Collins v. Federal Bureau of Prisons , 69 F. App'x 411 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 16 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
EZELL COLLINS,
Plaintiff - Appellant,
v.
FEDERAL BUREAU OF PRISONS,
Actually named as “Bureau of No. 02-1503
Prisons”; OFFICER MICHAEL S. (D.C. No. 97-M-1533)
LAVALEE; OFFICER DAVID (D. Colo.)
PRUYNE; OFFICER CHARLES
ROWE; AND OFFICER JOSEPH
PATRICK, all in their individual
capacities,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL, HENRY and HARTZ, Circuit Judges.
Plaintiff-Appellant Ezell Collins, proceeding pro se, filed the instant
Bivens claim alleging that he was physically abused by employees of the United
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
States Penitentiary in Florence, Colorado, where Plaintiff is currently
incarcerated. See Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The district court dismissed Plaintiff’s claim for
failure to exhaust administrative remedies pursuant to the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). (Slip Op. at 2.) We conclude that the district
court was correct and AFFIRM its dismissal of Plaintiff’s claim.
Plaintiff’s claim arises from an alleged assault that he suffered at the hands
of correctional officers on January 27, 1996. Under Federal Bureau of Prisons
regulations, Plaintiff had twenty days after the incident in which to file a request
for administrative remedies. 28 C.F.R. § 542.14. He did not sign such a request
until March 3, 1996, sixteen days after the deadline had passed, and the institution
did not receive his request until April 12, 1996, sixty-three days after the deadline
had passed. 1 (ROA II, Tabs 1, 2 & 3.)
1
Plaintiff alleges that the March 3rd request was actually the second request
that he sent in, and that his first request was filed on or about February 15 but
“somehow was misplaced and disappeared from the office of my unit team.”
(Aplt. Br. at 18.) To support that allegation, Plaintiff has attached to his brief a
copy of a complaint form apparently filed by a member of the prison’s
investigations division. That complaint form, which is dated February 14, 1996,
states that “complainant has filed a Request for Administrative Remedy with BOP
officials,” suggesting that Plaintiff may indeed have filed a valid request for
administrative relief prior to March 3rd. But, in any event, Plaintiff’s subsequent
failure to meet the requisite deadline for filing his administrative appeal would
bar his current claim even if his initial request had been timely filed.
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The Warden signed his response rejecting Plaintiff’s request on April 19,
1996. (ROA II, Tab 3.) Plaintiff then had twenty days in which to file his appeal
to the Regional Office for the Federal Bureau of Prisons, pursuant to 28 C.F.R. §
542.15. Plaintiff missed this deadline as well: he did not send in his appeal until
January 23, 1997, 259 days after the deadline, and it was not received until
January 31, 1997, 267 days after the deadline. (ROA II at Tabs 4, 5.) The
Regional Office denied his appeal as untimely on February 4, 1997. (ROA II at
Tab 5.) Plaintiff had thirty days from that time to appeal to the General Counsel
for the Bureau of Prisons. His appeal was received on February 25, 1997, but was
rejected as untimely. (ROA II at Tab 7.) Although the appeal from the Regional
Office to the General Counsel’s Office was, in fact, within the thirty-day time
period provided for that leg of the appeal, the untimeliness defect originated from
the untimeliness of the initial appeal to the Regional Office. Thus, Plaintiff’s
missing of the deadline for his first appeal (by more than 250 days) suffices to bar
the instant claim.
The PLRA states, “No action shall be brought with respect to prison
conditions under section 1979 of the Revised Statutes of the United States (42
U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available
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are exhausted.” 42 U.S.C. § 1997e(a). 2 As we explained in Jernigan v. Stuchell,
304 F.3d 1030 (10th Cir. 2002), “Even where the ‘available’ remedies would
appear to be futile at providing the kind of remedy sought, the prisoner must
exhaust the administrative remedies available.” Id. at 1032 (citing Booth v.
Churner, 532 U.S. 731, 740 (2001)). No matter what kind of relief Plaintiff
seeks, he is nevertheless required to exhaust all administrative remedies before
proceeding with his instant Bivens action. Because his failure to meet the
appropriate filing deadlines for administrative remedies constitutes a failure to
exhaust those remedies, his Bivens claim is barred by the PLRA.
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Plaintiff’s case. Plaintiff’s motion to proceed without prepayment of filing fees is
GRANTED; Plaintiff must continue making partial payments on court fees and
costs previously assessed until such have been paid in full. All other pending
motions by Plaintiff are DENIED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
The PLRA’s exhaustion requirement also applies to Bivens claims. See
2
Yousef v. Reno, 254 F.3d 1214, 1216 (10th Cir. 2001).
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