The opinion of the court was delivered by: Judge Conner
Presently before the Court is defendants' motion to dismiss the complaint of plaintiff Mike Perez ("Perez"), or, in the alternative, for summary judgment. (Doc. 26). Perez contends that defendants conspired to issue him a retaliatory and false incident report. For the reasons set forth below, the motion for summary judgment will be granted.
On July 9, 2003, while incarcerated at the Federal Correctional Institute at Schuylkill, Perez was placed in administrative custody pending an investigation. (Doc. 1, p. 6, ¶ 18; Doc. 27, Ex. 1, p. 2, ¶ 8). On August 18, 2003, he received an incident report charging him with "conduct which disrupts the orderly running of the institution, most like sexual proposals Code 299 most like 206," and with "[t]hreatening another person with bodily harm or any other offense code 203."*fn2
(Id. at ¶ 19; Doc. 2-2, p. 3). The unit disciplinary committee reviewed the matter and forwarded it to a disciplinary hearing officer ("DHO"). (Id. at ¶ 20; id.).
Following a hearing, the DHO concluded that Perez "committed the prohibited act(s) of conduct which disrupts the security and orderly running of the institution, most like, sexual proposals, threatening another person, Code 299, most like 206, 203, on January 3, 2003. . . ." (Doc. 2-2, p. 7). He was sanctioned to disciplinary segregation, twenty-seven days loss of good conduct time, and 180 days loss of telephone privileges. In addition, it was recommended that he be given a disciplinary transfer for the Code 299 (most like 206) violation. (Id. at pp. 7-8).
Perez filed an appeal to the regional office. (Doc. 2-3). After a review of the evidence it was concluded that the "decision of the DHO [regarding the Code 206] was based upon the greater weight of evidence and the sanctions imposed were consistent with the severity level of the prohibited acts." (Doc. 2-4, p. 2). However, the Code 203 charge was remanded for additional investigation. (Id. at p. 3) Perez was informed of the following procedures:
You will be notified of the date and time of any further proceedings. After further proceedings, you may recommence the administrative remedy process if you desire. Accordingly, your appeal is partially granted to the extent that further investigation will be conducted with regards to the Code 203 charge.
If you are dissatisfied with this response, you may appeal to the General Counsel, Federal Bureau of Prisons. Your appeal must be received . . . within 30 calendar days of the date of this response.
On November 17, 2003, an Amended DHO Hearing Report was filed in which it was concluded that the Code 203 charge was duplicitous*fn3 . (Doc. 2-5). The charge and accompanying sanctions were expunged from the record. The Code 206 charge and the sanctions previously imposed were upheld. (Id.) Perez filed an appeal with the regional level, which was denied. (Doc. 2-7). He again appealed to the regional level. On January 21, 2004, the appeal was rejected because he had previously filed at the level and it was necessary for him to appeal to the Central Office. (Doc. 2-9). His appeal was received in the Central Office on April 5, 2004, and rejected and returned to him on April 7, 2004, for failure to include a copy of the Regional Office administrative remedy appeal. (Doc. 2-10). He was informed that he could resubmit the appeal in proper form within fifteen days of the date of the rejection notice. (Id.). Perez resubmitted the appeal but it was rejected because he raised more than one issue. (Doc. 2-11). The Central Office requested that he resubmit information only related to his DHO appeal within fifteen days of the date of the rejection notice. (Id.). The appeal was submitted a third time, and was again rejected because Perez again raised more than one issue and included continuation pages. (Doc. 2-12). He was afforded an additional fifteen days to submit the appeal. He appealed a fourth time and, again, the appeal was rejected for the same reasons as the prior appeals. (Doc. 2-13). He was afforded additional time to file the appeal. He failed to do so.
B. Federal Tort Claim Act Claim
According to a search of the computerized indexes of all administrative tort claims filed by inmates, Perez has failed to file an administrative tort claim concerning the issues ...