Leon v. Doe et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS. IT IS HEREBY ORDERED that the Report and Recommendation of United States Magistrate Judge Linda R. Anderson (docket entry 25) is adopted. FURTHER ORDERED that the Defendants Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (docket entry 21) is GRANTED, and the Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Honorable David C. Bramlette, III on 09/24/18 (KNS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
IVAN LEON

PLAINTIFF

VS.

CIVIL ACTION NO. 3:17-cv-273(DCB)(LRA)

WARDEN MARTIN, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
AND GRANTING MOTION TO DISMISS
This cause is before the Court on the plaintiff Ivan Leon’s
Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) (docket entry 1); on the
Defendants’ Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment (docket entry 21); and on United States Magistrate
Judge Linda R. Anderson’s Report and Recommendation (“R&R”) (docket
entry 25).

All moving defendants,1

including the defendant who

was served with process, Warden Martin, assert that the claims of
Ivan Leon (“Leon” or “plaintiff”) should be dismissed because of
his failure to exhaust the administrative remedies that were
available to him through the Bureau of Prison (“BOP”)’s mandatory
process set forth in 28 C.F.R. § 542.13(a).

Defendants also

contend that the Complaint should be dismissed because it fails to
state a claim upon which relief may be granted.

1

The only served defendant is Warden Martin, the Complex Warden
at FCC Yazoo City. The summonses to the remaining individual
defendants were returned unexecuted with the notation that each one
did not work at FCC-Yazoo (docket entry 14). These include Unknown
Payne, Unknown Rash, Unknown Scott, Unknown Walters, and Unknown
Singleton.

After a review of the pleadings and exhibits, as well the
applicable law, Magistrate Judge Anderson recommends that the
motion to dismiss, or for summary judgment, be granted based upon
Leon’s non-exhaustion.
Leon

is

a

federal

inmate

incarcerated

at

the

Federal

Correctional Complex (“FCC”) Coleman located in Coleman, Florida.
When the incident which forms the basis of his Complaint occurred,
on May 14, 2016, Leon was an inmate at FCC Yazoo, in Yazoo City,
Mississippi, with an expected release date of June 7, 2024.

Leon

filed this civil rights action on April 17, 2017, claiming that he
was stabbed by other inmates on May 14, 2016, in the recreation
cage of the United States Penitentiary (“USP”)’s Special Housing
Unit (“SHU”).

In his Complaint, Leon contends that he and his SHU

cellmate, Albert Donald, were placed in an outside recreation cage
by Bureau staff members with two other inmates. According to Leon,
these other two inmates had “not been searched for weapons” and
they immediately began attacking him.

Leon claims that they

stabbed him multiple times about the head and upper torso area. He
also contends that he was in SHU because he sought protective
custody, so these inmates should have been screened and searched
before he was placed in a cage with them.
Failure

to

exhaust

is

an

affirmative

defense,

so

the

defendants have the burden of demonstrating that Leon failed to
exhaust his administrative remedies.

2

See Jones v. Bock, 549 U.S.

199, 216 (2007).

At the summary judgment stage, this means that

the defendants “must establish beyond peradventure all of the
essential elements of the defense of exhaustion to warrant summary
judgment in their favor.”
Cir. 2010).

Dillon v. Rogers, 596 F.3d 260, 266 (5th

The court shall grant summary judgment “if the movant

shows that there is no genuine dispute as to any material fact and
the

movant

is

entitled

FED.R.CIV.P. 56(a).

to

judgment

as

a

matter

of

law.”

“The moving party must show that if the

evidentiary material of record were reduced to admissible evidence
in court it would be insufficient to permit the nonmoving party to
carry its burden.”

Beck v. Tex. St. Board of Dental Exam’rs, 304

F.3d 629, 633 (5th Cir. 2000)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986)).
The burden then shifts to the non-movant to set forth specific
facts showing that there is a genuine issue for trial.
Rapides Parish Sch. Bd., 304 F.3d 619, 621 (5th
defendants

point

out,

the

applicable

Allen v.

Cir. 2000).

section

of

the

As the
Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997(e), provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.”
The exhaustion requirement extends to Bivens suits by federal

3

prisoners.

