Alba v. Randle et al

Filing 189

ORDER granting 66 Motion to Dismiss; granting 66 Motion for Summary Judgment; adopting in part 154 Report and Recommendations; denying 170 Motion for Reconsideration ; denying 170 Objections to Report and Recommendations. Signed by Honorable David C. Bramlette, III on 09/29/2011 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
PAUL ALBA, JR.

# 61319-080

VS.

PLAINTIFF
CIVIL ACTION NO. 5:10-cv-49(DCB)(RHW)

DELORES RANDLE, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendants’ motion to
dismiss or, in the alternative, for summary judgment (docket entry
66), the pro se plaintiff’s response and supplemental pleadings and
exhibits in opposition to the motion (docket entries 78, 98, 99,
100 and 103), the Report and Recommendation of Magistrate Judge
Robert H. Walker (docket entry 154), the plaintiff’s motion for
reconsideration and objections to the report and recommendation
(docket entry 170), and the defendants’ response in opposition to
the plaintiff’s motion (docket entry 173).

Having carefully

considered same, and being fully advised in the premises, the Court
finds as follows:
The plaintiff, proceeding pro se and in forma pauperis, filed
his complaint pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971) and 28 U.S.C. §
1331.

In his complaint, the plaintiff alleges that defendants

Bruce Pearson, Michael Morris, Delores Randle, Debra Dawson, Jeremy
Fuqua,

Ayanna

Brown,

and

Delbert

Sauers

violated

his

Eighth

Amendment right to be free from cruel and unusual punishment by

failing to protect him from other inmates while he was incarcerated
at FCC Yazoo City.

The plaintiff is currently incarcerated at FCI

Estill Medium in South Carolina.
As a preliminary matter, the Court notes that there is
presently pending a notice of appeal filed by the plaintiff with
the Fifth Circuit Court of Appeals.
entered

an

Order

adopting

the

On March 28, 2011, this Court

Report

and

Recommendation

of

Magistrate Judge Michael T. Parker1 and denying the plaintiff’s
motion for a temporary restraining order.

On April 6, 2011, the

plaintiff filed his notice of appeal from that Order. On August 3,
2011, the Court denied the plaintiff’s motion to proceed in forma
pauperis, finding, inter alia, that Alba had not shown grounds for
filing an interlocutory appeal.

Alba’s appeal has not been ruled

on by the Fifth Circuit; nevertheless, “the pendency of the
interlocutory appeal from [a] district court’s judgment denying [a]
preliminary injunction [does] not divest the district court of
jurisdiction to proceed with other aspects of the case.”

Railway

Labor Exec. Assoc. v. City of Galveston, Texas, 898 F.2d 481 (5th
Cir. 1990).
Magistrate Judge Walker’s Report and Recommendation (R&R)
finds that Alba has voluntarily dismissed his claims against
defendants

Ayanna

Brown

and

Jeremy

1

Fuqua.

(See

Plaintiff’s

Magistrate Judge Parker entered his Report and Recommendation on
November 9, 2010. This case was reassigned to Magistrate Judge Walker on
February 2, 2011.

2

Response to Defendants’ Motion to Dismiss or in the Alternative for
Summary Judgment, p. 76).

The R&R also finds that Alba has not

shown that the Court has personal jurisdiction over defendant
Delbert Sauers.

From April 2007 until January 2010, Sauers was

Chief, Designation and Sentence Computation Center (DSCC) of the
Federal Bureau of Prisons in Grand Prairie, Texas.

He held that

position when Alba was designated to FCI Yazoo City in January
2008.

Alba

negligently

asserts
and

that

“with

Sauers

deliberate

failed

to

protect

indifference

and

him

by

reckless

disregard” transferring him to Yazoo City where there were gang
members who attacked him.
Sauers’ declaration establishes that he supervised the Section
Chief over Classification and Designations, who in turn supervised
the Operations Manager for Hotel Team whose staff designators
performed initial designations and re-designations for BOP inmates.
Sauers did not designate or transfer inmates, but was a third-line
supervisor of the DSCC designators who made these decisions.

He

further states that he had no personal knowledge of plaintiff Alba.
He did not designate, transfer, review a transfer, or personally
deny any recommendation regarding Alba or make decisions about
Alba’s placement in general population, his CIM classification,
separations or designations.

