United States District Court, M.D. Pennsylvania
November 4, 2005.
JOSE VEGA, Plaintiff
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., Defendants.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
Jose Vega, an inmate formerly housed at Lewisburg United States
Penitentiary ("USP-Lewisburg"), Lewisburg, Pennsylvania,*fn1
filed this pro se civil rights action. Vega avers that on March
14, 2003, while housed at USP-Lewisburg, he assaulted Associate
Warden Sniezek with a razor blade during the noon meal. (Doc. 1,
Complaint; Doc. 21, Amended Complaint). In retaliation for this
attack, Defendants assaulted him and then denied him medical care
for his injuries. Vega seeks monetary relief from the following
defendants: Warden D. Scott Dodrill, Lt. Knox, Corrections
Officer ("CO") Fisher, CO Heaganbach, CO Hummer, CO Edinger, Physician Assistant Navarro, Dr. Noone, and
Presently before the Court is Defendants' Motion for Summary
Judgment premised upon Vega's alleged failure to properly exhaust
his available administrative remedies. Having carefully
considered the matter, we find that Vega's claims are
procedurally defaulted as he failed, without excuse, to timely
file an Administrative Remedy Request pursuant to the procedure
set forth in the Bureau of Prisons' ("BOP") Administrative Remedy
Program challenging his alleged mistreatment. Accordingly,
Defendants' motion for summary judgment will be granted.
II. Procedural History.
Vega filed this action on November 1, 2004, (doc. 1), and then
filed a supplemental pleading on November 29, 2004. (Doc. 16).
After receiving an extension of time to answer or otherwise
respond to the Complaint, Defendants filed their Motion for
Summary Judgment, supporting brief and exhibits. (Docs. 35 and
36). Vega then filed an extension of time to respond to
Defendants' motion. (Doc. 41).
On May 31, 2005, Vega filed a Motion for Summary Judgment.
(Doc. 43). At the same time, Vega filed "Plaintiff's Brief in
Response to Defendants' Motion for Summary Judgment" (doc. 44), and "Plaintiff's Opposition and Counter Defense to
Defendants' Motion, Brief, Affidavit and Exhibits" (doc. 45).
Vega has not filed a brief in support of his Motion for Summary
Judgment.*fn2 Defendants filed a response to Vega's motion,
noting that his submissions in connection with that motion were
briefs in opposition to their motion for summary judgment. (Doc.
46). More than a month later, after Vega was transferred back to
the Florence facility, Vega submitted his "Exhibits in Support of
his Brief Regarding Exhaustion of Remedies." (Doc. 50).
Defendants then filed a Response to his submission. (Doc. 51). On
August 23, 2005, Vega filed his "Response to Defendants' Response
to File Opposition to his Exhibits Regarding Exhaustion of
Administrative Prison Remedies." (Doc. 52). Aware of Vega's
claims that he had difficulty obtaining his legal materials and
legal research items while at the Springfield medical facility,
we will consider all of Vega's opposition materials (docs. 44,
45, 50 and 52) and defendants' responses when resolving this
motion. III. Background.
A. Events of March 14, 2003.
On March 13, 2003, at approximately 11:24 a.m., Vega assaulted
USP-Lewisburg's Associate Warden Sniezek with a razor blade
during the noon mainline meal. (Doc. 1, Complaint, and 21-2,
Plaintiff's Exhibits in Support of his Amended Complaint). After
temporarily holding staff at bay, Plaintiff was subdued and
placed in ambulatory restraints and taken to the Lieutenant's
office. Defendants Fisher, Hagenbuch, Edinger, Hummer, and Knox
held Vega down while Dr. Bussanich injected him with an unknown
substance rendering him physically and mentally incapacitated.
(Id.) Vega was stripped naked and "assaulted by prison staff
for a duration of at least an hour." (Doc. 1 at ¶ 5). Plaintiff
sustained a broken rib, body and head contusions, loss of hearing
in his left ear and several abrasions as a result of the attack.
(Id. at ¶ 6).
After the assault, at approximately 11:45 a.m., Vega was
escorted to the prison's Health Services Department and examined
by Dr. Bussanich. (Doc. 21-3, Inmate Injury Assessment and
Followup Report). Although Dr. Bussanich saw the extent of
Plaintiff's injuries, he failed to treat or properly document
them. (Docs. 1 and 21). Vega was then taken to the Special
Housing Unit. (Doc. 21-2, p. 9). PA Navarro examined Vega at approximately 12:00 p.m. (Id. at p. 10). Navarro also ignored,
overlooked and failed to document Vega's injuries denying him
proper medical treatment.
