Opinion
C/A 9:21-cv-03103-MGL-MHC
03-07-2023
Gong Yong, a/k/a Yong Bing Gong, Plaintiff, v. Warden FCI Edgefield; Commissioner of the United States Parole Commission; Director of the Bureau of Prisons; Case Manager Lyons; Case Manager Danforth; Counselor Flournoy; Unit Manager Gilyard; CMC Hauck, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff Gong Yong (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action alleging violations of his constitutional rights while incarcerated at the Federal Correctional Institution (“FCI”) Edgefield. ECF Nos. 1, 36. Before the Court is Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment (“Motion”). ECF No. 50. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition to the Motion. See ECF Nos. 51, 56. The matter is ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because Defendants' Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting Defendants' Motion.
I. BACKGROUND
Plaintiff is a federal inmate incarcerated at the FCI Edgefield, located in South Carolina. He was sentenced in the Northern District of New York on January 25, 1985, to life imprisonment, for violations of 18 U.S.C. §§ 371, 875(a), 1201 (a)(1), and 1202, for Kidnapping, Extortion, Conspiracy, and Receipt of Ransom. See ECF No. 50-1; see also United States v. Yong Bing-Gong, 594 F.Supp. 248, 250 (N.D.N.Y. 1984), aff'd sub nom. United States v. Bing-Nam, 788 F.2d 4 (2d Cir. 1986). He currently has a projected release date of September 28, 2045. ECF No. 50 at 2.
In his Amended Complaint, Plaintiff names eight federal Defendants: the Commissioner of the United States Parole Commission; Director of the Bureau of Prisons (“BOP”); Warden of FCI Edgefield; Case Management Coordinator, J. Hauck; Unit Manager, J. Gilyard; Case Manager, F. Danforth; Case Manager, G. Lyons; and Counselor S. Flournoy (collectively, “Defendants”). See ECF No. 36. Plaintiff alleges Defendants violated his due process rights. Because Defendants are all federal employees, Plaintiff's constitutional claims are construed as brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
Plaintiff asserts that, at the time of sentencing, he was eligible for parole in ten years; he was denied parole on April 23, 2014; and the Parole Commission was required to have mandatory interim hearings for Plaintiff every 18 to 24 months (which has not happened). ECF No. 36 at 13. Because of the alleged missteps with his parole hearings, Plaintiff maintains that Defendants have violated his due process rights in various ways, alleging: (1) his right to due process and his right to be heard was denied; (2) Defendants continuously failed to produce current reports and facts relating to his rehabilitation; (3) Defendants failed to set a presumptive parole date; (4) the Parole Commission and Defendants Danforth and Lyons allegedly told Plaintiff he was responsible for scheduling meetings and used this as a reason for denying parole; (5) Defendants have used the same facts since 2014 as evidence of Plaintiff's disciplinary history to deny parole; (6) Defendants have failed to look at Plaintiff's rehabilitation; (7) Plaintiff has not been provided with the necessary reports, files, or goals. See ECF No. 36 at 1-3. Plaintiff requests monetary damages. ECF No. 36-1.
II. DISCUSSION
Defendants argue they are entitled to dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction; that this Court lacks personal jurisdiction over certain Defendants; that dismissal is appropriate under Rule 12(b)(6) for failure to state a claim; and, alternatively, that summary judgment is appropriate pursuant to Rule 56. For the reasons that follow, Defendants are entitled to dismissal of the action.
A. Jurisdictional Questions
Initially, the Court must address Defendants' jurisdictional arguments. First, Defendants argue that this Court lacks subject matter jurisdiction over any claims brought against Defendants in their official capacities. See ECF No. 50 at 4, 14-15. Second, Defendants argue that this Court lacks personal jurisdiction over two Defendants: the Commissioner of the United States Parole Commission (“Parole Commissioner”) and the Director of the BOP. See ECF No. 50 at 4-6. The Court agrees.
1. Official capacity claims
Defendants maintain that, to the extent Plaintiff's Bivens claims are brought against them in their official capacities, sovereign immunity deprives this Court of subject matter jurisdiction to entertain such claims. Defendants are correct.
