Sellers v. Bowles et al

Filing 23

MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 9/14/2018. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JAMES MORRIS SELLERS,
Plaintiff,

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v.
LIEUTEANT J. BOWLES, et al.,
Defendants.

Civil Action No. 7:17cv00060
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

James Morris Sellers, an inmate formerly incarcerated at United States Penitentiary Lee,
(“USP Lee”), in Jonesville, Virginia,1 filed this action pro se requesting monetary damages for
his placement in ambulatory restraints, pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). Sellers raises three claims against Lieutenant Bowles
and Warden Ratledge, employees of the Federal Bureau of Prisons (“BOP”), alleging: (1)
defendants caused him to be placed in full-body restraints without justification for “a period in
excess of ten days”; (2) defendants violated BOP policy by placing him in restraints; and (3) his
placement in restraints constituted torture under 18 U.S.C. § 2340(1). Compl. 3, Dkt. No. 1.
Defendants filed a joint Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment. Dkt. No. 20-1. In support of their motion, defendants submit various prison records
and sworn affidavits. Sellers responded in opposition to defendants’ motions, and this matter is
ripe for disposition. Dkt. No. 20. Defendants presented materials outside of the pleadings for
consideration, and thus I will treat defendants’ motion as one for summary judgment. Fed. R.
Civ. P. 12(d). For the reasons that follow, I will grant defendants’ motions for summary
judgment.
I.
In his verified complaint, Sellers alleges that, on December 29, 2015, Warden Ratledge
and Lt. Bowles caused him to be placed in full-body restraints, rendering him unable to move his
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Sellers is currently incarcerated at USP Terre Haute in Indiana.

arms and legs or to attend to his daily bodily needs of using the bathroom, showering, or eating.
Warden Ratledge and Lt. Bowles placed him in “total isolation” by enclosing him in a cell away
from other prisoners. Sellers alleges he was placed in restraints outside of BOP policy without
justification, and there was no “probable cause” to leave him that way “for a period in excess of
ten days.” As a result of being placed in restraints, Sellers alleges he suffered extreme pain,
mental fatigue, and wounds to his body, from which he continues to experience pain, anxiety,
and depression.
In their motion for summary judgment, Warden Ratledge and Lt. Bowles assert Sellers
was placed in ambulatory restraints because he became disruptive when he refused to leave the
Special Housing Unit law library and share a cell with another inmate. After Sellers repeatedly
refused to take a cellmate or comply with prison staff orders the morning of December 29, 2015,
Lt. Bowles notified the Acting Captain, who received authorization to use a force team. The
force team placed Sellers in soft ambulatory restraints. Sellers remained in the restraints until
January 6, 2016, because he continued to refuse to take a cellmate. Defendants submit that,
during the whole time Sellers was in restraints, he received regular safety checks, mental and
physical health checks, Lieutenant checks, and a forty-eight hour review panel, as required by
BOP policy. None of the prison staff performing the checks recommended Sellers be moved
from his restraints until January 6th, when medical staff recommended removal due to a small
ulcer on his ankle and a swollen hand. At the time of his removal, he was still noncompliant and
was removed solely at the recommendation of medical staff.
On February 1, 2016, Sellers filed an Administrative Remedy complaining of his
placement in restraints and his resulting injuries. Warden Ratledge noted receipt of Sellers’
complaint on February 16, 2016, and rejected it at the institutional level as untimely. Sellers
appealed the rejection with the Regional Office on March 7, 2016 and again on April 4, 2016, in
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two additional Administrative Remedies. However, Sellers did not provide a copy of his initial
institutional Remedy and was untimely, and the two appeals were rejected. On April 25, 2016,
Sellers appealed the two rejections by filing another Administrative Remedy. This appeal was
rejected by the Central Office, and Sellers was notified that his Remedy was untimely and that he
would need to file a “staff memo” at the institutional level to explain why his Remedy was
untimely in order for the initial Remedy to be accepted.
On June 17, 2016, Seller’s new prison institution received an additional Administrative
Remedy in which Sellers sought to have his February 16, 2016 Remedy accepted.

This

Administrative Remedy was also rejected as untimely. On July 14, 2016, Sellers appealed the
rejection by filing another Administrative Remedy with the Regional Office. The appeal was
denied. On August 15, 2016, Sellers appealed again, filing an Administrative Remedy with the
Central Office. However, the Central Office concurred with the lower level rejections that
Sellers’ previously filed Remedies were all untimely.
For his injuries, Sellers seeks monetary damages in the amount of $1,000,000.
II.
A civil rights claim under Bivens is the federal counterpart to an action brought under 42
U.S.C. § 1983, and the same legal principles governing a § 1983 claim apply to a Bivens claim.2
See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). To state a claim under
Bivens, the plaintiff must show that the defendants, acting under color of Federal law, deprived
him of a constitutionally protected interest. Middlebrooks v. Leavitt, 525 F.3d 341, 350 (4th Cir.

