Williams v. FMC Lexington Warden et al

Filing 6

MEMORANDUM OPINION & ORDER: (1) Plaintiff's Bivens claims against defendants in their official capacities for violations of Eighth Amendment are DISMISSED WITH PREJUDICE for failure to state a claim for which relief can be granted. (2) P laintiff's Complaint 1 is DISMISSED for his failure to exhaust his administrative remedies. (3) Court will enter an appropriate judgment. (4) This matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 1/27/2015.(STC)cc: Plt

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON

LARRY NEAL WILLIAMS,

)
)
) Civil Action No. 5:14-295-JMH
)
)
MEMORANDUM OPINION
)
AND ORDER
)
)
)

Plaintiff,
V.

FMC LEXINGTON WARDEN, et al.,
Defendants.

)
****

****

****

****

Larry Neal Williams is a federal inmate in the custody of
the Bureau of Prisons (“BOP”).

Williams is currently confined

in the Federal Medical Center located in Butner, North Carolina
(“FMC-Butner”); he was formerly housed in the Federal Medical
Center located in Lexington, Kentucky (“FMC-Lexington”).

While

confined at FMC-Lexington, Williams, proceeding pro se, filed a
Complaint

pursuant

to

28

U.S.C.

§

1331,

and

the

doctrine

announced in Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S.

388

medical

(1971),

care

deliberately
violation

of

Constitution.

at

claiming

that

FMC-Lexington

indifferent
the
[R.

Eighth
1]

to

he

and

his

had
that

serious

Amendment
The

named

to

received
the

inadequate

defendants

medical
the

defendants

needs,

United
are

were
in

States

all

FMC-

Lexington prison personnel: (1) the Warden, (2) Dr. Rios, and

(3)

unnamed

staff.

Williams

sues

the

defendants

in

their

individual and official capacities, and he seeks damages of $4.1
Million.

Id.

Because Williams is proceeding in forma pauperis and is
asserting claims against government officials, the Court must
conduct a preliminary review of his complaint.
1915(e)(2), 1915A.

28 U.S.C. §§

A district court must dismiss any claim that

is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.

McGore v. Wrigglesworth, 114

F.3d 601, 607-08 (6th Cir. 1997).

The Court evaluates Williams’

complaint

standard

under

a

more

lenient

represented by an attorney.

because

he

is

Erickson v. Pardus, 551 U.S. 89, 94

(2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
this

stage,

allegations

the
as

Court

true,

not

accepts

and

his

the

legal

plaintiff’s
claims

are

At

factual
liberally

construed in his favor.

Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555-56 (2007).

The Court has given his complaint a

liberal, and hence broad, construction, and will evaluate any
cause

of

action

which

can

reasonably

allegations made.

2 

be

inferred

from

the

For the reasons stated below, Williams’ complaint will be
dismissed

because

he

failed

to

exhaust

his

administrative

remedies prior to filing suit.
BACKGROUND1
In his complaint, Williams states that in February 2013,
while he was confined at Alexandria Federal Holdover, he became
ill, experiencing pain in his lower abdomen, but was advised
that no medical treatment was available there. [R. 1, Page ID#
2] Sometime thereafter, Williams was transferred to the Federal
Correctional

Complex-Hazelton

(“FCC-Hazelton”)

Bruceton Mills, West Virginia.

Id.

located

in

While at FCC-Hazelton,

Williams voiced complaints of lower abdominal pain, was examined
and underwent tests.

Based on a PET scan, cancer was suspected.

Williams underwent exploratory surgery; a mass was discovered
and removed from his lower abdominal area.
mass confirmed that it was cancerous.
even

though

Dr.

Mimms

at

Id.

FCC-Hazelton

A biopsy of that
Williams states that

recommended

that

he

undergo chemotherapy treatment post-surgery, “the facility was
denied permission to treat me.”

Id.

Subsequently, in August of 2013, Williams was transferred
to FMC-Lexington, according to Williams, so that he could be

1

The following information is derived solely from Williams’
version of the events giving rise to this action.  

3

treated

properly

states

that

for

medical

three

within

his

weeks

condition.
after

Id.

he

Williams

arrived

at

FMC-

Lexington, another PET scan was performed, and he was advised
that there was no indication of cancer in his lower abdominal
area.

Id.

