Abdulmutallab v. Barr

          ORDER ON AMENDED RECOMMENDATION

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Amended Recommendation of United States Magistrate Judge (the “Recommendation”) (ECF No. 120) to grant Defendants’ “Motion for Partial Summary Judgment” (the “Motion”) (ECF No. 80) alleging that Plaintiff failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act of 1966 (“PLRA”) as to certain claims and allegations. Plaintiff filed an objection (the “Objection”) (ECF No. 128) to which Defendants filed a response (ECF No. 130). The matter is ripe for resolution.

         I. LEGAL STANDARD

         A. Review of a Magistrate Judge’s Recommendations

         When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” Upon review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. In the absence of a timely and specific objection, “the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

         B. Motions for Summary Judgment

         The Magistrate Judge correctly set forth the standards applicable to motions filed under Fed.R.Civ.P. 56. Accordingly, the Court incorporates them by reference.

         C. The PLRA

         “The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). Therefore it “seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Id. (quotations, alteration, and citation omitted). The prison grievance system is to be given “a fair opportunity” to consider the grievance and can do so only if “the grievant complies with the system’s critical procedural rules.” Id. at 94. Thus, “proper exhaustion of administrative remedies is necessary.” Id. at 84.

         For exhaustion to be proper, this means exhaustion is required “even where the relief sought…cannot be granted by the administrative process.” Id. at 82-83 (citing Booth v. Churner, 532 U.S. 731, 734 (2001)). This also means starting the grievance process is not enough; the process must be completed. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). This also means that a grievant is not excused from compliance with the process based on his disagreement with prison officials as to the appropriateness of a particular procedure or belief that he should not have to correct a procedural deficiency. See Thomas v. Parker, 609 F.3d 1114, 1119 (10th Cir. 2010).

         The BOP provides a four-tiered Administrative Remedy Program for inmate grievances – one informal and three formal. The required steps and their timing of these four tiers are not disputed, including the requirement that the inmate has 20 days following the date on which the basis for the request occurred to complete a first step informal resolution and file a formal written Administrative Remedy Request known as a BP-9. See 28 C.R.F. §§ 542.13(a) & 542.14(a). An inmate exhausts his administrative remedies when he has properly and timely sought review at all three formal levels. See 28 C.R.F. § 542.15(a)

         “Failure to exhaust is an affirmative defense.” Rachel v. Troutt, 764 Fed.Appx. 778, 781 (10th Cir. 2019) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). Defendants’ Motion requesting dismissal is based on such alleged failure.

         II. FACTUAL AND PROCEDURAL BACKGROUND^[2]

         Plaintiff was convicted for the attempted use of a weapon of mass destruction on a commercial airliner that landed in Detroit, Michigan, and the attempted murder of the 289 people on board. Plaintiff is from Nigeria and a Muslim. Plaintiff is housed at the United States Penitentiary–Administrative Maximum (“ADX”) in Florence, Colorado, and serving four terms of life imprisonment plus 50 years for his convictions. Prior to Plaintiff’s transfer to ADX, in March 2012, the United States government placed Plaintiff under Special Administrative Measures (“SAMs”). The SAMs have been renewed every year, with some modifications.

         Plaintiff brought this action asserting the following 14 claims for relief arising from his transfer to ADX, his SAMs, and his conditions of confinement at ADX. Defendants’ Motion argues Plaintiff failed to exhaust his administrative remedies as to certain claims and allegations. The Magistrate Judge agreed and recommended granting the Motion and dismissing certain claims and allegations. Plaintiff’s Objection followed. The matters at issue and their recommended disposition are as follows:

Claim #	Summary of claim or allegation	Recommendation
1	Plaintiff’s transfer to ADX in 2012 in deprivation his liberty without due process in violation of the Fifth Amendment	Dismiss entirely
2-5	The imposition of SAMs in violation of the First Amendment and in violation of substantive due process rights under the Fifth Amendment	Dismissal as to allegations of restricting communications with 13 nieces and nephews
6	Retaliation against Plaintiff by confining him in Special Housing Unit in Range 13, for engaging in hunger strike to protest his conditions of confinement in violation of the First Amendment;	Dismiss entirely
7	Denial of Plaintiff’s right to refuse medical treatment, i.e., the force feeding of nutrients related to his hunger strikes, in violation of the Fifth Amendment;	Dismissal to extent alleges forced feeding without medical necessity, for purposes of retaliation, and/or without following the BOP’s procedures on force-feeding
8	Denial of access to group prayer in violation of the Religious Freedom Restoration Act (“RFRA”)	Dismiss entirely
9	Failure to provide meaningful access to an imam in violation of RFRA	Dismiss entirely
10	Denial of a halal diet in violation of RFRA	Dismiss entirely
11	Responding to hunger striking by force feeding in violation of RFRA	Dismissal to extent alleges forced feeding without medical necessity, for purposes of retaliation, and/ without following the BOP’s procedures on force-feeding
12	Force feeding non-halal nutritional supplement in violation of RFRA	Dismiss entirely
13	Excess force by force feeding in violation of the Eighth Amendment	Dismissal to extent alleges forced feeding without medical necessity, for purposes of retaliation, and/without following the BOP’s procedures on force-feeding
14	Cruel and unusual punishment under totality of circumstances in violation of the Eighth Amendment	Dismissal to the extent it relies on unexhausted allegations
¶ 147	Allegations that the BOP restricted Plaintiff’s access to certain books, identifying two books that allegedly were not delivered.	Dismissal of allegation

         Plaintiff objects to the recommended dismissals of paragraph 147 and of portions of claims 2-5, 7, 11, 13, and 14. Plaintiff’s arguments are three-fold. First, Plaintiff argues that dismissal of allegations or portions of claims is impermissible. Next, Plaintiff contends there are disputes of material facts which preclude summary judgment in favor of Defendants as to whether such issues or allegations were exhausted. Finally, Plaintiff asserts there are factual disputes as to whether there were “available” administrative remedies because there is a factual issue of whether Defendant Bureau of Prison (“BOP”) had authority to address concerns regarding SAMs (claims 2-5) and because Plaintiff was in the hospital when he had to submit administrative remedies based on the force feeding in 2012 and 2015 (claims 7, 11, and 13).

         III. ANALYSIS

         A. Matters to which there are no objections

         Plaintiff does not object to the recommended dismissal of claims 1, 6, 8, 9, 10, and 12.^[3]After conducting a review of the record and finding no clear error, the Court accepts the recommended dismissal of claims 1, 6, 8, 9, 10, and 12.

         B. Matters to which there are objections

         1. Exhaustion of claims ...