Porter v. Nussle, 534 U.S. 516, 524 (2002).

The

statute clearly requires an inmate bringing a civil rights action
in

this

Court

remedies.

to

first

exhaust

his

available

administrative

Booth v. Churner, 532 U.S. 731, 739 (2001).

Exhaustion

is no longer left to the discretion of the district court, but is
mandatory.

Porter, 534 U.S. at 524.

Exhaustion will not be

excused when an inmate fails to timely exhaust his administrative
remedies;

the

exhaustion.”

exhaustion

requirement

also

means

“proper

Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).

It is

not enough merely to initiate the grievance process or to put
prison officials on notice of a complaint; the grievance process
must

be

carried

through

to

its

conclusion.

Wright

v.

Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). This is necessary
regardless of whether the inmate’s ultimate goal is a remedy not
offered by the administrative process, such as money damages.

Id.

In Jones v. Bock, 549 U.S. 199, 211 (2007), the Supreme Court
confirmed that exhaustion was mandatory under the PLRA and that
“unexhausted claims cannot be brought in court.” The United States
Supreme Court reiterated in Ross v. Blake, 136 S.Ct. 1850, 1856-57
(2016), that exhaustion is mandatory and that a court may not
excuse a failure to exhaust, “even to take ‘special circumstances’
into account.”

Judicial discretion is foreclosed.

Id.

“Time and

again, this Court has rejected every attempt to deviate from the
PLRA’s textual mandate.”

Id. (citations omitted).

4

The Fifth Circuit has confirmed that “the PLRA pre-filing
exhaustion requirement is mandatory and non-discretionary,” and
that “district courts have no discretion to waive the PLRA’s prefiling exhaustion requirement.”

Gonzalez v. Seal, 702 F.3d 785,

787-88 (5th Cir. 2012)(per curiam).

The Fifth Circuit case of

Wilson v. Epps, 776 F.3d 296, 299-300 (5th Cir. 2015), also confirms
that strict compliance with the administrative remedy programs is
required.

Filing the federal lawsuit before the time having ended

for the response by the ARP program is impermissible for proper
exhaustion.

Id.

The defendants show that 28 C.F.R. § 542.13(a) provides for
the levels of review if the attempt of informal resolution is
unsuccessful.

First,

the

inmate

must

submit

a

Request

for

Administrative Remedy to the Warden of the facility in which he is
incarcerated.
appropriate

§ 542.14(a).
BOP

Regional

If unsatisfied, he may appeal to the
Director

Administrative Remedy Appeal.

by

submitting

a

Regional

Finally, if unsatisfied with the

Regional Director’s response, he may appeal to the General Counsel
of the BOP by submitting a Central Office Administrative Remedy
Appeal.

Id.

There are time limits for each step in the review.

Only after the inmate has completed each level of this process has
he exhausted his administrative remedies with the BOP.
The defendants submitted the Affidavit of Lisa Singleton, a
Deputy Case Management Coordinator at FCC Yazoo, in support of

5

their motion.

Ms. Singleton is responsible for processing the

administrative remedy requests filed by inmates. She has access to
and knowledge of the computer records known as “SENTRY,” which
contain electronic records for tracking inmates in the federal
system, including their ARP usage.

Ms. Singleton explained the

program described in 28 C.F.R. § 542.10 et seq., advising that
each initial form filing, a BP-9, is assigned a number known as a
“Remedy ID.”

This number is unique to that filing and may be used

to follow the progression of a remedy from the BP-9 stage through
the BP-10 and BP-11 stages.
Ms. Singleton conducted a search of the Bureau’s SENTRY system
for all administrative remedies filed by Leon. She found that Leon
had initiated, but not completed, ten remedy series with the BOP,
including seven that were submitted after the stabbing.

Of these

seven, only two appear to be related to the stabbing, remedy series
863011 and 869484.

The others are irrelevant to this case,

inasmuch as in those Leon requests a transfer, criticizes the
remedy process, appeals disciplinary hearings, and seeks sentencing
credits.
The first remedy series was number 863011, filed on May 20,
2016, six days after the May 14th attack on Leon and the only one
filed within § 542.14's twenty-day timeline.

