STILE v. FEDERAL BUREAU OF PRISONS et al

Filing 60

OPINION. Signed by Judge Renee Marie Bumb on 3/15/2018. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JAMES T. STILE,
Plaintiff,
v.

Civ. No. 16-3832 (RMB)
OPINION

UNITED STATES OF AMERICA, et
al.,
Defendants.
Appearances:
James M. Stile
FCI-Elkton
P.O. Box 10
Lisbon, Ohio 44432
Plaintiff, pro se
Jessica Rose O’Neill
Assistant United States Attorney
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, New Jersey 08101
On behalf of Defendants
BUMB, District Judge
This matter comes before the Court upon Defendants Colina,
Wilkes, Kwartin and Rehwinkle’s (“Federal Defendants”) motion for
partial summary judgment (“Fed. Defs’ Mot. for Partial S.J.”), ECF
No. 27; Fed. Defs’ Brief in Support of Mot., ECF No. 27-1; Fed.
Defs’ Statement of Material Facts Not in Dispute, ECF No. 27-2;

Plaintiff’s

Motion

to

Strike

Defs’

Affirmative

Defense

in

Accordance with Fed. R. Civ. P. Rule 12(f) (“Pl’s Opp. to Defs’
Mot. for Partial S.J.”), ECF No. 49;1 Plaintiff’s Dispute To
Federal Defendants’ Statement of Material Facts Not in Dispute
(“Pl’s Disputed Material Facts”), ECF No. 50; Brief in Opp. of Fed
Def’s Mot. for Partial S.J. (“Pl’s Second Brief in Opp. to Defs’
Mot.

for

Partial

S.J.”),

ECF

No.

50

at

9-93;

Plaintiff’s

Supplemental Submission of Documentary Evidence Supporting Pl’s
Response to Defendants’ Motion for Partial Summary Judgment (“Pl’s
Supplemental Submission of Evid.”), ECF No. 51; Reply Brief in
Further Support of Fed. Defs’ Motion for Partial Summary Judgment
(“Fed. Defs’ Reply”), ECF No. 52-1; and Plaintiff’s Sur-reply to
Reply Brief Filed by the Defendants on August 10, 2017 (“Pl’s Surreply,” ECF No. 55.) The Court will decide the motion on the
briefs, without an oral hearing, pursuant to Federal Rule of Civil
Procedure 78(b).

1

Federal Rule of Civil Procedure 12(f)(2) permits a party to move
to strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. Such a motion must
be made by a party either before responding to the pleading, or,
if a response is not allowed, within 21 days after being served
with the pleading. Id. Defendants filed an answer to the amended
complaint on February 10, 2017. (Answer, ECF No. 26.) Plaintiff
did not file his motion to strike Defendants’ affirmative defenses
until July 12, 2017. (ECF No. 49.) Because Plaintiff’s motion to
strike is late, the Court will treat it as Plaintiff’s opposition
to the Federal Defendants’ motion for partial summary judgment.
2

I.

BACKGROUND
The Federal Defendants bring this motion for partial summary

judgment on Plaintiff’s First Amendment retaliation claim against
Correctional Officer M. Colina, and Plaintiff’s Eighth Amendment
claims against Correctional Officers Colina, Wilkes, Kwartin and
Rehwinkle, on the basis that Plaintiff failed to exhaust his
administrative remedies. (Fed Defs’ Brief in Supp. of Mot., ECF
No. 27-1 at 6-7.)
Upon screening Plaintiff’s amended complaint pursuant to 28
U.S.C.

§

1915(e)(2)(B),

§

1915A(b),

the

Court

permitted

the

following claims that are at issue in the Federal Defendants’
partial motion for summary judgment to proceed: (1) Plaintiff’s
First

Amendment

retaliation

claim

against

Officer

Colina

for

reducing his work hours and filing an incident report against
Plaintiff in retaliation for Plaintiff filing a BP-8 grievance
against Colina (Opinion, ECF No. 8 at 20); (2) Plaintiff’s Eighth
Amendment claim against Officer Colina for compelling Plaintiff to
perform

work

that

was

prohibited

by

the

work

limitations

recommended by the FCI Fort Dix medical department (id. at 23);
Plaintiff’s Eighth Amendment claim against Officer Wilkes for
forcing him to perform work beyond his medical restrictions by
failing to obtain Plaintiff’s medical records for many months,
refusing to view Plaintiff’s MRI reports, and refusing to review
3

the

Social

Security

Administration’s

ruling

on

Plaintiff’s

disability based on spinal injuries (id. at 24); Plaintiff’s Eighth
Amendment claim against Officer Kwartin for failing to authorize
a job change for Plaintiff at FCI Fort Dix, knowing Plaintiff was
being forced to work beyond his medical restrictions (id.); and
Plaintiff’s Eighth Amendment claim against Officer Rehwinkle for
failing to respond to Plaintiff’s requests for more frequent mental
health treatment when he suffered an exacerbation to his panic
disorder and PTSD (id. at 25-27.)2 In support of their motion for
partial summary judgment, the Federal Defendants argue the abovedescribed claims should be dismissed because Plaintiff failed to
exhaust his administrative remedies.
In response, Plaintiff contends the BOP’s administrative
remedy

program

was

unavailable

due

to

Administrative

Remedy

Coordinator Tara Moran’s “ploys … to make sure that BP-9’s, BP10’s, and BP-11’s are rejected and procedurally defaulted.” (Pl’s
Opp.

to

Defs’

Mot.

for

Partial

S.J.,

ECF

No.

49,

¶4.)

Alternatively, Plaintiff asserts that he is not subject to the
PLRA’s exhaustion requirement because the PLRA was designed to
limit frivolous lawsuits, not valid claims such as his. (Id., ¶4
at 5.) Plaintiff also contends that he gave Defendants notice of

2

The Federal Defendants do not move for summary judgment on
Plaintiff’s equal protection claims or his FTCA claims. (Fed. Defs’
Brief in Support of Mot., ECF No. 27-1 at 7 n.2.)
4

his claims by filing his BP-8 and BP-9, “but the Plaintiff was not
bound to exhaust the administrative remedies as the Defendants
could not provide monetary relief in the administrative remedy
process.” (Pl’s Opp. to Defs’ Mot. for Partial S.J., ECF No. 49,
¶5.)
The Federal Defendants replied that Plaintiff’s attacks on
BOP Administrative Remedy Coordinator Tara Moran are baseless.
(Fed. Defs’ Reply, ECF No. 52-1 at 3.) They further argue that
administrative remedy forms submitted by Plaintiff in opposition
to partial summary judgment are not associated with the claims
that are at issue in this matter. (Id.)
In Plaintiff’s Sur-reply, he submits that the exhibits he
offered in opposition to the motion for partial summary judgment
demonstrate “why the relevant administrative remedy requests never
made it further than they did” and that “[t]he Administrative
Remedy

Process

has

been

and

continues

to

be

rendered

‘unavailable.’” (ECF No. 55, ¶3.) He also contends that “the
administrative

finality

doctrine”

does

not

apply

to

First

Amendment retaliation claims. (Id., ¶5.)
III. DISCUSSION
A.

