Opinion
CIVIL ACTION NO. 3:12-cv-01038
02-23-2017
SCOTT J. NJOS, Plaintiff, v. S. ARGUETA, et al., Defendants.
(JONES, J.)
() REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights action against three U.S. Bureau of Prisons ("BOP") employees brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in which the plaintiff, Scott J. Njos, has alleged the violation of his Eighth Amendment right to be free from the use of excessive force. Two of the defendants, correctional officers Argueta and Prutzman, have interposed an affirmative defense, asserting that Njos failed to exhaust his administrative remedies before bringing this action. Njos has countered that administrative remedies were effectively unavailable to him because a third defendant, correctional officer Gemberling, threatened him with death or serious injury if he continued to file grievances.
This matter was referred to the undersigned to conduct an evidentiary hearing on the threshold issue of exhaustion, pursuant to Small v. Camden County, 728 F.3d 265 (3d Cir. 2013). (Doc. 128; Doc. 129; see also Doc. 143). A hearing was held before the undersigned on May 19, 2015, at which testimony and documentary exhibits were received into evidence. (See Doc. 184 (minute sheet); Doc. 188 (exhibit lists); Doc. 195 (hearing transcript)).
The case was subsequently stayed for a period of time at the request of the plaintiff. (Doc. 244). The stay has now been lifted and the matter is ripe for disposition. (Doc. 248).
I. BACKGROUND
Njos was a federal prisoner in the special management unit ("SMU") at USP Lewisburg, located in Union County, Pennsylvania. He has asserted an Eighth Amendment excessive use of force claim against correctional officers Sergio Argueta and Shannon Prutzman in connection with an April 24, 2012, incident in which Njos claims to have been beaten and placed in ambulatory restraints for an excessive period of time. Argueta and Prutzman have responded with an affirmative defense that Njos failed to exhaust all available administrative remedies. Njos contends that the administrative remedies ordinarily available to federal prisoners were effectively rendered unavailable to him by threats of retaliation that placed him in fear of his life and safety.
In the days and weeks after the alleged excessive force incident, Njos submitted multiple "informal resolution attempts" and administrative remedy requests. Njos claims that, on May 9, 2012, he was confronted by Argueta and correctional officer Kevin Gemberling, along with several other unknown correctional officers. Njos claims that the officers laughed at him menacingly, and that he was so scared that he urinated on himself. He claims that Gemberling then said to him: "It's the tough guy. Ain't so tough now. . . . I'm friends with everyone here. Who do you think they'll believe? Keep filing and next time you won't wake up." Njos further claims that, on May 11, 2012, he was confronted a second time by Gemberling, who said to him: "So you're gonna just keep filing. I was thinking, killing you would be too easy. I think I'll cripple you next time. . . . See how well you work without your books."
Prisoners are required to attempt to resolve any grievance through an informal resolution attempt before resorting to a formal administrative remedy request.
Njos claims that Gemberling wore a uniform shirt with Prutzman's name on it. He initially attributed this conduct to Prutzman, but Gemberling was later substituted as a party defendant following discovery that revealed to Njos that Prutzman was not the individual who threatened him.
Njos claims that Gemberling's threats deterred him from completing the grievance process, rendering administrative remedies unavailable.
II. DISCUSSION
Before bringing a Bivens action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) ("[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues."); Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000) ("[Section] 1997e(a) applies equally to § 1983 actions and to Bivens actions."). "[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis, 204 F.3d at 73. Moreover, § 1997e(a) requires "proper" exhaustion of administrative remedies, meaning strict compliance with BOP deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). "A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim." McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004)).
Failure to exhaust available administrative remedies is an affirmative defense that must be pleaded and proven by the defendant. Ray v. Kertes, 385 F.3d 287, 295 (3d Cir. 2002) ("Prison officials are likely to have greater legal expertise and, as important, superior access to prison administrative records in comparison to prisoners.") (alteration omitted). But "[o]nce the defendant has carried that burden, the prisoner has the burden of production. That is, the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc); see also Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) ("Once a defendant proves that a plaintiff failed to exhaust, . . . the onus falls on the plaintiff to show that [these] remedies were unavailable to him as a result of intimidation by prison officials."); Johnson v. District of Columbia, 869 F. Supp. 2d 34, 38 (D.D.C. 2012) ("Once Defendant has shown that Plaintiff failed to exhaust his administrative remedies, the burden shifts to Plaintiff to establish that a failure to exhaust was due to the unavailability of remedies."). "However, as required by [the Supreme Court in Jones v. Bock, 549 U.S. 199 (2007)], the ultimate burden of proof remains with the defendant." Albino, 747 F.3d at 1172; see also Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002); Kantamanto v. King, 651 F. Supp. 2d 313, 322 (E.D. Pa. 2009).
The BOP has established a multi-stage administrative remedy process through which an inmate may seek formal review of an issue related to any aspect of his confinement. See 28 C.F.R. § 542.10 et seq.; see also Nyhuis, 204 F.3d at 77 n.12 (describing the administrative remedy process). At the first stage, the inmate is required to present an issue of concern informally to staff in writing on BOP Form BP-8, in an attempt to informally resolve the issue without a formal request for an administrative remedy. 28 C.F.R. § 542.13(a). If unable to satisfactorily resolve the issue informally, the inmate must file a formal written administrative remedy request on BOP Form BP-9. Id. § 542.14(a). Ordinarily, the inmate's BP-9 must be submitted to the Warden within 20 calendar days following the date on which the basis for the administrative remedy request occurred. Id. If dissatisfied with the Warden's response, the inmate may submit a written appeal to the appropriate Regional Director on BOP Form BP-10. Id. § 542.15(a). Ordinarily, the inmate's BP-10 must be submitted within 20 calendar days of the date the Warden signed his or her response. Id. If dissatisfied with the Regional Director's response, the inmate may submit a written appeal to the BOP's General Counsel at the Central Office on BOP Form BP-11. Id. The inmate's BP-11 must be submitted within 30 calendar days of the date when the Regional Director signed his or her response. Id. This review by the BOP's General Counsel is the final administrative appeal for administrative remedy requests by federal prisoners. Id. The BOP regulations expressly provide for extension of these deadlines in a variety of circumstances. See id. § 542.14(b); id. § 542.15(a).
