The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Plaintiff Abman Glaster, a federal inmate proceeding pro se and in forma pauperis, commenced this Bivens*fn1 action alleging that defendants deliberately disregarded his disability (an above the knee amputation) by placing him in a unit at the United States Penitentiary in Lewisburg, Pennsylvania (USP-Lewisburg) that did not have a handicap equipped cell or bathroom. Named as defendants are Warden Troy Williams; Associate Warden Frank Strada; Physician Assistant (PA) Francis Fasciana; and Case Manager Bill Wagner. Mr. Glaster seeks compensatory and punitive damages; and injunctive relief in the form of a transfer to handicap facility which could better accommodate his disability and allow his participation in programming.*fn2
On November 24, 2008, Defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. (Doc. 42.) In their motion, Defendants argue that Plaintiff's claims should be dismissed because he failed to exhaust his administrative remedies. For the reasons that follow, the Defendants' motion for summary judgment will be granted.
II. Statement of Relevant Facts
The following facts are undisputed, and unless otherwise noted, are presented in the light most favorable to Mr. Glaster.*fn3 Mr. Glaster arrived at USPLewisburg on December 5, 2007, with a left leg amputation above the knee. (Doc. 15, Amended Complaint.) He was transferred from USP-Lewisburg to USP-Terre Haute on May 18, 2008. (Doc. 45, Defendants' Statement of Material Facts (DSMF) at ¶ 1.) USP-Lewisburg is a care level two facility, while USP-Terre Haute is a care level three facility. (Id.) A care level three institution is equipped to manage inmates with more medical needs than at a care level two institution. (DSMF at ¶ 3.)
All individuals incarcerated in institutions operated by the BOP may challenge any aspect of their confinement using the BOP's procedures for filing a Request for an Administrative Remedy. (See 28 C.F.R. § 542.10, et seq.; DSMF at ¶ 4.) First, an inmate is to informally present the issue of concern to prison staff via an informal request (BP-8). If that does not resolve the issue, the inmate must submit a formal request for administrative relief (BP-9) to the Warden. (See 28 C.F.R. § 542.14; DSMF at ¶ 5.) An inmate who is not satisfied with the Warden's response may submit an appeal to the Regional Director (BP-10). (See 28 C.F.R. § 542.15; DSMF at ¶ 6.) If dissatisfied with the response from the Regional Director, the inmate may submit an appeal to the General Counsel (BP-11). (DSMF at ¶ 7.) The appeal to the General Counsel is the final step in the administrative remedy process. No administrative appeal is considered to be final until a decision is reached on the merits by the General Counsel's office. (DSMF at ¶¶ 7-8.) Throughout the BOP administrative remedy process, if the inmate does not receive a response within the time allotted for reply to a request or appeal, the inmate may consider the absence of a response to be a denial at that level. (See 28 C.F.R. § 542.18.)
Defendants provide the declaration of L. Cunnigham, a Supervisory Attorney at USP-Lewisburg, who affirms that Mr. Glaster did not file a single request for administrative remedy prior to the filing of this action. (See Doc. 45-2 at R. 4,*fn4 Administrative Remedy Generalized Retrieval as of October 22, 2008; DSMF ¶¶ 10 -11.) The sole administrative remedy attributed to Mr. Glaster was filed in July 2008, after his transfer to USP-Terre Haute, and concerned his request to have his classification status lowered. (Doc. 45-2 at R. 3, Cunningham Decl. at ¶¶ 4-5; DSMF at ¶¶ 12-15.) According to BOP records, Mr. Glaster did not complete the BOP's administrative remedy process with regard to any of the issues raised in his Amended Complaint. (DSMF at ¶ 16.)
Mr. Glaster filed the Complaint in this matter on January 31, 2008. (Doc. 1, Complaint.) After his failure to sign the Complaint was brought to his attention, Mr. Glaster promptly signed it and resubmitted it to the Court on March 4, 2008. (Doc. 15, Amended Complaint.) The Amended Complaint, is identical to the original Complaint, except that it is signed. In the Amended Complaint, Mr. Glaster admits that he did not file a grievance concerning the facts relating to his Complaint and Amended Complaint. (Doc. 1 at R. 1; Doc 15 at R. 1.) As explanation for this failure, he notes that defendants were aware through [his] pre-sentence report that [he is] disabled and [that they] didn't designate [him] to a prison that would accom[m]odate [his] disability and, at the time of entering [USP-Lewisburg] officials were made aware that [he is] a disabled person due to a left leg amputation above the knee, and that there existed a need for handicap accom[m]odations for [his] disability, (i.e. handicap accessible cell and shower) and officials deliberately disregarded that need (Id. at R. 2.) Mr. Glaster adds that he began the grievance procedure on December 26, 2007 by filing a BP-8 and that as of January 22, 2008, "nothing has been done." (Id.)
Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to nonmoving party. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
A. The Prison Litigation Reform Act's ...