Brian Brown v. Joel Zeigler ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7547
BRIAN L. BROWN,
Petitioner - Appellant,
v.
JOEL ZEIGLER,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:12-cv-01178)
Submitted: January 31, 2014 Decided: February 12, 2014
Before MOTZ, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian L. Brown, Appellant Pro Se. Stephen Michael Horn,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian L. Brown appeals the district court’s order
adopting the recommendation of the magistrate judge, granting
the Defendant’s motion to dismiss or for summary judgment, and
denying relief on Brown’s 28 U.S.C. § 2241 (2012) petition.
Brown also appeals the district court’s post-judgment order,
which, upon review of Brown’s motions for reconsideration,
reaffirmed the judgment order. 1 We affirm both orders.
We review de novo the district court’s initial order.
Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 530 (4th Cir. 2005)
(§ 2241 standard of renew); Dash v. Mayweather, 731 F.3d 303,
311 (4th Cir. 2013) (summary judgment standard of review). The
district court read Brown’s petition to allege constitutional
violations relating only to the conditions of his confinement at
FCI-Beckley. Believing that such claims were more properly
brought in a Bivens 2 action, the court then construed Brown’s
petition as such and denied relief for failure to exhaust
1
Brown’s post-judgment motions, filed within twenty-eight
days of the district court’s dismissal order, tolled the time to
appeal. Fed. R. App. P. 4(a)(4)(A)(vi). Thus, Brown’s notice
of appeal, filed within thirty days of the denial of his motions
for reconsideration, was timely as to both the district court’s
order denying the reconsideration motions and the dismissal
order. See id.; MLC Auto., LLC v. Town of S. Pines, 532 F.3d
269, 278-79 (4th Cir. 2008).
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2
available administrative remedies. Regardless of whether
Brown’s action was properly brought pursuant to Bivens or
Section 2241, administrative exhaustion was required. See Timms
v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (explaining that
exhaustion is required before a habeas action may be brought, at
least in the absence of exceptional circumstances); 42 U.S.C.
§ 1997e(a) (requiring a prisoner to exhaust administrative
remedies before filing any suit challenging the conditions of
confinement). We agree with the district court that Brown did
not fulfill this basic requirement here. In addition, the
district court did not abuse its discretion in denying Rule
60(b) relief, after considering Brown’s untimely objections to
the recommendation of the magistrate judge. See MLC Auto., 532
F.3d at 277 (Rule 60(b) standard of review).
We therefore affirm the rulings below. We deny
Brown’s motion to suspend the proceedings. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
3