The BOP regulations also provide an alternative procedure for an inmate who "reasonably believes the issue is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution." Id. § 542.14(d). In such a case, the inmate is permitted to submit his administrative remedy request directly to the Regional Director. Id. The request must be clearly marked "Sensitive" and include a written explanation why it has not been submitted at the institution level. Id. If the Regional Administrative Remedy Coordinator agrees that the request is sensitive, it will be accepted for action at the regional level. Id. If the coordinator does not agree, the inmate is advised in writing that the request has not been accepted and that he may pursue the matter by resubmitting it at the institution level; the request itself is not returned, presumably for security reasons. Id. If resubmitted to the Warden, the inmate is entitled to a "reasonable extension" of the usual 20-day BP-9 filing period. Id.; see also id. § 542.14(a).
Here, the defendants contend that Njos failed to properly exhaust available administrative remedies because he did not complete the administrative remedy appeals process with respect to any of his several administrative remedy requests concerning his excessive force claim. Njos admits that he did not appeal any of his administrative remedy requests to the BOP's General Counsel, but contends that administrative remedies were rendered unavailable to him by Gemberling's threats of retaliation.
Njos has survived summary judgment on this exhaustion issue. Under Third Circuit precedent, "exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts." Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013) (citing Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)); see also Drippe, 604 F.3d at 781 ("Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to.") (quoting Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008)); cf. Wilkerson v. United States, Civil Action No. 3:13-1499, 2014 WL 1653249, at *9 (M.D. Pa. Apr. 24, 2014) ("[I]f there is a dispute of material fact, the court should conduct a plenary trial on the contested facts prior to making [an exhaustion of administrative remedies] determination.") (addressing a prisoner's FTCA claim). "Although the availability of administrative remedies to a prisoner is a question of law, it necessarily involves a factual inquiry." Small, 728 F.3d at 271 (citations omitted).
As the Third Circuit has previously recognized, "retaliation or threats of retaliation against an inmate for pursuing a grievance may make administrative remedies unavailable to the inmate." Verbanik v. Harlow, 441 Fed. App'x 931, 933 (3d Cir. 2011) (per curiam) (citations omitted). There are two separate lines of case law addressing the appropriate standard for determining whether retaliation or threats of retaliation against an inmate make administrative remedies unavailable. See generally Handy v. Varner, Civil Action No. 12-1091, 2013 WL 1567601, at *5-*6 (W.D. Pa. Apr. 12, 2013) (collecting cases and discussing circuit split). In the first line of cases, the Second and Seventh Circuits have determined that the appropriate test is an objective one—i.e., whether a similarly situated individual of ordinary firmness would have been deterred from lodging a grievance. See Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). In the second line of cases, the Ninth, Tenth, and Eleventh Circuits have adopted a two-pronged test, which includes both objective and subjective inquiries. See McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015); Tuckel, 660 F.3d at 1252-54; Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008). Under this two-pronged test, "an inmate must make two showings: (1) that the threat or intimidation actually did deter the plaintiff inmate from lodging a grievance . . . ; and (2) that the threat or intimidation would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance." Tuckel, 660 F.3d at 1254; see also McBride, 807 F.3d at 987.
The Third Circuit has not yet considered which of these two approaches it will follow. See, e.g., Verbanik, 441 Fed. App'x at 933 (citing Kaba, Hemphill, and Turner). A recent decision, however, suggests that it may be receptive to the two-step approach. See Williams v. Gavin, 640 Fed. App'x 152, 155 (3d Cir. 2016) (per curiam) (noting that prisoner-plaintiff was not actually deterred by retaliatory threats, but instead declined to exhaust based on strategic considerations and the prison administration's failure to respond to his letters). Based on this and on our own close review of the authorities discussed above, we join our sister court, the Western District of Pennsylvania, in finding the second, two-pronged test to be more persuasive. See Handy, 2013 WL 1567601, at *6.
A. Evidence Received into the Record
1. Testimony of Jolynn Slaybaugh
The defendants presented the testimony of non-party witness Jolynn Slaybaugh, associate warden secretary and administrative remedy clerk at USP Lewisburg. (Doc. 195, at 10). Slaybaugh provided testimony about the BOP administrative remedy process in general and about particular business records generated by BOP staff in the course of processing Njos's administrative remedy requests. (Id. at 10-95). Based on the demeanor of the witness and the consistency of her testimony with the record as a whole, we find Slaybaugh's testimony to be fully credible.
2. Testimony of Shannon Prutzman
The defendants presented the testimony of defendant Shannon Prutzman, a correctional officer currently assigned to FCI Allenwood, but assigned to USP Lewisburg in April and May 2012. (Id. at 96-97). Prutzman testified about his appearance and duty uniform at the time of the events underlying this action. (Id. at 97-98). He testified that his uniform shirt at the time came from the factory with his name, "S. Prutzman," and the BOP symbol embroidered on it. (Id. at 98). He testified that he always put on his uniform shirt at home and kept all his uniform shirts there, keeping none at the prison itself. (Id. at 98-100). He categorically denied the possibility that he had ever lent—or would ever lend—his uniform shirt to another correctional officer. (Id. at 99-100). Based on the demeanor of the witness and considering the record as a whole, we find Prutzman's testimony to be generally, but not entirely, credible.
3. Testimony of Sergio Argueta
The defendants presented the testimony of defendant Sergio Argueta, a correctional officer at USP Lewisburg. (Id. at 101). Argueta testified that, contrary to Njos's allegations, he never heard defendant Gemberling say: "It's the tough guy. Ain't so tough now. I'm friends with everyone here. Who do you think they'll believe? Keep up the filing and next time you won't wake up." (Id. at 102). Based on the demeanor of the witness and considering the record as a whole, we find Argueta's testimony to be generally, but not entirely, credible.