Summary Judgment Standard

Summary judgment is proper where the moving party “shows that
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
5

Civ. P. 56(a); U.S. ex rel. Kosenske v. Carlisle HMA, Inc., 554
F.3d 88, 94 (3d Cir. 2009). The moving party has the burden to
show there is an absence of evidence to support the nonmoving
party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

The opponent then “‘must do more than simply show that there is
some metaphysical doubt as to the material facts … Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.’”
Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986)
(footnote omitted in original)).
A party asserting that a fact is or is not genuinely disputed
must support the assertion by citing materials in the record,
including depositions, documents, affidavits or declarations or
other materials. Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “At the
summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’
dispute as to those facts.” Scott, 550 U.S. at 380 (citing Fed.
Rule Civ. Proc. 56(c)).
B.

PLRA Exhaustion Requirement
6

42 U.S.C. § 1997e(a), part of the Prison Litigation Reform
Act (“PLRA”), provides, “[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.”

Exhaustion

under

this

provision

is

mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth
v. Churner, 532 U.S. 731, 739 (2001)). This mandatory exhaustion
requirement applies to “all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter
v. Nussle, 534 U.S. 516, 532 (2002).
Furthermore,

the

provision

requires

“proper

exhaustion.”

Woodford, 548 U.S. at 93. “Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.”
Id. at 90-91. “The exhaustion requirement includes a proceduraldefault component, and a prisoner must comply with the prison
grievance procedures to properly exhaust his claims.” Veasey v.
Fisher, 307 F. App’x 614, 616 (3d Cir. 2009) (citing Spruill v.
Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004.)) A procedural default
should be excused when the Plaintiff shows that although his
grievance did not name a particular defendant, the grievance
7

alerted the prison officials to the problem. Williams v. Beard,
482 F.3d 637, 640 (3d Cir. 2007).
Failure to exhaust is an affirmative defense that must be
proved by a defendant. Shumanis v. Lehigh County, 675 F. App’x
145, 147 (3d Cir. 2017) (citing Jones v. Bock, 549 U.S. 199, 216,
(2007); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). PLRA
exhaustion is a question of law to be determined by a judge. Id.
(citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)).
“[J]udges may resolve factual disputes relevant to the exhaustion
issue without the participation of a jury.” Small v. Camden County,
728 F.3d 265, 271 (3d Cir. 2013).
Under 42 U.S.C. § 1997e(a), “an inmate is required to exhaust
those, but only those, grievance procedures that are [available],”
in other words, “grievance procedures that are ‘capable of use’ to
obtain ‘some relief for the action complained of.’” Ross v. Blake,
136 S. Ct. 1850, 1859 (2016) (quoting Booth, 532 U.S. at 738). The
Supreme Court provided three examples where an administrative
remedy was “officially on the books” but not capable of use to
obtain relief. Ross, 136 S. Ct. at 1859.
First, an administrative procedure is unavailable when “it
operates as a simple dead end” because there is no authority to
provide relief under the administrative program. Id. (citing Booth
v. Churner, 532 U.S. 731, 736, 738 (2001). A remedy is also

8

unavailable if administrative officials have apparent authority to
provide a remedy “but decline ever to exercise it.” Id.
Second, “an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use.” Id. at 1859
(2016). Thus, “[w]hen rules are so confusing that ... no reasonable
prisoner can use them, then they're no longer available.” Id.
(internal quotation omitted).
Third, an administrative remedy is unavailable “when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”
Id. at 1860. This third example applies “either on a system-wide
basis or in the individual case[.]” Ross, 136 S. Ct. at 1862.
Plaintiff’s argument that the BOP Administrative Remedy Program is
unavailable

falls

into

this

third

category.

Because

the

unavailability of a grievance process may be shown on a systemwide basis, this Court must consider Plaintiff’s submissions of
grievance rejections other than the specific grievances at issue
in this matter.
C.

The BOP Administrative Remedy Program

The BOP administrative remedy program applies to all inmates
in institutions operated by the BOP. 28 C.F.R. § 542.10(b). The
purpose of the program is “to allow an inmate to seek formal review
of an issue relating to any aspect of his/her own confinement.”
Id. § 542.10(a). The first step in the program is to present an
9

issue of concern informally to staff, in a manner established by
the Warden of the facility. Id. § 542.13(a).
The second step of the administrative remedy program is to
submit a formal written Administrative Remedy Request (“Remedy
Request” or “Request”) on form BP-9 within twenty calendar days
“following the date on which the basis for the Request occurred.”
Id. § 542.14(a). An extension in filing time may be allowed upon
demonstration of a valid reason for delay. Id. § 542.14(b). “In
general, valid reason for delay means a situation which prevented
the inmate from submitting the request within the established time
frame.” Id.
28 C.F.R. § 542.14(c)(2) and (3) describe how to complete the
BP-9 form:
(2) The inmate shall place a single complaint
or a reasonable number of closely related
issues on the form. If the inmate includes on
a single form multiple unrelated issues, the
submission shall be rejected and returned
without response, and the inmate shall be
advised to use a separate form for each
unrelated issue. For DHO and UDC appeals, each
separate incident report number must be
appealed on a separate form.
(3) The inmate shall complete the form with
all requested identifying information and
shall state the complaint in the space
provided on the form. If more space is needed,
the inmate may use up to one letter-size (8 ½
x by 11”) continuation page. The inmate must
provide an additional copy of any continuation
page. The inmate must submit one copy of
supporting exhibits. Exhibits will not be
returned with the response. Because copies of
10

exhibits must be filed for any appeal (see §
542.15(b)(3)), the inmate is encouraged to
retain a copy of all exhibits for his or her
personal records.
At the next step of the administrative remedy program, an
inmate who is not satisfied with the Warden’s response may submit
an Appeal, on form BP-10, to the Regional Director within 20
calendar days of the date the Warden signed the response. 28 C.F.R.
§ 542.15(a). The BP-10 form must be accompanied by a complete copy
or duplicate original of the institution Request and Response [BP9]. Id. § 542.15(b)(1).
An inmate may not raise issues in an Appeal that were not
raised in the lower level filings, nor may an inmate combine
Appeals of lower level responses with different case numbers into
a single Appeal. Id. § 542.15(b)(2). An inmate shall state the
reasons for the Appeal in the space provided on the form, and if
more space is needed, the inmate may use one letter-size (8 ½ x
11) continuation page. Id. § 542.15(b)(3). The inmate must provide
two additional copies of any continuation page and exhibits with
the Regional Appeal. Id.
If the inmate is unsatisfied with the Regional Director’s
response, he may submit an Appeal, on form BP-11, to the General
Counsel within 30 calendar days of the date the Regional Director
signed the response. 28 C.F.R. § 542.15(a). The inmate must provide
three additional copies of any continuation page and exhibits to

11

the Central Office (General Counsel), including copies of exhibits
used at the prior level(s) of appeal. Id. § 542.15(b)(3). The time
limits for appeals may be extended when the inmate shows a valid
reason for delay. Id. § 542.15(a).
The Coordinator at any level may reject and return a Request
or Appeal to an inmate, without a response, if the Request or
Appeal “does not meet any other requirement of this part.” Id. §
542.17(a). An inmate must be provided a written notice, signed by
the

Coordinator,

explaining

the

reason

for

rejection.