Sovereign immunity prevents individuals from suing the United States Federal Government or its agencies without their consent. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Consent to suit-i.e., waiver of sovereign immunity-is a “prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983).
Although Bivens actions allow for recovery of money damages against federal officials who violate the United States Constitution in their individual capacities, Bivens “did not abolish the doctrine of sovereign immunity of the United States.” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). That is, any “remedy under Bivens is against federal officials individually, not the federal government.” Id. (emphasis added); see also Starling v. United States, 664 F.Supp.2d 558, 563 (D.S.C. 2009) (“The purpose of Bivens in allowing suit against federal officers in their individual capacity is to deter the individual officer from committing constitutional violations, not to deter the agency.”). Thus, federal agencies or federal officials acting in their official capacities are protected from a Bivens action under the traditional principal of sovereign immunity. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (noting a Bivens action will “not lie against either agencies or officials in their official capacity” (emphasis omitted)).
Here, Plaintiff has brought his Bivens action against Defendants “Individually and Officially.” See ECF No. 36 at 1. Thus, any claims brought pursuant to Bivens against Defendants in their official capacities should be dismissed, as this Court cannot entertain them. See Meyer, 510 U.S. at 475 (“Sovereign immunity is jurisdictional in nature.”); Starling, 664 F.Supp.2d at 563 (dismissing claims against federal defendants because Bivens did not extend to a federal prisoner's claims against federal defendants in their official capacities); Hunter v. United States Gov't, No. CV 0:20-2695-RMG-PJG, 2021 WL 1845081, at *2 (D.S.C. Feb. 23, 2021) (“[T]o the extent [Plaintiff] seeks monetary damages [pursuant to Bivens] against the individual defendants in their official capacities, they are protected by sovereign immunity.”), report and recommendation adopted, No. 0:20-CV-2695-RMG, 2021 WL 1560444 (D.S.C. Apr. 21, 2021).
Plaintiff does not name the U.S. Parole Commission as a defendant, but he does appear to allege the government entity had some culpability in the alleged due process violations. See ECF No. 36 at 1-3. To the extent Plaintiff has attempted to hold the U.S. Parole Commission liable under Bivens, sovereign immunity bars such claims. See Doe, 306 F.3d at 184.
2. Personal jurisdiction
Defendants maintain that this Court lacks personal jurisdiction over Defendant Parole Commissioner and Defendant Director of the BOP. The Court agrees.
Plaintiff has the burden of proof when a defendant challenges personal jurisdiction. See In re Celotex Corp., 124 F.3d 619, 628 (4th Cir. 1997). When a court addresses the issue on the pleadings without a hearing, “the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional challenge.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). In deciding such a motion, “the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id.
Two conditions must be satisfied to validly assert personal jurisdiction over a nonresident defendant. Christian Sci. Bd. of Dirs. of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and second, the exercise of personal jurisdiction must not overstep the bounds of the Due Process Clause of the Fourteenth Amendment. Id.
South Carolina's long-arm statute-S.C. Code Ann. § 36-2-803(A)-has been found to extend to the outer limits allowed by the Due Process Clause. See Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4th Cir. 2002). Thus, the two jurisdictional requirements collapse into a single constitutional inquiry as to whether Defendants have “certain minimum contacts” with South Carolina, such that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” McNeil v. Sherman, C/A No. 2:09-CV-00979-PMD, 2009 WL 3255240, at *2 (D.S.C. Oct. 7, 2009) (quoting Int'lShoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Minimum contacts exist if “the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being [hauled] into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The analysis depends on whether general or specific jurisdiction is alleged. See ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623-24 (4th Cir. 1997).
General jurisdiction applies when a defendant's activities in the state are “continuous and systematic,” even if they do not relate to the specific conduct giving rise to the complaint. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (noting general jurisdiction applies when a defendant's “affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State” (internal quotation marks omitted)).