Leon bypassed the

informal and institutional level and filed the grievance directly
with the Southeast Regional Office.

6

(Docket entry 21-2, pp. 4-5).

Leon contended that his remedy request was of a “sensitive” nature,
which justified bypassing the informal and institutional levels.
The regional officials disagreed and rejected his request.

Leon

failed to seek administrative review of this determination at the
general counsel level, and he failed to return to the institutional
level to begin the informal resolution and institutional-level
exhaustion process.

Leon therefore failed to exhaust his remedies

in accordance within the time limitations required by § 542.14.
On July 18, 2016, Leon filed a second remedy series concerning
the stabbing, alleging that the SHU staff allowed him to be
assaulted in the SHU recreation cage.
number 869484.
Leon’s

This was remedy series

The Warden responded on September 6, 2016, that

allegations

of

staff

misconduct

were

reviewed

for

“appropriate disposition,” and that if Leon was unsatisfied, he
could appeal to the Regional Director within 20 calendar days.
(Docket entry 21-3, p. 2).
The Bureau regional officials (from the Southeast Regional
Office) received Leon’s appeal on September 26, 2016.

The appeal

was rejected for failure to provide the BP-9 form and the warden’s
response as required by § 542.15(b)(1).

Leon was informed that he

could resubmit within ten days of the date of rejection.

On

October 3, 2016, Bureau regional officials received Leon’s second
regional appeal.

Again, it was rejected for the same reasons, and

he was instructed to submit his appeal in proper form within ten

7

days from the rejection.

(Docket entry 21-2, p. 5).

On October 21, 2016, Bureau regional officials received Leon’s
third regional appeal in remedy series number 869484, and on
October 24, 2016, the officials received his fourth regional
appeal.

The third and fourth appeals were rejected for the same

reason as the first and second, that is, that Leon did not provide
a copy of his BP-9 and the warden’s response.

He was told he could

submit it in proper form within ten days of the rejections.
(Docket entry 21-2, p. 6).

Leon failed to cure the defect in these

regional appeals.
After the

regional officials’ rejection of his appeal, Leon

filed his first general counsel-level appeal.

It was received at

the Central Office in remedy series number 869484 on December 6,
2016.

As with each of Leon’s regional appeals, his first Central

Office appeal was rejected for the same reasons.
following

the

regional

officials’

instructions

Instead of

for

filing

an

appeal, Leon elected to file a second appeal at the general counsel
level.

On January 23, 2017, Bureau Central Office officials

received Leon’s second and final Central Office appeal in 869484.
It was rejected for the same reasons, that is, that he failed to
include the response to his BP-9.

He was instructed by general

counsel-level authorities to “follow directions provided on 10-262016, regional rejection notice which stated you are missing your
institutional response.

Get help from unit team.”

8

(Docket entry

21-2, pp. 6-7).
In her Report and Recommendation, Magistrate Judge Anderson
finds

that

Leon

evidence,

and

requirement

of

has

not

rebutted

therefore,
strict

the

dismissal

exhaustion.

defendants’

is
She

required
also

supporting
under

notes

that

the
the

defendants point out that Leon did file two distinct remedies
regarding this issue.

Nevertheless, Leon failed to follow the

directions provided, never received review on the merits of his
complaints, and never properly completed the process of appeal on
either of the two remedies.

Leon partially admits that he failed

to completely exhaust, but maintains that he should be excused from
the requirement because he was transferred from USP Yazoo to USP
Florence.

In Leon’s response (docket entry 24), he contends that

the defendants’ motion is premature, as they have not responded to
his discovery requests.

However, no discovery is allowed unless

approved by this Court, and Leon received no Order authorizing
discovery.
Furthermore, the issue of exhaustion must be determined prior
to any discovery on the merits.

Leon contends that this “failure

to exhaust” claim is a “standard ‘affirmative defense’ used by the
government

employees

in

virtually

culpability is undeniable.”

every

Bivens

action

(Docket entry 24, p. 2).

when
But,

“culpability” is irrelevant when determining whether exhaustion has
occurred.