Later that day Vega was transported from USP-Lewisburg to
neighboring USP-Allenwood. Upon reception staff photographed and
documented Vega's injuries. At approximately 2:45 p.m. Plaintiff
was medically evaluated and several abrasions were noted on
various parts of his body. One contusion and hematoma were also
noted on the right side of his forehead. (Id. at pp. 8-14).
Minor first aid was administered. (Id. at p. 12).
B. Vega's Efforts to Exhaust his Administrative Remedies.
Immediately upon his transfer to USP-Allenwood Vega was placed
on "suicide status." (Doc. 44, Plaintiff's Brief in Response to
Defendants' Motion for Summary Judgment). He remained on suicide
status until March 25, 2003, when he was transferred to the
United States Medical Center for Prisoners, Springfield,
Missouri, for mental-health evaluation and treatment. While
there, he wrote a letter to the BOP Legal Department complaining
of his recent assault but received no response. Plaintiff also
"made informal efforts to execute his complaints by discussing
them with `Springfield's' Correctional Counselor, Mr. Cunningham,
who advised Vega that because he was seeking compensation he (meaning Vega) would have to file a
Federal Tort Claim." (Doc. 44, Plaintiff's Rebuttal to
Defendant's Motion for Summary Judgment, at ¶ 13; and Doc. 45-1,
Plaintiff's Opposition and Counter Defense to Defendants' Motion,
Brief, Affidavit and Exhibits, p. 8). Plaintiff returned to
USP-Allenwood on June 25, 2003. (Doc. 44).
On or about July 3, 2003, Vega received a "fabricated"
misconduct for assaulting USP-Lewisburg's Associate Warden. (Doc.
44). On July 5, 2003, Vega was charged in the Middle District of
Pennsylvania with assaulting a corrections employee. These
proceeding terminated in February 2005 after Vega plead guilty to
From July 18, 2003, through October 23, 2003, while housed at
USP-Allenwood, Vega filed various grievances challenging a
variety of issues. (Id. at ¶ 17). In March 2004, Vega filed an
administrative tort claim with the BOP regarding the March 14,
2003, assault and his injuries. His claim was denied in August
2004. (See Docs. 44 and 45-1).
On April 5, 2004, Plaintiff was transferred from USP-Allenwood
to the Administrative Maximum security facility in Florence, Colorado. (Doc. 44). It was here that he "learned that
he had to file administrative remedies in compliance with the
Prison Litigation Reform Act, regardless of the fact that relief
sought could not be granted." (Doc. 52, Plaintiff's Response to
Defendants' Response to Filed Opposition to his Exhibits
Regarding Exhaustion of Administrative Remedies, ¶ 6). In July
2004, upon the advice of fellow inmates, Vega filed an Informal
Resolution Attempt, or BP-8, claiming he was assaulted and denied
medical attention. He cited his emergency transfer from
USP-Lewisburg to USP-Allenwood, his transfer to the Springfield
Medical Center, and then his pending criminal prosecution to
suggest that his "in transit" status "had foreclosed [him] from
initiating this grievance process with the principal place
(USP-Lewisburg)." (See Doc. 50, Vega's Informal Resolution Form
dated July 27, 2004, Attachment.) Since Vega sought monetary
damages, he was advised to submit a tort claim. (Id.)
Vega then filed a Request for Administrative Remedy, the next
step in the BOP's administrative remedy process. It was assigned
number 346152-F1. (See Doc. 50, p. 14, Administrative Remedy
Request No. 346152-F1). The Administrative Remedy Coordinator
rejected the request as untimely, noting that such a request must
be received within 20 days of the event complained of. (See Doc. 50, p. 13, Rejection Notice of Administrative
Remedy No. 346152-F1).
On August 9, 2004, Vega filed an appeal to the Regional
Administrator. He protests the rejection of his administrative
request as untimely "even after I'd given reasonable cause for
the delay." (Doc. 50, p. 19, Regional Administrative Remedy
Appeal No. 346152-R1). Vega states that "a `330' emergency
transfer from USP-Lewisburg to USP-Allenwood on March 14, 2003,
coupled with an immediate transfer to Springfield Medical Center,
an impending criminal prosecution and subsequent indictment plus
[him] being on `transit' had foreclosed [him] from initiating
this grievance against prison guards and medical staff for
`excessive use of force, improper & inadequate medical treatment
and a deliberate indifference." (Id.) Vega's Administrative
Remedy Appeal was rejected as untimely on September 1, 2004.
