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Washington v. Federal Bureau of Prisons

United States District Court, D. South Carolina, Orangeburg Division

March 26, 2019

Burl Washington, Plaintiff,
Federal Bureau of Prisons; Hugh J. Hurwitz; J. A. Keller; Bonita S. Mosley; Nanette Barnes; Hector Joyner; Maureen Cruz; B. J. Meeks; Rex Blocker; Donardo Fonte; Tammara Bryan; Richard Lepiane; David Garcia; Eve Ulmer; Estate of Victor Loranth; David Massa; and Anthony Harvey, Defendants.


          Bruce Howe Hendricks, United States District Judge

         Plaintiff Burl Washington (“Plaintiff”), proceeding pro se at the time, brought this civil action pursuant to 42 U.S.C § 1983. (ECF. No. 1.) By way of Court Order, Plaintiff was appointed counsel on April 11, 2017, and he has received legal representation since that time. (See ECF No. 43.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina, this matter was referred to United States Magistrate Judge Kaymani D. West for pretrial handling. The matter is now before this Court for review of the Report and Recommendation (“Report”) issued by the Magistrate Judge on January 3, 2019. (ECF No. 172.) In her Report, the Magistrate Judge recommends that the Court grant in part Defendants' Motion to Dismiss the Second Amended Complaint (ECF No. 144), and deny it in part. (See ECF No. 172 at 40-41.) The Report sets forth in detail the relevant facts and standards of law, and the Court incorporates them here, summarizing below only in relevant part.[1]


         Plaintiff is a legally blind federal inmate, previously housed at FCI-Williamsburg, FCI-Estill, and FCI-Edgefield, all within the geographical coverage of this Court. Plaintiff suffers from primary open-angle glaucoma (“POAG”) and related intraocular pressure (“IOP”). He is currently housed at FCI-Butner, in Butner, North Carolina. From December 2016 through May 2018, Plaintiff was transferred to various Federal Bureau of Prisons (“BOP”) facilities nine times. This case was filed pro se while Plaintiff was housed in South Carolina.

         Plaintiff sues the BOP and sixteen (16) federal officials and employees, asserting that he has been discriminated against because of his disability (“Rehabilitation Act claim”) and that he has been subjected to cruel and unusual punishment due to BOP's inconsistent medical care and failure to provide him with the medical and personal assistance that he needs because of his blindness (“Injunctive Relief claim” and “Bivens claims”). Plaintiff seeks declaratory and injunctive relief from Defendants BOP, Hurwitz, and Keller (Counts One and Two), and damages and declaratory and injunctive relief from the remaining Defendants (Counts Three, Four, and Five). In Count Six, Plaintiff seeks a preliminary injunction against Defendants BOP, Hurwitz, and Keller. (See ECF No. 128.)

         Defendants filed their Motion to Dismiss the Second Amended Complaint on July 24, 2018. (ECF No. 144.) Plaintiff responded on August 14, 2018 (ECF No. 149), and Defendants replied on August 27, 2018 (ECF No. 160). Magistrate Judge West issued her Report on January 3, 2019. (ECF No. 172.) Plaintiff and Defendants filed their respective objections on February 19, 2019. (ECF Nos. 184 & 185.) Plaintiff filed a reply to Defendants objections on March 5, 2019. (ECF No. 188.) The matter is ripe for consideration and the Court now issues the following ruling.


         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In 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, 315 (4th Cir. 2005).


         A. Exhaustion of Administrative Remedies

         After surveying the conflicting case law of various federal appellate courts regarding whether the affirmative defense of exhaustion of administrative remedies is properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12, or whether it must be raised through a motion for summary judgment, the Magistrate Judge concluded that the balance of persuasive authority counsels against allowing a claim of a lack of administrative exhaustion to be raised under Rule 12(b)(1), which permits reference to outside documentation. (ECF No. 172 at 6-11.) Moreover, the Magistrate Judge found that lack of administrative exhaustion does not implicate personal jurisdiction or venue, so Defendants' Prison Litigation Reform Act (“PLRA”)/Bivens exhaustion defenses are not properly raised under Rule 12(b)(2) or (3). (Id. at 11.) With respect to Rule 12(b)(6), the Magistrate Judge correctly noted that outside documentation that was neither attached to nor incorporated into the pleadings, such as affidavits and non-public records, may not be considered without converting a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. (Id. at 11-12.) “Such a conversion is not appropriate where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 448-49 (4th Cir. 2011) (citation omitted).

         With these principles in mind, the Magistrate Judge concluded that Defendants' contention that Plaintiff failed to exhaust his administrative remedies with respect to his Bivens claims (Counts Three and Four) against Defendants who are or were employed at FCI Edgefield during the relevant time period (Mosley, Barnes, Blocker, Fonte, and Bryan) is properly considered at this stage because the lack of exhaustion is clear from the face of the pleadings without resorting to outside documentation. (ECF No. 172 at 12.) Furthermore, the Magistrate Judge found that it was impossible for Plaintiff to have exhausted his Bivens claims for matters occurring at FCI-Edgefield because those matters occurred after this lawsuit was already filed, and that the Second Amended Complaint should be dismissed insofar as it asserts Bivens claims against Defendants Mosley, Barnes, Blocker, Fonte, and Bryan. (Id.)

