Opinion
Civil Action No. 3:06CV114 (BAILEY).
July 17, 2008
ORDER ADOPTING REPORT AND RECOMMENDATION
I. Introduction
On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge John S. Kaull (Doc. 89) and the plaintiff's corresponding objections (Doc. 91). Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the Magistrate Judge's findings to which objection is made. However, failure to file objections permits the district court to exercise review under the standards believed to be appropriate, and under these circumstances, the parties' right to de novo review is waived. See Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979). Accordingly, this Court will conduct a de novo review only as to the portions of the report and recommendation to which the plaintiff objected. The remaining portions of the report and recommendation will be reviewed for clear error. As a result, it is the opinion of the Court that the Magistrate Judge's Report and Recommendation (Doc. 89) should be, and is, ORDERED ADOPTED.
II. Factual and Procedural Background
On October 27, 2006, the plaintiff filed his complaint against the above-named defendants alleging multiple violations of his civil rights. As indicated in the Complaint, plaintiff contends that the defendants violated his First Amendment rights by retaliating against him for filing of grievances, administrative remedies, and complaints. In particular, the plaintiff asserts that the defendants unlawfully censored his incoming general correspondence, outgoing legal mail, and special mail. In addition, the plaintiff alleges that the defendants removed exhibits from his outgoing legal mail. As a result, plaintiff seeks monetary damages, criminal charges, an injunction, and declaratory relief. By standing order of the Court, this case was referred to United States Magistrate Judge John S. Kaull for proposed findings of fact and a recommended disposition.
On October 18, 2007, the defendants filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. 79). In support, the defendants argue that the plaintiff failed to fully exhaust his administrative remedies prior to filing suit, failed to establish a violation of his right to access the courts, and failed to state a claim for retaliation. In addition, the defendants argue that the plaintiff cannot maintain a Bivens action against them in their official capacities and that they are entitled to qualified immunity. As a final matter, the defendants contend that the plaintiff cannot establish supervisor liability against defendants Gutierrez, McClintock, and Callahan, and further that, the plaintiff cannot establish liability under any theory with respect to defendants Trybus and Layhue. In response, the plaintiff argues that available administrative remedies were inadequate due to delay and abuse by Bureau of Prisons (BOP) employees. In addition, the plaintiff asserts that the defendants are not entitled to qualified immunity and that his claims should not be dismissed for lack of viability.
Upon consideration, the Magistrate Judge found that the plaintiff had failed to fully exhaust his administrative remedies, and therefore, recommended that the Complaint be dismissed without prejudice. In response, the plaintiff argues that his failure to exhaust available administrative remedies should be excused due to their inadequate nature. Additionally, the plaintiff contends that the defendants are not entitled to qualified immunity and otherwise reargues his claims.
III. Legal Standards
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." FED. R. CIV. P. 56(c); see 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, 250 (1986). Thus, the Court must conduct "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, 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." Anderson, 477 U.S.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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. FED. R. CIV. P. 56(c); 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).
Under the Prison Litigation Reform Act (PLRA), a prisoner must first exhaust available administrative remedies prior to bringing an action regarding conditions of confinement. 42 U.S.C. §§ 1997(e)-(a); Booth v. Churner, 532 U.S. 731, 741 (2001). This exhaustion requirement extends to federal actions brought under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Porter v. Nussle, 534 U.S. 516, 524 (2002). Moreover, because exhaustion is a prerequisite to filing suit, all available administrative remedies must be exhausted prior to filing a complaint in federal court. Id. at 524.
The administrative remedy process governing inmate challenges to conditions of confinement is outlined in 28 C.F.R. §§ 542.10, et seq. As indicated in § 542.13(a), an inmate must informally present his complaint to staff prior to filing a request for administrative remedy. Id. If the inmate is unsatisfied with the results of the informal process, he may then submit a formal written complaint to the Warden, which can be appealed to the Regional Director. Id. To the extent that the inmate is unsatisfied with the response of the Regional Director, the decision can then be appealed to the Office of General Counsel. Id. Further, regarding response time, 28 C.F.R. § 542.18 provides that "[o]nce filed, response shall be made by the Warden or CCM within 20 calender days; by the Regional Director within 30 calender days; and by the General Counsel within 40 calender days." 28 C.F.R. § 542.18. However, "[i]f the time period for response to a Request or Appeal is insufficient to make an appropriate decision, the time for response may be extended once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level." Id.
IV. Discussion
Turning to the case at bar, the Court finds that the plaintiff failed to fully exhaust his available administrative remedies prior to filing suit. As noted by the Magistrate Judge, plaintiff's August 31, 2006, administrative remedy requests, charging a denial of access to the administrative remedy process and seeking the return of certain legal documents, were not exhausted prior to initiating suit. Similarly, administrative remedy requests filed by the plaintiff on September 14, 2006, and October 17, 2006, regarding treatment of mail, also were not completed prior to the filing of the instant action. As such, the Court finds that while the plaintiff did initiate the administrative remedy process, he did not complete those remedies prior to filing suit as required by the PLRA.
Moreover, the Court rejects plaintiff's contention that his available administrative remedies were inadequate because of abuse and delay by BOP employees. Initially, a review of the procedural history surrounding the plaintiff's administrative complaints reveals that the plaintiff's treatment complied with BOP regulations and did not amount to the abuses alleged by the plaintiff. As noted above, 28 C.F.R. § 542.18 provides that the time for considering an appeal may be extended at both the Regional and Central Office level if the time period for response is insufficient to make an appropriate decision. Furthermore, plaintiff concedes that of those administrative remedies for which an extension was granted, all were eventually responded to and completed.
V. Conclusion
For the foregoing reasons, and those more fully contained in the Report and Recommendation of the Magistrate Judge, the Court ORDERS as follows:
1. That Magistrate Judge's Report and Recommendation (Doc. 89) is ADOPTED;
2. That the defendants' Motion to Dismiss, or Alternatively, Motion for Summary Judgment (Doc. 79) is GRANTED; and
3. That this case be DISMISSED WITHOUT PREJUDICE and RETIRED from the active docket of the Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record.