4. Testimony of Kevin Gemberling
The defendants presented the testimony of defendant Kevin Gemberling, a correctional officer at USP Lewisburg. (Id. at 105-06). Gemberling testified about his appearance and duty uniform at the time of the events underlying this action. (Id. at 106-09). He testified that his uniform shirt at the time came from the factory with his name and the BOP patch sewn on it. (Id. at 106). He testified that he always put on his uniform shirt at home and kept all his uniform shirts there, keeping none at the prison itself. (Id. at 106-07, 109). Although he conceded that he "[m]ight be able to" wear another officer's uniform, he categorically denied that he had ever—or would ever—wear another correctional officer's uniform shirt. (Id. at 106, 109). Gemberling categorically denied making any threats to Njos. (Id. at 107-08). Based on the demeanor of the witness and considering the record as a whole, we find Gemberling's testimony to be generally, but not entirely, credible.
5. Testimony of Scott Njos
The defendants also presented the testimony the plaintiff, Njos, as an adverse witness. Njos expressly conceded that he did not exhaust generally available administrative remedy procedures. (Id. at 112). He testified that, although he failed to complete all steps of the administrative remedy process with respect to any of them, he had submitted multiple administrative remedy requests and informal resolution attempts in connection with the April 24, 2012, incident. (Id. at 112, 114). He provided testimony about the various documents he prepared and submitted in the course of pursuing administrative remedies. (Id. at 116-24).
After the defense completed its examination of Njos, he provided narrative testimony in support of his position, followed by cross-examination. (Id. at 126-63). Njos provided testimony regarding the original April 24, 2012, incident. (Id. at 126-30). He testified that subsequently, on May 9, 2012, he encountered defendants Argueta and Gemberling, along with other unidentified officers, at a doorway when returning to his cell block from a medical appointment. (Id. at 130). He testified that the officers looked at him menacingly and laughed at him. (Id. at 130-32). Njos testified that Gemberling then said to him: "It's the tough guy. Ain't so tough now. . . . I'm friends with everyone here. Who do you think they'll believe? Keep filing and next time you won't wake up." (Id. at 133-34). Njos testified that he was so scared that he urinated himself. (Id. at 134). Njos further testified that, on May 11, 2012, he encountered Gemberling a second time, on the opposite side of the same doorway. (Id. at 135). He testified that Gemberling threatened him for a second time, saying: "So you're gonna just keep filing. I was thinking, killing you would be too easy. I think I'll cripple you next time. . . . See how well you work without your books." (Id. at 135-37). Njos testified regarding his various administrative remedy requests and informal resolution attempts, none of which were appealed to the BOP's General Counsel. (Id. at 138-59).
Njos did not recite Gemberling's threatening words in his testimony, but referenced the words he had written down and previously recounted in his grievance paperwork and his pleadings.
Njos did not recite Gemberling's threatening words in his testimony, but referenced the words he had written down and previously recounted in his grievance paperwork and his pleadings.
Based on the demeanor of the witness and the consistency of his testimony with the record as a whole, we find Njos's testimony to be generally, but not entirely, credible.
B. Exhibits Received into Evidence
1. Defense Exhibit 1: Administrative remedy generalized retrieval showing total remedies filed by Njos.
2. Defense Exhibit 2: Administrative remedy generalized retrieval showing total remedies filed by Njos while at USP Lewisburg.
3. Defense Exhibit 3: Njos's informal resolution attempt #12-120.
4. Defense Exhibit 4: Denial of Njos's informal resolution attempt #12-120.
5. Defense Exhibit 5: Njos's informal resolution attempt #12-125.
6. Defense Exhibit 6: Denial of Njos's informal resolution attempt #12-125.
7. Defense Exhibit 7: Njos's administrative remedy request #689061-F1.
8. Defense Exhibit 8: Rejection Notice for Njos's administrative remedy request #689061-F1.
9. Defense Exhibit 9: Njos's administrative remedy request #689061-F2.
10. Defense Exhibit 10: Warden's response to administrative remedy request #689061-F2.
11. Defense Exhibit 11: Njos's administrative remedy request #687536-R1.
12. Defense Exhibit 12: Njos's administrative remedy request #688569-F2.
13. Defense Exhibit 13: Warden's response to administrative remedy request #688569-F2.
14. Defense Exhibit 14: Njos's informal resolution attempt #12-128.
15. Defense Exhibit 14: Denial of Njos's informal resolution attempts #12-128.
16. Defense Exhibit 21: Njos's original complaint in this action (Doc. 1).
17. Defense Exhibit 30: SENTRY administrative remedy subject codes.
18. Defense Exhibit 31: SENTRY administrative remedy status codes.
19. Plaintiff's Exhibit 1 (Doc. 167-1; Doc. 187): Multiple documents—(a) Form BP-S148.055 "Inmate Request to Staff" dated May 13, 2012, with staff response dated May 21, 2012; (b) Njos's administrative remedy request #689061-F1; (c) Njos's administrative remedy request #689062-F1; and (d) five photographs taken on April 24, 2012.
See also Def. Ex. 7.
20. Plaintiff's Exhibit 2 (Doc. 167-2): Multiple documents—(a) Njos's "sensitive" administrative remedy request #687536-R1, filed with the regional office; and (b) Njos's central office administrative remedy appeal #687536-A1 from regional office denial of his "sensitive" administrative remedy request.
See also Def. Ex. 11.
21. Plaintiff's Exhibit 3 (Doc. 167-3): Njos's original complaint in this action (Doc. 1).
See also Def. Ex. 21.
22. Plaintiff's Exhibit 4 (Doc. 167-4): Multiple documents—(a) Njos's administrative remedy request #720162-F1; (b) Warden's response to administrative remedy request #720162-F1; (c) Njos's regional office administrative remedy appeal #720162-R1 from Warden's denial of his administrative remedy request; (d) Regional Director's response to administrative remedy appeal #720162-R1; (e) Njos's central office administrative remedy appeal #720162-A1 from Regional Director's denial of his administrative remedy appeal; and (f) Central Office response to administrative remedy appeal #720162-A1.
