Zebrowski v. United States Federal Bureau of Prisons et al
ORDER granting 27 Motion to Dismiss; granting 27 Motion for Summary Judgment; adopting 31 Report and Recommendations for the reasons stated in the order. The Report and Recommendation of Magistrate Judge F. Keith Ball is adopted as the opin ion of this Court. Zebrowski's unexhausted claims are dismissed without prejudice and his exhausted claims are dismissed with prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on March 6, 2013. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
DAVID ZEBROWSKI, # 34161-083
CIVIL ACTION NO. 5:11cv164-DPJ-FKB
UNITED STATES BUREAU OF PRISONS, et al.
This Bivens action is before the Court on the Report and Recommendation  of the
United States Magistrate Judge, after referral of hearing by this Court. Magistrate Judge F. Keith
Ball recommended granting Defendants’ Motion to Dismiss, or, in the Alternative, Motion for
Summary Judgment . More specifically, Judge Ball recommended dismissing Plaintiff’s
unexhausted claims without prejudice and the exhausted claims with prejudice. Zebrowski filed
timely Objections , and Defendants declined response. The Court, having fully considered
the Report and Recommendation, the parties’ submissions, and the applicable law, finds that
Zebrowski’s Objections should be overruled and the Report and Recommendation should be
adopted as the opinion of this Court.
Facts and Procedural History
Plaintiff David Zebrowski, a prisoner at the Federal Correctional Complex in Yazoo City,
Mississippi, is currently incarcerated on federal drug-related charges. Zebrowski, proceeding pro
se, originally filed a petition for habeas corpus that also included 12 counts challenging various
conditions of his confinement under 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Zebrowski v. Longley, No. 5:11cv82DPJ-FKB. The Court eventually severed Zebrowski’s Bivens claims from his habeas petition,
and those Bivens claims were refiled in this action. Order  Nov. 14, 2011.
Thereafter, Defendants filed their Motion to Dismiss or, in the Alternative, for Summary
Judgment . Defendants asserted numerous bases for dismissal, including qualified immunity
and Zebrowski’s failure to exhaust or state a claim upon which relief may be granted. After the
parties briefed the motion, Judge Ball recommended dismissing most of Zebrowski’s counts
without prejudice for failure to exhaust, and dismissing with prejudice the exhausted claims on
the merits. Report and Recommendation  Jan. 30, 2013. Briefing has concluded and the
Court has subject-matter jurisdiction.
Under the Prison Litigation Reform Act (PLRA), prisoners must exhaust all available
administrative remedies before filing civil actions challenging conditions of confinement. 42
U.S.C. § 1997e(a). This requirement applies to suits by state prisoners under 28 U.S.C. § 1983,
as well as Bivens suits filed by federal prisoners. Porter v. Nussle, 534 U.S. 516, 524 (2002).
And in order to satisfactorily exhaust their claims, prisoners must comply with prisons’ grievance
and administrative appeal guidelines, including both deadlines and filing criteria. Woodford v.
Ngo, 548 U.S. 81, 93 (2006). But “[s]ince exhaustion is a threshold issue that courts must
address to determine whether litigation is being conducted in the right forum at the right time, . . .
judges may resolve factual disputes concerning exhaustion without the participation of a jury.”
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010) (footnote omitted).
Judge Ball recommended dismissal without prejudice of Counts 3–9, 11–12, and the
retaliation portion of Counts 2 and 10.1 Zebrowski takes no issue with dismissal of Count 12,
Counts 2 and 10 also included exhausted due-process claims.
and he does not directly dispute his failure to exhaust Counts 3–9 and 11, arguing instead that the
exhaustion requirement should be excused. Starting with Count 4, Zebrowski apparently sought
to submit a grievance for this claim, but it was rejected on more than one occasion for
noncompliance with the filing requirements. See Defs.’ Mot.  Ex. 12, Admin. Remedy
Generalized Retrieval at 10–12. Zebrowski was required to comply with the filing requirements
to exhaust his claim, and his argument that Defendants violated their own rules in rejecting his
grievance is unavailing. Woodford, 548 U.S. at 83–84; Dillon, 596 F.3d at 268 (“Under our strict
approach, we have found that mere ‘substantial compliance’ with administrative remedy
procedures does not satisfy exhaustion; instead, we have required prisoners to exhaust available
remedies properly.” (citations omitted)). Further, Zebrowski’s awareness of the necessity to
submit a procedurally-satisfactory grievance is evident from his resubmission of a legible
grievance relating to Count 10 after prison officials rejected the first as illegible. See Defs.’ Mot.