Id.

§

542.17(b). If the defect is correctable, the notice must inform
the inmate of a reasonable time extension within which to correct
the defect and resubmit the Request or Appeal. Id. If the inmate
is not given an opportunity to correct the defect and resubmit a
Request or Appeal, he may appeal the rejection to the next appeal
level. Id. § 542.17(c). The Coordinator at the next appeal level
may affirm the rejection, direct that the submission be accepted
at the lower level, or accept the submission for filing, and must
inform the inmate of the decision by delivery of a receipt or
rejection notice. Id.
Inmates may obtain assistance from other inmates, staff,
family members or attorneys in preparing a Remedy Request or
Appeal. Id. § 542.16(a). Obtaining assistance, however, is not a
valid reason for exceeding a time limit, unless the delay was

12

caused by staff. Id. 28 C.F.R. § 542.19 permits inmates access to
Administrative Remedy indexes and responses.
D.

Analysis
1.

Whether PLRA Exhaustion is applicable

Plaintiff first argues that he is not subject to the PLRA’s
exhaustion requirement. He contends that the PLRA was designed to
limit frivolous prison conditions lawsuits, and because he has
raised a valid claim, the exhaustion requirement is inapplicable
to him. (Pl’s Opp. to Defs’ Mot. for Partial S.J., ECF No. 49, ¶4
at 5.) The PLRA exhaustion requirement is mandatory for claims
concerning

prison

conditions.

Porter,

534

U.S.

at

524.

PLRA

exhaustion is not limited to claims that have been deemed frivolous
because exhaustion serves purposes beyond weeding out frivolous
allegations. Id. at 530. The Court rejects this argument.
Second, Plaintiff contends that even if the Administrative
Remedy Program was available, “the Plaintiff was not bound to
exhaust the administrative remedies as the Defendants could not
provide monetary relief in the administrative remedy process.”
(Pl’s Opp. to Defs’ Mot. for Partial S.J., ECF No. 49, ¶5.) This
argument has been dispelled by the Supreme Court. “[A]n inmate
seeking only money damages must complete a prison administrative
process that could provide some sort of relief on the complaint,”
even if it could not provide money damages. Booth, 532 U.S. at
734.
13

Third, Plaintiff asserts that the PLRA exhaustion requirement
does not apply to First Amendment retaliation claims. (Pl’s Surreply,

ECF

exhaustion

No.

55,

¶5

requirement

at

5.)

applies

Plaintiff
to

is

prisoners’

wrong;
First

the

PLRA

Amendment

retaliation claims. See Richardson v. Sherrer, 344 F. App’x 755,
758

(3d

Cir.

2009)

(finding

prisoner

failed

to

exhaust

administrative remedies under the PLRA for his First Amendment
retaliation and other claims); see e.g. Mack v. Warden Loretto
FCI, 839 F.3d 286, 296 (3d Cir. 2016) (holding prisoner exhausted
his administrative remedies before bringing his First Amendment
retaliation claim); see e.g. Sharpe v. Costello, 289 F. App’x 475,
478 (3d Cir. 2008) (finding summary judgment appropriate because
prisoner “failed to come forward with any evidence to rebut the
record evidence that he committed a procedural default by failing
to complete the grievance process with respect to any grievance
relating to his claim of retaliation.”)
2.

Exhaustion of the First Amendment retaliation claim
against Officer Colina

According to the Declaration of Tara Moran, “[i]n the ordinary
course of business, computerized indexes of all administrative
appeals filed by inmates are maintained so that rapid verification
may be made as to whether an inmate has exhausted administrative
appeals on a particular issue.” (Moran Decl., ECF No. 27-3, ¶4.)
On November 7, 2016, Moran accessed the index of all administrative

14

remedies filed by Plaintiff, and found that Plaintiff never filed
an administrative remedy at any level concerning his allegation
that Colina retaliated against him by filing an incident report.
(Id. ¶¶5-6.)3 Nowhere in all of his submissions in opposition to
summary judgment does Plaintiff assert that he filed a Remedy
Request on this issue. Thus, to avoid the Federal Defendants’
summary judgment on this claim, Plaintiff must show that the
administrative remedy program was unavailable, which the Court
addresses in Section III.D.5 below.
3.

Exhaustion of Eighth Amendment Claims for forcing
Plaintiff to work beyond his medical restrictions

The record shows that Plaintiff filed a BP-9 with the Warden
on November 23, 2015, requesting time off his job assignment to
spend more time in the law library. (Moran Decl., Ex. 2, ECF No.
27-4 at 6.) Plaintiff asserts that he filed a continuation page
with this BP-9, wherein he stated:
As concerns my medical, I should not be
working a job as I am 100% disabled due to (2)
two spinal surgeries which were unsuccessful
from the late 1980’s and early 1990’s. A
Social Security Administrative Law Judge did
make this determination and FBOP should not be
attempting to compel me to work. Medical
should not be making determinations that I am
3

Plaintiff left blank his response to the following statement in
Federal Defendants’ Statement of Material Facts Not in Dispute,
“Plaintiff has never filed a request for administrative remedy at
any level concerning the allegation that Colina retaliated against
him by filing the December 2, 2015 Incident Report.” (Fed. Defs’
Statement of Material Facts Not in Dispute, ECF No. 27-2, ¶12;
Pl’s Disputed Material Facts, ECF No. 50, ¶12.)
15

able to work with limitations that do not
coincide with what the Social Security
Administration declared more than 27 years
ago.
(Pl’s Disputed Material Facts, ECF No. 50, ¶19.) Plaintiff did
not provide a copy of this continuation page to the Court.
On December 18, 2015, when the Warden denied Plaintiff’s
request for time off work to spend in the law library (Moran Decl.,
Ex. 2, ECF No. 27-4 at 7), Plaintiff appealed and also asked to be
removed from his work duties due to his medical condition. (Moran
Decl., Ex. 3, ECF No. 27-4 at 9.)
The Regional Director denied Plaintiff’s request for a legal
idle, and informed Plaintiff that he could not raise the new issue
of whether his medical issues precluded him from working without
first raising the issue with the Warden in the prior stage of the
administrative remedy process. (Id. at 10.) Plaintiff did not
subsequently file a grievance with the Warden based on his claim
that medical issues precluded his work assignment. (Moran Decl.,
ECF No. 27-3, ¶6.)
Plaintiff alleges Tara Moran detached the continuation page
to his BP-9, precluding the Regional Director from addressing the
medical issue because it was not raised to the Warden. (Pl’s
Disputed Material Facts, ECF No. 50, ¶19.) But even assuming Moran
detached Plaintiff’s BP-9 continuation page, this did not stop
Plaintiff from appealing the rejection of his medical issue by

