Hill v. Haynes , 380 F. App'x 268 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7244
DEMETRIUS HILL,
Plaintiff - Appellant,
v.
WARDEN HAYNES; A. W. GILL; WARDEN DRIVER; CAPTAIN ODDO;
LIEUTENANT CLEMENS; LIEUTENANT GIFFORD; LIEUTENANT TRAIT;
CORRECTIONAL OFFICER SPOTLAN; FOSTER; CORRECTIONAL OFFICER
MORGAN; COUNSELOR MORRERO; ETRIS,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:06-cv-00136-JPB-JSK)
Submitted: April 20, 2010 Decided: June 2, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and GREGORY, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
Demetrius Hill, Appellant Pro Se. Helen Campbell Altmeyer,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius Hill, a former inmate at USP-Hazelton, filed
the subject action under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against various
prison employees at that institution, alleging they violated his
First, Fifth, and Eighth Amendment rights by placing him in the
Special Housing Unit (“SHU”) without an incident report upon his
arrival at USP-Hazelton in September 2006, and that the
conditions there were so unsanitary and deplorable that they
threatened his health and well-being. The Defendants filed a
motion to dismiss or, in the alternative, for summary judgment
based on Hill’s failure to exhaust administrative remedies. The
magistrate judge, concluding there was a genuine issue of
material fact as to whether Defendants played a part in Hill’s
failure to exhaust, recommended denying Defendants’ motion for
summary judgment. The district court, however, declined the
magistrate judge’s recommendation, finding no genuine issues of
material fact as to exhaustion. For the reasons that follow, we
vacate and remand for further proceedings.
I.
The Prison Litigation Reform Act (“PLRA”) requires a
prisoner to properly exhaust available administrative remedies
prior to filing an action challenging the conditions of his
2
confinement. 1 42 U.S.C. § 1997e(a) (2006); Woodford v. Ngo, 548
U.S. 81, 84 (2006) (requiring “proper” exhaustion of
administrative remedies); Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008) (discussing “availability” of remedies). “[T]he
PLRA’s exhaustion requirement is mandatory,” Anderson v. XYZ
Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005),
and “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). Pursuant to
§ 1997e(a), the exhaustion requirement is applicable to Bivens
claims. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204,
1214 (10th Cir. 2003), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199 (2007); Booth v. Churner, 206 F.3d 289, 291
(3d Cir. 2000).
1
The BOP grievance process is set forth at 28 C.F.R.
§ 542.13-.15 (2009). First, an inmate normally must present his
complaint informally to prison staff using a BP-8 form. If the
informal complaint does not resolve the dispute, the inmate may
make an “Administrative Remedy Request” to the prison Warden
using a BP-9 form. The BP-8 and BP-9 forms are linked. Both
forms involve a complaint arising out of the same incident and
both must be submitted within twenty calendar days of the date
of that incident. 28 C.F.R. § 542.14(a). If the Warden renders
an adverse decision on the BP-9, the inmate may appeal to the
Regional Director within twenty calendar days of the date the
Warden signed the response, using a BP-10 form. 28 C.F.R.
§ 542.15(a). The inmate may appeal an adverse decision by the
Regional Director to the Central Office of the BOP using a BP-11
form. Id.3
We review a district court’s order granting summary
judgment de novo. 2 Jennings v. University of N.C., 482 F.3d 686,
694 (4th Cir. 2007). “At the summary judgment stage, facts must
be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ.
P. 56(c)). Summary judgment “should be rendered if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c)(2). Because the prison
employees bear the burden on exhaustion in this case, see
Bennette, 517 F.3d at 725, they must show that the evidence is
so one-sided that no reasonable factfinder could find that Hill
was prevented from exhausting his administrative remedies. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
An otherwise properly supported motion for summary judgment will
not be defeated by the existence of some factual dispute;
2
Defendants’ motion was styled “Motion to Dismiss, or
Alternatively, Motion for Summary Judgment.” However, Hill
received notice pursuant to Roseboro v. Garrison, 528 F.2d 309,
310 (4th Cir. 1975), of his right to file material responsive to
the Defendants’ dispositive motion. Hill availed himself of
this opportunity and, because the district court considered
materials other than the complaint, the district court’s order
is deemed a grant of summary judgment. Fed. R. Civ. P. 56(c).