Williams

consultative

physician

states
at

the

that

he

was

University

of

examined
Kentucky

by

a

Medical

Center, who advised him that no treatment was necessary at that
time because there was no sign of cancer but that Williams would
be treated when the cancer returned. [R. 1, Page ID# 3]
Williams
decision

states

was

made

that

not

approximately

to

administer

ten

months

chemotherapy

after

the

treatments,

presumably by the consultative physician at the University of
Kentucky,

because

treatment

due

to

performed

of

his

cancer

had

Williams
no

signs

lower

returned.

had
of

need

cancer,

abdominal

Id.

no

With

area,
that

for

another

chemotherapy
PET

scan

was

indicating

that

the

development,

Williams

advises that a recommendation was made to transfer him to FMCButner

for

treatment

of

his

cancerous

condition.2

Williams

states that he had repeatedly made this same request to prison
officials at FMC-Lexington, which the Warden had denied.

2

Williams does not state who made the recommendation to transfer
him to FMC-Butner. It may have been the recommendation of the
consultative/examining physician at the University of Kentucky
or it may have been made by prison staff at FMC-Lexington.

4

Williams’s claims that the medical staff at FMC-Lexington
were “not qualified to make medical determinations regarding my
type of illness made decisions to his detriment, resulting in
his enduring unnecessary pain and suffering.”

He characterizes

their conduct as “the unnecessary wanton infliction of pain and
inadequate medical care.”

Id.
DISCUSSION

A.

Official Capacity Claims
A Bivens claim for damages may only be asserted against

federal employees in their individual capacities; it may not be
asserted against federal employees/officers in their official
capacities.

Okoro v. Scibana, 63 F. App’x 182, 184 (6th Cir.

2003); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991).
When damages are sought against federal employees in their
official capacities, the damages in essence are sought against
the United States, and such claims cannot be maintained.

Clay

v. United States, No. 05-CV-599-KKC, 2006 WL 2711750 (E.D. Ky.
Sept.

21,

against

2006).

these

Thus,

defendants

Williams’
will

official

therefore

be

capacity
dismissed

claims
with

prejudice for failure to state a claim upon which relief can be
granted.

28 U.S.C. § 1915A(b)(1).

5

B.

Failure to exhaust
Williams might have a colorable Bivens claim against the

defendants in their individual capacities; however, he is unable
to pursue that claim because his complaint establishes that he
did

not

suit.

exhaust
The

his

Prison

administrative

Litigation

remedies

Reform

Act

of

prior
1995

to

filing

(PLRA),

42

U.S.C. §1997e(a), requires a prisoner to first exhaust whatever
administrative

remedies

are

available

to

him

before

suit

is

filed.
Based on this provision, regardless of the relief offered
through the administrative procedures, prisoners are required to
exhaust all administrative remedies prior to filing a lawsuit
regarding prison life.
(2001).
prison

Booth v. Churner, 532 U.S. 731, 741

This requirement applies to “all inmate suits about
life,

whether

they

involve

general

circumstance

or

particular episodes, and whether they allege excessive force or
some other wrong.”

Porter v. Nussle, 534 U.S. 516, 525 (2002).

The Supreme Court has further held that the PLRA requires proper
exhaustion of the administrative remedy process, as “[p]roper
exhaustion

demands

compliance

with

other critical procedural rules....”
81, 90 (2006).

an

agency’s

deadlines

and

Woodford v. Ngo, 548 U.S.

The Supreme Court stressed that the benefits of

6

exhaustion “can be realized only if the prison grievance system
is given a fair opportunity to consider the grievance.

The

prison grievance system will not have such an opportunity unless
the

grievant

rules.”

complies

Id. at 95.

with

the

system’s

critical

procedural

The BOP’s four-tiered administrative remedy

scheme, available to inmates who have a complaint about their
confinement,

is

set

out

in

Administrative

Remedy

Program

Statement Number 1330.16 and 28 C.F.R. §§ 542.10-542.3

3

The multi-step administrative remedies available to inmates
confined in BOP institutions are set out in 28 C.F. R. §542.10.19. Section 542.13(a) demands that an inmate first informally
present his complaint to the staff [BP-8 form], thereby
providing staff with an opportunity to correct the problem,
before filing a request for an administrative remedy.
If the
inmate cannot informally resolve his complaint, then he may file
a formal written request to the Warden [BP-9]. See §542.14(a).
If the inmate is not satisfied with the Warden's response, he
may appeal to the Regional Director [BP-10], and, if not
satisfied with the Regional Director's response, the inmate may
appeal that decision to the Office of General Counsel [BP-11].
See §542.15.
The administrative procedure includes established response
times.
§542.18.
As soon as an appeal is accepted and filed,
the Warden has 20 days to respond; the Regional Director, 30
days; and General Counsel, 40 days. Only one extension of time
of 20-30 days, in writing, is permitted the agency.
If the
inmate does not receive a response within the allotted time,
including extension, he may consider the absence of response as
a denial at that level. Id.