(See Doc, 50, p. 18, North Central Regional Office
Administrative Remedy Rejection Notice No. 346152-R1.)
On September 9, 2004, Vega filed a Central Office
Administrative Remedy Appeal. (See Doc. 50, p. 21). Again Vega
explains the "reasonable cause" for his delay in filing his
administrative remedy request "[o]n account that [he] was on
`transit' status, an impending prosecution and indictment I was
foreclosed from initiating a timely filed grievance against prison guards and medical staff." (Id.) On September 30, 2004,
the BOP Central Office Administrative Remedy Coordinator rejected
the administrative remedy as untimely. (Id. at p. 20).
Vega asserts that he has presented his administrative remedy
request related to the March 2003 assault and denial of medical
care to each level of the BOP's grievance system. (Doc. 44,
Plaintiff's Brief in Response to Defendants' Motion for Summary
Judgment, ¶ 43). Plaintiff claims that he advanced reasonable
excuses for the late filing of his administrative remedy. (Doc.
In opposition to Defendants' Motion for Summary Judgment, Vega
adds an additional rationale for the untimely filing of his
administrative remedy not previously advanced elsewhere.
Plaintiff submits an affidavit affirming that his Corrections
Counselor at the Springfield Medical Center "mislead him to
believe that his grievance could not be remedied under the
Administrative Remedy Process because [he] was seeking
compensation, and therefor, [he] was referred to the Federal Tort
Claim Act. Then, after learning of the requirements of the Prison
Litigation Reform Act," he filed his Informal Resolution Form and
proceeded to fully exhaust his administrative remedies. (Id. at
pp. 7-8). IV. Standard of Review.
Summary judgment will be granted if the record establishes that
"there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
324, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986). Rule 56(c)
imposes a burden on the moving party to point to an absence of
evidence supporting the nonmoving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met
this burden, the burden then shifts to the non-moving party. The
non-moving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Moreover, he may not simply
"replace conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit." Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188,
111 L.Ed.2d 695 (1990) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
Rather, he must "set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e). Unsubstantiated
arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton,
984 F.2d 1359, 1370 (3d Cir. 1993).
At the summary judgment stage, the court's function is not to
weigh the evidence and determine the truth of the matter, but
rather to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. In reviewing the
evidence, facts and inferences must be viewed in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
1356, 89 L.Ed.2d 538, 553 (1986). The mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.
Anderson, 477 U.S. at 247-248, 106 S.Ct. at 2510. Summary
judgment must be entered in favor of the moving party "[w]here
the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party." Matsushita,
475 U.S. at 5887, 106 S.Ct. at 1357(citations omitted).
Defendants claim they are entitled to summary judgment as Vega
has failed to properly exhaust his administrative remedies. The
BOP rejected as untimely Vega's administrative remedy, filed over one year after the March 2003 events. Vega
counters that prison official initially mislead him as to the
availability of his administrative remedies. He claims that in
response to his request for monetary compensation for the alleged
wrongdoings by defendants he was advised to file a tort claim
which cannot be processed under the BOP's Administrative Remedy
A. The Exhaustion Requirement.
Under the Prison Litigation Reform Act ("PLRA"), exhaustion of
administrative remedies is required for all actions concerning
prison conditions brought under federal law. See
42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004).
This "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 v. Nussle, 534 U.S. 516, 532,
122 S.Ct. 983, 992, 152 L.Ed.2d 12, 26 (2002). A prisoner must
exhaust all available administrative remedies before initiating a
federal lawsuit. Booth v. Churner, 532 U.S. 731, 738,
121 S.Ct. 1819, 1824, 149 L.Ed.2d 958 (2001). Exhaustion is required even
if the administrative process could not provide the prisoner with
the monetary relief he seeks. (Id.) The PLRA "completely precludes a futility exception to its mandatory exhaustion
requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).
Exhaustion of administrative remedies under the FTCA does not
satisfy the exhaustion requirement of section 1997e(a). See
Brockett v. Parks, 48 Fed. Appx. 539, 540-41 (6th Cir. 2002)
The PLRA requires not only technical exhaustion of the prison's
administrative remedy program, but also substantial compliance
with its procedural requirements. Spruill, 372 F.3d. at 228,
231. To determine whether a prisoner has properly exhausted
administrative remedies, the court looks to the prison's
grievance procedure, not federal law. Id. at 231. A prisoner's
failure to follow the procedural requirements of the
administrative remedy process bars the prisoner from bringing a
claim in federal court unless equitable considerations warrant
review of the claim. Id. at 227-32.