4
rather, only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment. Id. at 248. Indeed, to withstand a
motion for summary judgment, the non-moving party must produce
competent evidence sufficient to reveal the existence of a
genuine issue of material fact for trial. Fed. R. Civ. P.
56(e)(2); see Thompson v. Potomac Elec. Power Co., 312 F.3d 645,
649 (4th Cir. 2002) (“Conclusory or speculative allegations do
not suffice, nor does a ‘mere scintilla of evidence’ in support
of [the non-moving party’s] case.”) (citation omitted)).
II.
In this case, Hill does not contest that he failed to
exhaust his administrative remedies. He argues, however, that
Defendants hindered his ability to exhaust his administrative
remedies with respect to the allegations in the subject
complaint. “[A]n administrative remedy is not considered to
have been available if a prisoner, through no fault of his own,
was prevented from availing himself of it.” Moore, 517 F.3d at
725. Thus, “when prison officials prevent inmates from using
the administrative process . . ., the process that exists on
paper becomes unavailable in reality.” Kaba v. Stepp, 458 F.3d
678, 684 (7th Cir. 2006); see also Mitchell v. Horn, 318 F.3d
523, 529 (3d Cir. 2003) (holding that district court erred in
5
failing to consider prisoner’s claim that he was unable to
submit a grievance, and therefore lacked available
administrative remedies, because prison employees refused to
provide him with the necessary forms); Miller v. Norris, 247
F.3d 736, 740 (8th Cir. 2001) (stating administrative remedy
rendered unavailable when prison officials prevent prisoner from
using it). Accordingly, the district court is “obligated to
ensure that any defects in exhaustion were not procured from the
action or inaction of prison officials.” Aquilar-Avellaveda v.
Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
Hill asserted in his complaint the prison staff
threatened to kill him and refused him the tools necessary to
file administrative remedies. Specifically, he maintained that,
while he was in the SHU, he received BP-8 forms and turned them
in, but that he never received any responses. He alleged that
at one point he filed a BP-9 request with the Warden indicating
he had received no responses, but that he received no response
to that form either. Hill claimed that after his release from
the SHU, when he asked for BP-8 forms, one of the named
defendants, Counselor Morrero, refused to give him forms. Hill
alleged he was threatened with going back to the SHU, and when
he asked for other forms, Morrero stated he did not have any and
Morrero never returned with forms as he indicated he would.
Hill claimed prison officials chose not to respond to the
6
grievances he did file to hinder his efforts to exhaust his
administrative remedies.
Hill also filed a motion for a temporary restraining
order/preliminary injunction. In support of his motion, Hill
filed a “declaration,” stating under penalty of perjury that (1)
he has repeatedly filed BP-8 forms; (2) the institution failed
to respond to the BP-8 forms, but then rejected his BP-9
requests because he did not have responses to his BP-8
submissions, thus preventing him from exhausting administrative
remedies; (3) he has been repeatedly retaliated against for
filing his administrative remedies; and (4) prison officials
have taken away BOP-authorized “flexi-pens” to prevent the
filing of complaints, as the BP-9 forms require completion in
pen.
The United States, appearing on its own behalf,
responded, arguing for dismissal of Hill’s complaint for failure
to exhaust administrative remedies. The Government pointed to
the fact that USP-Hazelton received Hill’s requests for
administrative remedies as early as December 6, 2006, and
January 9, 2007, clearly demonstrating Hill had access to
administrative remedies. The Government further noted that Hill
filed several BP-8 forms but failed to file BP-9 forms to
continue the administrative grievance process. In response to
Hill’s argument that he was rarely visited by counselors while
7
he was in the SHU and that when he was visited, he was not
provided with the forms needed to file requests for
administrative remedy, the Government maintained the SHU at USP-
Hazelton is visited at least once each week by each member of
Hill’s Unit Team and that every Thursday, the entire executive
staff, including the Warden, Associate Wardens, Department
heads, and the Captain, walk through the SHU to address any
issues the inmates may have. The Government asserted that each
time a member of the executive staff or unit team makes rounds
in SHU he provides administrative remedy forms to inmates upon
request. Last, the Government attached responses to Hill’s
requests for informal resolution, suggesting that they cast
doubt upon the veracity of Hill’s allegations.
