Blackwell v. Department of Justice Federal Bureau Prisons Central Office et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 12 report and recommendation in its entirety, OVERRULES as to 20 Blackwells objections. DISMISSES this case WITHOUT PREJUDICE,and strike it from the Courts docket. Signed by District Judge Irene M Keeley on 6/4/2009. (Copy counsel of record, pro se petitioner by certified mail) (jmm) (Additional attachment(s) added on 6/4/2009: # 1 receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA BARBARA MAY BLACKWELL Plaintiff, v. DEPARTMENT OF JUSTICE FEDERAL, BUREAU OF PRISONS CENTRAL OFFICE, JOE DRIVER and M. FOY, Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION On September 30, 2008, the pro se plaintiff and federal inmate at the Secure Female Facility located at USP Hazleton ("SFF Hazelton"), Barbara May Blackwell ("Blackwell") filed a civil action against the defendants, alleging that on September 18, 2009, correction officer M. Foy entered her cell and confiscated two notebooks belonging to her which contained her writings. On Civil Action No. 1:08cv181 (Judge Keeley)

November 4, 2008, Blackwell filed a supplemental pleading, claiming that she was wrongfully subjected to solitary confinement by the defendant, Warden Joe Driver, in retaliation for filing this suit. The Court referred this case to Magistrate Judge James E. Seibert for initial review and a report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 83.02 and 28 U.S.C. §§ 1915A and 1915(e). On November 18, 2008, Magistrate Judge

Seibert issued a Report and Recommendation ("R&R") recommending

BLACKWELL V. DEPARTMENT OF JUSTICE ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION that this case should be dismissed without prejudice.

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On January

21, 2009, after receiving no objections from Blackwell, the Court adopted the R&R in its entirety and dismissed the case without prejudice.1 Subsequently, Blackwell sent the Court a letter stating that she had mailed her objections to the R&R on October 23, 2008, and had not received them back in the mail. She also included a copy

of those objections (dkt. no. 20). For good cause shown, the Court VACATES its prior order dated January 21, 2009 (dkt. no. 17) adopting the R&R and proceeds to review de objections.2 II. Blackwell's Complaint novo Blackwell's

Blackwell alleges in her complaint that on September 18, 2008 at approximately 7:00 a.m., Officer M. Foy entered her cell and confiscated two of her notebooks which contained her writings and thoughts for an unfinished book and a possible movie. See dkt. no.

On February 3, 2009, the Court amended the original order adopting the R&R merely for the purpose of correcting a clerical error. The Court reviews de novo any parts of the R&R to which a specific objection is made, 28 U.S.C. § 636 (b) (1), and may adopt, without explanation, any of the magistrate judge's recommendations to which the petitioner does not object. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). 2
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BLACKWELL V. DEPARTMENT OF JUSTICE ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION 20-2.

1:08CV181

Blackwell further alleges that Officer Foy told her "I'm You have officers [sic] names in

just doing what I was told to do. your book is what I was told." Blackwell alleges that she

then

was

forced

to

sign

a

"Confiscation and Disposition of Contraband" paper.

Although she

did not believe that her notebooks were contraband, she felt forced into signing the paper because she learned that, if she refused Officer Foy's direction, she would be moved to solitary

confinement.

Subsequently, Blackwell sent Officer Foy and Warden

Driver written requests for the immediate return of her property. Blackwell argues that the actions of Officer Foy and Warden Driver violated Bureau of Prison ("BOP") policies, the law, and the Constitution, specifically her right to free speech and expression under the First Amendment and her right to due process. She seeks

the return of her property, an order enjoining prejudicial and intimidating behavior by the BOP staff, reassignment of the

defendants, and monetary damages in the amount of four million dollars ($4,000,000.00). III. Magistrate Judge's R & R Magistrate Judge Seibert recommends in the R&R that the Court dismiss this case because Blackwell has not exhausted her

administrative remedies. In his analysis, Magistrate Judge Seibert 3

BLACKWELL V. DEPARTMENT OF JUSTICE ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION concludes that Blackwell could not have

1:08CV181

exhausted

her

administrative remedies before filing her complaint, because the four-step administrative process takes far longer to complete than the mere twelve (12) days that elapsed between the alleged incident on September 18, 2008 and receipt of the Complaint by the Court on September 30, 2008. III. Blackwell administrative therefore, the argues remedies Court Blackwell's Objections in do her not not objections afford require that the relief of BOP's and, those

monetary

should

exhaustion

remedies when a suit seeks purely monetary relief.

Accordingly,

she requests that the Court "delete" all of her suit except for the requested monetary relief and either allow her to proceed on just her monetary claims or stay this case for 180 days while she exhausts her administrative remedies. In support of her argument,

Blackwell relies on the holding in McCarthy v. Madigan, 503 U.S. 140, 156 (1992), that federal inmates filing constitutional claims for monetary damages remedies are when not such required to exhaust cannot their provide

administrative

proceedings

monetary relief.

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BLACKWELL V. DEPARTMENT OF JUSTICE ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION IV. Analysis

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Monetary relief, Blackwell argues, is not available through the BOP's administrative remedy process and, thus, pursuant to McCarthy v. Madigan, 503 U.S. 140 (1992), she is not required to exhaust her inadequate administrative remedies. Congress, however, amended the exhaustion requirement in 1992 as part of the Prison Litigation Reform Act and made it mandatory under 42 U.S.C. §1997e(a) that prisoners exhaust all available administrative remedies before filing any suit. Pursuant to 42

U.S.C. §1997e(a), "No 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." Moreover, "[e]ven when the prisoner

seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." 534 U.S. 516, 525 (2002). Contrary to Blackwell's argument, the Supreme Court of the United States explicitly recognized the abrogation of the McCarthy holding in Booth v. Churner, 532 U.S. 731, 741 (2001). "Before Porter v. Nussle,

§ 1997 e(a) was amended by the 1995 Act, a court had discretion (though no obligation) to require a state inmate to exhaust `such 5

BLACKWELL V. DEPARTMENT OF JUSTICE ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION

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remedies as are available,' but only if they were `plain, speedy, and effective.' amendments That scheme is now a thing of the past, for the both the discretion to dispense with

eliminated

administrative exhaustion and the condition that the remedy be `plain, speedy, and effective' before exhaustion could be

required."

Id. at 732.

As Magistrate Judge Seibert concluded, pursuant to 42 U.S.C. §1997e(a), Blackwell must exhaust her administrative remedies before prosecuting this suit. that she has not exhausted In her objections, Blackwell admits her administrative remedies, but

requests that the Court stay this case for up to 180 days in order for her to pursue those remedies. Pursuant to 42 U.S.C. §1997e(a), however, only after first exhausting her administrative remedies may Blackwell bring her suit. Accordingly, as the Magistrate Judge correctly found, Blackwell's suit must be dismissed for failure to exhaust administrative remedies. IV. Conclusion For the reasons stated above, the Court ADOPTS the report and recommendation (dkt. no. 12) in its entirety, OVERRULES Blackwell's objections (dkt. no. 20), DISMISSES this case WITHOUT PREJUDICE, and directs the Clerk to strike it from the Court's docket.

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BLACKWELL V. DEPARTMENT OF JUSTICE ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION It is so ORDERED.

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The Court DIRECTS the Clerk to transmit copies of this Order to counsel of record and to the pro se petitioner, by certified mail, return receipt requested. DATED: June 4, 2009.

/s/ Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

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