 Ex. 28, Billings Decl. at 3. Thus, the Court agrees with Judge Ball that Count 4 remains
Turning then to Counts 3, 5–9, and 11, Zebrowski argues that there was no exhaustion
requirement because interference by prison officials eliminated any otherwise “available”
administrative remedies. Despite the Fifth Circuit’s “strict approach” to exhaustion, statements
by prison officials may in some circumstances render remedies “unavailable,” and estoppel may
also at times excuse a prisoner’s failure to exhaust. Dillon, 596 F.3d at 268, 270. But as Judge
Ball noted, Zebrowski raised only conclusory allegations as to the interference that caused him to
withdraw his grievances. Report and Recommendation  at 6. Zebrowski’s Objections suffer
from the same flaw. See Pl.’s Objections  at 4–5, 7 n.5 (alleging that beginning on August 4,
2010, prison officials “would circumvent the whole administrative process . . . and have
Defendant Hooks threaten Zebrowski with bully tactics to have him (Zebrowski) to [sic]
withdraw his complaint,” caused him to “withdraw his complaint from them--by any means
necessary,” and that they “warned [Zebrowski] not to file anymore [sic] grievances at FCC
Yazoo City . . .”). And setting these deficiencies aside, the presence of numerous subsequentlyfiled grievances in the administrative record belies Zebrowski’s contention that any interference
was material. See Defs.’ Mot.  Ex. 19, Admin. Remedy Generalized Retrieval at 14–30
(various administrative filings after August 4, 2010). Thus, the Court agrees with Judge Ball that
Counts 3, 5–9, and 11 remain unexhausted.
That leaves Counts 2 and 10. As discussed later, Judge Ball concluded that Zebrowski
exhausted the due-process portions of these counts but failed to exhaust the retaliation
components. Zebrowski takes issue with the latter, arguing that the PLRA does not require him
to actually assert a retaliation claim so long as he plainly asserts facts supporting a theory of
retaliation. And while the PLRA does not require Zebrowski to “present a full-fledged legal
theory in his grievance, his grievances must alert prison officials to a problem and give them an
opportunity to address it.” Johnson v. Johnson, 385 F.3d 503, 518 (5th Cir. 2004). The Court
has reviewed the administrative records and finds that Zebrowski has failed to sufficiently
exhaust his retaliation claims asserted in Counts 2 and 10. See Defs.’ Mot.  Ex. 28, Billings
Decl. at 3–4; id., Ex. 29, Admin. Appeal of Nov. 2009 Incident; id., Ex. 30, Admin. Appeal of
Mar. 2011 Incident. The Court therefore agrees with Judge Ball that the retaliation claims in
Counts 2 and 10 have not been exhausted. Zebrowski’s unexhausted claims are all ripe for
dismissal without prejudice.
Zebrowski has exhausted other claims reflected in Counts 1, 2, and 10 of his Complaint.
Count 1 asserts retaliation regarding changes to Zebrowski’s prison job in September and
October 2009. Counts 2 and 10—to the extent they have been exhausted—raise due-process
concerns involving an incident in November 2009 (Count 2) and another in March 2011 (Count
10). None survive Defendants’ motion.
In order to state a retaliation claim, “a prisoner must allege (1) a specific constitutional
right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that
right, (3) a retaliatory adverse act, and (4) causation.” Jones v. Greninger, 188 F.3d 322, 324–25
(5th Cir. 1999) (citing McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998)). “The inmate
must produce direct evidence of motivation or, the more probable scenario, allege a chronology
of events from which retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d 1161, 1166
(5th Cir. 1995) (citations and quotations omitted). “Retaliation against a prisoner is actionable
only if it is capable of deterring a person of ordinary firmness from further exercising his
constitutional rights.” Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). An allegedly
retaliatory act that fails to meet this standard is de minimis and will not satisfy the third element
of a retaliation claim. Id. And a prisoner must also “establish that but for the retaliatory motive
the complained of incident—such as the filing of disciplinary reports as in the case at
bar—would not have occurred.” Woods, 60 F.3d at 1166 (citations omitted).
Zebrowski’s exhausted retaliation claim in Count 1 is based upon two allegedly
retaliatory acts. First, Zebrowski claims that his demotion from Education Tutor to Orderly was
in retaliation for comments he made to a staff member. Second, he asserts a retaliatory transfer
from Education to Compound Orderly based on a grievance he filed challenging his demotion.
Judge Ball recommended dismissal of both aspects of the claim finding a wholesale failure to
state a claim. There is no need to restate the magistrate judge’s analysis, which is adopted in its
That said, Zebrowski challenges Judge Ball’s reliance on Gerald Bratcher’s Declaration,
which noted in part that Zebrowski was demoted and transferred because his “consistent actions
of attempting to manipulate staff had jeopardized effective and orderly running of the inmate
library.” Defs.’ Mot.  Ex. 2, Bratcher Decl. at 3. Specifically, Zebrowski highlights the lack
of a corroborating incident report and theorizes that Bratcher should have addressed additional
details. Zebrowski sees retaliation given these alleged shortcomings and the temporal proximity
between complaints and reassignment. But aside from his own conclusory assertions, Zebrowski
has not created a material dispute of fact as to Bratcher’s testimony. Further, Bratcher’s reasons
are corroborated by Frances Foster, the staff member directly involved in the confrontation with
Zebrowski. See Defs.’ Mot.  Ex. 4, Foster Decl. And in any event, Zebrowski has neither
“alleg[ed] a chronology of events from which retaliation may plausibly be inferred” nor shown
that the retaliatory act would not have occurred but for such retaliatory motive. Woods, 60 F.3d
at 1166. Similarly, Zebrowski has neither objected to nor disproved Judge Ball’s finding that his
change in prison jobs was de minimis. Thus, even if Zebrowski could show retaliatory motive
and causation, the Court would nonetheless find that his demotion and transfer between prison
departments was de minimis and insufficient to “deter the ordinary person from further exercise
of his rights.” Morris, 449 F.3d at 686. To hold otherwise would allow Zebrowski to
“inappropriately insulate [himself] from disciplinary actions by drawing the shield of retaliation.”