23. Plaintiff's Exhibit 5 (Doc. 167-5): Multiple documents—(a) Njos's first request for production of documents, dated June 12, 2014; (b) letter from defense counsel to Njos refusing to respond to discovery requests, dated June 23, 2014; and (c) letter from Njos to defense counsel regarding discovery dispute, dated June 27, 2014.
24. Plaintiff's Exhibit 6 (Doc. 167-6): Multiple documents—(a) Form BP-S148.055 "Inmate Request to Staff" dated April 1, 2015, with staff response dated April 8, 2015; and (b) partial copy of administrative remedy generalized retrieval (sanitized format) dated April 8, 2015.
See also Def. Exs. 1 and 2.
C. Analysis
As their primary line of defense on this issue, the defendants simply deny that the May 9 and May 11, 2012, threats described by Njos ever occurred. In counterpoint to Njos's testimony that Gemberling twice confronted him and threatened him with death or serious physical harm if he continued to file grievances, the defendants have each testified that the incident never occurred, and that Njos's mistaken identification of Gemberling could not have occurred because it is impossible—or at least improbable—that Gemberling could have donned a uniform shirt bearing the name of another correctional officer. Balancing the documentary evidence and the contradictory testimony of the witnesses, we are unable to find that the defendants have met their burden of proof in this respect. They have clearly established that Njos did not exhaust ordinarily available administrative remedies with respect to the April 24, 2012, incident out of which his excessive force claims arise. But Njos has met his burden of production on the actual availability of administrative remedies, testifying credibly that Gemberling threatened him with death or serious injury if he continued to file grievances. We are unconvinced by the defendants' assertion that Njos's account is implausible, and that Gemberling simply could not have worn a shirt bearing Prutzman's name on it. Although we cannot say that Njos's testimony was substantially more credible or persuasive than that of the three correctional officer defendants, neither can we credit the defendants' testimony over that of the plaintiff. Because it is the defendants who bear the ultimate burden of proof on this issue, we are compelled to find in favor of the plaintiff on this particular fact dispute.
But, our inquiry does not end here. As previously noted, to establish that administrative remedies were rendered unavailable by Gemberling's threat, we must find: "(1) that the threat or intimidation actually did deter the plaintiff inmate from lodging a grievance . . . ; and (2) that the threat or intimidation would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance." Tuckel, 660 F.3d at 1254; see also McBride, 807 F.3d at 987.
Here, the evidence includes documentation of four separate sets of informal resolution attempts or administrative remedy requests. This documentary record undermines Njos's claim that he was actually deterred from completing the BOP administrative remedy process.
During his testimony, Njos discussed an additional BP-8 informal resolution attempt and response, referencing Defense Exhibits 17 and 18, in which he reiterated his request that security camera footage of the April 24, 2012, incident be preserved. (Doc. 195, at 149-50, 152). He also briefly cross-examined witness Slaybaugh about these documents. (Id., at 64-65). But despite these brief references in the witnesses' testimony, these two exhibits were never offered or admitted into evidence.
Njos also discussed a sixth administrative remedy request, #720162F1, in which he requested a polygraph examination in an attempt to verify the truth of his allegations against the defendants. (Doc. 195, at 15659). Here, he perfected appeals to both the regional and central offices with respect to this administrative remedy request, and documents concerning these administrative proceedings have been admitted into evidence. (Pl. Ex. 4, Doc. 1674; Def. Ex. 2, at 65, 70, 78). But this administrative remedy was not initiated until January 2013, and such a laterfiled administrative remedy request simply cannot satisfy the PLRA's exhaustion requirement. The PLRA is unequivocal that exhaustion is a precondition for filing a federal civil rights lawsuit. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.") (emphasis added); see also Woodford, at 548 U.S. at 84; Small, 728 F.3d at 269. Thus an administrative remedy request initiated more than six months after the filing of this lawsuit on June 1, 2012, may not properly be considered in determining whether the plaintiff has satisfied the PLRA's exhaustion requirement.
The first set was initiated by BP-9 request for administrative remedy #687536-R1, filed with the BOP regional office sometime between April 30, 2012, and May 7, 2012. (Def. Ex. 11; Def. Ex. 2, at 44). The request was marked "sensitive" and it was submitted directly to the regional office pursuant to 28 C.F.R. § 542.14(d). (Def. Ex. 11). In this "sensitive" request, Njos accused correctional officers Argueta and Prutzman of the excessive use of force during the April 24, 2012, incident. (Id.). On May 8, 2012, Njos's "sensitive" BP-9 was rejected by the regional office on the ground that it did not meet the criteria for a sensitive remedy, and Njos was directed to refile his request at the institution level. (Def. Ex. 11; Def. Ex. 2, at 44; Doc. 195, at 41-43). Instead of refiling at the institution level, sometime between May 18, 2012, and June 6, 2012, Njos submitted appeal #687536-A1 to the BOP's General Counsel. (Def. Ex. 21, at 26-27; Def. Ex. 2, at 50; Doc. 195, at 43). On June 25, 2012, Njos's appeal was rejected by the BOP's General Counsel on the ground that his BP-9 did not meet the criteria for a sensitive remedy, and Njos was directed to refile his request at the institution level. (Def. Ex. 2, at 50; Doc. 195, at 43). Njos did not subsequently refile administrative remedy request #687536-R1/A1 at the institution level as directed. (Doc. 195, at 43-45).
Njos completed the form and dated it April 30, 2012, but it was not logged by the regional office as having been received until May 7, 2012. (Def. Ex. 11; Def. Ex. 2, at 44).
Njos noted on his copy of the BP-9 that he appealed it on May 14, 2012, but his statement on the BP-11 itself references events that occurred on May 18, 2012, and BOP records reflect that it was not received by the central office until June 6, 2012. (Def. Ex. 11; Def. Ex. 21, at 26-27; Def. Ex. 2, at 50).
