Opinion
Case No. 99-3293-JWL
August 5, 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. This matter is again before the court on defendants' motion to dismiss (doc. #179), which the court, having previously notified the parties, construes as a motion for summary judgment. As explained more fully below, the motion is granted and plaintiff's complaint is dismissed in its entirety without prejudice.
Procedural History
On January 28, 2002, this court issued an order granting defendants' motion to dismiss 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. 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 as required by the relevant regulations. 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 subsequently moved to alter or amend the judgment. The court denied the motion in large part and reiterated its conclusion that plaintiff had failed to exhaust his administrative remedies. In doing so, the court again emphasized the plain language of the pertinent regulations which 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," that the "Appeal to the General Counsel is the final administrative appeal," see 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"), and 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).
Ultimately, the court declined "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")).
The court, however, granted plaintiff's motion to alter or amend to a limited extent. In that regard, plaintiff argued that the Rules Handbook provided to prisoners by the Bureau of Prisons expressly authorizes an inmate to file a BP-11 with the Central Office generally as opposed to the Office of the General Counsel specifically. In support of his argument, plaintiff highlighted language from the purported Handbook stating 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."
In light of plaintiff's argument concerning the language in the prisoners' Rules Handbook, the court concluded that plaintiff should be provided the 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. See 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 and, thus, would be subject to waiver, estoppel and equitable tolling).
Thereafter, plaintiff, with permission of the court, filed an affidavit and supplemental response to defendants' motion to dismiss (which the court indicated it would construe thereafter as a motion for summary judgment) concerning the significance of the Rules Handbook to which defendants filed a supplemental reply. Thus, the matter is now ripe for the court's review.
Discussion
The sole issue before the court is whether plaintiff's failure to exhaust his administrative remedies should be excused due to the language in the Rules Handbook. After carefully reviewing the parties' supplemental papers, the court concludes that the language in the Rules Handbook does not excuse plaintiff's failure to file a BP-11 with the General Counsel. Thus, plaintiff's complaint was (and is) properly dismissed without prejudice.
While the nature and purpose of the Rules Handbook was unclear at the time the court granted in part plaintiff's motion to alter or amend, the uncontroverted facts from the parties' supplemental papers demonstrate that the Rules Handbook is provided to each prisoner at the time that prisoner is admitted to the prison facility. Indeed, the Handbook is entitled "Admission and Orientation Handbook" and plaintiff states in his papers that he received the Handbook at the time he was admitted at Leavenworth. The purpose of the Handbook is to provide incoming prisoners with general information regarding the Bureau of Prisons, its programs, institution rules and regulations. The Introduction to the Handbook expressly states that it is "not a specific guide to the detailed policies of the Bureau," but that the material will simply "help new inmates more quickly understand what they will be encountering when they enter prison, and hopefully assist them in their initial adjustment to institution life."
One section of the Handbook addresses "problem resolution" and, more specifically, the administrative remedy process. Relevant to this case are two paragraphs that discuss the BP-11 appeal:
If the inmate is not satisfied with the response by the Regional Director, he may appeal to the Central Office of the Bureau of Prisons. The National Appeal must be made on a BP-231 (BP-11) form and must have copies of the BP-229 and BP-230 forms with responses.
The BP-231 form may be obtained from the Counselor. The National Appeal must be answered within forty (40) calendar days, but the time limit may be extended an additional (20) days if the inmate is notified.
While the Handbook states that an inmate "may appeal to the Central Office," it is significant that this statement is not given to an inmate in response to an inquiry regarding the administrative process. Rather, it is simply general information provided to each inmate in connection with the routine processing of each inmate's admission-regardless of whether that inmate ever makes a complaint. Indeed, the Handbook expressly states that the BP-11 form must be obtained from "the Counselor."
According to the Handbook, the "Counselor" is an individual who provides counseling and guidance for the inmates of the unit in areas of institutional adjustment, personal difficulties and plans for the future. He or she plays a leading role in all segments of unit programs and is a member of the Unit Team. The Counselor will visit inmate work assignments regularly and is the individual to approach for daily problems. The Counselor is a frequent member of the Unit Discipline Committee.
In other words, any inmate actually desiring to file a BP-11 must obtain the proper form from the inmate's Counselor. Significantly, the BP-11 form itself indicates that the response will come from the General Counsel.
Moreover, prior to filing a BP-11, an inmate must file a BP-10 with the Regional Director. The Regional Director then writes a response on the BP-10 form itself. Significantly, the BP-10 form expressly states, at the bottom of the section reserved for the Regional Director's response:
If dissatisfied with this response, you may appeal to the General Counsel. Your appeal must be received in the General Counsel's Office within 30 calendar days of the date of this response.
It is uncontroverted that plaintiff filed a BP-10, which was rejected, with regard to the allegations raised in his complaint. Thus, plaintiff's BP-10 form contained specific instructions with respect to the filing of the BP-11 form.
Thus, the official administrative forms provide more detailed instructions, at the time the inmate is actually filing a complaint, than the more general information provided to all inmates at the time of admission to the facility.
In any event, plaintiff never suggests in his papers that he relied on the language of the Handbook when he filed his BP-11 with Kathleen Hawk or that he even knew about this language at the time he filed the BP-11 with Kathleen Hawk. Rather, he states only that the filing of a BP-11 with the "Central Office" generally as opposed to the General Counsel's office specifically is "authorized" by the Handbook. In the absence of any evidence that plaintiff in fact relied on the language of the Handbook, plaintiff's failure to exhaust his administrative remedies cannot be excused because of that language. See Spaulding v. United Transp. Union, 279 F.3d 901, 909 (10th Cir. 2002) (party asserting equitable estoppel must rely on the other party's conduct to his injury); United States v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001) (noting that in civil actions, the circuit has applied equitable tolling when the defendant's conduct rises to the level of active deception; where a plaintiff has been lulled into inaction by a defendant; and where a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her rights) (citations omitted).
In sum, the general language contained in the Handbook is simply insufficient to excuse plaintiff's failure to file a BP-11 with the General Counsel because the Handbook was provided to all prisoners at the time of admission rather than in response to an inquiry about filing an administrative complaint; plaintiff's BP-10 form specifically provided that the BP-11 must be filed with the General Counsel's Office; the BP-11 form indicated that the response would come from the General Counsel; and plaintiff has presented no evidence that he actually relied on the language in the Rules Handbook.
For all of the foregoing reasons, no equitable basis exists for excusing plaintiff's failure to exhaust his administrative remedies and plaintiff's complaint is properly dismissed, albeit without prejudice.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss (doc. #179), construed by the court as a motion for summary judgment, is granted and plaintiff's complaint is dismissed without prejudice.
IT IS SO ORDERED.