Jirak v. Terris et al
Filing
45
Memorandum Opinion and ORDER granting 31 Motion to Dismiss. Signed by U.S. District Judge Lawrence L. Piersol on 9/25/15. (SLW)
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SEP 2 5 2015
~~
*****************************************************************************
*
GENEllRAK,
*
CIV 14-4128
*
Plaintiff,
*
*
vs.
*
MEMORANDUM OPINION
*
WARDEN J.A. TERRIS, in his individual
and professional capacities;
ASSISTANT WARDEN TRUE, in his
individual and professional capacities;
CMS SUPERVISOR WOLFE, in his
individual and professional capacities;
SAFETY SUPERVISOR KALISTA,
in his individual and professional capacities,
UNIT MANAGER STONER, in his
individual and professional capacities,
DR. MALATINKSY, Clinic Director HSD,
in his individual and professional capacities;
DIRECTOR CHARLES SAMUELS,
in his individual and professional capacities;
ATTORNEY GENERAL ERIC HOLDER,
Department of Justice, in his
individual and professional capacities; and
UNIT MANAGER ARTURO AVILES,
in his individual and professional capacities,
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
AND ORDER
GRANTING DEFENDANTS'
MOTION TO DISMISS
******************************************************************************
Before the Court is Defendants' motion to dismiss Plaintiff Gene Jirak:'s ("Plaintiff'' or
"Jirak") Complaint pursuant to Federal Rules of Civil Procedure 12(b)(l) for lack of subject matter
jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper venue, and 12(b)(6) for
failure to state a claim. Alternatively, Defendants move to dismiss the complaint pursuant to the
Prisoner Litigation Reform Act (PLRA) for failure to exhaust administrative remedies. For the
following reasons, Defendants' motion is granted.
BACKGROUND
Plaintiff Gene Jirak is a federal inmate currently incarcerated at the Federal Prison Camp in
Yankton, South Dakota ("FCP Yankton"). He was sentenced by the United States District Court for
the Northern District oflowaon October 11, 2012 to 21 month's imprisonment for submitting a false
claim for tax refund, uttering a forged treasury check, committing mail fraud, and committing
aggravated identity theft. At all times relevant to the allegations contained in the Complaint, however,
Plaintiff was incarcerated at the Federal Correctional Institution in Milan, Michigan ("FCI Milan").
On April 30, 2013, while incarcerated at FCI Milan, Plaintiff claims that he was ordered by Defendant
Arturo Aviles to use an electric power washer in a utility room, ''Unit F2." Unit F2, Plaintiff alleges,
was wired with live electricity at the time. Furthermore, Plaintiff was without proper equipment or
training. Unit F2, according to the Complaint, was filled with one to two inches of standing water and
was known to be contaminated with asbestos and lead. When Plaintiff protested, he was told that he
could either complete the assigned work or an incident report would be filed against him. Shortly
after the incident, on May 13, 2013, Plaintiff filed a tort claim under the Federal Tort Claims Act with
the North Central Regional Office (NCRO) of the Bureau of Prisons (BOP) against the prison
officials alleged to have coerced him into cleaning the unsafe room. Doc. 37-1 at 2. In the claim,
Plaintiff sought damages in the amount of$5 million. Id. In response, FCI Milan staff investigated
Plaintiffs claim. The investigation revealed neither that Plaintiff experienced any physical harm nor
that he had been seen by medical personnel at FCI Milan. Furthermore, the investigation did not
indicate that Plaintiff had filed a claim for work-related injury with the Safety Department or any
other staff member.
After filing the tort claim, Plaintiff alleges he was intimidated and retaliated against by various
prison officials at FCI Milan. The officials, according to Plaintiff, sought to pressure Plaintiff into
withdrawing the tort claim. One such alleged incident involved Defendants Warden J.A. Terris
(''Terris" or the ''Warden"), Assistant Warden True (True), CMS Supervisor Wolfe (Wolfe), Safety
Supervisor Kalista (Kalista), and Unit Manager Stoner (Stoner). It is alleged by Plaintiff that he was
informed by these Defendants that Unit F2 was not contaminated with asbestos. Complaint at 6.
Furthermore, it is alleged in the Complaint that the Defendants ')oked around" about putting Plaintiff
2
"on the lead and asbestos cleaning crew." Id. The Complaint details similar interactions between
Plaintiff and Defendants taking place between December 9, 2013 and December 11, 2013.