The second set was initiated by BP-8 informal resolution attempt #12-120, filed with prison officials sometime between May 1, 2012, and May 7, 2012. (Def. Ex. 3). Njos accused unspecified staff of the excessive use of force during the April 24, 2012, incident, and he requested the preservation of security camera footage of the incident. (Id.). Prior to receiving a response to his BP-8, Njos submitted BP-9 request for administrative remedy #688569-F1, dated May 9, 2012, and logged as having been received by prison staff on May 16, 2012. (Def. Ex. 12; Def. Ex. 2, at 46). Njos's BP-9 reiterated the same complaint as his BP-8. (Compare Def. Ex. 12 with Def. Ex. 3). On May 9, 2012, Njos's BP-8 was denied. (Def. Ex. 4). Njos claims that he did not receive his copy of the denial until May 21, 2012. (Id.). In the interim, on May 16, 2012, Njos's original BP-9 #688569-F1 was rejected as procedurally defective because it was submitted without an attached copy of the underlying BP-8. (Def. Ex. 12; Def. Ex. 2, at 46). On or before May 22, 2012, Njos timely refiled the BP-9, logged this time as #688569-F2, together with a copy of the underlying BP-8. (Def. Ex. 12; Def. Ex. 2, at 48). On May 29, 2012, Njos's BP-9 request for administrative remedy #688569-F2 was denied by the warden. (Def. Ex. 13; Def. Ex. 2, at 48). On or before July 5, 2012, Njos submitted BP-10 appeal #688569-R1 to the Regional Director. (Def. Ex. 2, at 55). On July 6, 2012, Njos's BP-10 was rejected as untimely filed. (Id.). On or before July 19, 2012, Njos re-filed his regional appeal, this time logged as BP-10 appeal #688569-R2. (Id. at 57). That same day, Njos's re-filed BP-10 was again rejected as untimely filed. (Id.). Njos did not appeal this determination to the BOP's General Counsel. (Doc. 195, at 52).
The form itself was given to Njos on May 1, 2012. (Def. Ex. 3). The response to it by Deputy Captain B. Taggart acknowledges receipt of the completed form on May 7, 2012. (Def. Ex. 4).
The appeal was logged as having been received on July 5, 2012. (Def. Ex. 2, at 55).
The third set was initiated by BP-8 informal resolution attempt #12-125, filed with prison officials sometime between May 8, 2012, and May 14, 2012. (Def. Ex. 5). Njos accused correctional officers Argueta and Prutzman of the excessive use of force during the April 24, 2012, incident, and he requested the preservation of security camera footage of the incident. (Id.). Prior to receiving a response to his BP-8, Njos submitted BP-9 request for administrative remedy #689061-F1, dated May 9, 2012, and logged as having been received by prison staff on May 21, 2012. (Def. Ex. 7; Def. Ex. 2, at 46). Njos's BP-9 reiterated the same complaint as his BP-8. (Compare Def. Ex. 7 with Def. Ex. 5). On May 16, 2012, Njos's BP-8 was denied. (Def. Ex. 6). Njos claims to have received his copy of the denial on May 21, 2012. (Id.). Also on May 21, 2012, Njos's original BP-9 #689061-F1 was rejected as procedurally defective because it was submitted without an attached copy of the underlying BP-8. (Def. Ex. 8; Def. Ex. 2, at 46). On or before May 31, 2012, Njos's correctional counselor timely re-filed the BP-9, logged this time as #689061-F2, together with a copy of the underlying BP-8. (Def. Ex. 9; Def. Ex. 2, at 49; Doc. 195, at 35-36). On June 7, 2012, Njos's BP-9 request for administrative remedy #689061-F2 was denied by the warden. (Def. Ex. 10; Def. Ex. 2, at 49). On or before July 5, 2012, Njos submitted BP-10 appeal #689061-R1 to the Regional Director. (Def. Ex. 2, at 54). On July 6, 2012, Njos's BP-10 was rejected as untimely filed. (Id.). On or before July 19, 2012, Njos re-filed his regional appeal, this time logged as BP-10 appeal #689061-R2. (Id. at 56). That same day, Njos's re-filed BP-10 was again rejected as untimely filed. (Id.). Njos did not appeal this determination to the BOP's General Counsel. (Doc. 195, at 41).
The form itself was given to Njos on May 8, 2012. (Def. Ex. 5). The response to it by Deputy Captain B. Taggart acknowledges receipt of the completed form on May 14, 2012. (Def. Ex. 6).
The response to the resubmitted BP-9 acknowledges receipt of the form on May 31, 2012. (Def. Ex. 10).
The appeal was logged as having been received on July 5, 2012. (Def. Ex. 2, at 54).
The fourth set was initiated by BP-8 informal resolution attempt #12-128, filed with prison officials sometime between May 11, 2012, and May 28, 2012. (Def. Ex. 14). Njos accused defendant Prutzman of verbally threatening to hurt or kill him in two separate encounters on May 9 and May 11, 2012, if he continued to file grievances. (Id.). Njos requested an investigation into the incident and the preservation of security camera footage of the incidents. (Id.). On May 30, 2012, Njos's BP-8 was denied, following investigation and an interview of the correctional officers named in the BP-8. (Def. Ex. 15).
Njos was unable to recall the date when he filed this BP-8, and the copy of the document produced in discovery and admitted into evidence does not include the backside of the form, where the form would ordinarily indicate the date when it was handed into the prisoner's correctional counselor. (Doc. 195, at 143). The form itself was given to Njos on May 10, 2012. (Def. Ex. 14). On the form, Njos described the events of May 11, 2012. (Id.). The response to it by Deputy Captain B. Taggart acknowledges receipt of the completed form on May 28, 2012. (Def. Ex. 15).
As noted previously, Njos initially believed the individual who threatened him to be defendant Prutzman. Defendant Gemberling was later substituted as a party defendant when this mistake was revealed at Njos's deposition.
