Fernando Bustillo v. Art Beeler ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6187
FERNANDO BUSTILLO,
Plaintiff – Appellant,
v.
ART BEELER; ANTHONY SCARANTINO; MAILROOM SUPERVISOR SKS;
KRYSTAL MCCAIGHT; TUCKER HILL; J. GREEN; S. BRANTLEY; MAITE
SERRANO-MERCADO; WALTER WOODROW BURNS, JR.; MACK BONNER;
ROBERT WALASIN; KENNETH MERITSUGU; W. ANDES; RACHEL
SPILLER; DEBBIE IVY,
Defendants – Appellees,
and
NURSE/PA BAH,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-ct-03097-BO)
Submitted: August 31, 2012 Decided: October 16, 2012
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Fernando Bustillo, Appellant Pro Se. Edward D. Gray, Assistant
United States Attorney, Joshua Bryan Royster, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Fernando Bustillo appeals the district court’s orders
denying in part his motion for discovery, denying a preliminary
injunction, and dismissing his claims pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971). We affirm in part, vacate in part, and remand for
further proceedings.
Bustillo challenges the district court’s dismissal of
his claims for failure to exhaust administrative remedies.
“There is no question that exhaustion is mandatory under the
[Prisoner Litigation Reform Act] and that unexhausted claims
cannot be brought in court.” Jones v. Brock, 549 U.S. 199, 211
(2007); see 42 U.S.C. § 1997e(a) (2006) (requiring exhaustion of
available remedies). In order to exhaust, a prisoner must
utilize all available steps of a multi-step grievance process
according to their procedural requirements; exhaustion does not
occur if the prisoner fails to follow these required steps. See
28 C.F.R. §§ 542.12 to .15 (2012); Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008). Exhaustion is an affirmative defense,
but the district court may dismiss for failure to exhaust as
long as the prisoner has been provided an opportunity to address
the issue. Moore, 517 F.3d at 725.
Reviewing the record under this standard, we conclude
that the district court did not err in finding that Bustillo
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failed to exhaust his administrative remedies with regard to his
claims that prison officials interfered with his access to the
mail system and spread rumors that he was a “snitch.” However,
it is apparent from the record that the district court failed to
address several of Bustillo’s claims, either with regard to
exhaustion of remedies or their substantive merits, and the
available record is inadequate to demonstrate that these claims
were properly dismissed. Thus, we vacate the district court’s
order and remand for consideration, in the first instance, of
Bustillo’s claims that: (1) defendants Andes, Bonner, Serrano-
Mercado, and Walasin deliberately withheld treatment for
cirrhosis; (2) defendants Spiller, Ivy, and Andes fabricated
claims regarding Bustillo’s inappropriate discharge of his
colostomy bag; and (3) defendants Bonner, Walasin, Moritsugu,
and Andes * wrongfully transferred him to the Federal Medical
Center in Springfield and placed him in administrative
segregation in retaliation for his lawsuit and in spite of his
medical needs.
*
While Bustillo also claimed that two other individuals
were responsible for this violation as well, he does not
challenge the district court’s refusal to permit him to amend
his complaint to include these individuals as parties. See 4th
Cir. R. 34(b) (noting that arguments not raised in informal
brief are waived).
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Bustillo also challenges the district court’s grant of
summary judgment as to his claims that he was denied surgery to
correct a hernia and effectively denied food. We have
thoroughly reviewed the record and conclude the district court
properly determined that no genuine factual dispute existed and
that Appellees were entitled to summary judgment as to these
claims. See Fed. R. Civ. P. 56(a) (standard); PBM Prods.,
LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011)
(standard of review). We further conclude that the district
court did not abuse its discretion in denying in part Bustillo’s
requests for discovery prior to summary judgment. See Fed. R.
Civ. P. 56(d); Strag v. Bd. of Trs., 55 F.3d 943, 954 (4th Cir.
1995).
Turning to Bustillo’s remaining claims—that the
district court improperly denied him injunctive relief, that the
court erred in permitting Appellees to submit multiple
dispositive motions and to rely on waived affirmative defenses,
and that certain Appellees committed perjury in the district
court—we have thoroughly reviewed the record as to each of these
claims and have found no reversible error. Thus, we affirm the
district court’s judgment as to these claims.
Bustillo also moves this court to order the prison
where he is presently housed to provide access to his court
files and to restore Bustillo’s access to mail. We are
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cognizant of a prisoner’s right of meaningful access to the
courts. Bounds v. Smith, 430 U.S. 817, 821-22 (1977); Bryant v.
Muth, 994 F.2d 1082, 1086 (4th Cir. 1993). However, we conclude
that Bustillo does not (and did not in the district court) make
the showing required to justify the extraordinary remedy of
injunctive relief. See Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008); Dewhurst v. Century Aluminum Co.,
649 F.3d 287, 290 (4th Cir. 2011). Thus, we deny Bustillo’s
motions seeking such relief in this court.
Accordingly, we affirm the district court’s judgment
in part, vacate in part, and remand for further proceedings
consistent with this opinion. We deny Bustillo’s motions to
compel access to his court files and normal correspondence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART;
REMANDED
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