However, when a complaint arises directly out of a defendant's contacts with the forum, a court may seek to exercise specific jurisdiction on proof that the defendant purposefully directed activities toward the state and the litigation results from alleged injuries that arise out of, or relate to, those activities. See Helicopteros, 466 U.S. at 414; see also Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 137 S.Ct. 1773, 1780 (2017) (noting for a court “to exercise specific jurisdiction, the suit must arise out of or relate to the defendant's contacts with the forum” (cleaned up)).
When evaluating the propriety of exercising specific jurisdiction, the United States Court of Appeals for the Fourth Circuit has applied a three-part test: (1) whether and to what extent the defendant “purposely availed” himself of the privileges of conducting activities in the forum state, and thus invoked the benefits and protections of its laws; (2) whether the plaintiff's claims arise out of those forum-related activities; and (3) whether the exercise of jurisdiction is constitutionally “reasonable.” See Nolan, 259 F.3d at 16; see also Helicopteros, 466 U.S. at 414-16.
Here, Defendants argue that Defendant Parole Commissioner does not reside in South Carolina and that the Parole Commission's sole office is located at 90 K St NE, Washington, DC. ECF No. 50 at 4. Defendants further argue that the same is true as to Defendant Director of the BOP, whose offices are located at 320 1st St. NW, Washington, DC. Defendants maintain that any decision made by Defendant Parole Commissioner or Defendant Director of the BOP with regard to Plaintiff's parole were made from the offices in Washington, DC. ECF No. 50 at 4-6.
Plaintiff argues that, in “most states a requirement that the defendant transacts ANY business or performs ANY character of work or service in the state, is usually enough to satisfy personal jurisdiction.” ECF No. 56 at 2. Plaintiff contends “this is the case here,” but he does not elaborate on what Defendant Parole Commissioner or Defendant Director of the BOP have done to purposefully avail themselves to South Carolina.
To the extent Plaintiff may be attempting to allege this Court has personal jurisdiction over either Defendant merely because these Defendants made decisions that affected Plaintiff's parole in some way, such allegations are insufficient to confer personal jurisdiction. See Starling v. United States, 664 F.Supp.2d 558, 567 (D.S.C. 2009) (“[C]ourts have held that mere allegations relating to a BOP official's decisions regarding an inmate's administrative appeal outside the forum state, and other supervisory activities over a facility inside the forum state, are insufficient to establish personal jurisdiction.” (collecting cases)). Consequently, Plaintiff has failed to satisfy the test for specific jurisdiction. See id. at 568 (“The fact that Defendant, a resident of Washington, D.C., made a decision in his official capacity concerning an inmate located in South Carolina, without more, does not prove that Defendant purposely availed himself of the privileges of South Carolina. The only alleged contact with the forum state is this decision, which is attenuated at best and ultimately insufficient to confer specific jurisdiction.”). Further, Plaintiff has failed to make a prima facie showing that these Defendants had contacts with South Carolina of a “continuous and systematic” nature as required for general jurisdiction.
Accordingly, Plaintiff's claims against Defendant Parole Commissioner and Defendant Director of the BOP should be dismissed, without prejudice, for lack of personal jurisdiction. See ITL Int'l, Inc. v. Cafe Soluble, S.A., 464 Fed.Appx. 241, 244 (5th Cir. 2012) (noting that a dismissal for lack of personal jurisdiction does not operate as an adjudication on the merits and thus should be without prejudice); Arocho v. Lappin, 461 Fed. App'x 714, 719 (10th Cir. 2012) (acknowledging the established rule “that dismissals for lack of personal jurisdiction are without prejudice”).
B. Bivens claims
Plaintiff's remaining Bivens claims are those against Defendants Warden FCI Edgefield, Case Manager Lyons, Case Manager Danforth, Counselor Flournoy, Unit Manager Gilyard, and CMC Hauck, only in their individual capacities. Defendants argue they are entitled to relief because, inter alia, Plaintiff did not exhaust his administrative remedies before filing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The undersigned agrees Plaintiff did not exhaust his administrative remedies, which is dispositive of the action.