Njos also named defendant Argueta as a participant in the May 9 encounter, but he attributed the verbal threats solely to "Prutzman" (whom he later determined to be Gemberling).
Initially, we note that neither Njos's filing of appeal #687536-A1 with the BOP's General Counsel nor his filing of this federal civil action on or about June 1, 2012, is dispositive of his contention that administrative remedies were rendered unavailable by Gemberling's threats on May 9 and May 11, 2012. As the Second Circuit has observed in a similar context,
threats or other intimidation by prison officials may well
deter a prisoner of "ordinary firmness" from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts. This may be so, if for no other reason, because seeking a criminal investigation or filing a civil rights complaint may enable an inmate to draw outside attention to his complaints, thereby neutralizing threatened retaliatory conduct from prison employees.Hemphill, 380 F.3d at 688.
His other filings, however, are more pertinent.
On the face of the BP-9 forms themselves, the precise filing date of requests #688569-F1 and #689061-F1 are unclear. Both forms are dated May 9, 2012, and thus possibly drafted and deposited into the inmate mail system prior to Gemberling's first threat, which occurred at midday on May 9, 2012. But Njos has also submitted into evidence a copy of a May 13, 2012, "cop-out" form in which he requested permission to file several BP-9 administrative remedy requests without a BP-8 attached, ostensibly because his counselor was on vacation and had not timely responded to the BP-8s. (Pl. Ex. 1, Doc. 167-1). The cop-out form references three BP-9s—two "enclosed" BP-9s and one other BP-9 that had already been submitted. (Id.). Copies of requests #689061-F1 and #689062-F2 are included in the exhibit as submitted by the plaintiff. (Id.). A review of the BOP SENTRY records received into evidence further reveals only three initial administrative remedy requests that were filed in that same time period, all of which were rejected for failure to attach a BP-8: requests #688569-F1 (received May 16, 2012), #689061-F1 (received May 21, 2012), and #689062-F1 (received May 21, 2012). (Def. Ex. 2, at 45-46). Based on the foregoing, we find that request #689061-F1 was submitted for filing on or after May 13, 2012. We further find that request #688569-F1 was, submitted for filing sometime between May 9, 2012, and May 13, 2012—after the first of Gemberling's retaliatory threats to Njos.
Njos also filed BP-8 informal resolution attempt #12-128 on or shortly after May 11, 2012. (Def. Ex. 14). On its face, informal attempt #12-128 clearly belies Njos's claim that Gemberling's threats actually deterred him from utilizing grievance procedures. (Id.). The BP-8 clearly and concisely describes the May 9 and May 11, 2012, encounters. (Id.). It expressly names "Prutzman" as the officer who verbally threatened Njos on both occasions, and it expressly names Argueta as a participant in the first encounter. (Id.). As should be expected, its submission triggered an investigation and an interview of both defendants, who denied having threatened Njos. (Def. Ex. 15). The BP-8 was denied on May 30, 2012, and Njos did not follow-up with a related BP-9 request for administrative remedy. (Id.).
Njos's own testimony also undermines his claim that he was actually deterred from completing the BOP administrative remedy process. Njos expressly admitted that, despite having been threatened and feeling fearful, he filed informal attempt #12-128 reporting the officers who had threatened him. (Doc. 195, at 144-45). He acknowledged that he was aware the BP-8 would be addressed "in-house"—within USP Lewisburg—and that Argueta and "Prutzman" might learn of its submission. (Id. at 145). His testimony also suggests that, rather than a fear of retaliation—which had not deterred him from filing informal resolution attempts or administrative remedy requests in the days and weeks following the threats—it was a sense of futility that motivated him to file this lawsuit prior to completing the administrative remedy process. (Doc. 195, at 150 ("When I got the same response that said your video footage is no longer available, I kind of felt, you know, like, well, administration is going to do nothing, I got to go to the court.")). This testimony further supports the conclusion that Njos's decision not to file suit immediately without completing the administrative remedy process was a strategic choice rather than the result of administrative remedies being rendered unavailable. See Williams, 640 Fed. App'x at 155.
Based on the record before this Court, it is evident that Njos's failure to exhaust generally available administrative remedies was not due to threats of retaliation—which the evidence establishes did not actually deter him from pursuing administrative remedies—but rather it was due to his subjective sense that his efforts to obtain administrative relief were futile. It is beyond cavil that the PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis, 204 F.3d at 71. Accordingly, we recommend that the Court adopt the following proposed findings of facts and conclusions of law, and that it grant judgment to the defendants and against the plaintiff on the ground that Njos failed to exhaust all available administrative remedies, as required by 42 U.S.C. § 1997e(a).
III. RECOMMENDATION
For the foregoing reasons, we recommend that the following proposed findings of fact and conclusions of law be adopted pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, and that judgment be entered in favor of the defendants and against the plaintiff pursuant to Rule 58 of the Federal Rules of Civil Procedure.
A. Proposed Findings of Fact
1. Plaintiff, Scott Njos, is a federal inmate, incarcerated at all relevant times at the USP Lewisburg, located in Union County, Pennsylvania.
2. The BOP has established a multi-stage administrative remedy process through which an inmate may seek formal review of an issue related to any aspect of his confinement, set forth at 28 C.F.R. § 542.10 et seq.
3. At the first stage, the inmate is required to present an issue of concern informally to staff in writing on BOP Form BP-8, which they can get from the unit counselor or any other member of the unit team.
4. Inmates then receive a response to the BP-8 from staff.
5. If unable to satisfactorily resolve the issue informally, the inmate may then file a formal written request for administrative remedy on BOP Form BP-9.
6. Ordinarily, the inmate's BP-9 must be submitted to the facility warden within 20 calendar days following the date on which the basis for the administrative remedy occurred.
7. The BP-9 is accepted for filing by the facility administrative remedy clerk if it includes the inmate's BP-8 and response thereto, is signed by the inmate, and is filed within 20 days from the date on which the incident occurred.
