Hill v. Haynes et al

Filing 229

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court OVERRULES Hills 215 Amended Objections. It is the opinion of this Court that the magistrate judges 170 Report and Recommendation should be, and is, hereby ORDERED ADOPTED . The Court GRANTS the Defendants 38 Motion to Dismiss or for Summary Judgment and hereby DISMISSES 1 this case WITHOUT PREJUDICE.The Court DENIES AS MOOT Hills 224 Motion for an Extension of Time.The Court ORDERS that the Clerk STRIKE Hills [ 226] surreply from the record.The Court DIRECTS the Clerk to enter judgment in favor of the Defendants.The Court further DIRECTS the Clerk to close this case and strike it from this Courts active docket. Signed by District Judge Gina M. Groh on 8/22/14. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 8/22/2014: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

DEMETRIUS HILL,
Plaintiff,
v.

CIVIL ACTION NO. 3:06-CV-136
(JUDGE GROH)

AL HAYNES, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge John S. Kaull.
Previously, the United States Court of Appeals for the Fourth Circuit remanded this case
“for a determination whether the grievance procedure was ‘available’ to Hill within the
meaning of [42 U.S.C.] § 1997e(a) so he could administratively exhaust his claim.” Hill v.
Haynes, 380 F. App’x 268, 274 (4th Cir. 2010). As such, the Court referred this matter to
Magistrate Judge Kaull for submission of an R&R. In the R&R, he recommends granting
the Defendants’ Motion to Dismiss or for Summary Judgment [Doc. 38] because the
grievance procedure was available to Hill and Hill did not exhaust his claims.
I. Background
On December 15, 2006, Hill filed a Bivens civil rights complaint concerning his
incarceration at USP Hazelton.1 On April 2, 2007, the Defendants filed a Motion to Dismiss,
or, in the Alternative, for Summary Judgment, arguing that Hill failed to exhaust his
1

See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

administrative remedies as required by the Prisoner Litigation Reform Act (“PLRA”). On
November 29, 2007, Magistrate Judge Kaull filed an R&R recommending that the Court
deny this motion.
On March 5, 2008, this Court declined to adopt the R&R and dismissed the
complaint without prejudice. Hill appealed this decision to the Fourth Circuit. The Fourth
Circuit found Hill had shown genuine issues of material fact as to whether the Defendants
prevented him from exhausting administrative remedies. Consequently, the Fourth Circuit
remanded this case “for a determination whether the grievance procedure was ‘available’
to Hill within the meaning of § 1997e(a) so he could administratively exhaust his claim.”
Id.
The Court then re-referred this matter to Magistrate Judge Kaull. After several
continuances, Magistrate Judge Kaull conducted an evidentiary hearing over three days.
On September 5, 2012, he entered his R&R recommending that the Court grant the motion
to dismiss or for summary judgment.
On November 9, 2012, the Court adopted the R&R and dismissed the complaint
because Hill had not filed objections. On December 7, 2012, Hill filed a motion for
reconsideration, averring that he prepared a motion for extension of time but delays in the
prison mail system caused it to reach the Court late. The Court granted this motion on
December 17, 2012. The Court thereafter continued the objections deadline several times
at Hill’s request, ultimately setting an objections deadline of October 15, 2013. Hill timely
filed his objections. The Defendants then moved to extend the response deadline. The

2

Court granted this motion.2 Hill then filed a reply and a surreply [Doc. 226].3
II. Standards of Review
1.

R&R

This Court must make a de novo review of those portions of the magistrate judge’s
findings to which objection is made. 28 U.S.C. § 636(b)(1). The Court is not required to
review, under a de novo or any other standard, the factual or legal conclusions of the
magistrate judge as to those portions of the findings or recommendation to which no
objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely
objections constitutes a waiver of de novo review and the right to appeal this Court's Order.
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984). Thus, the Court reviews de novo those portions of the R&R to
which Hill objects and the remainder of the R&R for clear error.
2.

