2010 BP-9 request.
emergency nature.” The Court does not believe that the circumstances giving rise to Freeze’s BP-9
requests were “of an emergency nature.” According to the regulations pertaining to prisoner
discipline, an inmate may be disciplined for conduct reported by prison staff in an incident report
only after an investigation and hearing either before a Unit Disciplinary Committee or an impartial
hearing officer, depending on the severity of the alleged offense. See 29 C.F.R. §§ 541.10 to 541.23.
Among other things, the prisoner has a right to advance notice of the charges against him, to appear
at the hearing, and to make a statement and offer evidence. 28 C.F.R. § 541.17. Further, the
prisoner may appeal any disciplinary decision. 28 C.F.R. § 541.19. In the instant case, Freeze
complains about the filing of incident reports by Hall. Under the regulations, Hall did not have the
power to discipline Freeze. Rather, Freeze could only have been disciplined after a hearing was
conducted and a determination was made that Freeze had in fact committed the offenses alleged in
Hall’s incident reports. Under these circumstances, no emergency existed. Freeze’s failure to
attempt informal resolution of his grievances was unjustified. Because Freeze did not exhaust his
administrative remedies, he is not entitled to maintain an action in federal court.
IT IS SO ORDERED this 15th day of June, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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