8. The BP-9 is then assigned a number that is automatically generated by SENTRY, which includes an "F" suffix to indicate that it was filed at the facility level.
SENTRY is the computer system utilized by the BOP, which contains a history of all administrative remedy filings by each inmate. --------
9. Once a BP-9 is accepted for filing by the administrative remedy clerk, it is assigned to the department for investigation and response.
10. The Warden then reviews the response and signs the BP-9, a copy of which is provided to the inmate.
11. If an inmate is dissatisfied with the Warden's response, the inmate may submit a written appeal to the BOP Regional Office located in Philadelphia, Pennsylvania, within 20 calendar days by filing a BP-10, which is marked with the same administrative remedy number as the BP-9, but with an "R" suffix to indicate it was filed at the regional level.
12. If dissatisfied with the response from the regional office, the inmate may submit a written appeal to the BOP's General Counsel at the BOP Central Office located in Washington, D.C., within 30 calendar days by filing a BP-11, which is marked with the same administrative remedy number as the BP-9, but with an "A" suffix to indicate it was filed at the central office.
13. This review of a BP-11 by the BOP's General Counsel is the final level of administrative appeal.
14. If a remedy is rejected at any level, it is returned to the inmate with a written notice explaining the reason for rejection. Copies of rejected remedies are not always maintained by the BOP.
15. An inmate has not exhausted his administrative remedies until the administrative remedy request has been denied at all levels of the administrative remedy procedure prior to filing suit.
16. The BOP regulations also provide an alternative procedure for an inmate who reasonably believes that the issue is sensitive and the inmate's safety or well-being would be placed in danger if the request became known at the institution; in such a case, the inmate is permitted to submit his administrative remedy request directly to the regional office, provided it is clearly marked "sensitive" and it includes a written explanation why it has not been submitted at the facility level.
17. If the regional administrative remedy coordinator agrees the request is sensitive, it will be accepted for action at the regional level; if not, the inmate will be advised in writing that the request has not been accepted and that he may pursue the matter by resubmitting the request at the facility level.
18. If a rejected "sensitive" request is resubmitted to the facility warden, the inmate is entitled to a "reasonable extension" of the usual 20-day BP-9 filing period.
19. Njos has admitted that he knows how to file an administrative remedy request with a BOP facility warden.
20. Njos has admitted that he knows how to file a sensitive remedy request with the regional office.
21. Njos has admitted that, prior to filing this lawsuit, he did not properly exhaust generally available administrative remedies with respect to his excess force claim against correctional officers Argueta and Prutzman arising out of an April 24, 2012, incident.
22. Njos has claimed that administrative remedies were rendered unavailable to him because a correctional officer he originally identified as "Prutzman" threatened him on May 9 and May 11, 2012.
23. When Njos was presented with a picture of defendant Prutzman in discovery, he claimed he was threatened by a different officer wearing a shirt with the name "Prutzman" on it.
24. Njos later identified the other "Prutzman" as defendant Gemberling.
25. Njos has claimed that, on May 9, 2012, officer Gemberling said to him: "It's the tough guy. Ain't so tough now. . . . I'm friends with everyone here. Who do you think they'll believe? Keep filing and next time you won't wake up."
26. Njos has claimed that, on May 11, 2012, officer Gemberling said to him: "So you're gonna just keep filing. I was thinking, killing you would be too easy. I think I'll cripple you next time. . . . See how well you work without your books."
27. Gemberling has denied threatening Njos.
28. Argueta has denied hearing Gemberling threaten Njos.
29. Gemberling has denied ever wearing a uniform shirt with the name "Prutzman" on it.
30. Prutzman has denied lending his uniform shirt to Gemberling.
31. Sometime between April 30, 2012, and May 7, 2012, Njos submitted a BP-9 administrative remedy request marked "sensitive" directly to the BOP regional office in which he accused officers Argueta and Prutzman of the excessive use of force during the April 24, 2012, incident.
32. This "sensitive" request was logged as request #687536-R1 upon receipt by BOP regional staff on May 7, 2012.
32. On May 8, 2012, "sensitive" request #687536-R1 was rejected by the regional office on the ground that it did not meet the criteria for a sensitive remedy, and Njos was directed to refile his request at the facility level.
33. Instead of refiling at the facility level as instructed, sometime between May 18, 2012, and June 6, 2012, Njos submitted "sensitive" appeal #687536-A1 to the BOP central office for review by the BOP's General Counsel.
34. On June 25, 2012, "sensitive" appeal #687536-A1 was rejected by the central office on the ground that it did not meet the criteria for a sensitive remedy, and Njos was directed to refile his request at the facility level.
35. Njos did not refile request #687536 at the facility level.
36. Sometime between May 1, 2012, and May 7, 2012, Njos submitted BP-8 informal resolution attempt #12-120 to his counselor, in which he accused unspecified staff of the excessive use of force during the April 24, 2012, incident; Njos also requested the preservation of security camera footage of the incident.
37. Sometime between May 9, 2012, and May 13, 2012, and prior to receiving a response to informal attempt #12-120, Njos submitted a BP-9 request for administrative remedy in which he repeated the allegations set forth in informal attempt #12-120.
38. This request was logged as request #688569-F1 upon receipt by the facility administrative remedy clerk on May 16, 2012.
39. On May 16, 2012, administrative remedy request #688569-F1 was rejected as procedurally defective because it was submitted without an attached copy of the underlying BP-8.
40. Informal attempt #12-120 was denied on May 9, 2012, but Njos did not receive the response until May 21, 2012.
41. On May 22, 2012, Njos timely refiled his administrative remedy request, logged this time as #688569-F2, together with a copy of the underlying BP-8.
42. On May 29, 2012, administrative remedy request #688569-F2 was denied by the facility warden.
43. On or before July 5, 2012, Njos submitted a Form BP-10 appealing the warden's decision, logged as #688569-R1 upon receipt by the regional office.