(See Declaration of Delbert Sauers,

Exhibit 3 to docket entry 66).
Since Sauers was not and is not a resident citizen of the

3

State of Mississippi, this Court is without personal jurisdiction
over him unless Alba shows that the law of the forum state
provides for the assertion of such jurisdiction, and that the
exercise of such jurisdiction comports with the due process clause
of the Fourteenth Amendment.

Jobe v. ATR Marketing, Inc., 87 F.3d

751, 753 (5th Cir. 1996).

The plaintiff bears the burden of

establishing a factual basis for the Court’s exercise of personal
jurisdiction over the defendant.

Allred v. Moore & Peterson, 117

F.3d 278, 281 (5th Cir. 1997).
The plaintiff has not come forward with affidavits or other
evidence demonstrating the extent of Sauers’ contacts with the
State

of

Mississippi.

The

mere

fact

that

Sauers

oversees

designations of inmates nationwide, including to facilities in
Mississippi,

does

not

meet

the

due

process

contacts standard for personal jurisdiction.

clause’s

minimum

See Doe v. Wooten,

2009 WL 900994 (N.D. Ga. March 30, 2009); Hill v. Pugh, 75
Fed.Appx. 715, 719 (10th Cir. 2003).

See also Caldwell v. Lappin,

2010 WL 334867 (N.D. W.Va. Jan. 28, 2010) (finding lack of personal
jurisdiction in West Virginia over defendant Sauers as an employee
of BOP at the Designation and Sentence Computation Center in Grand
Prairie, Texas).

Alba’s allegations and arguments do not suffice

to make a prima facie showing of the requisite minimum contacts
consistent with due process.

The motion to dismiss defendant

Sauers

jurisdiction

for

lack

of

personal

4

shall

therefore

be

granted.
The remaining defendants, Bruce Pearson (Warden of FCI Yazoo
City), Delores Randle (Case Manager at FCI Yazoo City), Mike Morris
(Unit Manager at FCI Yazoo City), and Debra Dawson (S.I.S. Gang
Intelligence Lieutenant), move for dismissal or summary judgment on
all claims against them.

Because the parties have submitted

matters outside the pleadings, the defendants’ motion to dismiss
or, in the alternative, for summary judgment, shall be treated as
a motion for summary judgment.

See Fed.R.Civ.P. 12(d); Young v.

Biggers, 938 F.2d 565, 568 (5th Cir. 1991).
Summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(a).

Summary judgment is proper “where a party fails to establish the
existence of an element essential to his case and on which he bears
the burden of proof.”

Washington v. Armstrong World Indus., 839

F.2d 1121, 1122 (5th Cir. 1988).

“A complete failure of proof on

an essential element renders all other facts immaterial because
there is no longer a genuine issue of material fact.”

Id.

This

Court may grant summary judgment only if, viewing the facts in a
light most favorable to the plaintiff, the defendants demonstrate
that there is no genuine issue of material fact and that they are
entitled to judgment as a matter of law.
1161, 1164 (5th Cir. 1995).

Woods v. Smith, 60 F.3d

If the defendants fails to discharge

5

the burden of showing the absence of a genuine issue concerning any
material fact, summary judgment must be denied.
Louisiana, 757 F.2d 698, 708 (5th Cir. 1985).

John v. State of

The existence of an

issue of material fact is a question of law that this Court must
decide, and in making that decision, it must “draw inferences most
favorable to the party opposing the motion, and take care that no
party will be improperly deprived of a trial of disputed factual
issues.”

Id. at 712 (quoting U. S. Steel Corp. v. Darby, 516 F.2d

961, 963 (5th Cir. 1975)).
There must, however, be adequate proof in the record showing
a real controversy regarding material facts. “[T]he mere existence
of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment ....”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). Thus, “[c]onclusory allegations,” Lujan v.
National

Wildlife

Federation,

497

U.S.

871,

902

(1990),

unsubstantiated assertions, Hopper v. Frank, 16 F.3d 92, 96-97 (5th
Cir. 1994), or the presence of a “scintilla of evidence,” Davis v.
Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994), is not
enough to create a real controversy regarding material facts.

In

the absence of proof, the Court does not “assume that the nonmoving
party could or would prove the necessary facts.”

Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
The defendants move for summary judgment on grounds that Alba

6

failed to exhaust administrative remedies, and that the defendants
are entitled to qualified immunity. The Court finds that the issue
of exhaustion of administrative remedies is dispositive, and that
it is unnecessary to reach the qualified immunity issue.
The

Prison

1997e(a),

Litigation

requires

Reform

prisoners

Act

to

(“PLRA”),

exhaust

42

any

U.S.C.

§

available

administrative remedies prior to filing suit under 42 U.S.C. § 1983
or “any other Federal law.”

Accordingly, federal prisoners filing

suit under Bivens “must first exhaust inmate grievance procedures
just as state prisoners must exhaust administrative processes prior
to instituting a § 1983 suit.”

Porter v. Nussle, 534 U.S. 516, 524

(2002); see also Schipke v. Van Buren, 239 Fed. Appx. 85, 86 (5th
Cir. 2007).

“There is no question that exhaustion is mandatory

under the PLRA and that unexhausted claims cannot be brought in
court.”

Jones

v.

Bock,

549

U.S.

199,

211

(2007)(citation

omitted).2
A prisoner cannot satisfy the exhaustion requirement “by
filing

an

untimely

or

otherwise

procedurally

defective

administrative grievance or appeal” because “proper exhaustion of

2

The BOP’s Administrative Remedy Program (“ARP”) is set forth at 28
C.F.R. §§ 542.10, et seq. The first step of the ARP process is the informal
presentation of the issue to prison staff. If that does not resolve the
issue, the inmate must submit a formal Request for Administrative Remedy. If
the inmate is not satisfied with the warden’s response to that request, he or
she may submit an appeal to the appropriate BOP regional director, and may
then appeal that decision to the General Counsel. That step “is the final
administrative appeal” and its completion, therefore, constitutes exhaustion
of administrative remedies.

7

administrative remedies is necessary.”

Woodford v. Ngo, 548 U.S.

81, 83-84 (2006); see also Johnson v. Ford, 261 Fed. Appx. 752, 755
(5th Cir. 2008)(stating that the Fifth Circuit takes a “strict
approach” to the PLRA’s exhaustion requirement)(citing Days v.
Johnson, 322 F.3d 863, 866 (5th Cir. 2003)); Lane v. Harris Cty.
Med. Dep’t., 2008 WL 116333, at *1 (5th Cir. Jan. 11, 2008)(stating
that under the PLRA, “the prisoner must not only pursue all
available

avenues

of

relief;

he

must

also

comply

administrative deadlines and procedural rules”).

with

all

“Indeed ... a

prisoner must now exhaust administrative remedies even where the
relief sought – monetary damages – cannot be granted by the
administrative process.”

Woodford, 548 U.S. at 85.

“Exceptions to the exhaustion requirement are appropriate
where the available administrative remedies either are unavailable
or wholly inappropriate to the relief sought, or where the attempt
to exhaust such remedies would itself be a patently futile course
of action.” Schipke, 239 Fed. Appx. at 86 (quoting Fuller v. Rich,
11 F.3d 61, 62 (5th Cir. 1994)).

The Fifth Circuit has taken the

position that exceptions to the exhaustion requirement only apply
in “extraordinary circumstances,” and the prisoner bears the burden
of demonstrating the futility or unavailability of administrative
review.

Id.

The exhaustion requirement imposed by § 1997e(a) is not
jurisdictional; therefore, it may be subject to certain defenses

8

such as estoppel, equitable tolling, and waiver.
U.S. at 101.

Woodford, 548

Failure to exhaust is an affirmative defense that is

waived if not asserted.

Carbe v. Lappin, 492 F.3d 325, 327-28.

“Typically, a defensive pleading asserting the affirmative defense
of failure to exhaust is required.”

Torns v. Mississippi Dept. of

Corrections,

388

301

Fed.Appx.

386,

(5th

Cir.

2008).

“An

affirmative defense may be raised on a motion for summary judgment
only if that motion is the first pleading responsive to the
substance of the allegations.” Burnette v. Bureau of Prisons, 2009
WL 1650072, *2 (W.D. La. June 10, 2009)(citations omitted).