Leon concludes that the only “unexcusable failure” was

9

the defendants’ failure to protect him.

He also states:

Furthermore, contrary to the defendants’ assertion of
lack of continuity in the administrative remedy process,
Mr. Leon did in fact submit a BP-8 and BP-9, and made
copies and documented the times, dates and the names of
the unit team officers he turnt [sic.] them into. And
while waiting on the response from the BP-9 he was
transferred to another facility and was never given a
response or the BP-9 back due to Mr. Leon’s transfer and
due to negligence of his unit team and administration at
Yazoo City USP not returning the response within the time
allotted by policy 543.18 of the CFR ... establishes
directions for a complainant to deem a non-response as a
denial when no response has not [sic.] been rendered
within the time allotted by policy.
No response was
rendered and Mr. Leon proceeded to the next level, BP-10
on to the Regional Office pursuant to 28 CFR § 542.18 for
further review.
(Docket entry 24, pp. 3-4).
Leon contends that he did complete the exhaustion process and
“exercised

every

measure

circumstances ....”

Id.

266 (5th Cir. 2010).

of

diligence

possible

under

the

Citing Dillon v. Rodgers, 596 F.3d 260,

Therefore, he concludes that his available

administrative remedies were unavailable, that his exhaustion is a
question of fact, and that his case is an exception to the
exhaustion requirement.
Magistrate Judge Anderson acknowledges that Leon may have
faced difficulties in his attempts to complete the process in the
required manner.

However, a ruling on the merits for remedy

869484, signed by Defendant Martin and dated September 6, 2016, was
entered on Leon’s grievance. (Docket entry 21-3). He simply never
sent a copy of his initial grievance and his response in his

10

appeals thereafter.

He never explains precisely why he did not

follow the directions and why the remedy process was unavailable to
him.

As the defendants point out, the remedy process has been

available to him throughout his term of incarceration.

He has

submitted 18 administrative remedies, including seven post-stabbing
submissions and six post-transfer submissions for remedy series
869484 (Docket entry 21-4, Ex. D).

Leon vaguely refers to having

never received a response; however, he continued to file appeals as
if he received one, never explaining why he could not comply with
the directions.
If Leon did not receive the Warden’s response, then, as the
Court in Wilson v. Epps, 776 F.3d (5th Cir. 2015) has explained, a
prisoner must pursue his grievance remedies to their conclusion,
regardless of whether the prison responds.

The Wilson Court

reiterated that the Fifth Circuit has taken a “strict” approach to
§ 1997e’s exhaustion requirement, and that substantial compliance
is not sufficient - instead, a prisoner must exhaust administrative
remedies properly.
268.

Wilson at 299-300, citing Dillon, 596 F.3d at

After the deadline for responding to one step expires, the

prisoner may move forward to the next step.

Only when time to

respond to the final step expires has exhaustion occurred.
The holding in Wilson applies to Leon and requires that his
lawsuit be dismissed.

If Leon did not receive the response, he

could have sent copies of his initial grievance in his appeals and

11

certified that he did not receive a response from the Warden.
presents

no

evidence

that

he

tried

to

comply

with

the

He
many

directives in the appeals process.
Even if his grievance was improperly processed, Leon still is
not excused from exhaustion.

See Taylor v. Burns, 371 Fed.Appx.

479, 481 (5th Cir. 2010) (“Even if the relief [plaintiff] sought was
unavailable ... as a result of the way in which his grievance was
processed, he is not excused from the exhaustion requirement.”).
Leon

bears

the

burden

of

demonstrating

the

futility

or

unavailability of administrative review, and he has failed to meet
this burden.

He obviously had access to the remedy program at

Florence and could have exhausted his claims.
Leon

contends

that

he

has

exhausted

his

administrative

remedies, or that his transfer caused the administrative remedies
to be unavailable to him. Exceptions to the exhaustion requirement
only

apply

demonstrate
review.

in
the

“extraordinary
futility

or

circumstances,”
unavailability

of

and

Leon

must

administrative

See Schipke v. Van Buren, 239 Fed.Appx. 85, 86 (5th Cir.

