The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
This cause is before the court for consideration of the Defendants' motion for summary judgment. [d/e 20]
The Plaintiff, a federal prisoner, filed this lawsuit pursuant to Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) claiming that his constitutional rights were violated at the Federal Correctional Institution in Pekin, Illinois.
On January 22, 2010, the court conducted a merit review of the Plaintiff's complaint and found that he had stated the following claim:Warden D. Smith, Lieutenant Floyd and Religious Services Coordinator Teri Garrett violated the Plaintiff's First Amendment right to freely exercise his religion.
The Plaintiff alleged that on June 2, 2009, he was leaving the dining room after the noon meal when Defendant Garrett called the Plaintiff over for "a pat down search of plaintiff's person for the purpose of detecting contraband." (Comp, p. 6) The Plaintiff says he told Garrett that he is an orthodox Muslim, and therefore was not to have physical contact with a member of the opposite sex. The Plaintiff asked for a male staff member to conduct the search, and noted that there were other male officers in the area. Defendant Garrett denied the plaintiff's request and threatened to take disciplinary action if he did not comply with the search. Lieutenant Floyd also ordered the Plaintiff to comply with the search and the Warden took no action afer he was notified of the problem.
The Defendants have filed a motion for summary judgment claiming that the Plaintiff has not exhausted his administrative remedies as required. [d/e 20]
The Bureau of Prisons (herein BOP) has created an Administrative Remedy Program, which is the "process through which inmates may seek formal review of an issue which relates to any aspect of their confinement." 28 C.F.R. § 542.10. An inmate must first attempt informal resolution of his complaint by presenting the issue informally to staff. 28 C.F.R. § 542.13(a). If the complaint cannot be resolved informally, the inmate may then submit a formal written Administrative Remedy Request to the Warden, on a designated form, within twenty days of the event that triggered the inmate's complaint. 28 C.F.R. § 542.14(a). The inmate may next appeal from a denial to the appropriate Regional Director. 28 C.F.R. § 542.15(a). Within 30 days of a negative decision, the inmate may then finally appeal to the General Counsel's office in the Central Office. Id. Final exhaustion occurs only when the issue is considered by the Central Office. 28 C.F.R. §§ 542.14-.15.
Heather MacConnell is the Legal Secretary for the United States Department of Justice and says her job duties include working with the BOP record keeping system for inmate grievances. (Def. Memo, Mac. Aff, p. 1) MacConnell has reviewed these records for any administrative remedies filed by the Plaintiff concerning the June 2, 2009 pat down search and says she found one relevant request.
On June 15, 2009, the Plaintiff filed a request for an administrative remedy with the Warden stating that his religion prohibited him from a pat down search by female officers. (Def. Memo, Mac. Aff, p. 2; Plaintiff's req, App. 11). The Plaintiff complained of the specific incident on June 2, 2009. The request was denied on June 19, 2009. (Def. Memo, App. 12).
The Plaintiff appealed this decision to the North Central Regional Office on July 2, 2009, but it was again denied on July 21, 2009. (Def. Memo, App. 13-15). The Plaintiff sent his final appeal to the Central Office on August 19, 2009. (Def. Memo, Mac. Aff, p. 2) However, the appeal was rejected because the Plaintiff had not provided the required copy of his institution administrative remedy. The Plaintiff was given 15 days to resubmit the proper form. (Def. Memo, Mac. Aff, p. 2).
The Plaintiff sent a second appeal to the Central Office on November 2, 2009, but it was rejected as untimely. The Plaintiff was instructed " to provide staff verification that his untimely filing was not his fault." (Def. Memo, Mac. Aff, p. 2). Nonetheless, MacConnell says the BOP records show no further activity regarding this ...