Motion to Dismiss

To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the
complaint must allege “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not
contain “‘detailed factual allegations,’” it must contain “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555). Thus, “[a] pleading that offers ‘labels and conclusions’
2

After the Court did so, Hill filed a letter seeking more time to respond to the
Defendants’ motion [Doc. 224]. The Court denies Hill’s motion as moot because the
Court already granted the Defendants’ motion and anything that Hill could have said in
response would not have changed this Court’s decision.
3

Because Hill did not seek leave of court to file a surreply as required by Local Rule of Civil
Procedure 7.02(b)(3), the Court disregards it and will order it stricken.
3

or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a
complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancements.’”
Id. (quoting Twombly, 550 U.S. at 555, 557). Twombly’s plausibility standard applies to
pro se complaints, Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008), but a
court must construe such a complaint liberally. Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
Additionally, when reviewing a Rule 12(b)(6) motion, a court must assume that the
complaint’s well-pleaded allegations are true, resolve all doubts and inferences in favor of
the plaintiff, and view the allegations in a light most favorable to the plaintiff. Edwards v.
City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). Only factual allegations receive
the presumption of truth. Iqbal, 556 U.S. at 678-79. A court may also consider facts
derived from sources beyond the complaint, including documents attached to the complaint,
documents attached to the motion to dismiss “so long as they are integral to the complaint
and authentic,” and facts subject to judicial notice under Federal Rule of Evidence 201.
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
3.

Motion for Summary Judgment

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, a court determines “whether there is the need for a trial- whether, in other words,
4

there are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Id. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its burden to
show an absence of material fact, the non-moving party must come forward with affidavits
or other evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P.
56; Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249 (citations omitted). A court should deny summary judgment “if
the evidence is such that conflicting inferences may be drawn therefrom, or if reasonable
men might reach different conclusions.” Phoenix Sav. & Loan, Inc. v. Aetna Cas. & Sur.
Co., 381 F.3d 245 (4th Cir. 1967); see also id. at 253 (noting “[c]redibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge”). Additionally, in this case, “[b]ecause the prison
employees bear the burden of exhaustion . . . , they must show that the evidence is so onesided that no reasonable factfinder could find that Hill was prevented from exhausting his
administrative remedies.” Hill, 380 F. App’x at 270 (citations omitted).
III. Discussion
Magistrate Judge Kaull recommends dismissing the complaint because the
grievance procedure was available to Hill and Hill did not administratively exhaust his
claims. Hill objects to this recommendation on three grounds.

5

1.

Objection that Magistrate Judge Kaull Made Factual Determinations that
Are a Jury Function and the Fourth Circuit Decision Requires a Trial

Hill first objects that Magistrate Judge Kaull made factual determinations that are a
jury function. In that same vein, he also argues that he is entitled to a trial because the
Fourth Circuit found genuine issues of material fact concerning the availability of
administrative remedies.
The circuit courts of appeals have uniformly found that a judge can resolve factual
disputes concerning exhaustion of administrative remedies under the PLRA. Albino v.
Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (explaining judges should decide factual
disputes concerning exhaustion); Messa v. Goord, 652 F.3d 305, 310 (2d Cir. 2011)
(finding no right to a jury trial concerning PLRA exhaustion); Drippe v. Tobelinski, 604 F.3d
778, 785 (3d Cir. 2010) (stating that resolving whether a prisoner administratively
exhausted his claims required judgment of the court); Dillon v. Rogers, 596 F.3d 260, 272
(5th Cir. 2010) (holding “judges may resolve factual disputes concerning exhaustion” as “it
is a threshold issue that courts must address to determine whether litigation is being
conducted in the right forum at the right time”); Bryant v. Rich, 530 F.3d 1368, 1375-77 &
n.15 (11th Cir. 2008) (holding court may decide factual disputes concerning PLRA
exhaustion and finding no right to a jury trial on the issue); Pavey v. Conley, 544 F.3d 739,
742 (7th Cir. 2008) (setting forth a framework for cases where parties contest PLRA
exhaustion that requires the court to hold a hearing and decide the issue). Consistent with
this principle, the Fourth Circuit remanded this case for the Court to determine whether the
grievance procedure was available to Hill. The Fourth Circuit did not hold that he was
entitled to a jury trial on this issue. Indeed, allowing a jury to decide factual disputes over
6

exhaustion would undermine the purpose of the requirement as Congress enacted it to
‘reduce the quantity and improve the quality of prisoner suits.’” Bryant, 530 F.3d at 137677 (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)).