In

this case, the defendants’ motion to dismiss or in the alternative
for summary judgment is their first responsive pleading; therefore,
they have not waived the affirmative defense.
In

support

defendants

offer

of

their

the

motion

declaration

for
of

summary
Glenda

judgment,

Dykes,

a

the

Legal

Instruments Examiner in the BOP’s Southeast Regional Office, which
position

serves

as

the

Administrative

Remedy

Clerk

for

the

Southeast Region. After describing the three-tiered review process
prescribed by the ARP, the affidavit specifically addresses Alba’s
administrative remedy history:
The Administrative Remedy records for inmate Paul Alba,
Jr., registration number 61319-080, reflect that he has
filed a total of 52 administrative remedies.
(See
3
Attachment 1 - SENTRY, Administrative Remedy Generalized

3

SENTRY is an electronic computer system to track inmates in the
federal system, including ARP usage.

9

Retrieval).
Inmate Alba claims he exhausted his
administrative remedies by filing administrative remedy
numbers 535253-F1, 525253-R1, 525352-A1, 579098-R1 and
579098-A1.
Alba has failed to properly exhaust his administrative
remedies. Bureau records indicate that administrative
remedy nos. 535253-F1, 535253-R1 were filed at the Warden
and General Counsel respectively. (See Attachment 1).
Remedy no. 535253A1 was rejected by the General Counsel.
(See Attachment 1 and Attachment 2).
Administrative remedies nos. 579098-F1, 579098-R1 and
579098-A1 were each rejected at the respective filing
level. (See Attachment 1 and Attachment 3). Under 28
C.F.R. § 542.17, inmate Alba would have been provided
with rejection notices at each level.
The rejection
notice would have included the reasons and deficiencies
that led to the rejection. The rejection notice would
have also provided inmate Alba with notice that he had
the opportunity to re-file the remedy and correct the
deficiency.
As inmate Alba has not properly presented a remedy to all
three levels of the administrative review process he has
failed to exhaust his administrative remedies.
Declaration of Glenda Dykes, ¶¶ 7-11.
In

his

response

to

the

defendants’

motion

for

summary

judgment, his declaration attached thereto, and his objections to
the R&R, the plaintiff contends that his administrative remedy
requests were never answered, and asserts that some administrative
remedies were not available to him.

However, “[t]he failure of

prison officials to respond to a grievance does not constitute a
valid excuse for failure to exhaust administrative remedies.”
Johnson

v.

Cheney,

2008

2008)(citations omitted).

WL

534606,

*3

(N.D.

Tex.

Feb.

8,

In fact, BOP policy provides that the

absence of a response may be considered a denial at that level, and
10

the inmate allowed to pursue his appeal.

See 28 C.F.R. § 542.18.

The record also shows that rejection notices were provided to Alba,
notifying him of deficiencies in his filings and that he had the
opportunity to re-file his requests and correct the deficiencies.
The plaintiff has failed to rebut the defendants’ assertions
regarding his failure to exhaust.

It is clear from the record in

this case that the plaintiff did not allow the administrative
procedure to run its proper course, opting instead for the filing
of this civil action.

Having failed to exhaust his available

remedies, the plaintiff cannot be allowed to proceed further.

To

hold otherwise would circumvent the prison grievance procedures and
thwart the purposes for which they were established.
Alba

has

failed

to

exhaust

his

administrative

remedies.

Inasmuch as he has not demonstrated that exhaustion would have been
futile

or

that

administrative

remedies

were

unavailable

or

inappropriate, his complaint against defendants Pearson, Morris,
Randle

and

Dawson

shall

be

dismissed

without

prejudice.

Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Robert H. Walker (docket entry 154) is adopted in
part as set forth herein;
FURTHER

ORDERED

that

the

plaintiff’s

motion

for

reconsideration and objections to the report and recommendation
(docket entry 170) is DENIED;

11

FURTHER ORDERED that the defendants’ motion to dismiss or in
the alternative for summary judgment (docket entry 66) is GRANTED
as set forth herein;
FURTHER ORDERED that defendants Ayanna Brown and Jeremy Fuqua
are dismissed with prejudice by agreement of the parties;
FURTHER ORDERED that defendant Delbert Sauers is dismissed
with prejudice for lack of personal jurisdiction;
FURTHER ORDERED that defendants Bruce Pearson, Michael Morris,
Delores Randle and Debra Dawson are dismissed without prejudice for
failure to exhaust administrative remedies;
FURTHER ORDERED that all remaining motions in this case are
dismissed as moot.
SO ORDERED, this the 29th day of September, 2011.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

12