Summary
dismissing complaint for failure to exhaust because plaintiff did not file administrative complaint within 20 days of when he was first assigned to the SHU
Summary of this case from Gottesfeld v. AndersonOpinion
03 Civ. 1608 (DLC)
December 19, 2003
Robert M. Joost, pro se Otisville, New York, NY, for Plaintiff
Richard E. Rosberger, United States Attorney's Office, New York, NY, for Defendants
OPINION AND ORDER
On March 10, 2003, Robert Joost ("Joost") filed this action pursuant to Title 28, United States Code, Section 1983, alleging violations of his constitutional rights in connection with his thirty-three day detention in the Special Housing Unit ("SHU") at the Otisville Federal Correctional Center. The defendants have moved to dismiss the complaint on the ground,inter alia, that Joost failed to exhaust his administrative remedies by filing a timely grievance. For the foregoing reasons, the defendants' motion is granted, and the plaintiff's complaint is dismissed.
Background
The following facts are as alleged in Joost's complaint and opposition to this motion, which are accepted as true for purposes of this motion. From February 15 to March 19, 2001, Joost was detained in SHU. He was released from SHU without being charged with any misconduct. On the day Joost was placed in SHU, he was told he was under "investigation." Two days later, defendant Paul Gibson ("Gibson"), Joost's case manager, advised Joost that he had been placed in SHU as a result of an investigation of Joost's February 10 statements to Gibson. According to Joost, in that February 10 conversation, Joost had relayed to Gibson in an amusing or anecdotal manner that there would be "serious trouble" in a prison if the prison took away an inmate's privileges. During their meeting while Joost was in SHU, Gibson told Joost that, around February 10, Gibson had also spoken to other inmates who had expressed their displeasure with the curtailing of prison privileges.
The week after Joost commenced his detention in SHU, defendant Lieutenant Lisa Griffin ("Griffin") advised him that she was investigating his placement in SHU. Griffin questioned Joost about the February 10 conversation with Gibson and subsequently told him that she would ask for his release from SHU. On February 22, defendants Warden Frederick Menifee ("Menifee") and Captain Anthony Haynes explained to Joost that he was being held in SHU because of his conversation with Gibson, and that the conversation was being investigated. On March 2, Griffin told Joost that she had completed her investigation and had concluded that he was not a threat. She informed Joost that her report would reflect that conclusion, and that he would be released shortly. Joost was released on March 19.
Joost believes that his February 10 conversation with Gibson was not the true motive underlying his confinement in SHU. According to Joost, his placement in SHU was likely made in retaliation for his statements to staff members, inmates, and others that he knew of wrongdoing at Otisville, and that he had the ability to expose the wrongdoing. In order to pursue this theory, Joost made an informal request on March 26, 2001, for information regarding the investigation which had caused his placement in SHU. Receiving no response, Joost made a formal request for information on April 28. Approximately one month later, sixty pages were released to him, including a redacted memorandum from Gibson regarding their February 10 conversation. The Gibson memorandum reported that Joost had said that "the administration takes and takes and takes and we're getting nothing in return. You just can't take like you guys are doing and not give us a little something in return."
On May 27, Joost complained in writing to Gibson that he must have gotten him mixed up with someone else since he never made the statements Gibson had attributed to him. He asserted that he had never made any complaints and had just engaged in an anecdotal conversation with Gibson. Joost also stated that he had been locked up while those who had actually made the complaints had not been similarly confined. Gibson never replied to Joost's letter.
On May 31, Joost pressed for access to all of the documents he had requested. He stated that "[b]oth the BOP and I know the stated reasons for the lock-up. I am trying to learn the real reasons — which may be retaliation and retribution, plain intimidation, or using me as a red herring to hide other wrongdoing by staff. . . . The denial reasons are bogus and should be reversed."
On August 12, Joost sent Menifee a copy of his May 27 letter to Gibson. He asked that the statements relating to his "erroneous lock-up" be added to his file. Joost again denied making the statement attributed to him by Gibson, and asserted that, in his mind, the lock-up had nothing to do with the February 10 conversation. Joost asked Menifee to investigate whether another inmate had "used" Gibson to gain an advantage.