2007)(quoting Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1992)). This
is a mixed question of law and fact under Dillon, and the evidence
set forth by the defendants is sufficient for the Court to make a
determination. Leon’s first attempt to exhaust his claim (remedy
series 863011) was filed and disposed of prior to his transfer.
Even so, he failed to properly exhaust his claim, although he

12

remained at Yazoo.

After his transfer, he made at least six

submissions on remedy series 869484, proving that he still had
access to the Bureau’s program after his transfer to USP Florence
custody.
Leon has not provided evidence disputing the defendants’ proof
that the program still was available to him after his transfer,
making it “available.”

“The simple fact that plaintiff was

transferred [from one federal correctional institution] to another
facility cannot excuse his failure to pursue and exhaust available
administrative remedies.”

Blank v. Tabera, 544 Fed.Appx. 480 (5th

Cir. 2013). A transfer renders the process “unavailable” only when
an

inmate

is

actually

“barred”

from

utilizing

the

process.

Nottington v. Richardson, 49 Fed.Appx. 368, 374 (5th Cir. 2012).
In this case, there is no factual dispute: Leon filed six posttransfer appeal submissions, making the process available to him
for purposes of exhaustion.
Leon sets forth his attempts to exhaust, but he never explains
why he did not comply with the instructions he received regarding
his appeal.

He does not deny that the regional and general

counsel-level personnel repeatedly responded to his requests while
he was at USP Florence.

They rejected his requests, but only

because he failed to comply with filing requirements, not because
of

where

he

was

located.

His

“‘conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence’ will

13

not satisfy the nonmoving party’s burden on summary judgment.”
Garner v. Moore, 536 Fed.Appx. 446, 449 (5th Cir. 2013)(quoting
Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th
Cir. 2004)). In this case, the defendants’ “uncontested, competent
summary judgment evidence establishes beyond peradventure” that the
remedy program at FCC was available to Leon both before and after
his transfer, and that he failed to complete it regarding the
specific claims set forth in his Complaint. See Fruge v. Cox, 2015
WL 964560 at *4 (W.D. La., March 4, 2015).
Leon alleges that the defendants’ assertion of non-exhaustion
is merely a “standard affirmative defense” used in all Bivens
actions.

(Docket entry 24, p. 2).

Although this defense is often

raised, the Court is mandated by the law to consider and apply the
exhaustion requirement when appropriate.

The Court cannot excuse

it based upon the merits of a party’s claim.
Because Leon failed to exhaust his administrative remedies,
the Court need not reach the merits of his claims.

See Marshall v.

Price, 239 F.3d 365 (5th Cir. 2000)(declining to reach the merits
of an inmate’s Section 1983 claims after finding that he failed to
exhaust his administrative remedies).
Magistrate Judge Anderson notified the parties that failure to
file written objections to the proposed findings, conclusions, and
recommendation contained within the Report and Recommendation
within fourteen (14) days after being served with a copy shall bar

14

that party, except upon grounds of plain error, from attacking on
appeal

the

unobjected-to

proposed

factual

conclusions accepted by the district court.

findings

and

legal

See 28 U.S.C. §636;

Douglass v. United Services Automobile Association, 79 F.3d 1415,
1428-29 (5th Cir. 1996).
No objections were filed by defendants, nor by plaintiff Ivan
Leon.

This Court agrees with Magistrate Judge Anderson’s findings

that Leon has failed to rebut the defendants’ evidence, that
summary judgment therefore should be granted to the defendants, and
that Leon’s Complaint should be dismissed without prejudice.
ACCORDINGLY,
IT IS HEREBY ORDERED that the Report and Recommendation of
United States Magistrate Judge Linda R. Anderson (docket entry 25)
is ADOPTED as the findings and conclusions of this Court;
FURTHER ORDERED that the Defendants’ Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment (docket entry 21) is
GRANTED,

and

the

Plaintiff’s

Complaint

is

DISMISSED

WITHOUT

PREJUDICE;
A Final Judgment in conformity with this Order Adopting Report
and Recommendation shall be entered of even date herewith.
SO ORDERED, this the 24th day of September, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

15