Accordingly, the Court

OVERRULES this objection because this Court must decide this issue.
2.

Objection to Burden of Proof

Hill next argues that Magistrate Judge Kaull erroneously placed the burden of proof
on him. The R&R sets out the burden of proof as follows:
A defendant may use a plaintiff’s failure to exhaust administrative
remedies as an affirmative defense; however, exhaustion is not a
jurisdictional requirement, and inmates need not plead exhaustion or bear the
burden of proving exhaustion. Jones v. Bock, 549 U.S. 199 (2007); see also
Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 681 (4th Cir.
2005). If failure to exhaust is raised as an affirmative defense, the plaintiff
may “directly disput[e] the defendant’s allegations, [ . . . ] demonstrate the
[administrative remedy process] described by the defendants does not
actually exist at the prison[,] or provide an excuse for the unexhausted
claim.[”] See Gary Proctor, Ngo Excuses: Proving, Rebutting, and Excusing
Failure to Exhaust Administrative Remedies in Prisoner Suits After Woodford
v. Ngo and Jones v. Bock, 31 Hamline L. Rev. 471, 487-89 (2008). In the
event that the plaintiff rebuts the defendant’s evidence, the evidence must be
weighed equally, and the inmate’s testimony may not be discredited as “selfserving.” See Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006).
This portion of the R&R accurately states the law and does not place the burden of proof
on Hill. Rather, it only explains how Hill can defeat the failure to exhaust defense.
Accordingly, the Court OVERRULES this objection.
3.

Objection that the Grievance Procedure Was Unavailable

Hill objects to the conclusion that remedies were available to him on three grounds.
First, he argues that officials waived the exhaustion process by failing to answer BP-8 and
BP-9 forms. Hill also disputes Magistrate Judge Kaull’s finding that he fabricated evidence

7

to create the illusion that he filed grievances that went unanswered. Second, Hill argues
that retaliation waived the exhaustion requirement. Third, although not explicitly raised in
his objections, Hill has argued throughout this case that remedies were unavailable
because Counselor Marrero did not provide him with grievance forms.
In response, the Defendants contend that, even if officials did not answer a
grievance, Hill still needed to proceed through the remedy process. They also request that
the Court dismiss this case based on Hill’s use of fabricated evidence to support this
argument. Finally, the Defendants aver that Hill’s remaining objections fail because the
evidence establishes that none of the alleged retaliatory acts deterred Hill from filing
grievances and that Hill could access grievance forms.
A prisoner bringing an action concerning prison conditions under 42 U.S.C. § 1983
or any other federal law must have exhausted all available administrative remedies. 42
U.S.C. § 1997e(a). Exhaustion is mandatory and applies in Bivens actions. Porter, 534
U.S. at 524. Because exhaustion is a prerequisite to suit, a prisoner must have done so
before filing his complaint. Id. Exhaustion is required even if the relief that the prisoner
seeks is not available in grievance proceedings. Id.
The Bureau of Prisons has a four-step Administrative Remedy Program. 28 C.F.R.
§ 542.10 et seq. An inmate must “first present an issue of concern informally to staff.” Id.
§ 542.13. If he is not satisfied with the result of this step, he must submit “a formal written
Administrative Remedy Request” on a BP-9 form. Id. § 542.14(a). The deadline for the
informal complaint and BP-9 is twenty days from “the date on which the basis for the
Request occurred.” Id. The warden must answer the BP-9 within twenty days. Id.