7

The exhibits attached to Williams’ Complaint reflect that
on

October

14,

2013,

he

submitted

Administrative

Remedy

No.

754665-F1 to the Warden at FMC-Lexington regarding his medical
care and treatment at FMC-Lexington.
the

Warden’s

denial

thereof,

on

[R. 1-1, page ID# 9] Upon

November

8,

2013,

Williams

appealed that denial to the BOP’s Mid-Atlantic Regional Office
(“MARO”). [R. 1-1, Page ID##11-12]

On December 5, 2013, the

Regional Director at MARO denied his appeal, advising Williams
that if he elected to appeal to the BOP’s Central Office, his
appeal must be filed within 30 days from the date of the MARO
response. [R. 1-1, Page ID# 13]
However,

there

is

no

indication

appeal to the BOP’s Central Office.
such

appeal

thereto.

nor

any

response

of

that

Williams

filed

an

He attached neither any
the

BOP’s

Central

Further, in his Complaint at “Section IV.

Office

Exhaustion

of Administrative Remedies,” Williams indicated that he had only
filed an Administrative Remedy request with the Warden and then
filed

an

appeal

to

the

Regional

Section IV.A.2 [R.1, Page ID# 4]

Director.

See

Complaint,

That same portion of the

Complaint requesting information as to an appeal to the BOP’s
Central Office is blank, id., from which the Court must conclude
that Williams failed to exhaust his administrative remedies.

8

Clearly, Williams began the Administrative Remedy process,
but

he

pursuant

failed
to

to

the

fully

and

properly

administrative

exhaust

exhaustion

his

grievance

procedures,

accordance with all of the provisions thereof.”

“in

Jackson v.

Walker, No. 6:07-230-DCR, 2008 WL 559693 at *9, (E.D. Ky. Feb.
27, 2008). “In Ngo, the Supreme Court made it clear that 42
U.S.C. 1997e(a) requires available administrative procedures to
be completed properly, not in a self-designated hodgepodge of
procedures taken from various parts of the regulations.”

[Id.]

“‘Proper exhaustion’ means that the plaintiff complied with the
administrative ‘agency’s deadline and other critical procedural
rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.’” Morton v. Daviess County Detention Center, 4:08CV-P30-M, 2009 WL 960495 at *2 (W.D.Ky. April 7, 2009) (citing
Woodford, 548 U.S. 81).
Williams has failed to comply with the requirements of the
PLRA in that he failed to address the allegations he raised in
the Bivens complaint through all of the proper administrative
remedy procedures.

Woodford v. Ngo, supra, confirmed that these

requirements are mandatory.

See, e.g., Macias v. Zenk, 495 F.3d

37, 44 (2nd Cir. 2007) (holding that notice of a claim alone is

9

not sufficient after Woodford, which permits suit only after
“proper exhaustion” of the administrative system); Bailey-El v.
Federal Bureau of Prisons, 246 F. App’x 105, 107-08 (3rd Cir.
2007) (concluding that Plaintiff had no excuse for failing to
follow procedures for appeals).

A prisoner cannot fail to file

an administrative grievance or abandon his efforts to complete
the administrative process altogether.

Hartsfield v. Vidor, 199

F.3d 305, 309 (6th Cir. 1999).
Williams’ failure to properly exhaust his underlying Bivens
grievances through the available administrative remedies denied
the agency the opportunity to address the issue at hand at all
administrative

levels;

denied

the

Court

with

a

proper

administrative record; and failed to set forth a proper finding
of

facts.

claim,

which

should

have

The

allegations

contain
been

raised

assertions

grieved

at 44.

10

the

civil

separately

administrative remedy procedures.

of

in

underlying
rights

through

Bivens

violations,
the

proper

See Macias v. Zenk, 495 F.3d

Consequently, Williams’ complaint must be dismissed because
he failed to exhaust his administrative remedies.
CONCLUSION
Accordingly, IT IS ORDERED as follows:
(1)

Plaintiff’s Bivens claims against the defendants in

their official capacities for violations of the Eighth Amendment
are DISMISSED WITH PREJUDICE for failure to state a claim for
which relief can be granted.
(2) Plaintiff’s Complaint [R. 1] is DISMISSED for his
failure to exhaust his administrative remedies.
(3)

The Court will enter an appropriate judgment.

(4)

This matter is STRICKEN from the active docket.

This the 27th day of January, 2015.

11