The PLRA, however, does not require exhaustion of all remedies.
Rather, it requires exhaustion of such administrative remedies
"as are available." 42 U.S.C. § 1997e(a); Camp v. Brennan,
219 F.3d 279, 281 (3d Cir. 2000). The availability of administrative
remedies to a prisoner is a question of law. See Ray v. Kertes,
285 F.3d 287, 291 (3d Cir. 2002). An administrative remedy may be
found to be unavailable where a prisoner is prevented by prison authorities from pursuing the
prison grievance process. See e.g., Camp, 219 F.3d at 280-81;
Brown v. Croak, 312 F.3d 109, 112-113 (3d Cir. 2002). The
exhaustion requirement is subject to estoppel, waiver, and
special circumstances which may excuse a prisoner's failure to
comply with the prison's administrative remedy program. Ray v.
Kertes, 130 Fed. Appx. 541 (3d Cir. 2005) (citing Hemphill v.
New York, 380 F.3d 680, 686 (2d Cir. 2004); Giano v. Goord,
380 F.3d 670 (2d Cir. 2004)).
B. BOP Administrative Remedy Program.
The Federal Bureau of Prisons has a three-step administrative
process for an inmate to seek review of any aspect of his
confinement. The avowed purpose of the program "is to allow an
inmate to seek formal review of an issue relating to any aspect
of his/her own confinement." 28 C.F.R. § 542.10(a). The BOP
Administrative Remedy Program first requires that an inmate
initially attempt informal resolution (a BP-8) of the matter.
28 C.F.R. § 542.13(a). In the event an informal resolution is not
reached, he can start the formal administrative process by
submitting a written Request for Administrative Remedy (a BP-9)
to the Warden. See 28 C.F.R. §§ 542.13-542.14. If dissatisfied
with the Warden's response, the inmate may appeal (by way of a BP-10) to the appropriate Regional Director. Id.
at § 542.15. If the response of the Regional Director is not
satisfactory, the inmate may then appeal (by way of a BP-11) to
the Central Office of the Federal Bureau of Prisons, which is the
final administrative appeal in the Bureau of Prisons. (Id.)
The BOP Administrative Remedy Program imposes a twenty-calendar
day period for the initial submission of a grievance.
28 C.F.R. § 542.14(a). Extensions are authorized where the prisoner shows
that he was prevented from submitting the request within the
established time frame. Valid reasons for a delayed filing may be
where an inmate is in transit and separated from the documents
needed to prepare the Administrative Remedy Request, the inmate
is physically incapable of preparing a request, an unusually long
period of time for informal resolution attempts, or staff somehow
interfered with the inmate's attempt to file within the requisite
period. 28 C.F.R. § 542.14(b).
C. The Merits of Defendants' Exhaustion Defense.
Defendants argue Plaintiff failed to exhaust his available
administrative remedies without valid justification. Their attack
is fourfold. First, Plaintiff's Request for Administrative Remedy
addressing the assault of March 14, 2003, was filed more than a
year late. Second, Vega failed to obtain an extension of time, as
permitted by the BOP's Administrative Remedy Program, to file his administrative remedy out of time.
Third, Plaintiff's "in transit" status did not prevent him from
filing a timely administrative remedy request. And finally, the
filing of a tort claim did not preclude Vega from utilizing the
Administrative Remedy Program. We will address each argument in
1. Vega's July 2004 Request for Administrative Remedy is
Vega's July 2004 Request for Administrative Remedy was rejected
as untimely; therefore, he is precluded from bringing this
Bivens action. The events complained of in this case occurred
on March 14, 2003. Absent "a situation which prevented [Vega]
from submitting" an administrative remedy within twenty days of
that date, or April 3, 2003, claims arising from those events are
procedurally defaulted and subject to dismissal. Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004).
2. Vega did not Seek an Enlargement of Time to File his
"Where an inmate demonstrates a valid reason for delay" in
filing a grievance, the BOP's Administrative Remedy Program
provides for an extension of the 20 day filing period.
28 C.F.R. § 542.14(b). The parties do not dispute that Vega did not seek an
enlargement of time to file his grievance related to the events of March 2003. Vega first submitted a BP-8, an informal
resolution form, July 27, 2004, sixteen months after the event.