8

§ 542.18. If the inmate is not satisfied with the warden’s response, he must submit an
appeal on a BP-10 form to the regional director within twenty days of the BP-9 response.
Id. § 542.15(a). The regional director must respond within thirty days. Id. § 542.18. If the
inmate is not satisfied with the response to the BP-10, he must appeal to the general
counsel by filing a BP-11 form within thirty days of the BP-10 response. Id. § 542.15(a).
The general counsel must respond within forty days. Id. § 542.18. An inmate exhausts his
administrative remedies if he completes these steps. Further, “[i]f the inmate does not
receive a response within the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level.” Id.
A prisoner, however, need not exhaust administrative remedies if they are
unavailable. Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). An administrative
remedy was not “available if a prisoner, through no fault of his own, was prevented from
availing himself of it.” Id. “Thus, ‘when prison officials prevent inmates from using the
administrative process . . . , the process that exists on paper becomes unavailable in
reality.” Zander v. Lappin, 415 F. App’x 491, 492 (4th Cir. 2011) (quoting Kaba v. Stepp,
458 F.3d 678, 684 (7th Cir. 2006)). As such, retaliation by officials can render remedies
unavailable. See Kaba, 458 F.3d at 686.
However, “a prisoner does not exhaust all available remedies simply by failing to
follow the required steps so that remedies that once were available to him no longer are.”
Moore, 517 F.3d at 725. Indeed, the PLRA requires proper exhaustion. Woodford v. Ngo,
548 U.S. 81, 93 (2006). A prisoner therefore “must have utilized all available remedies ‘in
accordance with the applicable procedural rules,’ so that prison officials have been given

9

an opportunity to address the claims administratively.” Moore, 517 F.3d at 725 (quoting
Woodford, 548 U.S. at 88).
a.

Failure of Officials to Answer Grievances

Hill’s argument that administrative remedies were unavailable because officials
allegedly did not answer his grievances lacks merit. The regulations provide that an inmate
“may consider the absence of a response to be a denial” when the time for a response to
a grievance expires. 28 C.F.R. § 542.18. Thus, if a BP-8 or BP-9 went unanswered, Hill
was required to consider the non-response a denial and proceed to the next level if he was
dissatisfied with the denial. See Thomas v. Deboo, Civil Action No. 5:12CV32, 2012 WL
5249250, at *4 (N.D.W. Va. Oct. 2, 2012) (finding that, even if warden did not answer
plaintiff’s BP-9, plaintiff needed to file a BP-10 and BP-11 as a non-response amounts to
a denial per § 542.18); see also Eldridge v. Berkebile, __ F. App’x __, 2014 WL 3906846,
at *2 (10th Cir. 2014) (finding untimely response to BP-9 did not relieve prisoner of
obligation to continue remedy process given that § 542.18 states a non-response is
construed as a denial); Terrell v. Benfer, 429 F. App’x 74, 77 (3d Cir. 2011) (finding, based
on § 542.18, that prisoner needed to proceed to formal grievance process even if he
reasonably believed lack of answer to BP-8 amounted to a denial). Indeed, in Moore, the
Fourth Circuit recognized that a prisoner must continue the grievance process even if
officials do not answer a BP-8 or BP-9:
[T]o be entitled to bring suit in federal court, a prisoner must have utilized all
available remedies in accordance with the applicable procedural rules, so
that prison officials have been given an opportunity to address the claims
administratively. Having done that, a prisoner has exhausted his available
remedies, even if prison employees do not respond.

10

517 F.3d at 725 (citations and quotation marks omitted) (emphasis added). Hill does not
cite any contrary Fourth Circuit authority. Thus, the alleged lack of response to BP-8 and
BP-9 forms did not render administrative remedies unavailable to Hill.
Even if the failure to answer a grievance could render remedies unavailable, no
reasonable factfinder could find that any non-responses prevented Hill from administratively
exhausting his claims. Hill testified as follows concerning how he proceeded in the
grievance process if officials did not answer a BP-8 or BP-9:
[Magistrate Judge Kaull]: All right . . . if the BP 8s and 9s . . . were not
responded to, is it your contention and your testimony that that excuses you
from having to file a timely BP 10 or 11?
[Hill]: My position –
[Magistrate Judge Kaull]: That’s a simple question.
[Hill]: It is really not a simple question, Your Honor, and I think we know that
it's not a simple question, is because my position is that when they don't
respond to the informal resolution, the process is waived. However –
however, I will take the next step of filing that BP 9. Why? Because it's easily
accessible, and that's the only reason I do it, because it's an easily
accessible form. The BP 9 I can get from someone else. I just can't get
someone else to process it, so I'll do the BP 9 as the next step.
[Magistrate Judge Kaull]: What about the 10 and 11?
[Hill]: It depends what the issue is. If the issue is retaliation, then I'm not
going to do the 10 and 11. For example, with the Lieutenant Trait situation,
I know in my mind – and I wrote a letter to Warden Driver, but I know in my
mind that I more than likely did not do the 10 and 11.
[Magistrate Judge Kaull]: What about the CFR book?
[Hill]: The CFR book, and I have it here in front of me, is very clear. They
specifically say that you are to assume it was denied at that level. It does not
say anything else other than that.
Hr’g Tr. vol. 2 199:23-201:1, Feb. 10, 2012 (emphasis added).
11

