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Borrero v. Konz

August 13, 2009

LAZARO D. BORRERO, PLAINTIFF,
v.
A. KONZ, ET. AL., DEFENDANTS



The opinion of the court was delivered by: Harold A. Baker United States District Judge

SUMMARY JUDGMENT ORDER

This cause is before the court for consideration of the parties motions for summary judgment [d/e 47, 51].

I. BACKGROUND

The plaintiff, a federal prisoner, filed his complaint on June 10, 2008 pursuant to Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The plaintiff then filed a motion to amend his complaint on July 11, 1008. The court allowed the plaintiff's motion to amend and conducted a merit review of the proposed amended complaint on July 16, 2008. The court found the plaintiff has adequately alleged that Defendants A Konz, H. Wallace, Tapley, Rockhold, Fardel, Verforth and Zuercher had violated his constitutional rights at the Federal Correctional Institution in Pekin, Illinois. Specifically, the court found that:

1) the defendants violated the plaintiff's equal protection rights under the Fifth Amendment based on his treatment as a black, Cuban inmate;

2) Defendant Rockhold violated the plaintiff's Eighth Amendment rights based on the plaintiff's living conditions; and

3) Defendants Rockhold and Tapley violated the plaintiff's First Amendment rights when they retaliated against the plaintiff based on his prior grievances. July 16, 2008 Merit Review Order.

The defendants have filed a motion for summary judgment claiming only that the plaintiff failed to exhaust his administrative remedies. [d/e 47]. The plaintiff filed a response to the dispositive motion [d/e 49, 50], but also filed his own motion for summary judgment. [d/e 51, 52, 53]. The court notes that much of the plaintiff's motion for summary judgment also addresses the issue of whether the plaintiff did exhaust his administrative remedies. Since exhaustion is a preliminary requirement, the court will consider the defendants' motion for summary judgment first along with all responses filed by the plaintiff.

II. FACTS

The Federal Bureau of Prisons (BOP) has an established grievance procedure for federal inmates. An inmate is first required to attempt to resolve his grievance informally by presenting the issue to correctional staff. 28 C.F.R. §542.13. If this is not successful, the inmate must submit a formal written administrative remedy request within 20 days of the incident which lead to the inmate's grievance. 28 C.F.R. §542.14. If the inmate is not satisfied with the warden's response to this request, the inmate may make an initial appeal to the appropriate regional director within 20 days of the warden's signed response. 28 C.F.R. §542.15. If still not satisfied, the inmate may take the final step of appealing to the BOP'S general counsel in Washington, D.C. within 30 days of the regional director's signed response.

The Senior Attorney-Advisor for the Federal Bureau of Prisons, Vincent Shaw, says he is familiar with the bureau's grievance procedure and has reviewed the bureau's records. (Def. Memo, Shaw Aff, p. 1) Shaw states that the plaintiff has submitted 50 administrative remedies since his incarceration began in 2005. Shaw says a few of these remedies pertain to the allegations in the plaintiff's complaint.

However, at no point did the Plaintiff fully exhaust any of these administrative remedy requests by appealing his administrative complaints to the BOP's general counsel in Washington, D.C. as is required to fully exhaust the BOP administrative remedy process. (Def. Memo, Shaw Aff., p. 3)

The defendant has attached a copy of computerized print out listing when the plaintiff's grievances were filed, but the documents provide little ...


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