Enerva Trotman v. T. Smith ( 2020 )

CLD-129 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3382
___________
ENERVA W. TROTMAN,
Appellant
v.
T. SMITH
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1-17-cv-00285)
Magistrate Judge: Honorable Richard A. Lanzillo (by consent)
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 27, 2020
Before: JORDAN, KRAUSE and MATEY, Circuit Judges
(Opinion filed: March 12, 2020)
_________
OPINION *
_________
PER CURIAM
Appellant Enerva Trotman, proceeding pro se, filed a civil-rights action naming as
the sole defendant T. Smith, a correctional officer employed at the federal correctional
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
institution where Trotman is confined. He claimed that Smith engaged in racial
discrimination, libel, slander, defamation of character, and religious discrimination. For
relief, he requested that Smith be transferred to another institution and suspended without
pay.
The parties consented to proceed before a Magistrate Judge. See 28 U.S.C.
§ 636(c)(1). Smith filed a motion to dismiss, or in the alternative for summary
judgment, asserting that Trotman had failed to exhaust his administrative remedies.
Smith submitted evidence in support of this assertion. In response, Trotman submitted no
evidence related to exhaustion, but instead expanded upon his allegations. On March 26,
2019, the Magistrate Judge granted Smith’s motion, and dismissed Trotman’s claims for
failure to exhaust administrative remedies, after concluding that his administrative appeal
was properly dismissed as untimely. Trotman did not file an appeal.
Six months later, on September 26, 2019, Trotman filed a post-judgment motion to
reopen the case based on “excusable neglect.” The motion was in the form an affidavit
asserting that his failure to exhaust administrative remedies came as a result of prison
officials’ “egregious misconduct” in failing to forward his B-10 and B-11 forms. On
October 3, 2019, the Magistrate Judge denied the post-judgment motion, construing it as
having been brought under Federal Rule of Civil Procedure 60(b), concluding that
Trotman had failed to carry his burden to show his entitlement to relief under Rule 60(b),
and that his failure to provide evidence to rebut Smith’s motion for summary judgment
did not constitute excusable neglect. Furthermore, the Magistrate Judge reasoned that,
2
even had Trotman filed his new affidavit in response to Smith’s motion, the analysis
would have remained unchanged and Trotman’s claims still would have been dismissed.
Trotman timely appealed the denial of his post-judgment motion.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 1 We review
the Magistrate Judge’s order denying Trotman’s post-judgment motion for abuse of
discretion. See Brown v. Phila. Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003). We may
summarily affirm if the appeal fails to present a substantial question. See Murray v.
Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
The Prison Litigation Reform Act requires full and procedurally proper exhaustion
of all available administrative remedies as a prerequisite to prisoner suits challenging
prison conditions under federal law. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S.
81, 90 (2006) (“Proper exhaustion demands compliance with an agency’s deadlines and
other critical procedural rules.”); Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000). Under
the administrative-remedies process established by the Bureau of Prisons, an inmate who
is dissatisfied with the warden’s response to his written Administrative Remedy Request
may submit an appeal on a BP–10 form to the Regional Director within 20 days of the
date of the warden’s response. 28 C.F.R. § 542.15. If the inmate is dissatisfied with the
1
We lack jurisdiction to review the Magistrate Judge’s March 26, 2019 order dismissing
Trotman’s claims. Trotman’s notice of appeal, dated October 15, 2019, was untimely
with respect to the March 26, 2019 order, see Fed. R. App. P. 4(a)(1)(A), and Trotman’s
September 26, 2019 post-judgment motion did not toll the time for filing a notice of
appeal, see Fed. R. App. P. 4(a)(4)(A)(vi).
3
Regional Director’s response, the inmate may submit a final appeal on a BP–11 form to
the General Counsel at the Central Office of Appeals within 30 calendar days of the
Regional Director’s response. See id.Here, the warden denied Trotman’s Administrative Remedy Request on August
16, 2016. 2 He had 20 days—until September 5, 2016—to file his appeal to the Regional
Director on the BP-10 form. 3 However, he signed his BP-10 form on September 13,
2016, and it was marked received by the Regional Director on September 19, 2016. The
Regional Director denied the appeal as untimely, and Trotman thereafter filed his appeal
to the Central Office on the BP-11 form, which was denied on the ground that his appeal
to the Regional Director had been untimely.
In his post-judgment motion, Trotman asserted that prison officials failed to
forward his BP-10 and BP-11 forms. However, even if true, this allegation is irrelevant.
Assuming, arguendo, that the prison mailbox rule applies to the Bureau of Prisons’
grievance system, 4 Trotman signed his BP-10 form on September 13, 2016, well after the
September 5, 2016 deadline to submit it to the Regional Director. Accordingly, the
2
Trotman does not allege that there was any delay in his receipt of the warden’s denial.
3
We note that September 5, 2016 was Labor Day. Regardless, even were the deadline
extended to September 6, 2016, Trotman still failed to meet it.
4
Cf. BOP Program Statement 1300.16, Administrative Remedy Program (Jan. 6, 2014)
(stating that the deadlines provided in § 542.15 “specify the date of the Appeal’s receipt
in the regional office or the Central Office. The deadlines have been made deliberately
long to allow sufficient mail time.”).
4
Magistrate Judge did not abuse his discretion in denying Trotman’s post-judgment
motion. 5
Finding no substantial question raised by this appeal, we will summarily affirm the
Magistrate Judge’s order. 6 3d Cir. LAR 27.4 and I.O.P. 10.6.
5
We note that in the Magistrate Judge’s opinion dismissing Trotman’s claims, he
correctly applied the 20-day deadline to file an administrative appeal to the Regional
Director, but in his order denying Trotman’s post-judgment motion, he incorrectly
applied a 30-day deadline. However, this error did not affect the outcome.
6
Trotman’s motion for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d
147, 155 (3d Cir. 1993).
5