16

submitting his own copy of the BP-9 continuation page. Plaintiff
also had the option of submitting a new Request for his medical
issue. If untimely, he could have provided a valid reason for the
delay by showing that he timely made the claim on a continuation
page that was not submitted to the Regional Director, through no
fault of his own. Plaintiff did not take these steps that were
available to him.
4.

For

Exhaustion of Administrative Remedies for Eighth
Amendment claim of deliberate indifference to need
for increased mental health care

Plaintiff’s

Eighth

Amendment

claim

against

Officer

Rehwinkle, Plaintiff filed a Remedy Request on August 31, 2015,
seeking to be designated as a Care Level 3 Mental Health Inmate.
(Moran Decl., Ex. 4, ECF No. 27-4 at 12.) Plaintiff’s request was
denied by the Warden on October 2, 2015, and the Warden noted that
the Psychology Department had no record of Plaintiff requesting
additional mental health treatment. (Id. at 13-15.) Plaintiff did
not appeal to the Regional Director. (Moran Decl., Ex. 5, ECF No.
27-4 at 17) (depicting no entry in the Administrative Remedy
Generalized Retrieval for Remedy 834870-R1).
Plaintiff has not provided any evidence that he completed or
even attempted to complete the administrative remedy process by
filing a BP-10 to the Regional Director, and a BP-11 to the Central
Office for this particular grievance. In fact, without referencing
a particular grievance, Plaintiff stated:
17

[a]lthough the Plaintiff did file a BP-8 and
BP-9 and did not complete the remaining BP-10
and
BP-11,
the
Defendants
were
given
sufficient notice through the subsequent
filing of the Administrative Tort Claim of
relief requested (monetary damages) that they
cannot make claim of prejudice of the BP-10
and BP-11;
(Pl’s Opp. to Defs’ Mot. for Partial S.J., ECF No. 49, ¶2), and
In error, this Plaintiff did give notice with
his BP-8 and BP-9 which is not contested by
the Defendants, but the Plaintiff was not
bound to exhaust the administrative remedies
as the Defendants could not provide monetary
relief in the administrative remedy process ….
(Id., ¶5.)
First, the Court notes the Federal Defendants have not moved
for

summary

judgment

on

Plaintiff’s

FTCA

claims,

and

FTCA

exhaustion is not at issue here. See supra note 2. Second, as the
Court stated above, PLRA exhaustion of § 1983 and Bivens claims is
mandatory, regardless of the unavailability of monetary damages in
the administrative remedy process, even where the only relief
sought by the plaintiff was monetary damages. Booth, 532 U.S. at
740-41.
5.

Plaintiff

Whether the
available
contends

the

Administrative

Administrative

Remedy

Remedy

Program

Program

was

is

unavailable because Tara Moran “strips down” BP-9 forms by removing
the accompanying BP-8 form. (Pl’s Opp. to Defs’ Mot. for Partial
S.J., ECF No. 49, ¶4.) The BP-9 is then mailed to the Northeast

18

Regional Office, where it is rejected for failure to attempt
informal resolution because the BP-8 was not attached to the BP9. (Pl’s Opp. to Defs’ Mot. for Partial S.J., ECF No. 49, ¶4.)
According to Plaintiff, Moran also strips continuation pages
from BP-9 forms, and returns the BP-9 form to the inmate to remedy
the deficiency in five days. (Id.) She returns the BP-9 to inmates
in the Thursday evening mail, knowing there will be no staff
assistance until Monday to help inmates locate copies of either
the BP-8 or a missing continuation page. (Id.)
The Federal Defendants contest Plaintiff’s claim that when a
BP-9 form is returned to an inmate, it is intentionally stripped
of the BP-8 form and exhibits to prevent inmates from succeeding
at the next level of the administrative appeal process. (Fed. Defs’
Reply, ECF No. 52-1 at 4.) The Federal Defendants explain that BOP
Program Statement 1330.18, § 8(c)(3) alerts inmates that their
continuation pages and supporting exhibits will not be returned to
them with their response, so they should keep copies of exhibits
for any appeal. (Id.) The Federal Defendants contend that requiring
inmates to keep copies of exhibits for appeals does not render the
administrative remedies unavailable. (Id.)
In

his

Sur-Reply,

Plaintiff

contends

that

Defendants’

citation to Program Statement 1330.18 is made in bad faith because
continuation pages and previously filed BP-8s are not exhibits.
(ECF No. 55, ¶5 at 4-5.) Plaintiff further asserts that a copy of
19

the BP-8 is necessary for review at all levels of the grievance
process. (Id.)
Plaintiff offered the following documents in support of his
argument that the administrative remedy program is unavailable.
First, Plaintiff submitted a copy of a September 16, 2015 letter
from

inmate

Jaime

Rodriguez

to

the

Administrative

Remedy

Coordinator, complaining about the “ploys” of the Administrative
Remedy Coordinator. (Pl’s Opp. to Defs’ Mot. for Partial S.J., Ex.
B, ECF No. 49 at 9.) In this letter, Rodriguez accused the
Administrative Remedy Coordinator of previously rejecting his
grievances

for

unwarranted

or

false

reasons.

(Id.)

