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October 19, 2005.

JOSEPH SMITH, Warden, Lewisburg Pen., MR. STRATTA, Associate Warden, LT. HOOPER, MR. ADAMI, Unit Manager, JOHN DOE #1, C.O., JOHN DOE #2, C.O., JOHN DOE, Health Administrator, JOHN DOE, Physician's Assistant, Defendants.

The opinion of the court was delivered by: JAMES McCLURE JR., District Judge



Demetrius Hill, pro se plaintiff in this Bivens action, is incarcerated in the United States Penitentiary at Lewisburg, Pennsylvania ("USP Lewisburg") while he awaits sentencing in the Eastern District of New York.*fn1 Hill arrived at USP Lewisburg on July 21, 2005, after being transferred from the Metropolitan Detention Center in Brooklyn, New York ("MDC Brooklyn"), and is housed in the Special Management Unit, or "G-Block," at Lewisburg.

  On or about August 23, 2005, Hill filed a five-count complaint requesting money damages and equitable relief, complaining of the conditions at the Penitentiary and the treatment he received there. (Rec. Doc. No. 1.) Hill's claims can be grouped into four categories: physical abuse, indifference to medical complaints, lack of access to the legal system, and prison conditions in general. The defendants are employees of USP Lewisburg.

  Contemporaneous with the filing of his complaint, Hill filed a motion for a temporary restraining order and preliminary injunction, accompanied by a supporting memorandum of law (Rec. Doc. No. 2), a proposed order (Rec. Doc. No. 4), and a "forma pauperis declaration" (Rec. Doc. No. 5). Hill sought a temporary restraining order and preliminary injunction compelling Warden Joseph Smith to:
(A) Immediately install cameras in the G-Block stairwells and closet area so that there are no blind spots and to prevent repeated assaults and/or killings;
(B) Ensure that all Corrections Officers in G-Block wear name tags;
(C) Allow plaintiff to call his attorney, use the law library, have his legal material in his cell and treat plaintiff as a pretrial detainee until he is sentenced; and
(D) Ventilate G-Block cells and provide plaintiff with an examination by the facility doctor, and sanitize and rid G-Block of excessive cockroaches and mice.
  Most troubling to the court were Hill's allegations that he had been assaulted, threatened, and denied essential asthma medications in retaliation for his seeking redress through the administrative grievance and legal systems.

  Because the allegations in the complaint were serious, we issued an order dated August 25, 2005 (Rec. Doc. No. 7) scheduling a hearing on Hill's motion for a preliminary injunction for September 8, 2005.*fn2 We also directed the Government to file its opposition by the date of the hearing, and temporarily granted Hill's request to proceed in forma pauperis. (Id.) However, we denied Hill's motion for a temporary restraining order because it did not appear from Hill's affidavit that immediate and irreparable injury, loss, or damage would result to Hill if we did not grant the TRO. See Fed.R.Civ.P. 65(b); (Rec. Doc. No. 7).

  On September 15, 2005, the court received correspondence from Hill, complaining of a delay in receiving asthma medication. (Rec. Doc. No. 13.) Attached to the letter were Hill's handwritten request to the Physician's Assistant assigned to G-Block for the medication and the handwritten affidavit*fn3 of another inmate averring that USP Lewisburg staff were inattentive to the medical complaints of Hill and the affiant. On September 19, 2005, the court received a brief and five more inmate affidavits from Hill in support of his motion for a preliminary injunction. (Rec. Doc. No. 14.) The Government timely filed its opposition brief on the morning of September 22, 2005. (Rec. Doc. No. 15.)

  On September 22, 2005, we held a hearing on Hill's motion for a preliminary injunction. Hill represented himself, and testified under oath subject to cross-examination about the allegations in his complaint and his attempts to exhaust administrative remedies. The Government presented seven witnesses, all of whom were cross-examined by Hill: Warden Joseph Smith, Associate Warden Frank Strada, Unit Manager John Adami, Lieutenant Tracy Hooper, Corrections Officer Wesley Robey, licensed pharmacist and Assistant Health Services Administrator Joseph Zagame, III, and Physician's Assistant/Mid-Level Practitioner Ferdinand Alama.

  The court has carefully considered the allegations in the complaint, the supporting briefs and affidavits, the Government's opposition, the testimony of all eight witnesses, and the parties' oral argument. Based on the following discussion, we will (1) dismiss the complaint for failure to exhaust administrative remedies and (2) explain that we would deny Hill's motion for a preliminary injunction even if he had exhausted his administrative remedies.


  A. The plaintiff's complaint is dismissed for failure to exhaust administrative remedies.

  "[F]ederal prisoners suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), must first exhaust inmate grievance procedures" before filing a claim in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002). The Prisoner Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [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." 42 U.S.C. § 1997e(a) (2000). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532.

  The Bureau of Prisons has established a multi-tier Administrative Remedy Program whereby a federal prisoner may seek review of any aspect of his imprisonment. See 28 C.F.R. §§ 542.10-542.19. The program outlines the steps an inmate must take before fully exhausting his administrative remedies.*fn4

  Failure to exhaust is an affirmative defense that can be waived if not properly preserved by a defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). In this case, the defendants asserted the defense in their brief opposing Hill's motion for a preliminary injunction, and presented evidence on the issue at the hearing. They argue that Hill's complaint and his motion for preliminary injunction are subject to dismissal for failure to exhaust.*fn5 (Rec. Doc. 15, at 6.) We agree. Despite the litany of grievances Hill presented to this court, the record reveals that he has attempted to file only one administrative remedy form: a BP-9 alleging retaliation for filing administrative grievances at MDC Brooklyn and a denial of medical attention, access to legal materials, and other complaints associated with USP Lewisburg. (Def. Ex. 1, at 2.) This request was denied, and Hill was instructed to "file a request or appeal at the appropriate level via regular procedures." (Def. Ex. 1, at 1.) Hill did not pursue the appeal with a BP-10, nor did he file any additional BP-8s or 9s. Furthermore, the defense witnesses all testified that Hill did not informally complain to prison staff about the issues he now presents to the court. According to the BOP's Administrative Remedy Program, "an inmate shall first 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." 28 C.F.R. § 542.13(a). Warden Smith testified that Hill could have complained to any member of USP Lewisburg staff about the grievances in his complaint: "There are so many people that make rounds, the AW, the unit managers, the shift lieutenant, myself. He could report it to anybody and we would take a look at it. If he had reported an assault, I would have at a minimum turned it over to our special investigative administrator." (Tr. at 43.) Although Hill testified that he did complain to prison staff, the court finds serious issues with his credibility.

  As an excuse for not exhausting his administrative remedies, Hill made three arguments. First, Hill argued that he was not provided with the appropriate forms to file and appeal administrative grievances. (See Tr. at 16.) Specifically, Hill contends that Unit Manager Adami refused to provide him with BP-8s, 9s, and BP1-0s. (Tr. at 24.) Adami denies this. (Tr. at 79-80.) In ...

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