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To the extent Sellers brings claims for money damages against the defendants in their
official capacities, those claims fail. “[Bivens] liability is personal[.]” Trulock v. Freeh, 275
F.3d 391, 402 (4th Cir. 2001). Although Bivens actions allow for recovery of money damages
against federal officials in their individual capacities, “Bivens does not allow for recovery of
money damages, or suits in general, against the government itself.” Reinbold v. Evers, 187 F.3d
348, 355 n. 7 (4th Cir. 1999). Accordingly, I grant summary judgment for defendants with
respect to these claims.
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2008); Brown, 250 F.3d at 800. Pro se pleadings are held to a less stringent standard than those
drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, in order to allow for
the development of a potentially meritorious claim, federal courts must construe pro se pleadings
liberally. See, e.g., Boag v. MacDougall, 454 U.S. 364, 365 (1982) (citation omitted); see Smith
v. Smith, 589 F.3d 736, 738 (4th Cir. 2009). However, “[a] pro se plaintiff still must allege facts
that state a cause of action.” Bracey v. Buchanan, 55 F. Supp. 2d 416, 421 (E.D. Va. 1999)
(citation omitted).
III.
Sellers alleges Warden Ratledge and Lt. Bowles violated federal laws and BOP policy.
Defendants contend that Sellers failed to exhaust his administrative remedies as required under
42 U.S.C. § 1997e(a).
The Prison Litigation Reform Act provides in 42 U.S.C. § 1997e(a) that “[n]o action shall
be brought with respect to prison conditions under section 1983 of this title, or any Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[E]xhaustion is mandatory
under the PLRA and . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 549
U.S. 199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). A prisoner must
exhaust all available administrative remedies, whether or not they meet federal standards or are
plain, speedy, or effective, Porter, 534 U.S. at 524, and even if exhaustion would be futile
because those remedies would not provide the relief the inmate seeks, Davis v. Stanford, 382 F.
Supp. 2d 814, 818 (E.D. Va. 2005). Failure to exhaust all levels of administrative review will
bar an inmate’s Bivens action. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). To comply with
§ 1997e(a), an inmate must follow each step of the established grievance procedure that the
facility provides to prisoners and meet all deadlines within that procedure before filing his Bivens
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action. See id. at 90-94 (finding inmate’s untimely grievance was not “proper exhaustion” of
available administrative remedies under § 1997e(a)). Failure to exhaust is an affirmative defense
that defendant has the burden of pleading and proving. Anderson v. XYZ Corr. Health Servs.,
Inc., 407 F.3d 674, 681 (4th Cir. 2005).
An inmate must follow the required procedural steps in order to exhaust his
administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008). However,
an inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). An administrative
remedy is not available “if a prisoner, through no fault of his own, was prevented from availing
himself of it.” Moore, 517 F.3d at 725.
To fully exhaust a Bivens claim, a federal prisoner must properly submit his grievance
through all levels of the BOP Administrative Remedy Program. See 28 C.F.R. §§ 542.10, et seq.
If the inmate is unable to resolve his complaint informally, he may file a formal written
complaint on the proper form within twenty calendar days of the complained incident. Id. §
542.14(a). If the institutional warden’s response to the complaint is unsatisfactory to the inmate,
he may appeal to the regional director within twenty calendar days of the warden’s response. Id.
§ 542.15(a). If the inmate is not satisfied with the regional director’s response, he may file
within thirty calendar days a final administrative appeal to the BOP’s General Counsel. Id.
The record shows that Sellers did not properly exhaust his administrative remedies.
While he filed numerous administrative complaints and appeals regarding the denial of his
complaints, none were timely. Sellers also fails to demonstrate that the administrative remedy
process was otherwise unavailable to him. Accordingly, defendants have met their burden in
proving that Sellers did not exhaust available administrative remedies prior to filing this action. I
will grant defendants’ motion for summary judgment as to all claims.

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IV.
For the foregoing reasons, I grant defendants’ motion for summary judgment.3
An appropriate order will be entered this day. The Clerk is directed to send a copy of this
memorandum opinion and the accompanying order to the parties.
ENTER: This _____ day of September, 2018.
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In Sellers’ response to defendants’ motion for summary judgment, he asserts his due
process rights were violated by his placement in ambulatory restraints. To the extent he raises a
new claim in his response brief, I will also dismiss this claim for failure to exhaust.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JAMES MORRIS SELLERS,
Plaintiff,
v.
LIEUTEANT J. BOWLES, et al.,
Defendants.

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Civil Action No. 7:17cv00060
ORDER
By: Norman K. Moon
United States District Judge

In accordance with the memorandum opinion entered this day, it is hereby ORDERED
that defendants’ motion for summary judgment (Docket No. 20) is GRANTED.
The Clerk of the Court is directed to send a copy of this order and accompanying
memorandum opinion to the parties.
ENTER: This _____ day of September, 2018.
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