Rodriguez

further stated:
Now you have taken to responding to my (and
other inmate) grievances without returning any
of the submitted copies of the continuation
page which are necessary for Regional and
Central Office review. You have not done this
before so either you are purposely doing this
in hopes of interfering with the grievance
process at the higher stages of review, or you
have suddenly become incompetent and are
unqualified for your position. I suspect it is
the former and thus ask you to please cease
this activity and act professionally.
(Id.)
The Court gives little weight to this evidence because it is
an

unsupported

allegation,

without

a

response

by

the

Administrative Remedy Coordinator. Moreover, defects in Remedy
Requests,

such

as

failure

to

submit

20

the

required

copies

or

attachments, or failure to enclose the required single copy of
lower level submissions “are examples of correctable defects.” BOP
PS 1330.18, § 11(b)(2). Thus, even if a continuation page or a
lower level submission, such as a BP-8, is removed from a BP-9
that is rejected, this is a correctable defect, allowing the
grievance process to continue.
Plaintiff also submits a letter by Rodriguez sent to the
Supervising Attorney of Legal Affairs at FCI Fort Dix on October
15, 2015. (Ex. A, ECF No. 49 at 8.) Rodriguez wrote:
I
have
previously
written
the
Remedy
Coordinator
regarding
improper
and
unprofessional conduct in his/her interference
with my right to pursue grievances which has
culminated with the Coordinator intentionally
sending the responses to my grievances without
returning any of the submitted copies of the
continuation page. I did not expect a response
and only asked the Remedy Coordinator to
please stop and act professionally. You
responded to my letter in defense and so I
direct this to you.
On October 8, 2015, I again received a
response (to No. 834854) without any copies of
the grievance’s continuation page in a
deliberate attempt to interfere with my
ability to pursue the matter at the Regional
and Central Office levels. This is evidenced
by the fact that another inmate, Michael
Crooker, simultaneously received a grievance
response with the copies of his continuation
page returned. Receiving them at the same
time, why would he receive his copies yet mine
are again missing? This game needs to stop. If
the
Remedy
Coordinator
cannot
act
professionally and properly execute his/her
duties, then he/she should not hold such
position.
21

I do not expect a response but I ask that you
attempt to correct this matter. I highlight
that, as Supervisory Attorney, it is your duty
to inform the Remedy Coordinator that his/her
actions are in violation of Bureau policy and
of my First Amendment rights…
(Pl’s Opp. to Defs’ Mot. for Partial S.J., Ex. A, ECF No. 49 at
8.)
The Court gives little weight to this document. Rodriguez
assumes

that

because

another

inmate

received

copies

of

his

continuation page from the Coordinator, then the Coordinator must
have been intentionally interfering with Rodriguez’s grievances.
There are other possible explanations for this situation. For
example, Rodriguez’s continuation page may have been misplaced by
the Coordinator or someone else, a situation which is easily
correctable if the inmate retained a copy, or by writing a new
continuation page. Further, this letter from Rodriguez indicates
that the Supervisory Attorney defended the Coordinator against
Rodriguez’s accusations, but that information was not provided to
this Court for evaluation.
Plaintiff also submitted an exhibit which he describes as:
a complete set of filing of administrative
remedy requests as concerns the obstruction of
justice of impeding the administrative remedy
process by Administrative Remedy Coordinator
Tara Moran which does render the exhaustion of
administrative remedies “unavailable” even if
the Plaintiff was required as a matter of law
to exhaust his remedies per the PLRA.

22

(Pl’s Opp. to Defs’ Mot. for Partial S.J., ECF No. 49, ¶7.) First,
there is a BP-8 form that Plaintiff signed on March 31, 2017,
stating that Moran “has been removing my attachment page of BP9’s and returning same without attachment page and submissions.”
(Ex. C, ECF No. 49 at 16.)
Plaintiff received the following BP-8 response:
In review of your BP-8 complaint you allege
you did not receive a copy of your attachments
for two separate BP9’s. On 03-31-2017 you
reported this to staff, who immediately
notified the legal department in order to
retain a copy of the attachment pages. You
were issued a copy of the continuation pages
by unit team staff on 03-31-2017 all other
forms are deemed exhibits.
Exhibits will not be
response because copies
filed for any appeal, the
to retain a copy of all
her personal records.

returned with the
of exhibits must be
inmate is encouraged
exhibits for his or

(Id. at 17.)
On April 7, 2017, Plaintiff filed a BP-9, stating he could
recall four BP-9s that were returned with the BP-8 and continuation
page missing, and it was his belief that this was an intentional
frustration of the Administrative Remedy Process. (Id. at 15.) He
asked that someone other than Moran respond to his grievance,
because she was “the responsible party,” and he noted the problem
seemed to occur when the BP-9 contained allegations against staff
members. (Id.)

23

This BP-9 was rejected based on untimeliness with a remark,
“Submit dates for other instances if you feel they are timely.”
(Pl’s Opp. to Defs’ Mot. for Partial S.J., Ex. C, ECF No. 49 at
14.)
Plaintiff appealed to the Regional Office. (Id. at 13.) He
argued that by the time he discovered Moran’s manipulations, some
of his grievances were untimely, but the underlying problem of his
BP-8s disappearing still needed to be addressed. (Id.) The Regional
Office

rejected

the

appeal,

concurring

with

the

untimeliness

decision. (Id. at 12.)
Plaintiff then appealed to the Central Office, explaining
that it only occurred to him on March 31, 2017, when he was in
Counselor Malloy’s office and she contacted Moran about “numerous
BP’s that were stripped of the continuation pages and the BP-8’s
that accompanied the BP’s,” that Moran had been doing this for
some time to undermine the Administrative Remedy Process. (Id. at
10-11.) The Central Office’s response to this Appeal, if there was
one, was not provided to the Court.
Overall,

this

exhibit

shows

that

when

Plaintiff

timely

complained about two BP-9 forms being returned to him without the
continuation pages, the situation was promptly remedied. It is
only when he complained further that other BP-9s had been returned
to him without all of the necessary pages in the past that his
Appeal was rejected, and he was instructed to “submit dates for
24

other

instances

if

you

feel

they

are

timely.”

Based

on

the

documents provided, Plaintiff did not follow this instruction.
These documents do little to demonstrate that the Administrative
Remedy Program was unavailable, only that Plaintiff was suspicious
that loss of some of his administrative remedy paperwork was
intentional.
Plaintiff later submitted additional evidence in support of
his opposition to the Federal Defendants’ motion for partial
summary judgment, Exhibits A-Q. (Pl’s Second Brief in Opp. of Fed
Def’s Mot. for Partial S.J., ECF No. 50 at 10 (Table of Contents.)4
Plaintiff’s Exhibit H is a BP-8 by Plaintiff, which includes
a continuation page. (ECF No. 50 at 61-62.) The BP-8 appears
primarily to be a complaint about Case Manager Boyd refusing to
assist Plaintiff in preparing to make an RRC placement request,
although

Plaintiff

also

complains

about

Boyd

behaving

in

an

unprofessional manner by calling him a name, and states “this needs
to be addressed by staff such as the Associate Warden or Warden.”
Plaintiff’s final statement on the continuation page of BP-8 was
“I

expect

that

I

am

to

be

provided

the

“21

month

package”

[referring to a package provided in preparation for RRC placement]

