Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FORTES v. HARDING

June 25, 1998

Edwin C. Fortes, Jr., Plaintiff,
v.
Margaret L. Harding, P. Ackley, Carl R. Stevens, Joseph Hall, and W. Lane, Defendants.



The opinion of the court was delivered by: VANASKIE

MEMORANDUM

 BACKGROUND

 Plaintiff Edwin C. Fortes, an inmate formerly confined at the Allenwood Federal Correctional Institution, White Deer, Pennsylvania ("FCI-Allenwood") *fn1" , filed this Bivens-styled action *fn2" against several federal officials. Along with the filing of his complaint, Fortes filed an application to proceed in forma pauperis.

 He names as Defendants the following FCI-Allenwood employees: Margaret L. Harding, Warden; P. Ackley, Associate Warden; Carl R. Stevens, Unit Manger; Joseph Hall, Unit Counselor; and W. Lane, Education Supervisor. Only injunctive relief is sought. Specifically, Fortes asks that defendants be restrained from interfering with his access to the courts in connection with his appeal from his conviction.

 Pending before the court is Defendants' motion to dismiss and for summary judgment. (Dkt. Entry 16.) The motion is fully briefed and is ripe for disposition. Defendants argue, inter alia, that the complaint should be dismissed for failure to exhaust administrative remedies and because Fortes can show no cognizable injury.

 Defendants' exhaustion of remedies argument is meritorious. But more fundamentally, Fortes' action for injunctive relief is moot since (a) he is no longer incarcerated at FCI-Allenwood and (b) his appeal has been decided after he was accorded the right to file briefs that purported to supplement the arguments that his attorney advanced in separately-filed briefs. Indeed, even if mootness and exhaustion hurdles were not present, Fortes could not show the requisite injury-in-fact to maintain a viable cause of action.

 DISCUSSION

 The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) (the "Act"), has substantially changed judicial treatment of civil rights actions by state and federal prisoners. With respect to the applicability of administrative remedies, Section 803(d) of the Act has amended 42 U.S.C. § 1997e(a) to read as follows:

 
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), 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. § 803(d) (subpara. a).

 This provision makes no distinction between an action for damages, injunctive relief, or both. Thus, prisoners are required to exhaust available administrative remedies prior to initiating a prison conditions case brought pursuant to 42 U.S.C. § 1983 or any other federal law.

 The Bureau of Prisons has established a multi-tier system whereby a federal prisoner may seek formal review of any aspect of his imprisonment. 28 C.F.R. §§ 542.10-542.19 (1997). First, "an inmate shall . . . present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." Id. § 542.13(a). Second, if an inmate at an institution is unable to informally resolve his complaint, he may file "a formal written Administrative Remedy Request, on the appropriate form (BP-9), [within] 20 calendar days following the date on which the basis for the Request occurred." Id. § 542.14(a). The warden has twenty (20) days in which to respond. Id. § 542.18. An inmate who is not satisfied with the warden's response may submit an appeal, on the appropriate form (BP-10), to the appropriate Regional Director within twenty (20) calendar days from the date the warden signed the response. Id. § 542.15(a). 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 within thirty (30) calendar days from the date the Regional Director signed the response. Id. The Regional Director has thirty (30) days and the General Counsel has forty (40) days to respond. Id. § 542.18.

 Fortes alleges that Defendants "have consistently, and concertedly, denied plaintiff access to the First Circuit Court of Appeals by willfully and maliciously impeding his efforts to prepare his legal documentation, in accordance with several court-ordered deadlines, and by denying his request for permission to obtain the amount of postage that is required to mail said legal documentation to the First Circuit Court of Appeals and to the Assistant U.S. Attorney, and to his court-appointed counsel, by not allowing him to endorse a BP-199(45) Request for Withdrawal of Inmate's Personal Funds (Form 24) which would be held against plaintiff's personal inmate account, until sufficient funds ever became available to reimburse the administration of FCI-Allenwood (Medium) for the amount of required postage obtained to mail said legal documentation to the court". (Dkt. Entry 1.) For relief, Fortes requests the issuance of a "preliminary injunction directing Defendants, Harding, Ackley, Stevens, Hall and Lane to cease and desist denying him access to the courts by refusing to allow him to endorse a BP-199(45) Request for Withdrawal of Inmate's Personal Funds (Form 24) for the cost of postage that is required to mail his 'pro se' supplemental appeal brief to the First Circuit Court of Appeals and to the Assistant United States Attorney, in accordance with a court-ordered deadline, and by limiting his time in the law library of FCI-Allenwood (Medium) to prepare said 'pro se' supplemental appellate brief, as well as by preventing him from obtaining photocopies of necessary legal documentation, in a reasonably timely manner." (Id.) Fortes makes no indication that he exhausted his administrative remedies with respect to any of his requests.

 In support of their motion to dismiss and for summary judgment, defendants submit the affidavit of Thomas J. Mueller, Attorney-Advisor at the United States Department of Justice, Federal Bureau of Prisons, who states that in the ordinary course of business, computerized indexes of all administrative appeals filed by inmates are maintained so that rapid verification may be made as to whether an inmate has exhausted administrative appeals on a particular issue. Mueller's review of the SENTRY Administrative Remedy System reveals that on February 21, 1997 Plaintiff filed an administrative remedy (BP-9) with the Warden, requesting absence from his institutional duty assignment. This administrative remedy was subsequently withdrawn by Plaintiff before a response could be made. Fortes did not pursue this remedy any further. (Dkt. Entry 22, Exhibit 1, Affidavit of Thomas J. Mueller.)

 On June 4, 1997, Fortes filed an administrative remedy (BP-9) with the warden requesting postage for legal correspondence. This remedy was denied by the Warden on June 24, 1997. Plaintiff twice unsuccessfully attempted to appeal the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.