Werman v. Joyner

1

ALFRED WERMAN PLAINTIFF v. H. JOYNER, ET AL. DEFENDANTS

Civil Action No. 22-71-DLB

United States District Court, E.D. Kentucky, Southern Division

August 28, 2023

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, UNITED STATES DISTRICT JUDGE

Plaintiff Alfred Werman is an inmate confined at the federal penitentiary in Adelanto, California. Werman has filed a pro se civil rights complaint pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Doc. # 1).^[1] Following service of process, the Defendants filed a Motion to Dismiss the complaint. (Doc. # 44). Werman filed a Response to the motion and has requested that the Court recruit counsel to represent him in this case. (Docs. # 46, 47). Both motions are now fully briefed. (Docs. # 48-50). Because Werman failed to exhaust his administrative remedies fully and properly with respect to his claims, and most (but not all) of the claims may not be pursued in a Bivens action, the Court will grant the Defendants' motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Werman's complaint details events occurring when he was confined at the federal prison in Inez, Kentucky. (Doc. # 1 at 1). Werman alleges that in late June 2021, Bureau of Prisons (“BOP”) officer Salthiel Hurley repeatedly engaged in verbal sexual harassment. A few weeks later Werman filed a complaint against Hurley under the Prison Rape Elimination Act (“PREA”), 42 U.S.C. § 15601. Werman alleges that after the PREA complaint was filed prison psychologist Dr. Mollie LeFever was not helpful, and instead became “verbally abusive” and refused his request to be transferred to another prison. (Doc. # 1 at 2).

Werman indicates that by early July 2021, he began having suicidal thoughts. When he told this to prison staff, he was placed in a holding cell where he was kept under watch by officers. At this time Werman was stripped, clothed in paper garments, and put in full restraints. Werman alleges that during this process BOP officer Terry Melvin was verbally abusive. He also states that initially he was not visited by anyone from the psychology department. Werman alleges that when Dr LeFever spoke with him about his mental health concerns, she did so in front of staff and other inmates and only in an effort to convince him that he was not suicidal rather than to provide treatment. Werman states that for the next seven hours he was left in the holding cell in full restraints, although a supervisor checked his restraints every two hours. He states that officers Zachary Thompson and Joseph Turner left the lights on and refused to give him a mattress or any food. Thompson, Turner, and officer Joseph Holcomb also refused to loosen his restraints after he complained that they were too tight. (Doc. # 1 at 3; Doc. # 1-1 at 3-4, 6).

Werman alleges that in the days following, he showed bruises and welts from the restraints to nurses Shellia Daniel, Lonna Plumley, and David Spradlin. He also told them that he had experienced bloody stools, but that none of them took his symptoms seriously or ensured that he was examined by a doctor. (Doc. # 1-1 at 5, 7).

Beginning in mid-July 2021, Werman filed a series of three overlapping and disjointed inmate grievances and appeals regarding these events. (See Doc. # 1-1 at 1428). However, the BOP rejected nearly all of them for various procedural deficiencies, and Werman abandoned those that were not. (See Doc. # 44-2 at 2-4).

In the first, on July 16, 2021, Werman sent a “sensitive” grievance to the MidAtlantic Regional Office (“MARO”) setting forth his allegations. (Doc. # 1-1 at 21).^[2] MARO received this grievance on July 22, 2021, and assigned it Remedy ID # 1090162. MARO rejected the grievance on August 9, 2021, and advised Werman that he should have filed a regular grievance with THE warden instead. (Doc. # 44-2 at 2 ¶5, 11, 23).

On August 25, 2021, Werman sent an appeal to Central Office, alleging that he had not received any response to his sensitive grievance to MARO within thirty days. (Doc. # 1-1 at 20).^[3] The Central Office received the appeal on September 7, 2021, and rejected it the same day for the same reason identified by MARO. (Doc. # 44-2 at 2 ¶6, 13).

