Opinion
Case No. 99-3293-JWL
May 6, 2002
MEMORANDUM AND ORDER
Plaintiff filed this Bivens action against defendants alleging that defendants, in retaliation for plaintiff's exercising his First Amendment right of access to the courts, conspired to murder or seriously injure him by deliberately failing to protect him from attacks by other inmates during a period of incarceration at the United States Penitentiary at Leavenworth, Kansas. On January 28, 2002, this court issued an order dismissing plaintiff's complaint in its entirety based on the Supreme Court's decision in Booth v. Churner, 532 U.S. 731 (2001) and plaintiff's failure to exhaust his administrative remedies. Plaintiff now moves to alter or amend the judgment (doc. #214). As set forth below, the motion is granted in part and denied in part.
Plaintiff actually moves for relief pursuant to Rule 59(a). Nonetheless, the court construes the motion as a Rule 59(e) motion as it was filed within ten days of the entry of judgment and questions the correctness of the judgment. See Trotter v. Regents of the Univ. of New Mexico, 219 F.3d 1179, 1183 (10th Cir. 2000) ("Regardless of how it is styled, courts consider a motion filed within ten days of the entry of judgment that questions the correctness of the judgment to be a Rule 59(e) motion.") (citing Vreeken v. Davis, 718 F.2d 343, 345 (10th Cir. 1983)).
By way of background, the court dismissed plaintiff's complaint for failure to exhaust his administrative remedies as required by Booth v. Churner, 532 U.S. 731 (2001). Specifically, the court held that plaintiff failed to show or even allege that he filed a BP-11 with the General Counsel of the Bureau of Prisons. See 28 C.F.R. § 542.15(a). While plaintiff did contend that he drafted and mailed a BP-11 to Kathleen Hawk, the Director of the Bureau of Prisons, the court disregarded the argument in the absence of any authority suggesting that such a filing comports with the regulations requiring that the form be filed with the General Counsel.
Plaintiff's primary argument now is that it has always been his practice (and, allegedly, the practice of the vast majority of the prison population) to send BP-11 forms directly to Kathleen Hawk rather than to the Office of the General Counsel. He further contends that the distinction between Kathleen Hawk and the Office of the General Counsel is one without a difference as both are housed in the Central Office in Washington, D.C. In further support of this argument, he cites to a document that purports to be a page from a "Rules Handbook" provided to prisoners by the Bureau of Prisons. This document states that if an inmate is not satisfied with the response by the Regional Director, "he may appeal to the Central Office of the Bureau of Prisons." According to plaintiff, then, this document expressly authorizes an inmate to file a BP-11 with the Central Office generally as opposed to the Office of the General Counsel specifically. Plaintiff further asserts that Ms. Hawk's office routinely accepts such filings.
An analysis of plaintiff's argument must begin with the plain language of the pertinent regulations. Those regulations, in contrast to the language in the purported Rules Handbook, clearly and unequivocally state that an "inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel" and that the "Appeal to the General Counsel is the final administrative appeal." 28 C.F.R. § 542.15(a) (emphasis added); accord Yousef v. Reno, 254 F.3d 1214, 1222 (10th Cir. 2001) (summarizing regulation as requiring "appeal to the Regional Director and `final administrative appeal' to the General Counsel"). More specifically, the regulations direct an inmate to mail the BP-11 to the "National Inmate Appeals Administrator" in the Office of the General Counsel. Id. § 542.15(b)(3). Nothing in the regulations authorizes an inmate to file a BP-11 with Kathleen Hawk or the Director of the Bureau of Prisons or the Central Office in general. In short, the court declines to read language into the regulation that is not present. See Yousef, 254 F.3d at 1221 (seeing "no reason to diverge from the clear language of the [BOP] regulation" and rejecting inmate's interpretation of that regulation); Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (holding when statutory language is plain and unambiguous, a court need only enforce the statute "according to its terms" (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989))).
The court, then, reiterates its January 2002 conclusion that plaintiff has failed to exhaust his administrative remedies. In light of plaintiff's arguments concerning the language in the prisoners' Rules Handbook, however, the court next addresses whether any equitable considerations excuse plaintiff's failure to exhaust his administrative remedies. The clear majority of circuit courts to address the issue have held that the exhaustion requirement of 42 U.S.C. § 1997e(a) is not a jurisdictional requirement and, thus, may be subject to certain defenses such as waiver, estoppel or equitable tolling. Ray v. Kertes, 285 F.3d 287, 292-95 (3d Cir. 2002) (and cases cited therein); see also Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *3 (10th Cir. Dec. 8, 1998) (clearly indicating, without specifically deciding, that the exhaustion requirement of § 1997e is not jurisdictional); Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995) (an exhaustion requirement that is not a jurisdictional prerequisite "is a condition precedent to suit that functions like a statute of limitations and is subject to waiver, estoppel, and equitable tolling") (discussing Title VII filing requirements).
Pursuant to Tenth Circuit Rule 36.3(B)(1), the court cites this and other unpublished decisions in this opinion for the persuasive value of those decisions.