This testimony

demonstrates that Hill knew about the grievance process and could easily proceed to the
BP-9, BP-10, and BP-11 levels even if Hazelton officials did not answer a BP-8 or BP-9.
Indeed, the testimony of Tammy Titchenell (an Administrative Remedy Clerk at Hazelton
who worked with the grievance process during the relevant time period) reinforces that a
lack of response to a BP-8 form would not have prevented Hill from using the process
because she stated officials would accept a BP-9 that did not include a BP-8. See Hr’g Tr.
vol. 3 92:12-94:12, Feb. 15, 2012; see also Decl. of Tammy R. Titchenell, Feb. 17, 2012.
Hill’s testimony and evidence of the remedy process at Hazelton show that Hill did not
exhaust his claims if officials did not respond because he believed that the law did not
require that he continue the process, not because a non-response prevented him from
doing so. Thus, no reasonable factfinder could determine that any failure of officials to
answer a BP-8 or BP-9 rendered remedies unavailable to Hill.
Finally, and most critically, no reasonable juror could find that officials ever failed to
answer grievances as Hill claims because the conclusion is inescapable that Hill supported
this argument with fabricated documents. The documents at issue are six BP-9 forms that
Hill contends show officials processed his grievances only after he filed this lawsuit. Pl.’s
Ex. 7-12; Hr’g Tr. vol. 1 67:16-76:24, Jan. 20, 2012; Hr’g Tr. vol. 2 163:20-165:17.
Viewing these documents together, it is evident that Hill did not submit these BP-9
forms as he claims. A BP-9 form contains four pages. When a prisoner fills out a BP-9,
he writes only on the top page because the other three pages are carbon copies of the first
page. The top page of the BP-9 form states: “ORIGINAL: RETURN TO INMATE.” See
Pl.’s Ex. 1. Hill testified that he submitted these BP-9 forms and Case Manager Rapunzel

12

Stevens-Clements copied them for him. Hr’g Tr. vol. 2 163:20-22. Stevens-Clements
testified that she only copied “the front page of the [BP-9] since all others are carbon copies
of the original document.” Hr’g Tr. vol. 3 157:3-5. She explained that there was “no need
to separate [the BP-9]” and that one “wouldn’t separate it because the whole thing would
have to be turned in to the administrative remedy clerk.” Id. 157:5-8. Hill’s exhibits,
however, are various pages from a BP-9 form–not just the top page of the form that
Stevens-Clements copied and returned to inmates.4 In fact, Hill’s Exhibit 8 is a page from
the BP-9 that an inmate would never have a copy of after filing a BP-9 because this page
is placed in the warden’s administrative remedy file.
Hill has offered no evidence on which a reasonable juror could rely to reach a
different conclusion. At the hearing, Hill posited that these exhibits were different pages
of the BP-9 form because Stevens-Clements was likely separating the BP-9’s pages and
submitting them for routing before making copies of each BP-9 for Hill. Hr’g Tr. vol. 2
167:9-18. He gives another explanation in his reply, arguing that he “possibly . . . kept a
page from each grievance he sent out” as regional appeal offices only require a single copy
of prior grievances. Pl.’s Reply at 6. Not only are these arguments inconsistent, but
Stevens-Clements’ testimony shows that they are unsupported speculation. StevensClements testified that she only copied the top page of a BP-9 for an inmate upon its
submission and that she submitted all four pages of the BP-9 to the administrative remedy
clerk. Thus, if Hill actually submitted these BP-9 forms and officials did not answer them
for months, he should only have a copy of the top page of each BP-9. That is not,

