Summary
In Marlin, the Eighth Circuit found that the plaintiff, a federal inmate, had failed to rebut the BOP's attorney's declaration that the inmate had not complied with the foregoing BOP administrative process.
Summary of this case from Fazel v. SteppatOpinion
No. 06-1809.
Submitted: February 20, 2007.
Filed: March 6, 2007.
Appeal from the United States District Court for the Eastern District of Arkansas.
Michael Duane Marlin, Beaumont, TX, pro se.
Gwendolyn Dewees Hodge, U.S. Attorney's Office, Little Rock, AR, for Appellees.
Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
[UNPUBLISHED]
Federal inmate Michael Duane Marlin appeals the district court's order dismissing his lawsuit brought under the Americans with Disabilities Act (ADA), and under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.
We agree with the district court that the Bivens claims were not administratively exhausted. The Bureau of Prisons (BOP) has a multi-step process for inmates to use in bringing complaints about any aspect of their confinement: an informal resolution, an administrative remedy (with the warden), an appeal to the BOP's regional director, and finally an appeal to the BOP's central office. There are deadlines for each step. See 28 C.F.R. § 542.10 to .18. Marlin did not rebut the BOP attorney's declaration that an inmate must proceed through all the steps and be denied at each before he is deemed to have exhausted. Because he filed the instant complaint on June 27, 2005 — just thirteen days after he was assigned to the job giving rise to the instant lawsuit — it would have been impossible for him to have completed all four steps of the administrative-remedy process before filing the instant complaint. Dismissal of the Bivens claims was thus mandatory. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). We also find no basis for overturning the district court's dismissal on the merits of the ADA claims.
Accordingly, we affirm. See 8th Cir. R. 47B. We also deny Marlin's pending motions.