The opinion of the court was delivered by: Sean J. McLAUGHLIN United States District Judge
On December 28, 2004, Plaintiff, a federal inmate formerly incarcerated at the Federal Correctional Institution at McKean ("FCI-McKean"), filed a pro se action, raising civil rights claims pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), as well as negligence claims under the Federal Tort Claims Act. Named as Defendants are: "U.S. Justice Department"; Bureau of Prisons; FCI-McKean; John Lamanna, former Warden of FCI McKean; Scott Dodrill, Regional Director of Bureau of Prisons; Harley Lappin, Director of Bureau of Prisons; and Dr. Newton Kendig, Medical Director of Bureau of Prisons.
In his original and first amended complaints, Plaintiff alleges that his exposure to secondhand smoke or Environmental Tobacco Smoke ("ETS") while incarcerated at FCI-McKean was negligent and further that such exposure violated his constitutional rights under the Eighth and Fourteenth Amendments.
This matter was assigned to United States District Judge Sean J. McLaughlin and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.
By Report and Recommendation dated August 27, 2007, Magistrate Judge Baxter recommended that Defendants' motion to dismiss or for summary judgment [Document # 85] be granted and that Plaintiff's motion to file a "third amended complaint" [Document # 91] be denied as futile. Document # 97.
On September 12, 2007, Plaintiff filed Objections to the Report and Recommendation. Document # 98. Plaintiff raised several objections to the Magistrate Judge's Report and Recommendation not all of which need to be addressed herein. As to the recommendation that the motion to file an amended complaint be denied as futile, Plaintiff argued that he had exhausted two proposed claims (an ADA/Rehabilitation Act claim and a retaliation claim), contrary to the Magistrate Judge's analysis.
The Proposed Retaliation Claim
In his proposed amended complaint, Plaintiff alleges that his transfer from FCI-McKean to FCI-Raybrook was retaliatory. See Document # 91. Magistrate Judge Baxter recommended that Plaintiff not be allowed to amend his complaint in this regard as Plaintiff had not administratively exhausted this claim in accordance with the requirements of the Prison Litigation Reform Act.*fn1 In his Objections, Plaintiff argues that he has fully exhausted this claim and cites to evidence in support of his argument.*fn2
A review of Plaintiff's evidence reveals that although Plaintiff administratively complained about a transfer, it was unrelated to any alleged retaliatory transfer from FCIMcKean involving his outspokenness about ETS. See Document # 94-2. Plaintiff was transferred from FCI-McKean to FCI-Raybrook in October of 2004. Document # 5, ¶ 2. The record reflects that Plaintiff did administratively exhaust a claim regarding the lack of a transfer into a lower level security institution; specifically, he complained that his requests for a transfer to a lower level security institution were repeatedly denied. This administrative claim was filed in January of 2007 over twenty-six months after Plaintiff had been transferred from FCIMcKean. Plaintiff's contention that he has exhausted his claim involving a retaliatory transfer is, at a minimum, disingenuous.
The Proposed ADA/Rehabilitation Act
In his proposed amended complaint, Plaintiff attempts to bring a claim under the Americans with Disabilities Act (or possibly the Rehabilitation Act) claiming that the continuous exposure to ETS has "exasperated [sic] his previously contracted sexually transmitted disease." Document # 91-2, Proposed Amended Complaint, page 33. Plaintiff takes issue with Magistrate Judge Baxter's recommendation that this proposed amendment be denied as futile due to his failure to exhaust the claim pursuant to the PLRA. Specifically, Plaintiff avers that because he exhausted his Bivens claim arising out of the same core facts, this proposed ADA claim should also exhausted. Document # 98, page 18. Alternatively, Plaintiff argues that even if his Bivens exhaustion does not count toward the PLRA requirement, the exhaustion of his negligence claim under the Federal Tort Claims Act should suffice. Id.
"A grievance satisfies § 1997e(a)'s exhaustion requirement so long as it provides prison officials with enough information to investigate and address the inmate's complaint internally." Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006). A review of Plaintiff's administrative claims does not reveal any mention of an ADA or Rehabilitation Act-type claim. Instead, Plaintiff only complained that "cancer has had the opportunity to develop" during the time of his incarceration, not that any pre-existing medical problem was being exacerbated by exposure to ETS. Here, Plaintiff's administrative grievance complaining of general exposure to ETS is insufficient to put prison officials on notice (and importantly, afford them an opportunity to remedy) Plaintiff's claim of an exacerbation of an existing "disability". "The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance." Bailey-El v. Federal Bureau of Prisons, 2007 WL 2461764 (3d Cir. August 28, 2007) quoting ...