4

It is unclear which page of the BP-9 form Hill’s Exhibit 10 is from because the bottom
of the page is cut off.
13

however, what he submitted to the Court. Therefore, the only reasonable conclusion to
draw is that Hill fabricated these documents to support his argument that officials ignored
his grievances. The fact that he introduced these documents for the first time at the
evidentiary hearing despite the fact that this case has been pending for years reinforces
that he did so. See Hr’g Tr. vol. 2 165:14-17.
Closer examination of these documents confirms that Hill fabricated them because
the Defendants have shown that Exhibits 9, 10, and 11 are inconsistent with uncontroverted
BOP records.
First, Hill testified that he wrote Exhibit 9 on October 1, 2006 because officials froze
his entire inmate account when only some of his funds should have been frozen to prevent
him from buying stamps to file grievances.5 Hr’g Tr. vol. 1 72:22-23. He stated that officials
rejected this BP-9 on February 26, 2007 per an entry for remedy number 443709 on the
BOP’s remedy retrieval list. H’rg Tr. vol. 1 72:17-21; see also Pl.’s Ex. 3. This entry does
reflect that officials received and rejected a BP-9 on February 26 concerning a freeze on
Hill’s account. On October 1, 2006, however, Hill’s entire account was not frozen. Hill
withdrew $20.00 from his account the day he claims he filed Exhibit 9. Defs.’ Ex. 13 at 1.
This transaction left his account with a balance of $235.46 with an encumbrance of $197.36
for the property damage.6 Id. His account did not drop below $200–near the level of the
encumbrance–until months later on January 7, 2007. Id. In fact, the entry that Hill

5

The parties agree that funds in Hill’s account were subject to a freeze for property
damage at a previous institution.
6

Hill supplied the statement of a trust fund technician that also states that $197.36 of his
account was impounded for property damage.
14

identified on the retrieval list corresponds with the time period in which his account balance
neared the point where he could not withdraw funds due to the encumbrance. Thus, not
only does the record establish that Hill testified falsely that officials froze his account to
prevent him from accessing administrative remedies, it demonstrates that Hill very likely
wrote a BP-9 that led to the entry in the prison’s records months after October 1, 2006
when he was actually in danger of not having funds exceeding the encumbrance.
Second, Hill testified that he wrote Exhibit 10 on October 5, 2006. Hr’g Tr. vol.1
73:16-17. He claims in this purported BP-9 that he could not access BP-8 forms because
Counselor Marrero was not making rounds in the Special Housing Unit (“SHU”). Hill lists
his unit as the SHU on this document. The BOP’s inmate locator records, however, state
that Hill was not in the SHU on October 5, 2006. Defs.’ Ex. 10 at 7. Further, Hill testified
that this BP-9 appears on the retrieval list as remedy number 449355-F1 or 449365-F1.
Hr’g Tr. vol. 1 73:7-15. The retrieval list states that these remedies were submitted on April
16, 2007 and that one closed on May 22, 2007 while the other was rejected on April 16,
2007. Pl.’s Ex. 3 at 3. Consistent with these submission dates, Hill was in the SHU on
April 16, 2007 when the remedies that Hill identified on the retrieval list were submitted.
See id. at 6. Thus, it is evident that Hill did not submit Exhibit 10 as he claims because Hill
lists the incorrect location of his housing when he purportedly submitted it and, moreover,
claims that Exhibit 10 is one of two remedies that were submitted when he was in the SHU.
Third, Hill testified that he wrote Exhibit 11 on October 11, 2006 concerning
Paragraph G of his complaint. Hr’g Tr. vol. 1 75:3-12. On Exhibit 11, Hill wrote: “Today I
got 2 BP9s back in the mail with a note saying ‘no BP8 rejected.’ I specifically wrote in the

15

BP9 I don’t have access to the BP8s because my counselor does not come to SHU.”
Paragraph G states: “Since I returned from court 3 BP9s have been returned to me, for not
doing BP8s. However I wrote BP8s on these issues, and they are never responded too
[sic].” Compl. at 6. Per the BOP’s inmate locator records, it cannot be true that Hill
submitted Exhibit 11 on October 11 upon his return to Hazelton from court. Hill was in
Hazelton consistently from September 12, 2006 (the day he arrived there) through at least
October 10, 2006. Defs.’ Ex. 8 at 7. He did not return from court on October 11 as Exhibit
11 purports. Hill actually returned from court much later as BOP records state that he left
Hazelton in mid-October 2006 and returned on November 28, 2006. Id. Hill has introduced
no evidence contradicting these records.