Absent a finding of special circumstances, or staff interference,
Vega has not asserted a valid reason for not complying with the
procedural requirements of timely filing, or for failing to
request an enlargement of time to file his administrative remedy
request. Ray, 130 Fed. Appx. at 544.
3. Vega's "In Transit" Status did not Hamper his Ability to
File A Timely Administrative Remedy.
Vega did include an explanation for his untimely pursuit of his
administrative remedies in his Informal Resolution Form, or BP-8.
Vega attributed his untimely filing to his various institutional
transfers coupled with his then impending criminal prosecution
for the assault of Assistant Warden Sniezak, "foreclosed [ing
him] from initiating [his] grievance process." (Doc. 50 at p. 3).
Plaintiff, however, omitted any explanation for his tardy
filing in his formal Request for Administrative Relief. As
defendants' point out, Vega's failure to include this issue in
his formal administrative request precluded the institution from
ever having the opportunity to review its merits. Even though
Vega includes his "reasonable cause for [the] delay" in his appeal to the Regional Director, we agree with defendants the
claim is procedurally defaulted. (Id. at p. 19).
Assuming arguendo that the BOP did consider Vega's
rationalization for his untimely filing, contrary to Vega's
assertion, there is no requirement that the BOP had to accept his
excuse as "reasonable cause" for his non-compliance with the 20
day filing period. "28 C.F.R. § 542.14(b) vests the discretion to
grant an extension in filing time with officials within the
Bureau of Prisons, not an individual inmate." Patel v. Fleming,
415 F.3d 1105, 1110 (10th Cir. 2005). While Vega may believe
his various transfers and pending criminal prosecution may be
"reasonable cause for [his] delay" and mitigated his
non-compliance with the procedures of the BOP's Administrative
Remedy Program, Defendants are not required to accept his reasons
and excuse his untimely filing. Highly relevant to our
consideration of Vega's "in transit" justification for his
untimely filing is that, as Defendants point out and Vega
concedes, Plaintiff filed several other (non-related)
administrative remedies between the same relevant time frame in
which he should have filed his grievance related to the March 14,
2003, events. This fact alone clearly defeats Vega's argument
that his "in transit" status somehow prevented him from filing a
timely grievance. Based on the record before the Court, it is
clear that during the relevant time frame Vega was aware of the BOP's Administrative Remedy
Program, utilized it, and could have filed a timely
administrative request or at least a request for an enlargement
of time to do so.
4. Vega's Claim that Prison Officials Mislead him to Believe
his Administrative Remedies were Unavailable is Unjustified.
In Brown v. Croak, 312 F.3d 109, 112-113 (3d. Cir. 2002), the
Third Circuit held that for the purposes of compliance with the
PLRA, prisoners are only required to exhaust those administrative
remedies that are available to them and that circumstances may
exist that amount to justification for not complying with
administrative procedural requirements. Recently, in Ray v.
Kertes, 130 Fed.Appx. 541, 544 (3d Cir. 2005), the Third Circuit
confirmed that special circumstances may exist where, although
administrative remedies were available, prison officials may be
estopped from asserting the non-exhaustion affirmative defense,
thus excusing a prisoner's non-compliance with the administrative
remedy requirement. Such determinations are factual and most
appropriately made at summary judgment.
In this case Vega claims he was "mislead" or otherwise
prevented from filing a timely administrative remedy in March
2003 based on a discussion he had with his Corrections Counselor, Mr. Cunningham. Based on the summary judgment record before us,
we disagree that Vega's conversation with Cunningham, alone,
constitutes the requisite special circumstances or justification
as envisioned in Ray, supra, or Brown, supra.
First, nowhere in Vega's Informal Resolution Form, or in any of
his appeals of the rejection of his July 2004 Administrative
Remedy Request as untimely, does Vega suggest that he was
"mislead" by Corrections Counselor Cunningham "that his grievance
could not be remedied under the Administrative Remedy Process".
(See Doc. 50, and Doc. 52, p. 7). Where and when Vega sought to
justify his tardy filing before the BOP, he raised only the issue
of his many transfers as the impediment to his filing. Next, Vega
consistently states that he told the Corrections Counselor that
he sought monetary compensation for the March 14, 2003, assault,
and that his counselor verbally advised him to file a tort claim.