It is also alleged that Defendant Stoner conspired with the other Defendants to falsify an
"Initial Job Orientation," See Plaintiffs Brief in Opposition, Plaintiffs Exhibit B; Declaration of
Shawn Stoner at 1, by "backdating" the document to January 25, 2013 when it was actually signed
by Plaintiff on July 23, 2013. The document itself is meant to be signed by inmates "[u]pon
assignment to a job or detail, and at least annually thereafter or whenever a new process, equipment,
or chemical is introduced into the work area" and after the inmate receives training by a supervisor.
Plaintiffs Exlubit Bat 1. Believing the backdate was meant to falsely show that he was trained in
cleaning Unit F2, Plaintiff refused to sign the document unless it reflected that it was signed on
July 23, 2013 and not January 25, 2013. Stoner agreed and the document reflected both dates, with
Stoner's initials appearing by the July 23, 2013 notation. Declaration of Shawn Stoner at 2; Plaintiffs
Exhibit B. Shortly thereafter, Plaintiffs original orientation document, dated February 14, 2013, was
located by FCI Milan staff. Declaration of Shawn Stoner at 2.
Plaintiffs tort claim filed with the NCRO was denied on February 18, 2014 as precluded by
28 C.F.R. § 301.319 1• Id. at 3; Doc. 37-1at12. On June 23, 2014, Plaintiff attempted to file an
administrative remedy request (BP-9) pursuant to 28 C.F.R. § 542.14(a) 2, claiming that FCI Milan
1
That section reads,
Inmates who are subject to the provisions of these Inmate Accident Compensation
regulations are barred from recovery under the Federal Tort Claims Act (28
U.S.C. 2671 et seq.). Recovery under the Inmate Accident Compensation
procedure was declared by the U.S. Supreme Court to be the exclusive remedy in
the case ofwork-related iajury. U.S. v. Demko, 385 U.S. 149 (1966).
28 C.F.R. § 301.319.
2
That section reads,
(a) Submission. The deadline for completion of informal resolution and submission
of a formal written Administrative Remedy Request, on the appropriate form
(BP-9), is 20 calendar days following the date on which the basis for the
Request occurred.
28 C.F.R. § 542.14(a).
3
staff falsified a statement during the investigation. 3 Doc. 37-2 at 3. The request was rejected as
Plaintiff failed to show that he had attempted informal resolution prior to the BP-9 submission and
failed to attach required documentation. On July 8, 2014, Plaintiff attempted to resubmit the same
BP-9. It was rejected on the same grounds as the first. Plaintiff attempted no further BP-9
submissions. This action followed on August 13, 2014 wherein Plaintiff seeks, inter alia, $5 million
in damages and injunctive relief against Defendants.
In his Complaint, Plaintiff claims that by forcing him to clean Unit F2, and the subsequent
intimidation, Defendants committed assault, abuse of process, and violated his Eighth Amendment
right against cruel and unusual punishment. Furthermore, Plaintiff alleges that Defendants committed
fraud in falsifying the Initial Job Orientation document. Defendants have moved to dismiss the
complaint for, inter alia, lack of administrative exhaustion. Because the Court finds that the issue of
exhaustion is dispositive it will not address Defendants' other grounds for dismissal.
DISCUSSION
Defendants have moved to dismiss Jirak's Complaint based on his failure to exhaust available
administrative remedies. Pursuant to the PLRA, Defendants contend that Jirak' s action is not properly
before a federal court until he has exhausted the BOP's administrative procedure for prisoner
grievances. The Court agrees. ''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)
(citing Porter v. Nuss le, 534 U.S. 516, 524 (2002)). Prior to 1996, whether a prisoner was obligated
to exhaust any available administrative remedies was largely discretionary with the court. See Nuss le,
534 U.S. at 523. As passed in 1996, however, 42 U.S.C. § 1997e(a) ofthe PLRA makes "exhaustion
in cases covered by [the statute] []mandatory." Id. at 524. Further,
unlike the previous provision, which encompassed only [42 U.S.C.] § 1983 suits,
exhaustion is now required for all "action [s] (sic) ... brought with respect to prison
conditions," whether under § 1983 or "any other Federal law." Compare 42 U.S.C.
§ 1997e (1994 ed.) with 42 U.S.C. § 1997e(a) (1994 ed., Supp. V). Thus federal
3
While it is clear from the dates that this allegedly falsified document differs from the Initial
Job Orientation form, it is unclear what statement is referred to.
4
prisoners suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)4, must first exhaust inmate grievance
procedures just as state prisoners must exhaust administrative processes prior to
instituting a § 1983 suit.