Plaintiff suggests in his papers that, at the very least, the language of the purported Rules Handbook permitting the filing of a BP-11 with the "Central Office" should excuse his failure to file the form with the General Counsel. Plaintiff has failed to set forth any competent evidence suggesting that the page from the Rules Handbook is what plaintiff purports it to be. Even though the court construes plaintiff's pleadings liberally because he is a pro se litigant, he nevertheless must follow the same rules of procedure that govern litigants represented by counsel. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). However, the court is also cognizant of the fact that because defendant's motion was filed pursuant to Federal Rule of Civil Procedure 12(b)(6), it would be unfair at this stage in the proceedings to expect or require plaintiff to abide by Federal Rule of Civil Procedure 56(e) without providing plaintiff with an opportunity to present competent Rule 56 evidence. See Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001) (citations omitted) (If the court on a Rule 12(b)(6) motion looks to matters outside the complaint, the court generally must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56).
In connection with their motion to dismiss pursuant to Rule 12(b)(6), defendants attached additional materials beyond the pleadings. Similarly, plaintiff attached various materials in response to the motion. Nonetheless, the court did not have to convert the 12(b)(6) motion to a Rule 56 motion because plaintiff's papers, on their face, indicated that he had not complied with 28 C.F.R. § 542.15(a) concerning the filing of a BP-11 with the General Counsel. In other words, the court did not need to look to any matters beyond the pleadings to resolve defendants' motion. Based on the new arguments presented in plaintiff's motion to reconsider, however, it is clear that the court will need to look at matters beyond the pleadings, including the prisoners' Rules Handbook. Finally, the court notes that although plaintiff's argument here is "new" in the sense that it was not presented until plaintiff moved for reconsideration, the court would not have expected plaintiff to raise this argument earlier as he apparently believed that he had complied with the pertinent regulation and as plaintiff's burden to respond to defendants' 12(b)(6) motion was not an onerous one.
Thus, the court grants plaintiff's motion to reconsider to the extent that plaintiff is provided an opportunity to present competent Rule 56(e) evidence concerning his argument that his failure to file a BP-11 with the General Counsel should be excused in light of the express language of the Rules Handbook. In that regard, plaintiff shall file a supplemental response to defendants' motion to dismiss (a motion that hereinafter will be treated as a motion for summary judgment pursuant to Rule 56) no later than June 7, 2002. Defendants shall then file a supplemental reply to plaintiff's response no later than July 12, 2002.
While the court will permit the additional briefing described above, it nonetheless addresses and rejects the two remaining arguments contained in plaintiff's motion to reconsider. The first of these arguments is that the Supreme Court's decision in Booth-a decision that was announced after plaintiff filed his complaint-should not apply retroactively to plaintiff's complaint. As this court noted in its decision, however, when the Supreme Court applies a rule of federal law to the parties before it, as it did in Booth, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule. See Mem. Order of January 28, 2002 at 2 n. 2 (citing Bibbs v. Maxwell, No. C 01-0305 MMC(PR), 2002 WL 73229, at *1 (N.D.Cal. Jan. 8, 2002) (citing Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-99 (1993))). Moreover, since this court's decision in January 2002, the Tenth Circuit has held, albeit in an unpublished decision, that the rule prescribed in Booth does have retroactive effect. See Treadwell v. Holt, No. 01-1368, 2002 WL 363724, at *1 (10th Cir. Mar. 8, 2002).
As the court is denying plaintiff's motion to reconsider with respect to these arguments, plaintiff is directed not to raise these arguments again in connection with his supplemental briefing.
Finally, plaintiff maintains that even if Booth is applied retroactively, then the court, rather than dismiss plaintiff's complaint, should simply stay the proceedings pending administrative exhaustion. The Tenth Circuit, however, has expressly rejected this approach in favor of dismissal of the claims without prejudice. See Yousef v. Reno, 254 F.3d 1214, 1216 n. 1 1218 n. 2 (10th Cir. 2001) (retention of jurisdiction over damages claims pending administrative exhaustion is no longer appropriate in light of Booth; where district court had stayed case pending exhaustion, Circuit remanded with instructions to dismiss claims for monetary relief without prejudice). While the court's January 28, 2002 order did not expressly state that the dismissal of plaintiff's complaint was without prejudice, the court now clarifies that if it ultimately dismisses plaintiff's complaint for failure to exhaust administrative remedies, that dismissal will be without prejudice.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion (doc. #214) is granted in part and denied in part. The motion is granted to the extent that the parties will be provided an opportunity to file supplemental briefing and evidentiary materials, pursuant to Federal Rule of Civil Procedure 56(e), on the narrow issue described in the text of this order. Plaintiff shall file a supplemental response to defendants' motion to dismiss (a motion that hereinafter will be treated as a motion for summary judgment pursuant to Rule 56) no later than June 7, 2002. Defendants shall then file a supplemental reply to plaintiff's response no later than July 12, 2002.
IT IS SO ORDERED.