4

Exhibits A-G are the Declaration of Tara Moran, Plaintiff’s
Administrative Federal Tort Claim, and duplicates of documents
already submitted by Plaintiff and discussed above. Exhibits P and
Q are not relevant to Plaintiff’s argument that the BOP
administrative remedy program was unavailable.
25

in

August

of

2017

and

that

Unit

Team

make

the

appropriate

recommendations as concerns RRC.” (Pl’s Second Brief in Opp. of
Fed Def’s Mot. for Partial S.J., ECF No. 50 at 62.)
The response to this BP-8 by the Unit Manager [Boyd] was that
“[i]nmates are considered for RRC placement 17-19 months from their
release date. You are currently 35 months from release therefore
you are not being considered for RRC placement at this time.” (Id.
at 61.)
Unhappy with the response, Plaintiff filed a BP-9, in which
he stated:
Contrary to my request that an answer to the
BP-8 be made by an Associate Warden, it was
made by Boyd. I insist that the Associate
Warden or the Warden himself review both the
BP-8 and BP-9 in this matter. As relief, I
just want to be spoken to with respect the
same as I give staff and not be demeaned with
innuendos as happened here. I humbled myself
to Boyd when he asked me if we could arrive at
an “informal resolution” with the BP-9 that I
filed against Counselor Malloy . . .
(Id. at 59.)
Plaintiff received a Rejection Notice in response to his BP9, containing a remark that the BP-8 and BP-9 did not match. (Id.
at 58.) Plaintiff contends this was “an attempt to reject and cause
confusion so that the BP-9 would be procedurally defaulted as
‘untimely,’”

and

further

that

“[t]he

Administrative

Remedy

Coordinator has been known to switch the BP-8’s that are attached
to two different BP-9’s and claim that they do not match. This is
26

but another ploy . . .” (Pl’s Second Brief in Opp. of Fed Def’s
Mot. for Partial S.J., ECF No. 50 at 26-27.)
Exhibit K is a subsequent Rejection Notice, dated July 5,
2017, showing that Plaintiff objected to the first Rejection Notice
based on the BP-8 and BP-9 not matching, and this resulted in a
new Rejection Notice being issued with the remarks that “BP-8 and
BP-9 are not requesting the same relief.” (Id. at 68.) Plaintiff
also disagreed with this conclusion, arguing that his request for
relief was to be treated with respect by staff. (Id.)
Plaintiff now argues that “[w]hat is going on here is that
the Administrative Remedy Coordinator is attempting to keep this
BP-9 out of view of the attention of the Warden in her attempt to
cover-up for the staff that are being complained about.” (Id. at
28.)
The Court disagrees with Plaintiff’s conclusions regarding
this BP-8 and BP-9. Contrary to Plaintiff’s assertion that there
is no requirement for the BP-8 and BP-9 to match, the BP-8 form
states:
You are advised that prior to receiving and
filing a Request for Administrative Remedy
Form BP-9, you must ordinarily attempt to
informally resolve your complaint through your
Correctional Counselor. Briefly state ONE
complaint below and list what efforts you have
made to resolve your complaint and state names
of staff contacted.

27

(Pl’s Second Brief in Opp. to Defs’ Mot. for Partial S.J., ECF No.
50 at 61.) Furthermore, a BP-9 must include only a single complaint
or a reasonable number of closely related issues.

See 28 C.F.R.

§ 542.14(c)(2). Thus, it is clear that the BP-8 must contain the
same issue(s) as the BP-9. This BP-9 was reasonably rejected, with
an opportunity for correction, because the BP-8 appeared to be a
grievance

about

staff

refusing

to

assist

Plaintiff

with

RRC

placement, and the BP-9 appeared to be about Case Manager Boyd
calling Plaintiff an obscene name.
Plaintiff submitted additional documents related to this
particular grievance with his Sur-reply. (Pl’s Sur-reply, ECF No.
55 at 20.) Despite the two rejections of the BP-9, Warden Ortiz
responded to the BP-9, stating that Plaintiff’s allegation of staff
misconduct would be investigated, but due to the privacy interest
of the staff member, the investigation results would not be
disclosed to Plaintiff. (Id. at 22.) Furthermore, Warden Ortiz
said

Plaintiff’s

issue

regarding

RRC

placement

would

not

be

addressed because it was not included in the BP-9. (Id.)
Plaintiff appealed to the Regional Director, arguing that
both his complaint regarding RRC placement and his complaint about
Boyd calling him a name should have been addressed by the Warden.
(Id. at 17.) Further, he accused Tara Moran of attempting to
interfere with his exhaustion of grievances by rejecting the BP-8
and BP-9 because they did not match, and that they contained
28

different requests for relief. (Pl’s Sur-reply, ECF No. 55 at 17.)
The

Regional

Director

responded

that

the

Warden

adequately

addressed Plaintiff’s grievance by referring Plaintiff’s complaint
against Boyd for an investigation, and Plaintiff’s new allegations
in the BP-10 about how the BP-8 and BP-9 were handled would not be
addressed because they were not raised in the lower level filings.
(Id. at 19.)
The Court finds it was reasonable for the Warden and Regional
Director to restrict the BP-9 to the issue of misconduct by Boyd
because nowhere in his BP-9 did Plaintiff complain that his request
for assistance with RRC Placement was denied. (Pl’s Sur-reply, ECF
No. 55 at 20-21.)
Exhibit I to Plaintiff’s Second Brief in Opposition to Partial
Summary Judgment is a Regional Administrative Remedy Appeal dated
February 6, 2017, rejected by the Regional Director on February
16, 2017. (ECF No. 50 at 63.) There is a handwritten note by
Plaintiff on the Rejection Notice which states:
Just received in mail on February 23rd at FCI
Fort Dix. Your delay in sending it or it
arriving to me makes this reply untimely.
Nobody here at Unit Team is going to attest
when I received it so please do not return to
me as untimely. You need to resolve why it
took from February 16-23 to be returned to me.
(Id.)
Plaintiff offers this exhibit to show that the 7-day delay in
the mail, combined with the fact that he received the BP-10 on a
29

Thursday, with staff assistance being unavailable until Monday,
made it impossible for him to respond within 10 days, rendering
the administrative remedy procedure unavailable. (Pl’s Second
Brief in Opp. to Defs’ Mot. for Partial S.J., ECF No. 50 at 28.)
This exhibit does not establish that Plaintiff could not
complete the administrative remedy process. Plaintiff apparently
chose not to seek an extension of time and instead assumed an
extension would not be granted. “‘[T]he exhaustion requirement of
the PLRA is satisfied by an untimely filing of a grievance if it
is accepted and decided on the merits by the appropriate prison
authority.’” Spada v. Martinez, 579 F. App'x 82, 85 (3d Cir. 2014)
(quoting Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011); see
also Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)). According
to this exhibit, Plaintiff did not give the prison officials an
opportunity to accept an untimely grievance and reach the merits
of his complaint.
Exhibit J is a BP-11 to the Central Office signed by Plaintiff
on May 26, 2017, stating “the Administrative Remedy Coordinator
again discarded my BP-8 with its [attached] copies of the legal
mails in question …” (Pl’s Second Brief in Opp. to Mot. for S.J.,
ECF No. 50 at 66.) Plaintiff demanded that the Central Office
conduct

an

investigation

into

the

obstruction

of

administrative remedy process by Tara Moran. (Id. at 67.)
exhibit

shows

only

that

Plaintiff
30

complained

about

the
This
Moran

discarding his BP-8. It does not establish that she had in fact
discarded

his

BP-8

intentionally,

and

that

this

prevented

Plaintiff from proceeding through the levels of an administrative
remedy. To the contrary, this exhibit, a BP-11, suggests Plaintiff
was able to bring this particular grievance to the Central Office,
the final level of administrative review.
Plaintiff’s