Thus, no conclusion can explain these

inconsistencies other than that Hill fabricated Exhibit 11.
Accordingly, viewing these documents together and separately, no reasonable juror
could find that Hill ever submitted Exhibits 7 through 12 as he claims, let alone that officials
did not respond to them, because they cannot be reconciled with uncontroverted BOP
records and evidence concerning how the grievance process works. Rather, a reasonable
juror could only conclude that Hill fabricated Exhibits 7 through 12.
The Defendants ask that the Court dismiss Hill’s complaint for fabricating these
documents. “A court may use its inherent power to dismiss a case or vacate a judgment
for fraud on the court.” Liva v. Cnty. of Lexington, 972 F.2d 340, 1992 WL 187299, at *1
(4th Cir. Aug. 6, 1992) (per curiam) (citation omitted). Exercising this power is appropriate
“if a party has willfully deceived the court and engaged in conduct utterly inconsistent with
the orderly administration of justice.” Id. (citation and quotation marks omitted). Dismissal,

16

however, is only appropriate “where the defaulting party's misconduct is correspondingly
egregious.” Id. (citation and quotation marks omitted). When, like here, a prisoner falsified
a document to prove he had administratively exhausted his claim in Campos v. Correction
Officer Smith, 418 F. Supp. 2d 277 (W.D.N.Y. 2006), the district court found the “knowing
presentation of a falsified document” justified dismissal of the case. Id. at 279.
Here, there are strong grounds for dismissing this case because the fabricated
documents are a cornerstone of Hill’s argument that the grievance procedure was not
available to him. The Court, however, declines to sanction Hill by dismissing his complaint
because this case is subject to dismissal regardless.
b.

Retaliation

Next, although Hill alleges that officials took retaliatory actions, the record
establishes that any such actions did not prevent him from filing grievances. Hill testified
about how he approaches the grievance process when he believes retaliation occurs as
follows: “If the issue is retaliation, then I'm not going to do the 10 and 11. For example, with
the Lieutenant Trait situation, I know in my mind . . . that I more than likely did not do the
10 and 11.” Hr’g Tr. vol. 2 200:16-21. This testimony demonstrates that Hill chose to not
file grievances even if he could access the forms when he believed that officials’ actions
constituted retaliation, not due to any acts of officials. More of Hill’s testimony reinforces
that did not occur here:
[Defendants’ Counsel]: You testified with respect to the first series of events
that this was retaliation. This didn't stop you from filing and proceeding
through with the remedy process; is that correct?
[Hill]: No, it didn't.

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[Defendants’ Counsel]: And you were able to proceed, and you continued to
file in the face of what you have characterized as threats and retaliation?
[Hill]: That's correct.
Id. 111:19-112:2. In fact, Hill stated at the hearing that he filed a BP-8 concerning his
allegation that Lieutenant Trait offering “extra trays” to the first inmate to stab him
constituted retaliation. Id. 159:17-18. Even assuming Trait made this statement, it cannot
be said that this act prevented Hill from exhausting his administrative remedies because
Hill used the grievance process concerning that very claim. Therefore, no reasonable
factfinder could find that any alleged retaliatory acts of officials prevented Hill from using
the grievance procedure because he admitted he could and did file grievances regardless
of the alleged retaliation and, further, testified he chose to not file grievances when he
believed retaliation was at issue.
Hill acknowledges the alleged retaliation did not deter him from filing grievances as
he urges that what matters is whether retaliation would deter “a person of ordinary
firmness” from filing grievances, not whether it actually deterred him from doing so. He
supports this contention with Hill v. Lappin, 630 F.3d 460 (6th Cir. 2010) and Amador v.
Andrews, 655 F.3d 89 (2d Cir. 2011). Setting aside the fact that Second and Sixth Circuit
decisions do not bind this Court, these cases are distinguishable.
In Hill, the Sixth Circuit considered whether Hill stated a First Amendment retaliation
claim. 630 F.3d at 471-72. This claim required proof that officials “took an adverse action
that is capable of deterring a person of ‘ordinary firmness from continuing to engage’” in the
protected conduct at issue, the right to file grievances. Id. at 472 (citation omitted). It was
irrelevant whether the action actually deterred Hill from filing grievances. Id. In contrast,
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Hill now raises retaliation to avoid dismissal for failure to exhaust administrative remedies.7
This analysis differs from that applicable to First Amendment retaliation claims. Thus, the
Sixth Circuit case does not control here.
Amador also does not mandate an objective assessment of Hill’s retaliation
argument. In that case, the Second Circuit explained that estoppel is a defense to failure
to exhaust administrative remedies when a prisoner can show officials “took affirmative
action to prevent him from availing himself of grievance procedures.” Amador, 655 F.3d
at 103 (citation and quotation marks omitted). The court then noted that prior Second
Circuit decisions “held that verbal and physical threats of retaliation” and other acts
constitute such action. Id. Amador provides that a prisoner can invoke estoppel based on
retaliation only if the retaliatory actions prevented the inmate from using the grievance
process. Id. This is not an objective analysis. Accordingly, Amador does not support the
proposition for which Hill offers it.
In sum, no reasonable factfinder could conclude that retaliation rendered the
grievance process unavailable to Hill because Hill’s own testimony establishes that the
alleged retaliatory acts did not prevent him from administratively exhausting his claims.
c.