Id. (first alteration added). That Jirak is seeking money damages as well as injunctive relief is
inconsequential. See Booth v. Churner, 532 U.S. 731, 733-34 (2001) (finding that the Prison
Litigation Reform Act of1995 as amended by 42 U.S.C. § 1997e(a) requires a prisoner to exhaust
"such administrative remedies as are available" before suing over prison conditions. ''The question
is whether an inmate seeking only money damages must complete a prison administrative process that
could provide some sort ofrelief on the complaint stated, but no money. We hold that he must.").
Furthermore, "PLRA's 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. Nussle, 534 U.S. at 532. Ultimately, the burden of showing a failure to exhaust
is on the defendant. Bock, 549 U.S. at 212 (finding that "the usual practice under the Federal Rules
is to regard exhaustion as an affirmative defense."); Porter v. Sturm, 781 F.3d 448, 451 (8th Cir.
2015) (citing Bock, 549 U.S. at 211-12) ("Nonexhaustion is an affirmative defense, and defendants
have the burden ofraising and proving the absence of exhaustion."); Wheeler v. J. Prince, M.D., 318
F. Supp. 2d 767, 771 (E.D. Ark. 2004) ("Inasmuch as exhaustion is an affirmative defense,
defendants must raise and prove that plaintiff did not exhaust administrative remedies.").
In order to satisfy42 U.S.C. § 1997e(a), an inmate must "pursu[e] 'the grievance process to
its final stage' to 'an adverse decision on the merits."' Sturm, 781 F.3d at 451 (quoting Burns v.
Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014)). Relevant to what constitutes the "final stage," the
Supreme Court held in Woodford v. Ngo that ''the PLRA uses the term 'exhausted' to mean what the
term means in administrative law, where exhaustion means proper exhaustion[,]" 548 U.S. 81, 93
4
In Bivens, the Supreme Court "implied a cause of action for damages against federal agents
who allegedly violated the Constitution." F.D.l.C. v. Meyer, 510 U.S. 471, 473 (1994). The Myer
opinion "emphasized that 'the purpose of Bivens is to deter the officer,' not the agency."
Correctional Services Corp. v. Malesko, 534 U.S. 61, 69 (2001) (quoting Meyer, 510 U.S. 471 at
485) (emphasis in original).
5
(2006). "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 ofits proceedings." Id. at 90-91. Thus, to constitute the "final stage"
of a prison system's administrative process, the inmate must proceed through to the process's
terminus. The inmate cannot manufacture that terminus by means of ''bypass[ing] dehberately the
administrative process by flouting the agency's procedural rules." See id. at 97.
"The Bureau of Prisons (BOP) has a multi-step process for inmates to use in bringing
complaints about anyaspectoftheirconfinement: an informal resolution, [see 28 C.F.R. § 542.13(a),]
an administrative remedy (with the warden), [see 28 C.F.R. § 542.14(a),] an appeal to the BOP's
regional director, [see 28 C.F.R. § 542.15(a),] and finally an appeal to the BOP's central office[, see
id.]." Marlin v. Marquez, 218 Fed. Appx. 545, 545 (8th Cir. 2007). 5 Each step has requisite deadlines
that must be met. In Marlin, the Eighth Circuit found that the plaintiff, a federal inmate, had failed
to rebut the BOP's attorney's declaration that the inmate had not complied with the foregoing BOP
administrative process. The Marlin Court noted that it would have been impossible for the plaintiff
to have complied with 28 C.F.R. § 542's process because he filed the complaint 'just thirteen days
after he was assigned to the job giving rise to the[] lawsuit[.]" Id.
Here, the Court agrees with Defendants that Plaintiff has failed to properly exhaust his
administrative remedies. Defendants argue in their brief: Plaintiff "attempted to file an administrative
remedy request related to the alleged falsification of a statement[.]" Defendants' Briefin Support of
Motion to Dismiss at 10. Plaintiff, however, failed to comply with the requirements of the
administrative process by not attaching required documentation. Moreover, Defendants assert that
Plaintiff failed to provide proof that he filed an informal resolution request. Plaintiff, contending that
the Defendants' arguments are false statements in and of themselves, asserts in his brief that he
5
While unpublished opinions have no precedential value, they may be cited for their persuasive
value. See Fed.R.App.P. 32.1. See also Smith v. Colvin, No. 14-CV-0412-CV-FHM, 2015 WL
5311351, at *4 n. 3 (N.D.O.K. Sep. 11, 2015); U.S. v. Baker, No. 15-3045, 2015 WL 5172896,
at *1 n. 1 (lath Cir. Sep. 4, 2015).