The Government also attached an affidavit from Alecia
Sankey, the Administrative Remedy Clerk at the Mid-Atlantic
Regional Office of the Bureau of Prisons. She averred, among
other things, that Hill has submitted approximately 147
administrative remedies during his incarceration with the BOP.
Sankey further attached six responses to Hill’s requests for
informal resolution. Rapunzel Stephens, the case manager on
Hill’s unit, also submitted an affidavit stating that on
December 27, 2006, she conducted inmate Hill’s Program Review
and, during that time, he did not express any concerns regarding
8
obtaining administrative remedy forms, submitting his requests,
or receiving responses to his requests for informal resolution.
Hill filed replies to the Government’s response asking
the district court to take note of several things. First, Hill
submitted affidavits from two other inmates at USP-Hazelton, who
alleged prison officials have hindered their ability to file for
administrative remedies. Second, Hill highlighted that the
prison officials’ responses to his BP-8 forms were all made
after he filed the subject complaint and that these forms
concerned issues arising after the incidents underlying the
subject complaint. He argued that the fact that he was later
given forms to file subsequent complaints does not lessen the
legitimacy of his claim that he was refused forms for incidents
occurring after his arrival to USP-Hazelton up until mid-
December, the time he filed his complaint. Third, Hill
indicated that the BP-8 forms to which the prison officials
responded clearly show he has been attempting to exhaust his
administrative remedies. Fourth, he noted by the time of his
Program Review with Case Manager Stephens on December 27, 2006,
weeks after his complaint was filed, he had already been able to
file some BP-8 forms regarding new claims. He asserted that, in
any event, she regularly refused to give him administrative
remedy forms. Fifth, Hill maintained that, if given a hearing
on the exhaustion issue, he would produce witnesses who would
9
attest to the fact that Defendants repeatedly refused to give
out administrative remedy forms.
In their motion to dismiss or for summary judgment,
Defendants noted that Hill has filed more than 163
administrative complaints since his confinement and argued that
Hill has not fully exhausted a single remedy since being
confined at USP-Hazelton. Relying on another affidavit from
Sankey, the Defendants highlighted that Hill has filed
approximately five Requests for Informal Resolution and received
responses from staff on each request since his designation to
USP-Hazelton. They further alleged Hill has a history of
failing to exhaust administrative remedies, noting that of the
163 remedies Hill filed during his incarceration in the BOP,
only seven were even submitted for consideration at the final
level of the administrative remedy process. Accordingly,
Defendants sought dismissal of the subject complaint based on
Hill’s failure to exhaust administrative remedies.
In his response, Hill essentially reiterated his prior
allegations that he was denied grievance forms and, to the
extent he received and was able to file some forms, officials
responded to these grievances only after he filed the subject
complaint. In an attached affidavit, he claimed he filed BP-9
forms that were never responded to, were intentionally
destroyed, or were never logged into the computer.
10
The magistrate judge concluded that Defendants failed
to verify the accuracy of their reports or file any affidavit
from any staff member that would contradict Hill’s assertions.
Finding a genuine issue of material fact as to whether
Defendants played a part in Hill’s failure to exhaust, the
magistrate judge recommended denying Defendants’ motion for
summary dismissal based on Hill’s failure to exhaust.
In their objections to the magistrate judge’s report,
Defendants attached an affidavit from Susie Elza, declaring
under penalty of perjury that she is an Administrative
Specialist who is responsible for processing all administrative
remedy requests, and that she has never failed to process any
administrative remedy request nor has she ever destroyed an
administrative remedy request submitted by Hill. The Defendants
also proffered the previously submitted affidavit from Rapunzel
Stephens, the substance of which was that when she interviewed
Hill on December 27, 2006, less than two weeks after he filed
his complaint, he did not express any concerns regarding
receiving remedy forms, submitting the forms, or receiving
responses.