Exhibits

L-O

to

Plaintiff’s

Second

Brief

in

Opposition to Defs’ Mot. for Partial Summary Judgment contain the
following:
• a March 23, 2015 BP-9 Rejection Notice to inmate Jaime
Rodriguez for failing to attempt informal resolution prior to
filing his BP-9, and permitting him to resubmit in 5 days (ECF No.
50 at 74);
• a March 24, 2015 letter from Rodriguez to the Administrative
Remedy Coordinator, seeking waiver of informal resolution pursuant
to 28 C.F.R. § 542.13(b) because the complaint involved retaliation
by staff, and he alleged no informal resolution was possible (Id.
at 73);
•

an

April

20,

2015

letter

from

Rodriguez

to

the

Administrative Remedy Coordinator, stating it was his third time
to resubmit a BP-9, and that he did not understand why she insisted
on

informal

resolution;

however,

he

did

attempt

informal

resolution on April 1, 2015, and he had not received a response
(Id. at 75);
31

• An April 24, 2015 BP-9 Rejection Notice which states: “see
your Unit Manager for a BP-8 response” (Id. at 76);
•

A

handwritten

letter

to

the

Administrative

Remedy

Coordinator, stating that this was Rodriguez’s fifth attempt to
submit his BP-9, and demanding to know the Coordinator’s name so
he could sue her in a Bivens action (Id. at 77);
• a June 3, 2015 BP-10 from Rodriguez complaining about a
staff member’s retaliation against him, and noting that his BP-9
was rejected four times in an attempt to discourage his filing
(Id. at 78);
• a July 7, 2015 BP-10 response from the Regional Director to
Rodriguez, stating that the Warden adequately addressed his claim
of

staff

retaliation

and

found

no

evidence

that

staff

inappropriately moved him to a different unit; and that his
separate complaint about the handling of his BP-9 had to be
presented first to the Warden in a separate remedy request (Id. at
79).
These

exhibits

suggest

that

if

the

procedures

of

the

Administrative Remedy Program are followed by the inmate, the
grievance will proceed through each level. The informal remedy
process was available to Rodriguez, and when his attempts at
informal resolution failed, his retaliation claim proceeded to the
next

level.

There

is

nothing

32

here

that

shows

Rodriguez’s

retaliation claim could not be brought to the Central Office to
exhaust the final level of administrative review.
Alternatively, Plaintiff contends the procedural default of
his retaliation claim against Colina should be excused. (Pl’s
Second Brief in Opp. to Defs’ Mot. for Partial S.J., ECF No. 50 at
23.) Plaintiff alleges Colina made a serious threat against him if
he filed a grievance, and Colina followed through with the threat
by writing an incident report alleging Plaintiff attempted to bribe
an officer. (ECF No. 50 at 23.) Plaintiff argues that substantial
threats of retaliation by staff render the administrative remedy
process unavailable. (Id.)
In Davis v. Anderson, a panel of the Third Circuit held that
the BOP’s Administrative Remedy Program was available to an inmate
although an officer had threatened him with further retaliation if
he kept filing grievances. 619 F. App’x 68, 71 (3d Cir. 2015) (per
curiam).

The

Third

Circuit

explained

that

under

such

circumstances, the inmate could have bypassed the institution
level and filed a complaint directly with the Regional Director,
pursuant to 28 C.F.R. § 542.14(d)(1). Id. The inmate had not
provided

any

evidence

that

this

alternative

procedure

was

unavailable. Id.
28 C.F.R. § 542.14(d)(1), exceptions to initial filing at
institution,

provides

that

an

inmate

can

submit

his

Request

directly to the Regional Director by clearly marking the Request
33

“Sensitive” and explaining why the inmate fears for his safety or
well-being

if

his

Request

became

known

at

the

institution.

Plaintiff did not attempt to exhaust his grievance against Colina
in

this

contention

manner.
that

Therefore,
Colina’s

the

Court

retaliation

rejects

against

him

Plaintiff’s
made

the

administrative remedy program unavailable.
On August 9, 2017, Plaintiff filed a supplemental submission
of documentary evidence. (ECF No. 51.) This included an April 9,
2017 letter from inmate Sean Bundy to the Warden. (Ex. A, ECF No.
51 at 4.) Bundy complained to the Warden that two staff members
would not provide him with a BP-8 form so he could begin the
grievance process when he was not permitted to have an unmonitored
attorney phone call before his court teleconference. (Id. at 45.) Plaintiff’s counselor, who would usually provide the BP-8 form,
was not available at the time. (Id. at 5.)
Associate Warden Mason responded to the letter, stating that
Bundy was in fact provided the remedy he had requested through the
informal resolution process when he was permitted a legal phone
call on April 11, 2017. (Id. at 7.) Mason also addressed Bundy’s
accusation of staff misconduct, noting that Bundy had been directed
specifically to get the BP-8 form from his assigned Correctional
Counselor, and this led to his informal resolution of the matter.
(Id.) Staff did not act outside the scope their duties by directing
Bundy to his assigned Correctional Counselor to obtain a BP-8 form.
34

(Pl’s Supplemental Submission of Evid., Ex. A, ECF No. 51 at 7.)
This exhibit does not show that the administrative remedy process
was unavailable.
Plaintiff

also

submitted

a

BP-8

form

from

inmate

Jaime

Rodriguez, which stated that on July 19, 2017, Rodriguez’s most
recent BP-9 form was returned without any of the copies of exhibits
that he had provided. (Ex. B, ECF No. 51 at 8.) 28 C.F.R. §
542.14(c)(3) provides that “exhibits will not be returned with the
response” to a BP-9, and the inmate is encouraged to retain a copy
of all exhibits for his or her personal records.” Therefore, this
exhibit does not indicate any improper conduct of staff interfering
with the grievance process. Moreover, Plaintiff did not provide
the response to this BP-8 to show that Rodriguez’s complaint could
not progress through the administrative remedy program.
In his Sur-reply on September 11, 2017, Plaintiff again
submitted additional evidence in support of his argument that the
administrative remedy program was unavailable. Exhibit A is an
August 14, 2017 Memorandum for Inmate Population, reducing the
availability of copy machines to two hours per day. (Pl’s Surreply, ECF No. 55 at 9.) Plaintiff contends this is an obstruction
of the administrative remedy process because 2,200 inmates must
use the copy machine during these limited hours. (ECF No. 55, ¶7.)
The Court finds this is not relevant to Plaintiff’s ability to
make the required copies for his grievances in 2015.
35