44. On July 6, 2012, appeal #688569-R1 was rejected as untimely filed.
45. On or before July 19, 2012, Njos re-filed his regional appeal, this time logged as #688569-R2.
46. On July 19, 2012, appeal #688569-R2 was rejected as untimely filed.
47. Njos did not appeal this determination by the regional office to the BOP's General Counsel.
48. Sometime between May 8, 2012, and May 14, 2012, Njos submitted BP-8 informal resolution attempt #12-125 to his counselor, in which he accused officers Argueta and Prutzman of the excessive use of force during the April 24, 2012, incident; Njos also requested the preservation of security camera footage of the incident.
49. On or after May 13, 2012, and prior to receiving a response to informal attempt #12-125, Njos submitted a BP-9 request for administrative remedy in which he repeated the allegations set forth in informal attempt #12-125.
50. This request was logged as request #689061-F1 upon receipt by the facility administrative remedy clerk on May 21, 2012.
51. On May 21, 2012, administrative remedy request #689061-F1 was rejected as procedurally defective because it was submitted without an attached copy of the underlying BP-8.
52. Informal attempt #12-125 was denied on May 16, 2012, but Njos did not receive the response until May 21, 2012.
53. On or before May 31, 2012, Njos's correctional counselor timely refiled this administrative remedy request on Njos's behalf, logged this time as #689061-F2, together with a copy of the underlying BP-8.
54. On June 7, 2012, administrative remedy request #689061-F2 was denied by the facility warden.
55. On or before July 5, 2012, Njos submitted a Form BP-10 appealing the warden's decision, logged as #689061-R1 upon receipt by the regional office.
56. On July 6, 2012, appeal #689061-R1 was rejected as untimely filed.
57. On or before July 19, 2012, Njos re-filed his regional appeal, this time logged as #689061-R2.
58. On July 19, 2012, appeal #689061-R2 was rejected as untimely filed.
59. Njos did not appeal this determination by the regional office to the BOP's General Counsel.
60. Sometime between May 11, 2012, and May 28, 2012, Njos submitted BP-8 informal resolution attempt #12-128 to his counselor, in which he accused officer "Prutzman" (later identified as Gemberling) of verbally threatening to hurt or kill him in two separate encounters on May 9 and 11, 2012, if he continued to file grievances; Njos also requested the preservation of security camera footage of the incident.
61. Informal attempt #12-128 also named officer Argueta as a participant in the May 9 encounter, but Njos attributed the verbal threats solely to "Prutzman" (later identified as Gemberling).
62. Despite fear of retaliation, Njos admitted that he knew when he filed it that informal attempt #12-128 would be addressed "in-house"— within USP Lewisburg—and that Argueta and Prutzman might learn of its submission.
63. Informal attempt #12-128 was denied on May 30, 2012, following investigation and an interview of the correctional officers named in the BP-8.
64. Njos did not file a related BP-9 request for administrative remedy based on informal attempt #12-128.
65. Njos testified that: "When I got the same response [from prison officials] that said your video footage is no longer available, I kind of felt, you know, like, well, administration is going to do nothing, I got to go to court."
66. Based on the demeanor of the witness and the consistency of her testimony with the record as a whole, the testimony of Jolynn Slaybaugh is fully credible.
67. Based on the demeanor of the witness and considering the record as a whole, the testimony of Shannon Prutzman is generally, but not entirely, credible.
68. Based on the demeanor of the witness and considering the record as a whole, the testimony of Sergio Argueta is generally, but not entirely, credible.
69. Based on the demeanor of the witness and considering the record as a whole, the testimony of Kevin Gemberling is generally, but not entirely, credible.
70. Based on the demeanor of the witness and the consistency of his testimony with the record as a whole, the testimony of Scott J. Njos is generally, but not entirely, credible.
B. Proposed Conclusions of Law
71. Under 42 U.S.C. § 1997e(a), a prisoner-plaintiff is required to exhaust all available administrative remedies prior to bringing a lawsuit challenging prison conditions. See Woodford, at 548 U.S. at 84; Small, 728 F.3d at 269.
71. The defendants have failed to carry their burden of proof with respect to the factual issue of whether, on May 9 and May 11, 2012, defendant Gemberling threatened to harm or kill Njos if the latter continued to file grievances. See Ray, 385 F.3d at 295; Albino, 747 F.3d at 1172; see also Tuckel, 660 F.3d at 1254; Brown, 312 F.3d at 112-13; Johnson, 869 F. Supp. 2d at 38; Kantamanto, 651 F. Supp. 2d at 322.
72. Nevertheless, the facts at trial have established that Gemberling's threats did not actually deter Njos from utilizing generally available administrative remedies. See McBride, 807 F.3d at 987; Tuckel, 660 F.3d at 1254; Turner, 541 F.3d at 1084-85; Handy, 2013 WL 1567601, at *6; see also Williams, 640 Fed. App'x at 155.
73. Moreover, the facts at trial have established that, rather than the fear of retaliation, Njos's failure to exhaust generally available administrative remedies was motivated by his a subjective perception that efforts to obtain administrative relief were futile. See Nyhuis, 204 F.3d at 71 (noting that there is no futility exception to the PLRA's mandatory exhaustion requirement).
74. Njos failed to properly exhaust available administrative remedies with respect to administrative remedy request #687536.
75. Njos failed to properly exhaust available administrative remedies with respect to administrative remedy request #688569.
76. Njos failed to properly exhaust available administrative remedies with respect to administrative remedy request #689061.
77. Njos failed to properly exhaust available administrative remedies with respect to informal resolution attempt #12-128.
78. Njos failed to properly exhaust available administrative remedies with respect to his Bivens claim against defendants Argueta and Prutzman alleging the excessive use of force against Njos on April 24, 2012.
79. Accordingly, the defendants are entitled to judgment as a matter of law on the ground that the plaintiff failed to exhaust all available administrative remedies prior to bringing this action concerning prison conditions. Dated: February 23, 2017
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 23, 2017. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: February 23, 2017
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge