Mixon v. Warden Carr

MEMORANDUM OPINION AND ORDER

MARK T. PITTMAN UNITED STATES DISTRICT JUDGE

This consolidated case is before the Court for review of the inmate/plaintiffs' claims arising from their initial exposure to Covid-19 while incarcerated at FMC-Fort Worth against defendants Warden Michael Carr, in his official capacity, and the Bureau of Prisons. Consolidated Complaint (Compl.). ECF No. 33. Now pending is Defendants' initial motion for summary judgment regarding exhaustion of administrative remedies, along with a supporting brief and appendix. Mot. Summ. J., ECF No. 54; Summ. J. Brief, ECF No. 55; App., ECF No. 51-1. Plaintiffs filed a

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responsive brief, and Defendants filed a reply. Summ. J. Resp., ECF No. 60; Reply, ECF No. 62. After review and consideration of the summary judgment motion, supporting documents, briefing and applicable law, the Court concludes that the summary judgment motion must be GRANTED, and that all Plaintiffs' claims must be DISMISSED for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a).

PROCEDURAL HISTORY and BACKGROUND

All of these pending cases were filed, pro se, by inmates at the Bureau of Prisons' (BOP) FMC-Carswell facility in Fort Worth, Texas. The Court severed the bulk of the cases from case number 4:20-CV-807-P, filed on August 3, 2020, and opened a new suit on the basis of a handwritten complaint and supporting memorandum signed by and in the name of approximately 70 different inmates. Compl. 1, 46-47, Memorandum 4-6, Blake v. Carr, et al., No. 4:20-CV-807-P, ECF Nos. 1 and 2. After the order of severance, approximately half of those inmate Plaintiffs then separately filed amended complaints and the in-forma-pauperis documents to maintain their own severed civil actions, all of which related back to the August 3, 2020 filing date. Although some of those cases were later dismissed for lack of prosecution or because the plaintiff was released, approximately 27 of those original Plaintiffs maintained their suits.^[1] In the weeks following August 3, 2020, the Court also received six additional new cases from FMC-Carswell inmates asserting the same or similar claims, all filed between September 21, 2021, and October 9, 2021.^[2]

As part of the Court's screening of all of these cases under authority of both

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28 U.S.C. § 1915(e)(2) and § 1915A, the Court then appointed counsel for each of the above-referenced Plaintiffs, and appointed counsel then moved, and the Court granted, a motion to consolidate the individual suits into one consolidated case under the lead case number 4:20-CV-854-P. ECF No. 32. Appointed counsel then filed the existing operative amended pleading on behalf of the 33 remaining plaintiffs, entitled “Plaintiff's Consolidated Complaint for Injunctive and Declaratory Relief.” Consolidated Compl., ECF No. 33. After service of the consolidated complaint, Defendants appeared through the filing of both a motion to dismiss, and with agreement from Plaintiffs' counsel, the instant motion for summary judgment regarding exhaustion of administrative remedies. ECF No. 54.

In the Consolidated Complaint, Plaintiffs bring claims under § 504 of the Rehabilitation Act of 1973 (codified as amended at 29 U.S.C. § 794) and under the Eighth Amendment, on the basis that they have been exposed to “inadequate and dangerous conditions” at FMC-Carswell, primarily in connection with the COVID-19 pandemic. Consolidated Compl. 1, ECF No. 33. They seek prospective declaratory and injunctive relief that would require: (1) the use of a “mitigation plan” against COVID-19 at FMC-Carswell, to be “overseen by a qualified public health expert”; (2) that “all necessary and appropriate healthcare” be provided to inmates at FMC-Carswell; and (3) the release of unspecified inmates after the BOP is required to “[e]stablish a process” to identify inmates who are “appropriate for release on home confinement, furlough or other release mechanisms.” Id. at 24 (Request for Relief), ECF No. 33.

SUMMARY JUDGMENT EVIDENCE

As noted, Defendants filed an appendix in support of the motion for summary judgment that includes a total of 164 pages of records. ECF No. 51-1. In particular, the appendix includes the August 6, 2021 Declaration of BOP Executive Assistant Churee Jones with thirty-seven

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attachments. App. Declaration 1-19, ECF No. 51-1; App. Attachments 20-160, ECF No. 51-1. Jones recites that it is her responsibility to oversee the administrative remedy program at FMC-Carswell. App. 1, ECF No. 51-1. She declares that she has attached the BOP computerized records (“Sentry”) of the Administrative Remedy Generalized Retrieval for each named inmate Plaintiff in this action. App. Declaration, 1-19; Attachment pages 20-160, ECF No. 51-1. Jones has also included additional records related to release or change in detention information for four of the plaintiffs. App. Attachments 7, 17, 24, and 27, ECF No. 51-1.

Plaintiffs have not provided any summary judgment evidence in response to the summary judgment motion.

SUMMARY JUDGMENT STANDARD

When the record establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, ” summary judgment is appropriate. FED. R. CIV. P. 56(a). “[A dispute] is ‘genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham.” Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citation omitted). A fact is “material” if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

To demonstrate that a particular fact cannot be genuinely in dispute, a defendant movant must (a) cite to particular parts of materials in the record (e.g., affidavits, depositions, etc.), or (b) show either that (1) the plaintiff cannot produce admissible evidence to support that particular fact, or (2) if the plaintiff has cited any materials in response, show that those materials do not establish the presence of a genuine dispute as to that fact. FED. R. CIV. P. 56(c)(1). Although the Court is required to consider only the cited materials, it may consider other materials in the record. See FED. R. CIV. P. 56(c)(3). Nevertheless, Rule 56 “does not impose on the district court a duty to sift

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through the record in search of evidence to support a party's opposition to summary judgment....” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992). Instead, parties should “identify specific evidence in the record, and . . . articulate the ‘precise manner' in which that evidence support[s] their claim.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (other citation omitted)). In evaluating whether summary judgment is appropriate, the Court “views the evidence in the light most favorable to the nonmovant, drawing all reasonable inferences in the nonmovant's favor.” Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citation omitted) (internal quotation marks omitted). “After the non-movant [here, the FMC-Carswell plaintiffs] has been given the opportunity to raise a genuine factual [dispute], if no reasonable juror could find for the non-movant, summary judgment will be granted.” Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

Nevertheless, a motion for summary judgment for failure to exhaust is treated slightly differently. See, e.g., Dillon v. Rogers, 596 F.3d 260, 272-73 (5th Cir. 2010). “Exhaustion resembles personal jurisdiction and venue in that it is an affirmative defense that allows defendants to assert that plaintiffs have not invoked the proper forum for resolving a dispute.” Id. at 272 (citing Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008)). Stated differently, exhaustion of administrative remedies is a “rule of judicial administration” that is akin to doctrines like ‘abstention, finality, and ripeness . . . that govern the timing of federal court decision making.'” Id. (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (other citation omitted)). Since exhaustion of administrative remedies is a “threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time, we conclude that judges may resolve factual disputes concerning exhaustion without the participation of a jury.” Id.

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(citation and footnote omitted).

ANALYSIS

A. Prison Litigation Reform Act (“PLRA”) Exhaustion Requirement

The Prison Litigation Reform Act (“PLRA”) provides “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). The Supreme Court has described the PLRA...