The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se plaintiff, Parris Wall, an inmate at USP- Lewisburg, Lewisburg, Pennsylvania, filed this action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), claiming an Eighth Amendment violation while he was housed at FCI-Schuylkill, Minersville, Pennsylvania. He names three Schuylkill defendants, Warden Holt, Unit Manager Edwards, and Counselor Yovichin. He avers they exposed him to environmental tobacco smoke as a result of their failure to adequately enforce the institution's smoking policy. An asthmatic, Wall alleges he was designated to be housed and to work in a smoke-free environment. He seeks injunctive and monetary relief.
Pending before the Court is the defendants' motion to dismiss, or in the alternative, for summary judgment, based in part on Plaintiff's failure to exhaust his available administrative remedies, the lack of personal involvement of the named defendants, qualified immunity and failure to state a claim upon which relief may be granted. We will treat the motion as one for summary judgment and evaluate it under the well-established standard. See Slagle v. County of Clarion, 435 F.3d 262, 264-265 (3d Cir. 2006).
We will grant the motion on the basis of Wall's failure to properly exhaust his administrative remedies by not filing his regional appeal in a timely manner. As exhaustion of administrative remedies is a threshold issue, there is no need for the Court to consider defendants' other arguments.
The Federal Bureau of Prisons (the BOP) has an Administrative Remedy Program, 28 C.F.R. §§ 542.10-542.19, for inmates to pursue grievances. Section 542.13(a) requires that an inmate first informally present his complaint with staff before filing a request for an administrative remedy. If the claim is not resolved at this stage, the inmate may file a formal written request (a BP-9 form) with the warden within "20 calendar days following the date on which the basis of the Request occurred." See § 542.14(a). If the inmate is dissatisfied with the warden's response, he may appeal (a BP-10 form) to the regional director within twenty calendar days of the date the warden signed the response. See § 542.15(a)-(b). If he is not satisfied with the regional director's response, the inmate may appeal (on a BP-11 form) to the Office of General Counsel within thirty calendar days of the date the regional director signed the response. Id. The general counsel is at the Central Office level. See § 542.11(a).
A prisoner's appeal to a regional director or general counsel is "considered filed on the date it is logged into the Administrative Remedy Index as received." See 28 C.F.R. § 542.18. Additionally, Program Statement 1330.13, the BOP's Administrative Remedy Program notes that the time periods for filing appeals to the regional director and central office are "deliberately long to allow sufficient mail time. Inmates should mail their Appeals promptly after receiving a response to ensure timely receipt."
See www.bop.gov, P.S. 1330.13, Administrative Remedy Program (effective date 8/6/2002), p. 8. The BOP will consider a late appeal upon a showing of a valid reason for the delay. See 28 C.F.R. § 542.15(a).
Wall was housed at FCI-Schuylkill from August 25, 2003, until January 10, 2005, when he was transferred to his current facility, USP-Lewisburg. (Defendants' Statement of Facts "SF" at ¶¶ 1-2). On October 25, 2004, Unit Manager Edwards gave Wall, at the latter's request, an Informal Resolution Form, or BP-8. (Doc. 20-1, Exhibits in Support of Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment, Ex. 1, Wallace Decl., Attach. C). On the same day, Wall used the form to make the following complaint:
Despite having smoke free & housing restrictions - I was placed in the cell with (5) smokers upon arriving at FCI Schuylkill then in a (two) man cell with a smoker for about 7 months then with another smoker about 2 months. (Id.) This informal attempt to resolve his complaint was directed at Ms. Yovichin, a member of his Unit Team. On or about October, 26, 2004, Yovichin responded, writing in part that "[a]t no time did any staff place you in an area where inmates were smoking. All common areas are smoke free." (Doc. 20-3, Defendants' Exhibits, Yovichin Decl., Attach., October 26, 2004, response to Wall's Request for Informal Resolution, R. 3).*fn1
Wall then filed a formal administrative grievance about his alleged exposure to tobacco smoke. (Doc. 20-1, Exhibits in Support of Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment, Ex. 1, Wallace Decl., Attach. D). On November 12, 2004, Associate Warden Bastian, in Warden Holt's absence, denied the grievance. (Doc. 2, Compl., Ex. 2). Bastian advised Wall that if dissatisfied with his response, "[he] may appeal to . . . the Regional Director . . . within 20 calendar days of the date of this response." (Id.)
Wall did file a regional appeal, or BP-10, but it was rejected as untimely because it was received at the Regional Director's Office on December 9, 2004, seven days after the December 2, 2004, filing deadline. (Doc. 20-1, Exhibits in Support of Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment, Ex. 1, Wallace Decl., Attach. E, Administrative Remedy Centralized Retrieval for Inmate Wall, R. 22; Doc 2, Compl., Rejection Notice - Administrative Remedy, dated December 14, 2004, p. 13). Wall was advised to submit "staff verification that the delay" in filing his BP-10 was not his fault. (Id.) Wall responded by asserting that the ...