Access to Grievance Forms

Finally, the record establishes that Hill had access to grievance forms such that
remedies were available to him. Hill has contended that he could not file grievances

7

Indeed, the Fourth Circuit remanded this case solely for the Court to make that
determination. Even so, the Fourth Circuit has not issued a published decision
concerning whether prisoners have a First Amendment right to file grievances.
Plummer v. Riley, Civil Action No. 2:12-CV-3412-TLW-BHH, 2014 WL 1277903, at *11
(D.S.C. Feb. 26, 2014).
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because Counselor Marrero did not give him BP-8 and BP-9 forms. The testimony at the
hearing, however, established just the opposite. Hill testified that Marrero gave him BP-8
forms. Hr’g Tr. vol. 2 117:12-18. Indeed, Marrero testified that he made rounds and never
refused to give Hill a form. Id. 244:14-18, 245:12-14. Other evidence showed that Hill
could access grievance forms while in the SHU. Pamela Garcia testified that she was a
SHU counselor at Hazelton when Hill was incarcerated there and that she made daily
rounds in the SHU. She gave inmates BP-8 and BP-9 forms and took such forms from
inmates during those rounds. Hr’g Tr. vol. 3 163:22-164:12, 165:1-166:18. Further, other
counselors testified that they provided inmates who were not assigned to their units with
BP-8 and BP-9 forms, which would include Hill.

Id. 129:1-5, 157:17-158:13. Hill’s

testimony shows that these counselors were credible as he testified he could easily obtain
BP-9 forms. Hr’g Tr. vol. 2 199:23-201:1. Therefore, no reasonable factfinder could
conclude that Hill lacked access to grievance forms in light of this evidence–particularly
Hill’s own testimony.
In conclusion, the Court finds that the grievance procedure was available to Hill
within the meaning of § 1997e(a) so he could administratively exhaust his claims because
no reasonable factfinder could find otherwise. Specifically, no reasonable juror could
conclude that Hill filed grievances that officials did not answer, that retaliatory acts of
officials prevented Hill from using the grievance process, that Hill did not have access to
grievance forms to use the process, or that anything else prevented Hill from using the
grievance procedure. Accordingly, the Court OVERRULES Hill’s objections. Because Hill
has not disputed that he failed to exhaust his claims, see Hill, 380 F. App’x at 270,

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dismissal of his complaint is appropriate.
IV. Conclusion
Upon careful review of the record, the Court OVERRULES Hill’s Amended
Objections.

It is the opinion of this Court that the magistrate judge’s Report and

Recommendation should be, and is, hereby ORDERED ADOPTED for the reasons more
fully stated therein. Accordingly, the Court GRANTS the Defendants’ Motion to Dismiss
or for Summary Judgment and hereby DISMISSES this case WITHOUT PREJUDICE.
The Court DENIES AS MOOT Hill’s Motion for an Extension of Time.
The Court ORDERS that the Clerk STRIKE Hill’s surreply from the record.
The Court DIRECTS the Clerk to enter judgment in favor of the Defendants.
The Court further DIRECTS the Clerk to close this case and strike it from this Court’s
active docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and/or
pro se parties.
DATED: August 22, 2014

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