The opinion of the court was delivered by: Judge Conner
This Bivens*fn1 action is presently proceeding via an amended complaint, filed on June 24, 2009, against sole defendant Tom Gubbiotti ("Gubbiotti") (Doc. 34). Plaintiff Steven Jean-Pierre ("plaintiff") alleges that defendant Gubbiotti violated his right to equal protection and access to the courts when he rejected his request for administrative relief against Officer Branning, Federal Bureau of Prisons Cook Foreman.*fn2 Pending is a motion to dismiss, or in the alternative for summary judgment, filed on behalf of Gubbiotti (Doc. 39). The motion for summary judgment will be granted based on plaintiff's failure to exhaust his administrative remedies.
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
II. Statement of Material Facts
Plaintiff was incarcerated at the United States Penitentiary at Canaan, Pennsylvania, from May 9, 2005, through September 26, 2007. (Doc. 40-2, Declaration of Case Manager Thomas Gubbiotti ("Gubbiotti Decl."), at 3, ¶ 3.) On June 3, 2007, following an incident in which he "became insolent towards a staff member during the noon meal by raising [his] voice, flailing [his] arms, throwing [his] tray, and yelling at the staff member about the quantity of food [he] received," Officer Branning issued an incident report for Insolence Towards a Staff Member, Code 312. (Doc. 40-2, at 26, 28.) On June 5, 2007, following a hearing before the Unit Disciplinay Committee ("UDC"), he was found guilty of a Code 312 violation and sanctions were imposed. (Id. at 28.)
The Federal Bureau of Prisons ("BOP") has a three level administrative remedy process which is a method by which an inmate may seek formal review of a complaint related to any aspect of his confinement. Pursuant to this protocol, set forth at 28 C.F.R. §§ 542.10-542.19, an inmate first must present his complaint to staff, and staff must attempt to resolve informally any issue before an inmate files a request for administrative relief. If informal resolution proves unsuccessful, the inmate may raise the complaint with the warden of the institution where he or she is confined (BP-9). (Doc. 40-2, Declaration of Susan Albert, Paralegal Specialist at the United States Department of Justice assigned to the Consolidated Legal Center, which maintains computer files relating to utilization of the administrative claims process, ("Albert Decl."), at 7, ¶ 5.) An inmate has twenty calendar days from the date of the alleged injury within which to complete this informal resolution process. See § 542.14(a). If an inmate is dissatisfied with the response received during the informal resolution process, he or she may appeal the decision to the Regional Office and the General Counsel of the BOP (BP-10, BP-11). (Doc. 40-2, Albert Decl., at 7, ¶¶ 5, 6.)
On June 6, 2007, plaintiff filed a request for administrative relief with the warden, case number 456413, challenging the issuance of the incident report and the UDC's findings and sanctions. (Doc. 40-2, at 27.) On June 11, 2007, plaintiff filed an informal request with defendant Gubbiotti concerning the same issues and complaining that the incident report was issued by Officer Branning in retaliation for plaintiff stating that he was going to "write up a bp 8, and bp 9, grievance to resolve the food problem... " and seeking to have the report expunged. (Doc. 40-2, Gubbiotti Decl., at 4, ¶¶ 5, 6; (Doc. 30, at 3.) In his June 13, 2007 response, defendant Gubbiotti informed plaintiff that the request would not be resolved because it was a duplicate of case number 456413. (Doc. 30, at 3.) Gubbiotti provided him with a BP-9 form in the event that he wanted to further pursue the matter. (Id.)
Case number 456413, was initially rejected by the warden because it contained more than one continuation page. (Id. at 26.) He refiled the request on June 22, 2007. (Id.) Thereafter, he fully exhausted the administrative process with regard to the issuance of the incident report by Officer Branning and the UDC findings and sanctions. (Doc. 40-2, Albert Decl., at 9, ¶ 12.)
At no time did he file a request for administrative relief with respect to the claims that defendant Gubbiotti violated his right to equal protection and access to the courts.
A. Exhaustion of Administrative Process
The Prison Litigation Reform Act (PLRA) requires prisoners to present their claims through an administrative grievance process before seeking redress in federal court. The act specifically provides as follow:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such ...