Defendants also argue that: (a) the Supreme Court has not established a Bivens implied damages remedy for the specific conduct alleged in the Amended Complaint; (b) Plaintiff has failed to allege Defendants' specific, personal involvement in the alleged violations; (c) Defendants are entitled to qualified immunity; (d) Defendant Parole Commissioner is entitled to absolute immunity; (e) any potential challenge to the fact or duration of his confinement must be brought via a habeas petition; and (f) respondeat superior is not applicable in a Bivens action. ECF No. 50 at 15-30. In light of the dispositive nature of Plaintiff's failure to exhaust his administrative remedies, the undersigned need not reach these alternative arguments.
1. Legal Standard
Defendants maintain dismissal is appropriate under Rule 12(b)(6) for failure to state a claim, or, alternatively, that summary judgment is appropriate pursuant to Rule 56. Defendants rely upon several documents to support their argument that Plaintiff failed to exhaust his administrative remedies, including various grievance documents and an affidavit. Because Defendants also rely upon an affidavit-which details Plaintiff's administrative filing history and explains the various grievance documents-the undersigned has analyzed Defendants' Motion under the Rule 56 standard for the remaining Bivens claims. See Bolden v. Blocker, No. CV 9:18-3473-DCC-BM, 2019 WL 7944415, at *2 (D.S.C. Oct. 15, 2019) (noting, “while some or all of Defendants' exhibits may be considered under a motion to dismiss, Defendants also submitted an affidavit, and it is unclear whether consideration of this affidavit[-]which details the grievance history set forth in the grievance documents[-]would be appropriate when considering the exhaustion issue strictly under Rule 12”), objections overruled, No. 9:18-CV-03473-DCC, 2020 WL 415899 (D.S.C. Jan. 27, 2020), aff'd, 824 Fed.Appx. 181 (4th Cir. 2020); Garcia-Calderon v. FCI Edgefield Warden, No. CV 9:18-2947-TMC-BM, 2019 WL 7759051, at *2 (D.S.C. Oct. 11, 2019) (noting same), report and recommendation adopted, No. 9:18-CV-02947-TMC, 2020 WL 437018 (D.S.C. Jan. 28, 2020), aff'd sub nom. Garcia-Calderon v. F.C.I. Edgefield Warden, 823 Fed.Appx. 188 (4th Cir. 2020).
To the extent Defendants also rely upon Rule 12(b)(1), see ECF No. 50 at 11-12, failure to exhaust under the PLRA does not implicate the Court's subject matter jurisdiction. See Woodford v. Ngo, 548 U.S. 81, 101 (2006) (“[T]he PLRA exhaustion requirement is not jurisdictional[.]”); Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 678 (4th Cir. 2005) (“We therefore conclude that the PLRA's exhaustion-of-remedies requirement does not operate as a bar to the district court's exercise of its subject-matter jurisdiction.”), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); Washington v. Fed. Bureau of Prisons, No. 5:16-CV-03913-BHH-KDW, 2019 WL 2125246, at *5 (D.S.C. Jan. 3, 2019) (“As a result, it [] appears that a claim of lack of administrative exhaustion is not properly raised under Rule 12(b)(1), which permits reference to outside documentation.”), report and recommendation adopted, No. 5:16-CV-3913-BHH, 2019 WL 1349516 (D.S.C. Mar. 26, 2019).
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
2. Administrative exhaustion
Defendants assert they are entitled to dismissal because Plaintiff did not exhaust his administrative remedies before filing this action as required by the PLRA. Upon review of the BOP's Administrative Remedy Process and Plaintiff's administrative filings, the Court agrees.
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “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). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).
i. BOP's Administrative Remedy Process
The BOP has a three-tier formal administrative remedy process through which an inmate may seek formal review of any issue which relates to any aspect of his confinement. See 28 C.F.R. §§ 542.10-542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement at the institution level. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request (on a BP-9 form) with the Warden, which must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the Warden's response, he may appeal to the Regional Director (on a BP-10 form); appeals to the Regional Director must be submitted within twenty days of the date the Warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel (on a BP-11 form); appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id. An appeal to the General Counsel is the final level of agency review. Id.