Hill responded to the Defendants’ objections on
various grounds. Of particular note, Hill remarked that nowhere
in Case Manager Stevens’ affidavit does she state that one of
11
her duties is to hand out administrative forms. 3 Hill maintained
that the magistrate judge properly noted that no one who was
actually in charge of handing out administrative remedy forms
filed an affidavit refuting his claims. The district court,
after conducting a de novo review, and finding no genuine issue
of material fact as to “whether or not the defendants played a
part in the plaintiff’s failure to exhaust,” declined to accept
the magistrate judge’s recommendation, granted the Defendants’
motion to dismiss or for motion for summary judgment and
dismissed Hill’s complaint without prejudice for failure to
exhaust. 4
3
In her affidavit, Case Manager Stephens states:
Unit Counselors are assigned the responsibility of
processing informal resolutions, administrative
remedies, visitation forms, phone list, addressing
financial responsibility obligations, legal phone
calls, legal mail distribution, and trust fund account
forms.
(E.R. 366).
4
The district court’s judgment was entered on March 5,
2008. Hill’s notice of appeal was filed on July 16, 2008, the
day he delivered it to prison officials for mailing. See Fed.
R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).
In his notice of appeal, Hill stated that he did not receive
notice of the district court’s order until July 9, 2008, when he
received a copy of the district court’s docket sheet, in
response to his request to the district court for the status of
his case. We remanded to the district court to determine
whether Hill was entitled to the benefit of Fed. R. App. P.
4(a)(6), governing reopening of the appeal period. See Hill v.
Haynes, 321 F. App’x 338 (4th Cir. 2009) (No. 08-7244). On
remand, the district court permitted reopening of the appeal
(Continued)
12
III.
We find there are genuine issues of material fact
concerning the exhaustion of administrative remedies that
preclude summary judgment. Hill argues that Defendants hindered
his ability to exhaust his administrative remedies with respect
to the incidents giving rise to the subject complaint. Hill’s
argument is two-fold: (1) prison employees failed to provide him
with the necessary BP-8 and BP-9 forms upon request in some
instances; and (2) at other times, prison employees failed to
enter his appeals in the system or destroyed them, or simply
failed to respond to the forms he did submit in an effort to
thwart his ability to exhaust his administrative remedies. Hill
alleges he requested BP-8 forms from Counselor Morrero several
times and Morrero refused to provide them. There is no
affidavit from Morrero refuting this claim. Furthermore,
although the administrative specialist claimed she never
destroyed any administrative requests and processed all those
that were received from Hill, there is nothing contradicting
Hill’s assertion that some of the named officers destroyed his
forms upon receiving them from Hill. As to the case manager’s
statement that Hill failed to mention any difficulties with
period, and the appeal was returned to this court for
disposition on the merits.
13
forms at his review on December 27, Hill did not allege, nor
does the record indicate, any difficulty in receiving forms
around that time. Furthermore, Hill’s subsequent BP-8 forms were
responded to after he filed the subject complaint. We further
find Defendants’ reliance on Hill’s high volume of filings
specious. The fact that Hill filed a great number of complaints
in other prisons is irrelevant to the issue of whether his
efforts to file grievances were obstructed at USP-Hazelton.
Hill has sufficiently shown genuine issues of material
fact as to whether Defendants hindered his ability to exhaust
administrative remedies. For example, was Hill denied forms
when he requested them? Could Hill have appealed to the Bureau
of Prisons Regional Director without the appropriate form? See
28 C.F.R. § 524.14(a), (d)(1). At what point, if any, did the
action or inaction of any prison official constitute preventing
a grievance from being filed? Kaba, 458 F.3d at 686 (finding
affidavits of the prison officials and Kaba’s other grievances
and filings merely turn into a dispute with evidence, requiring
the factfinder to evaluate the credibility of the witnesses and
other evidence in the record); see also Lewis v. Washington, 300
F.3d 829, 831-32 (7th Cir. 2002) (deemed administrative remedies
exhausted when prison officials failed to respond to inmate
grievances because those remedies had become “unavailable”);
Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (same);
14
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998); but see
Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002)
(finding, because Jernigan was given ten days to cure deficiency
in question, he did not exhaust administrative remedies). We
therefore find the district court erred in granting summary
judgment on this issue.
Accordingly, we remand for a determination whether the
grievance procedure was “available” to Hill within the meaning
of § 1997e(a) so that he could administratively exhaust his
claim. For the reasons explained above, we vacate the district
court’s judgment and remand this matter for further proceedings
consistent with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
15