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Chandler v. Bureau of Prisons

United States District Court, District of Columbia

December 27, 2016

FEDERAL BUREAU OF PRISONS, et al., Defendants.


          BERYL A. HOWELL Chief Judge.

         This matter is before the Court on the Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment, ECF No. 13. For the reasons discussed below, the motion will be granted.[1]

         I. BACKGROUND

         At all times relevant to the Complaint, the plaintiff was in the custody of the Federal Bureau of Prisons (“BOP”) and incarcerated at the Administrative Maximum United States Penitentiary in Florence, Colorado. Defs.' Mem. of P. & A. in Support of Defs.' Mot. to Dismiss or, Alternatively, for Summ. J., Ellington Decl. ¶ 2.

         According to the plaintiff, on December 31, 2015, the defendants Charles Porco, Unit Manager, and J. Osland, Case Manager, came to his cell in order to conduct a unit disciplinary hearing on two minor disciplinary infractions: lying to staff and disobeying a direct order. Compl. at 2. “After the hearing [, ] the [Unit Disciplinary Committee] chaired by [defendant] Porco rendered . . . sanctions, ” id., namely “26 days of mattress restriction, ” id. at 3. Thus, the plaintiff's mattress was “confiscated each morning at sunrise and [was] to be given back to [him] at sunset.” Id. On January 13, 2016, although the plaintiff was to have received his mattress by 6:30 p.m., he did not receive his mattress “until after 8:45 p.m. well pass [sic] the time limit.” Id.

         The plaintiff deems the sanction, which allegedly left him “to sleep upon a cement slab without a mattress[, a] cruel, unusual and inhumain [sic] punishment” in violation of the Eighth Amendment to the United States Constitution. Id. He demands $100, 000.00 from each defendant and “an injunctive freeze . . . on each defendant[']s personal property until [the plaintiff is] paid in full.” Id. at 4.

         The “[p]laintiff submitted a ‘Federal Tort Claim' with BOP on January 21, 2016, alleging that he was harmed by his placement on mattress restriction on December 31, 2015.” Ellington Decl. ¶ 12. He claimed “personal injury and abuse of process committed by staff, ” alleging that, “[a]s a direct result of not having a mattress to sleep on and having to lay on bare concrete, [he] sustained joint stiffness in [his] left shoulder and . . . left hip, ” causing him “severe main.” Id., Ex. A (Federal Tort Claim) at 2. BOP denied the claim on April 6, 2016. Id. ¶ 14. Its “investigation . . . did not reveal that [the plaintiff had] suffered any personal injury as a result of the negligent acts or omissions of [BOP] employees acting within the scope of their employment.” Id., Ex. A (Letter to the plaintiff from Richard W. Schott, Regional Counsel, North Central Regional Office, BOP, dated April 6, 2016).

         The BOP's Administrative Remedy Program is a means by which inmates may “seek formal review of any aspect of their confinement.” Ellington Decl. ¶ 4. It “is typically a four-tiered review process comprised of an informal resolution process and then formal requests to the Warden, the Regional Director, and the Office of the General Counsel.” Id.; see id. ¶ 5. The “process is not complete until the Office of General Counsel replies, on the merits, to the inmate's [request].” Id. ¶ 5. The BOP's declarant states that, of the 77 formal administrative remedy requests and/or appeals [the plaintiff submitted to] the BOP” between December 31, 2015 and October 1, 2016, id. ¶ 8, “none . . . relates to the claims alleged in this litigation, ” or to any “incident occurring on December 31, 2015, ” id. ¶ 10. Thus, she concludes that the plaintiff “did not exhaust his administrative remedies as related to complaints against [the] defendants raised in the present case through the BOP's Administrative Remedy Program.” Id. ¶ 11.

         On March 8, 2016, in the Superior Court of the District of Columbia, the plaintiff filed the instant civil action, which defendants removed to this Court on July 20, 2016.[2]


         Pleadings by pro se litigants are construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007); United States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014) (noting ‘“obligation to construe pro se filings liberally'” (quoting Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002)). Consequently, given the nature of the plaintiff's factual allegations, the Court construes the plaintiff's complaint as asserting claims under the Federal Tort Claims Act (“FTCA”), see 28 U.S.C. §§ 2671-2680, and the Civil Rights Act, SEE 42 U.S.C. § 1983.

         The defendants filed their motion to dismiss or, alternatively, for summary judgment on November 11, 2016. On November 14, 2016, the Court issued an Order which advised the plaintiff of his obligations under the Federal Rules of Civil Procedure and the local civil rules of this Court. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). Specifically, the Court notified the plaintiff that, if he failed to file an opposition or other response to the defendants' motion by December 7, 2016, the Court would treat their motion as conceded. See Local Civil Rule 7(b) (permitting court to “treat . . . as conceded” a motion not met with a timely opposing memorandum of points and authorities). To date, the plaintiff has not filed an opposition to the motion, or requested more time to file an opposition, or advised the Court of any change of address.

         Under these circumstances, the Court ordinarily would have granted the defendants' motion as conceded. However, the United States Court of Appeals for the District of Columbia Circuit recently has raised concerns about the use of Local Civil Rule 7(b) to grant an unopposed motions to dismiss, see Cohen v. Bd. of Trs. of the Univ. of the District of Columbia, 819 F.3d 476, 482 (D.C. Cir. 2016), and an unopposed motion for summary judgment, see Winston & Strawn, LLP v. McLean, No. 14-7197, __ F.3d __, __, 2016 WL 7174125, at *3 (D.C. Cir. Dec. 9, 2016). Despite acknowledging the value of Local Civil Rule 7(b) as an important “docket-management tool that facilitates efficient and effective resolution of motions, ” Cohen, 819 F.3d at 480 (quoting Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004) (additional citation omitted)), the rule “stands in tension with . . . Rule 12(b)(6), ” id. at 481, and “cannot be squared with . . . Rule 56, ” Winston & Strawn, 2016 WL 7174125, at *3.

         If the Court were to grant the defendants' motion to dismiss as conceded, it “effectively places the burden of persuasion on the [plaintiff because, ] when he fails to respond, he loses.” Cohen, 819 F.3d at 481. Further, such treatment of a Rule 12(b)(6) motion “risks circumventing the clear preference of the Federal Rules to resolve disputes on their merits.” Id. at 482. Similarly, if the Court were to grant the defendants' motion for summary judgment as conceded, it erroneously shifts the burden to the plaintiff when “[t]he burden is always on [the defendants] to demonstrate why summary judgment is warranted.” Winston & Strawn, 2016 WL 7174125, at *1. The Court “must always determine for itself whether ...

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