As defendants correctly note, the information provided in
response to Vega's statement is correct a tort claim pursued
via the statutorily mandated exhaustion process, which is
different than that provided by the Administrative Remedy
Program, is the appropriate means to obtain monetary compensation
for personal injuries due to staff negligence. The clear language
of the BOP's Administrative Remedy Program clearly states the
same. While its purpose "is to allow an inmate to seek formal review of an issue relating to any aspect of his/her
own confinement," it expressly disavows that it supplants the
statutorily mandated procedures that must be filed by a prisoner
seeking to pursue a Federal Tort Claim Act ("FTCA"). (Id.) Mr.
Cunningham's response simply underscored this distinction for
Vega. Important to our consideration of this matter is that the
Counselor's advice did not preclude or otherwise prohibit Vega
from availing himself of the Administrative Remedy Program for
the purpose of preserving his right under the PLRA to file a
civil rights action in the future. Nor was the Counselor
obligated to advise Vega of the same. Vega's admission that it
was only "after learning of the requirements of the Prisoner
Litigation Reform Act", in July 2004, did he initiate his July
2004 administrative remedy is extremely relevant to our findings.
Vega is clearly acknowledging that he previously was unaware of
the PLRA's exhaustion requirements until July 2004. Based on such
a statement and the lack of any further impediment erected by
Cunningham or other BOP officials preventing Vega from filing
this particular grievance in a timely fashion when he was able to
file others, no fair-minded jury could conclude that Vega was
duped, mislead, or otherwise prevented from filing a timely
administrative remedy by any BOP official, including Mr.
Cunningham. Additionally, there is nothing in the Administrative Remedy Program (or the FTCA) that states that if a prisoner files
a FTCA claim, he is prohibited from also filing a similarly based
Administrative Remedy Request. And, as noted, "[t]he filing of an
administrative tort claim by a prisoner does not excuse the
prisoner's failure to meet the separate exhaustion requirements
for a Bivens claim under the PLRA." Nwaokocha v. Sadowski,
369 F.Supp.2d 362, 368 (E.D.N.Y. 2005).
Finally we note that the PLRA's exhaustion requirement is
mandatory and "completely precludes a futility exception" based
on a claim that the administrative process could not provide the
prisoner with the monetary relief he seeks. Nyhuis v. Reno,
204 F.3d 65, 71 (3d Cir. 2000). Vega elected to file a tort claim to
pursue monetary compensation from defendants. He could have, but
did not, pursue his available administrative remedies for the
purpose of filing this action. Vega's ignorance of the PLRA's
exhaustion requirements does not relieve Vega of his obligation
to properly exhaust the available administrative remedies. See
Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) (a
petitioner's "misunderstanding" of appellate rights is not
"cause" for procedural default). VI. Conclusion.
Based on the summary judgment record before us, Vega has failed
to present any evidence from which a reasonable jury could
conclude that his administrative remedies were unavailable during
the relevant time period within which he was to initiate a
Request for Administrative Remedy related to the events of March
2003. Vega's filing of other non-related grievances underscores
this finding. Additionally, there is insufficient proof in the
record for a fair-minded jury to conclude Vega's interpretation
of Corrections Counselor Cunningham's referral to file a tort
claim to obtain monetary damages against defendants created a
"special circumstance" which impaired Vega's access or ability to
use the Administrative Remedies Program. Vega could have filed a
grievance in addition to his tort claim. Vega does not suggest
Counselor Cunningham, or anyone else, advised him otherwise. The
BOP's Administrative Remedy Program did not preclude Plaintiff
from filing a grievance addressing the same issues in his tort
claim. The fact that Vega did not know he had to exhaust his
administrative remedies via the BOP's grievance process in order
to satisfactorily comply with the requirements of the PLRA is
irrelevant as his ignorance cannot be attributed to defendants or
perceived as interference. Defendants have met their burden of showing that Plaintiff
failed to exhaust his available administrative remedies before
filing his complaint. Consequently, we will grant defendants'
motion for summary judgment based on Plaintiff's failure to
exhaust his available administrative remedies.
We will issue an appropriate order. ORDER
AND NOW, this 4th day of November, 2005, for the reasons set
forth in the accompanying memorandum, it is ordered that:
1. Defendants' Motion for Summary Judgment (doc. 35)
2. The Clerk of Court is directed to enter judgment
in favor of Defendants and against Plaintiff Vega.
3. Plaintiff's Motion for a Jury Trial (doc. 48) is
4. Plaintiff's motion (doc. 43) for summary judgment
is deemed withdrawn for failure to file a supporting
5. The Clerk of Court shall close this case.
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