6
''never filed an administrative remedy request (BP-9) for the Administrative Tort Claim spoken of
in the Defendants Brief in Support of Motion to Dismiss." Plaintiff's Brief in Opposition at 7
(emphasis in original). In conjunction with his Brief in Opposition, Plaintiff submitted the "Affidavit
of Gene Jirak" (Plaintiff's Exlnbit A), a copy of the "Initial Job Orientation" form containing the
alleged ''backdating" (Plaintiff's Exhibit B), a letter directed to "Director Charles E. Samuels, Jr." in
Washington, D.C. (Plaintiff's Exlnbit C), an additional "Affidavit of Gene Jirak" (Plaintiff's Exlnbit
D), and various other documentation. 6 Collectively, this documentation does not rebut Defendants'
assertion that Plaintiff failed to properly exhaust his administrative remedies. The incident giving rise
to the Complaint occurred on April 30, 2013. Complaint at 3. Next, Plaintiff's Exhibits C and D show
that Plaintiff filed an "FTCA Claim for Multiple Millbrook issues with a former Unit Manager" on
May 13, 2013, Plaintiff's Exhibit Cat 1, with the North Central Regional Office of the Federal
Bureau of Prisons. Plaintiff's Exlnbit D at 1. Furthermore, while the parties contest whether a BP-9
was actually filed by Plaintiff related to alleged document falsification 7, Plaintiff has presented no
evidence that he comported with BOP administrative regulation before filing his tort claim related to
the Unit F2 incident with NCRO.
Based on28 C.F.R. § 542.13( a), Plaintiffwas required to first present his grievance informally
to prison staff members. Next, were he dissatisfied with the result, Plaintiff had "20 calendar days
following the date on which the basis for the Request occurred" to file an administrative remedy (a
BP-9) with the Warden of the institution. 28 C.F.R. § 542.14(a). Only after submitting his grievance
to the Warden was Plaintiff eligible to appeal further by submitting "the appropriate form (BP-10)
6
Exhibits E through H are "Regional Administrative Remedy Appeal" filings filed during
Plaintiff's current incarceration at FCP Yankton. These filings are unrelated to the underlying
facts contained in the Complaint. Therefore, they are irrelevant to the issue of exhaustion. Finally,
Plaintiff's Exhibit I is a request to amend the ''Tort Form," see Plaintiff's Exlnbit I at 1, which was
dated August 5, 2013 and sent to the NCRO by Plaintiff requesting that the claim filed on May
13, 2013 be amended accordingly. The amendment sought to add claims related to the alleged
falsification of the "Initial Job Orientation" form.
7
Attachment B of the Declaration of Shawn Stoner shows that a BP-9 was filed by Plaintiff in
connection with the statement falsification claims. Doc. 37-2 at 2-6.
7
to the appropriate Regional Director within 20 calendar days of the date the Warden signed the
response." 28 C.F.R. § 542.15(a). Instead, similar to the facts in Marlin, within thirteen days of the
alleged Unit F2 incident Plaintiff filed a grievance with the NCRO. See Plaintiff's Exhibit D at 1. Only
upon completing the BP-9 would Plaintiff have been allowed to file a BP-10. Finally, while an
investigation was undertaken at FCI Milan related to Plaintiff's claims, which resulted in the warden
recommending that the administrative claim be denied, Defendants' Brief in Support of Motion to
Dismiss at 3, the investigation was the result ofPlaintiff's claim filed with the NCRO, not an informal
resolution with staff or a BP-9. See Woodford, 548 U.S. at 95 (holding that 42 U.S.C. § 1997e(a)
requires exhaustion that is proper and follows established administrative procedure). See also
Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (holding that an inmate-plaintiffmust exhaust
his administrative remedies before filing a complaint in federal court. Furthermore, whether or not
remedies have been exhausted is judged based on when the complaint was filed not when the court
is rendering its decision). Thus, based on the evidence contained in the record, the Court finds that
Plaintiff has failed to properly exhaust his administrative remedies.
CONCLUSION
Because Plaintiff failed to properly exhaust his administrative remedies, he is barred from
bringing a federal action against Defendants. Accordingly,
IT IS ORDERED that Defendants' Motion to Dismiss Plaintiff's Complaint, Doc. 31,
based on failure to exhaust administrative remedies is granted.
Dated this
1'
~ dayofSeptember, 2015.
ATTEST:
JOSEPH HAAS,~
Bx
)1J11lY(IA
Deputy
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?