On August 22, Menifee responded in writing that Joost had been placed in SHU based "on a statement you made to your case manager about the recent loss of some privileges." On October 9, Joost submitted an Informal Resolution Form requesting compensation for his confinement in SHU. On October 19, or seven months after his release from SHU, Joost submitted a Request for Administrative Remedy alleging that he had been wrongly locked up in SHU under a "bogus" investigation.
Joost alleges that his retaliatory detention in SHU violated his First Amendment rights to free speech and to petition the Government for a redress of grievances. He asserts his placement in SHU also violated his Due Process rights because it contradicted Bureau of Prison regulations. Joost also claims that the conditions in the SHU violated his Eighth Amendment rights. Finally, Joost asserts a violation of the Equal Protection Clause.
Discussion
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "It is unclear in this Circuit whether attempts to lodge informal grievances can satisfy the exhaustion requirement." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). The PLRA applies to federal prisoners. Porter v. Nussle, 122 S.Ct. 983, 988 (2002).
The procedure for exhaustion of administrative remedies in Bureau of Prisons' facilities are set forth in the Administrative Remedy Program.See 28 C.F.R. § 542.10 et seq. An inmate must first attempt an informal resolution of a grievance. Id. at § 542.13(a). If the informal complaint does not resolve the issue, a formal Administrative Remedy Request may be submitted within twenty days "following the date on which the basis for the Request occurred."Id. at § 542.14(a) ("Section 14(a)"). If the formal request is denied, an appeal may be taken within twenty days to the Regional Director. Id. at § 542.15(a). An appeal to the General Counsel may be taken within thirty days of a negative decision by the Regional Director, and is "the final administrative appeal."Id. at § 542.15(a).
Joost was released from SHU on March 19, 2001, and submitted his Request for Administrative Remedy ("the Request") on October 19, 2001. The Bureau of Prisons rejected the Request and Joost's subsequent appeals as untimely. Joost's Request fails to exhaust Joost's administrative remedies in two ways. First, the Request complains only about the reasons for his placement in SHU. The Request does not allege any violation of his Due Process rights, his Equal Protection rights, or the conditions of his confinement. Second, the Request was untimely under the Administrative Remedy Program.
Joost contends that an Otisville prison regulation governs the timeliness of his Request. The Otisville regulation states, in relevant part, that if the issue cannot be resolved through the informal process, inmates must "file their Administrative Remedy Request within 20 days from the date of accrual ([i.e.,] when the inmate becomes aware of the incident)." Otisville Correctional Institution, U.S. Dep't of Justice,Institution Supplement OTV 1330.13(f) (Jan. 26, 2001). Joost argues that the earliest date on which he could have become "aware" of the "true" reasons for his detention was in late May 2001, when he received the redacted memo from Gibson.
Joost admits that, within his first two days in SHU, he was told that his February 10 conversation with Gibson was the basis for his confinement. At that moment, Joost knew or should have known whether that conversation justified the administrative detention. If he believed that it did not, he was in a position at that time to pursue the grievance process. The documents that he received in May confirmed that the conversation with Gibson was indeed the reason behind his detention, but Joost again failed to pursue an administrative complaint at that time.
Joost asserts that, prior to bringing any complaint, he first had to obtain the documents that described the reason for his confinement. Nothing in Section 14(a) supports such an assertion. Section 14(a) states that the date of accrual begins on the date on which the basis for the request "occurred." The basis for the Request occurred while he was in SHU and was told that the February 10 conversation was the reason for his restrictive confinement.
It is unnecessary to decide whether the Otisville regulation could supercede Section 14(a). Taking Joost's description of the facts as true, he became aware during his confinement in SHU that the Otisville authorities were contending that the February 10 conversation justified and was the cause of his placement in SHU, and therefore he had a duty even under the Otisville regulation to file a Report within twenty days. In any event, if Joost's date of late May 2001 were the appropriate date by which to judge his duty to exhaust the administrative process for any grievance, his October 19 Request is still untimely. Conclusion
Plaintiff's Section 1983 claim is dismissed because of his failure to allege constitutional violations in his Request, and for a failure to exhaust. Should plaintiff seek to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedcre v. United States, 369 U.S. 438 (1962).