If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. 28 C.F.R. § 542.18.
ii. Plaintiff's administrative appeals
Defendants provided the affidavit of J. Carter (“Carter”), the Legal Assistant for the South Carolina Consolidated Legal Center (“CLC”), located at FCI Edgefield. ECF No. 50-5 at 1-3. As a Legal Assistant, Carter has access to SENTRY, the BOP's computerized record system which logs all formal administrative remedy requests of inmates within the BOP. ECF No. 50-5 at 1, ¶ 2. Copies of the SENTRY records were attached to Carter's affidavit. ECF No. 50-5 at 4-16.
Defendants explained that when administrative remedy requests are rejected, the materials are returned to the inmate and the BOP does not keep copies of the rejected remedy request. ECF No. 50 at 11 n.5; ECF No. 50-5 at 2, ¶ 6.
Here, a review of the evidence shows that Plaintiff has failed to exhaust his administrative remedies related to his various parole hearings. On January 29, 2018, Plaintiff submitted Administrative Remedy No. 929061-F1 at the institution level, which is his only administrative remedy concerning parole. ECF No. 50-5 at 2-3, ¶ 7. This remedy specifically concerned Plaintiff's April 2014 parole hearing. Id. This administrative remedy was rejected as untimely. ECF No. 50-5 at 2-3, ¶¶ 7-8. According to Carter's affidavit and the SENTRY records, Plaintiff never appealed this administrative remedy to the regional or central office level, and never filed another remedy concerning parole. Id.; ECF No. 50-5 at 9-16. Instead, Plaintiff filed his Complaint in this action on September 24, 2021. ECF No. 1.
Carter attests that all formal administrative remedy requests are given a unique identifying number. ECF No. 50-5 at 2, ¶ 5. An extension is added to the number which denotes the level at which the claim is filed. Id. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. Id. The extension “-F1' indicates the filing was at the institution or field level. Id. The extension “-R1' indicates the filing was at the regional level. Id. The extension “-A1' indicates the filing was at the national level. Id. If an appeal is rejected and refiled at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same. Id. For example, the extension “-R2' indicates the appeal was rejected at the regional level once and the inmate has re-filed, presumably after correction of the noted deficiencies. Id.
As a result, Defendants have shown that Plaintiff failed to exhaust the administrative remedies available to him regarding staff members' actions concerning his numerous parole hearings prior to initiating this action. See Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
In his Response, Plaintiff does not meaningfully contest the filing timeline outlined by Carter's affidavit and reflected by the SENTRY records. See ECF No. 56. Nor does Plaintiff make any argument or allegations related to any denial of access to the administrative remedy process during any time period relevant to this case. See ECF Nos. 36, 56. Rather, Plaintiff challenges J. Carter's statement that his “only' administrative remedy concerning his parole was Administrative Remedy No. 929061-F1. See ECF No. 56 at 2-3. Indeed, Plaintiff points to Administrative Remedy No. 815366-F1, arguing that this shows he has exhausted all available remedies as to his parole. See ECF No. 56 at 2-3. In that Administrative Remedy, he maintains that he requested a recalculation of his sentence “as it relates to parole” and attaches the initial response from the institution/field level to show the subject matter of the remedy request. See ECF No. 56 at 2-3; see also ECF No. 56-1.
A review of the SENTRY records shows that Administrative Remedy No. 815366-F1 was initiated by Plaintiff on March 26, 2015. ECF No. 50-5 at 12. The record reflects-and Defendants concede-that this administrative remedy was fully exhausted. See ECF No. 50-5 at 12-14; ECF No. 50 at 12 (noting Plaintiff has exhausted only one administrative remedy since his incarceration with the BOP, and that administrative remedy was initiated by Plaintiff on March 26, 2015). Thus, Plaintiff has fully exhausted a claim that “relates to parole”-albeit tangentially-in contrast to J. Carter's affidavit.