Plaintiff’s Exhibit B to his Sur-reply begins with a BP-8
form submitted by Plaintiff, where he claimed that on August 14,
2017, staff members Willis and Gilyard refused his request for a
roll of toilet paper, free of charge, because he was not indigent.
(Pl’s Sur-reply, Ex. B, ECF No. 55 at 10.)
Plaintiff submitted a BP-9, dated August 17, 2017, where he
argued that Counselor Willis’ refusal to provide toilet paper
because Plaintiff was not indigent violated BOP regulations. (Id.
at 12.) And, he submitted a separate BP-9 dated August 17, 2017,
stating that he asked Unit Manager Gilyard for toilet paper on
August 14 or 15, and Gilyard denied his request based on the fact
that Plaintiff was not indigent. (Pl’s Sur-reply, ECF No. 55 at
13.) Plaintiff also submitted a third BP-9 dated August 17, 2017,
stating that Counselor Malloy denied his request for toilet paper
on August 15 or 16, because he was not indigent. (Id. at 14.)
Plaintiff received a Rejection Notice to his BP-9s, telling
him to combine his three BP-9s into one, with one continuation
page, because they were all related. (Id. at 11.) Plaintiff
responded by arguing that his three BP’9s were separate because
they

were

complaints

about

each

staff

member.

(Id.

at

15.)

Plaintiff received a second Rejection Notice, again telling him to
combine his BP-9s. (Id. at 16.) Plaintiff insisted that his
complaints be treated as three separate incidents, or else he would
file a BP-10. (Id.)
36

The Court finds that the Administrative Remedy Coordinator
responded reasonably by directing Plaintiff to refile a single
remedy

request,

despite

Plaintiff’s

disagreement

with

the

decision. There is no indication that if Plaintiff had complied
his claims against each staff member involved would not have been
addressed. Therefore, this is not persuasive evidence that the
administrative remedy program was unavailable.
Plaintiff also cites two cases in support of his claim that
the BOP administrative remedy program was unavailable. First, he
cites Ciraolo v. Hollingsworth, Civ. Action No. 12-7159(RMB), 2013
WL 255654 (D.N.J. Jan. 23, 2013), arguing that Moran committed
perjury in that case by stating Ciraolo did not exhaust his BP-10
and BP-11 Appeals. (Pl’s Second Brief in Opp. to Mot. for S.J.,
ECF No. 50 at 20.) In Ciraolo, the BOP offered the declaration of
Tara Moran, stating that she accessed the BOP computerized index
of administrative remedies and found that Plaintiff exhausted the
BP-9 and BP-10 levels of administrative review but did not file an
appeal with the Central Office. Ciraolo, Civ. Action No. 12-7159
(RMB), 2013 WL 255654, at *4 (D.N.J. Jan 23, 2013). Ciraolo
produced a copy of his BP-11 to the Central Office, with a
certified mail receipt indicating the BP-11 was delivered to the
proper address. (Id.)
The Ciraolo case does not establish that Moran committed
perjury. It is possible that Ciraolo’s BP-11 was not entered into
37

the BOP’s SENTRY index, causing Moran to believe it was never
filed. There is nothing in the Ciraolo case suggesting that Moran
was responsible for the BP-11 not being entered into the SENTRY
index. According to BOP Program Statement 1330.18, § 13(a), Remedy
Processing,

it

Coordinator,

is

who

an

Administrative

enters

Remedy

forms

Remedy
into

Clerk,

the

not

SENTRY

the

Index.

Furthermore, unlike Plaintiff here, Ciraolo was able to establish
that he exhausted his Central Office appeal, despite it not being
entered in the SENTRY index.
Second, Plaintiff cites Jones v. Hollingsworth, Civ. Action
No. 15-2401(RMB) (D.N.J. Jan. 21, 2016), as evidence that Tara
Moran strips down BP-9 forms by removing continuation pages and
the underlying BP-8s. In that case, Jones was given the opportunity
to explain to the Central Office (and later to the Court) why he
did not attach the necessary exhibits to his Appeal to the Regional
Director, but he failed to provide an explanation. (Jones v.
Hollingworth, Civ. Action No. 15-2401(RMB) (D.N.J) Opinion, ECF
No. 11 at 8.) Plaintiff’s assumption that Moran interfered with
Jones’

exhaustion

of

administrative

remedies

is

unsupported

speculation.
In

sum,

contrary

to

Plaintiff’s

assertion

that

the

administrative remedy process was unavailable, a query of the
SENTRY

index

for

Remedy

Requests

filed

by

Plaintiff

between

December 2, 2015 and November 7, 2016 returned 65 entries. (Moran
38

Decl., Ex. 9, ECF No. 27-4 at 28-46.) Although the record does not
establish how many of these grievances Plaintiff exhausted, it
shows, at a minimum, that Plaintiff exhausted the grievances for
his claim that staff paid him less than other inmates with the
same work assignment. (Moran Decl., Exhibits 6-8, ECF Nos. 27-4 at
18-27.)
Plaintiff has not provided evidence sufficient to create a
genuine issue of disputed material fact that he or other inmates
could not have exhausted their grievances by complying with the
regulations of the BOP Administrative Remedy Program. See Scott v.
Harris,

550

U.S.

372,

380

(2007)

(quoting

Matsushita

Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986)
(“where the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no genuine issue
for trial.”) Even in instances where Plaintiff and other inmates
suspected intentional interference with the paperwork submitted
for

grievances,

the

Administrative

Remedy

Program

allows

for

resubmission of paperwork and extension of deadlines for valid
reasons.
Plaintiff noted that in 2017 there were 2,200 inmates who had
to share a copy machine to make copies for their grievances. There
is no doubt that with such a volume of paperwork, pages of BOP
forms have been lost or even discarded. Although understandably
frustrating for an inmate when he has to resubmit pages, he is
39

permitted to do so, and is permitted to seek an extension of time
for a valid reason. Plaintiff did not offer any evidence that the
administrative

remedy

program

was

unavailable

because

Administrative Remedy Coordinators denied requests for extensions
supported by valid reasons. Plaintiff has not established a genuine
dispute of material fact demonstrating that the BOP Administrative
Remedy Program was unavailable.
IV.

CONCLUSION
For the reasons discussed above, the Federal Defendants’

motion for partial summary judgment is granted.

An appropriate order follows.

DATE:

March 15, 2018
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge

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