         Plaintiff agrees with the Magistrate Judge that he could not have exhausted his administrative remedies for his time at FCI Edgefield prior to filing his initial Complaint, but objects to the conclusion that Defendants Mosley, Barnes, Blocker, Fonte, and Bryan are entitled to dismissal. (ECF No. 184 at 3.) In support, Plaintiff distinguishes his case from the facts at issue in Woodford v. Ngo, 548 U.S. 81 (2006), arguing that Washington was “repeatedly subjected to the same or similar conduct by multiple prison officials then repeatedly transferred without warning to new prison facilities where the same or similar conduct continued at the hands of the officials and employees at the new prisons.” (Id. at 4.) Plaintiff further argues, “Woodford did not deal with a repeated pattern of conduct or repeated transfers of the inmate that would interfere with the inmate's ability to exhaust his administrative remedies.” (Id. at 5.) Plaintiff contends, “If a strict interpretation of the PLRA's administrative exhaustion requirement is adhered to in this scenario, the Court is effectively requiring that Washington file separate suits for each facility where he was subject to the same treatment within the same penal system just so he can exhaust his administrative remedies at each facility.” (Id.)

         The Court disagrees and overrules the objection. Plaintiff's arguments in this regard imprecisely assert that Defendants' conduct at each facility where Plaintiff was housed was “the same.” As Plaintiff himself notes, “The purpose of the PLRA administrative exhaustion requirement is to place the prison facility on notice of a prisoner's claims and give the facility an opportunity to address any grievances regarding the violations of his federal rights before the prisoner files suit.” (See Id. at 4 (citing Artis-Bey v. District of Columbia, 884 A.2d 626, 638 (D.C. 2005)).) It is hyperbole to suggest that Plaintiff would need to file separate lawsuits pertaining to his treatment at each facility. There was nothing to stop Plaintiff from completing grievance procedures at FCI Edgefield in order to give corrections officials notice of the specific problems he was encountering with his medical treatment at that facility. Plaintiff exhausted his administrative remedies at FCI Williamsburg prior to filing suit in December 2016 (see ECF No. 184 at 5), so he was familiar with the grievance process. There also would have been nothing to stop Plaintiff from amending his pleadings in the instant case to add the FCI Edgefield Defendants after having given notice to those officials through administrative means, allowing them a corresponding opportunity to correct the allegedly deficient medical treatment. Accordingly, the Court finds that this objection is insufficient to displace the sound reasoning of the Magistrate Judge, and the Bivens claims (Counts Three and Four) against Defendants Mosley, Barnes, Blocker, Fonte, and Bryan are dismissed without prejudice for lack of administrative exhaustion.

         Next, the Magistrate Judge concluded, “Consideration of Defendants' assertions regarding Plaintiff's exhaustion of administrative remedies for his [Rehabilitation Act] claim is distinguishable from consideration of PLRA exhaustion because it has been held that exhaustion of [Rehabilitation Act] claims is jurisdictional.” (ECF No. 172 at 14-15 (citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006); Williams v. Brennan, 320 F.Supp.3d 122, 129 (D.D.C. 2018); Howland v. United States Postal Serv., 209 F.Supp.2d 586, 590 (W.D. N.C. 2002); Roach v. Gates, Nos. 2:07-00136-DCN, 2:07-01574-DCN, 2012 WL 1952680, at *4 (D.S.C. May 30, 2012)).) Therefore, the Magistrate Judge found that the issue should be considered under Rule 12(b)(1), and that it was appropriate to rely on outside documents. (Id. at 15.)

         Defendants offered the affidavit of Lisa M. Charles, Supervisory Attorney in the Equal Employment Office (“EEO”) of the BOP, for the purpose of showing that Plaintiff failed to comply with 28 C.F.R. § 39.170, which requires prisoners who believe that they have been subjected to discrimination covered by the Rehabilitation Act to exhaust Department of Justice (“DOJ”) EEO procedures after having first exhausted BOP grievance procedures.[2] (See ECF No. 144-2.) Citing rulings by sister courts within the Fourth Circuit and other district courts, the Magistrate Judge found that a federal prisoner seeking to assert a Rehabilitation Act claim must first exhaust the BOP process and then exhaust the DOJ EEO process before his administrative remedies will be deemed exhausted. (Id. at 16-17.) Accordingly, the Magistrate Judge concluded that the Court lacks subject matter jurisdiction over the Rehabilitation Act claim, and the Motion to Dismiss Count One of the Seconded Amended Complaint should be granted without prejudice. (Id. at 17.)

         Plaintiff contends that the Magistrate Judge erred by concluding that administrative exhaustion under the Rehabilitation Act is jurisdictional, and thus objects to consideration of dismissal of Count One pursuant to Rule 12(b)(1). (ECF No. 184 at 7-8.) The Court agrees and sustains the objection.

         First, the cases cited in the Report for the proposition that “exhaustion of [Rehabilitation Act] claims is jurisdictional” all deal with employment lawsuits, wherein employees complained that their employer discriminated against them on the basis of a disability. In Spinelli, the Court of Appeals for the District of Columbia Circuit stated, “The district court . . . should have dismissed Spinelli's Rehabilitation Act claim for lack of jurisdiction on the ground that he failed to exhaust his administrative remedy. The Act limits judicial review to employees ‘aggrieved by the final disposition' of their administrative ‘complaint.'” 446 F.3d at 162 (quoting 29 U.S.C. § 794a(a)(1)); but see, Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000) (holding, in the context of an employment discrimination lawsuit, “that the exhaustion requirement, while weighty, is not jurisdictional”). Not only was the Rehabilitation Act claim at issue in the Spinelli case an employment claim, but the statutory provision construed by the Spinelli court pertains to employment discrimination complaints specifically:

The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 . . . shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, ...

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