Nevertheless, Plaintiff has still failed to show that he has exhausted his administrative remedies as it relates to the allegations against Defendants in his Amended Complaint. Indeed, Plaintiff alleges that Defendants violated his due process rights as to his various parole hearings. See ECF No. 36. However, as Plaintiff acknowledges, Administrative Remedy No. 815366-F1 concerned a recalculation of his sentence, not any allegations that Defendants were violating his due process rights as it related to his parole hearings. See ECF No. 56-1. In other words, Plaintiff's request that his sentence be recalculated did not communicate the due process claims he brings here against Defendants. See Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (holding, in order to exhaust under the PLRA, “inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures” and analogizing this requirement to notice pleading). The complained of conduct in the Amended Complaint was not brought to the attention of prison officials via Administrative Remedy No. 815366-F1, and therefore Plaintiff has not exhausted his claims. See, e.g., Paschal-Barros v. Tugie, No. 20-3102-PR, 2022 WL 1487211, at *2 (2d Cir. May 11, 2022) (“Because Paschal-Barros failed to raise the relevant due process issues in his administrative appeal, he failed to give appropriate notice of his claim to prison officials and therefore did not exhaust his available administrative remedies as required by the PLRA.”).
Notably, Plaintiff has already litigated the recalculation of his sentence and denial of his parole in 2014. See Yong Bing Gong v. United States, No. 1:14-CV-2970-WSD-AJB, 2016 WL 8710419, at *2 (N.D.Ga. June 3, 2016) (finding Petitioner's total effective sentence did not need to be recalculated and Petitioner's denial of parole in 2014 was not improper), report and recommendation adopted sub nom. Gong v. United States, No. 1:14-CV-2970-WSD, 2017 WL 490424 (N.D.Ga. Feb. 7, 2017).
Additionally, the allegations of due process violations related to his parole hearings occurred after Administrative Remedy No. 815366-F1 was filed. Indeed, Plaintiff argues in his Amended Complaint that he should have been automatically heard for parole 18-24 months after his 2014 parole hearing, but that his 2016 hearing never occurred. See ECF No. 36 at 1-2. He alleges various violations have continued to happen since that time, all the way to his most recent hearing in 2022. See ECF No. 36 at 2. That is, the complained of conduct that allegedly violated Plaintiff's due process rights all took place after Administrative Remedy No. 815366-F1 was filed on March 26, 2015. Thus, even if Administrative Remedy No. 815366-F1 did concern the alleged due process violations, Plaintiff has still failed to exhaust his claims against Defendants concerning any allegations that his due process rights were violated since March 26, 2015.
Accordingly, the undersigned recommends granting Defendants' Motion. See Garcia-Calderon, No. CV 9:18-2947-TMC-BM, 2019 WL 7759051, at *2 (recommending dismissal without prejudice for failure to exhaust); Bolden, No. CV 9:18-3473-DCC-BM, 2019 WL 7944415, at *2 (same); see also Arthur v. Hawks, No. 8:20-CV-01063-HMH-JDA, 2021 WL 1147046, at *4 (D.S.C. Mar. 2, 2021) (recommending summary judgment for failure to exhaust in a Bivens action and declining to address alternative arguments raised by the defendants), report and recommendation adopted, No. CV 8:20-1063-HMH-JDA, 2021 WL 1140244 (D.S.C. Mar. 24, 2021); Grier v. Mitchell, No. CA 9:11-0042-TMC, 2011 WL 5517242, at *2 (D.S.C. Nov. 1, 2011) (noting exhaustion is a precondition to filing suit in federal court and dismissing the plaintiff's Bivens action for failure to exhaust).
III. CONCLUSION
It is RECOMMENDED that Defendant's Motion, ECF No. 50, be GRANTED, and that this case be DISMISSED without prejudice because (1) this Court lacks subject matter jurisdiction over any claims brought against Defendants in their official capacities, (2) this Court lacks personal jurisdiction over Defendant Parole Commissioner and Defendant Director of the BOP, and (3) Plaintiff failed to exhaust his administrative remedies as to the individual capacity claims against the remaining Defendants.
Charleston, South Carolina
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).