Woods, 60 F.3d at 1166. Accordingly, this retaliation claim should be dismissed.
Counts 2 and 10—Due Process
Zebrowski failed to exhaust the retaliation claims in Counts 2 and 10, but he exhausted
the alleged due-process violations. Nevertheless, Judge Ball recommended dismissal of the
exhausted claims. Turning first to Count 10, Zebrowski asserts a due-process claim regarding
loss of good-time credits following a March 2011 incident report. Judge Ball recommended
dismissal of this claim for the same reasons cited in his Report and Recommendation dismissing
Zebrowski’s habeas petition, which was based on the identical due-process claim. For the
reasons stated in that Report and Recommendation and the Order adopting it, the Court agrees
that Zebrowski received due process relating to the March 2011 incident report and his dueprocess claim in this case should likewise be dismissed. See Zebrowski v. Longley, 5:11cv82DPJ-FKB (Mar. 5, 2013) (adopting Report and Recommendation and dismissing habeas
Count 2 asserts denial of due process related to the November 2009 incident report.
Judge Ball recommended dismissal because (a) Zebrowski received due process when he was
offered a hearing and had a chance to call witnesses, and (b) the 60-day loss of commissary and
phone privileges was not constitutionally protected. Although Zebrowski has asserted numerous
objections, the Court begins and ends its analysis with whether the Due Process Clause applies to
State law or prison regulations may create certain liberty interests protected by the Due
Process Clause, but those “interests are generally limited to state created regulations or statutes
which affect the quantity of time rather than the quality of time served by a prisoner.” Madison
v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). “[T]hese interests will be generally limited to
freedom from restraint which, while not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). Accordingly, the
temporary loss of commissary and telephone privileges, among other things, does not implicate
the Due Process Clause. Madison, 104 F.3d at 768 (“[Thirty] day commissary and cell
restrictions as punishment are in fact merely changes in the conditions of his confinement and do
not implicate due process concerns.”); see also Lewis v. Dretke, 54 F. App’x 795, No. 02-40956,
2002 WL 31845293, at *1 (5th Cir. Dec. 11, 2002) (unpublished table decision) (finding 30-day
commissary and 90-day phone restriction did not implicate protected interest).
Zebrowski concedes that this temporary loss of commissary and telephone privileges was
constitutionally insignificant. Pl.’s Objections  at 16. Instead, Zebrowski argues that the
incident report, as opposed to the sanctions, imposed an atypical and significant hardship because
it contributed to the denial of Zebrowski’s second request for a sentence reduction under 18
U.S.C. § 3582(c)(2). See United States v. Zebrowski, No. 3:96-CR-41-JRS-3 (E.D. Va. Apr. 2,
2012 ) (“Since the Court reduced Defendant’s sentence, Defendant has incurred four new prison
infractions. The Court reconsiders Defendant’s risk of danger to the public and he now appears
to be a danger in spite of the previous grace given to him by the Court.”), aff’d, 475 F. App’x 935
(4th Cir. 2012). A sentence-reduction decision under § 3582(c)(2) is discretionary, and courts
may consider post-conviction conduct. United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.
2010). Additionally, the sentencing court did not rely solely upon this November 2009 incident
report when it declined to reduce Zebrowski’s sentence. Thus, Zebrowski fails to “present a case
where [Defendants’] action will inevitably affect the duration of his sentence.” Conner, 515 U.S.
at 487 (emphasis added); see Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995)
(holding loss of prison job, which terminated ability to automatically earn good-time credits, did
not inevitably affect duration of prisoner’s sentence); see also United States v. Johnson, 703 F.3d
464, 470 (8th Cir. 2013) (“A § 3582(c)(2) proceeding offers no prospect of exceeding the
sentence in any way, let alone in such an unexpected manner as to give rise to protection by the
Due Process Clause of its own force.” (citation and quotations omitted)). The Court agrees with
Judge Ball that the due-process claim in Count 2 should be dismissed.
The Court overrules Zebrowski’s Objections  and finds that the Report and
Recommendation  of Magistrate Judge F. Keith Ball should be adopted as the opinion of this
Court. Defendants’ Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment
 is granted and Zebrowski’s unexhausted claims are dismissed without prejudice and his
exhausted claims are dismissed with prejudice.
A separate judgment will be entered herein in accordance with the Order as required by
Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 6th day of March, 2013.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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