Six weeks later, on October 21, 2021, Werman filed another appeal to MARO, expressly referencing the same Remedy ID # 1090162. However, this was not a new attempt to file a sensitive grievance. Instead, Werman stated that on September 1, 2021, he had given a grievance to a staff member to be filed with the warden regarding his allegations. Werman claimed entitlement to appeal because more than thirty days had passed without response from the warden. Werman further noted that this appeal to MARO was delayed because on September 28, 2021, he had been transferred to the federal prison in Pine Knot, Kentucky, and alleged that for three weeks prison staff there refused to give him a BP-10 form to appeal. (Doc. # 1-1 at 17).

The parties do not point out what readily appears from the record: Werman referenced the wrong Remedy ID # in this appeal to MARO. Werman's error caused MARO to justifiably reject his appeal, which caused Werman to abandon his “third” grievance series. To wit: on August 30, 2021, Werman signed a new BP-9 grievance with the warden, stating in it that four days earlier he had received a rejection from MARO (from Remedy ID # 1090162) which directed him to file a grievance initially at the institutional level. (Doc. # 1-1 at 19). As noted above, one day later Werman handed his new grievance to a staff member for filing with the warden. (Doc. # 1-1 at 17). The warden received this grievance on September 8, 2021, and assigned it a new number: Remedy ID # 1093694. (Doc. # 1-1 at 19; Doc. # 44-2 at 4 ¶11, 13). Werman was transferred to a different prison twenty days later, apparently not having received formal notification of this new Remedy ID number. Warden H. Joyner- the warden of the prison where Werman was confined before his transfer-denied the grievance on October 1, 2021, three days after Werman had been transferred out. (Doc. # 1-1 at 18). The warden's denial would then have been forwarded to Werman at his new place of confinement. Apparently before he received the warden's denial, Werman filed his appeal to MARO on October 21, 2021. Werman referenced the earlier Remedy ID # 1090162 instead of the new Remedy ID # 1093694 that had recently been assigned and asserted incorrectly that the warden had not responded to his grievance. (Doc. # 1-1 at 18).

Thus, when MARO received Werman's appeal on October 29, 2021, it correctly treated it as part of the old Remedy ID #1090162 because that is the one Werman expressly referenced in his BP-10 grievance appeal. (See Doc. # 1-1 at 17). On November 12, 2021, MARO rejected the appeal, noting that Werman had not included a copy of his grievance to the warden or the warden's response to it. (Doc. # 1-1 at 16; Doc. # 44-2 at 2-3 ¶7, 14).^[4] Werman did not attempt to resubmit his appeal to MARO with a copy of the warden's denial, which by that time he certainly should have received. Instead, on December 5, 2021, Werman appealed to the Central Office, stating that he had not sent MARO a copy of the warden's response to his BP-9 because he did not receive a timely response from the warden. (Doc. # 1-1 at 15). The Central Office rejected Werman's appeal on January 14, 2022, stating that it concurred with MARO's rationale for rejecting that appeal, and directing Werman to follow the directions provided by MARO. (Doc. # 1-1 at 14). Werman took no further steps to advance or cure defects in this remedy series. (Doc. # 44-2 at 3 ¶7).

Adding to this confusion was Werman's decision to file yet another grievance, this time complaining about these events as well as other, distinct concerns. On August 5, 2021, with one grievance on these matters still pending, Werman filed another inmate grievance with the warden which was assigned Remedy ID # 1091274. In this grievance Werman included his complaints about his placement in restraints and subsequent medical care. But he also complained that he had requested medical care in June but had never been examined by a nurse, that his eyeglasses were broken, and that his prescription was outdated. (Doc. # 1-1 at 27). The warden rejected this grievance on August 17, 2021, because it related to several unrelated matters. See 28 C.F.R. § 542.14(c)(2) (“If the inmate includes on a single form multiple unrelated issues, the submission shall be rejected and returned without response, and the inmate shall be advised to use a separate form for each unrelated issue.”). The warden directed Werman to file a separate inmate grievance for each issue. (Doc. # 1-1 at 26; Doc. # 44-2 at 3 ¶8, 12).

Werman ignored these directions and appealed all of his various issues and concerns to MARO on August 25, 2021. (Doc. # 1-1 at 25). MARO rejected the appeal on September 10, 2021, noting that Werman did not include a copy of his institutional grievance or the warden's response to it. MARO advised Werman that he could correct this defect and resubmit his appeal within ten days. (Doc. # 1-1 at 24; Doc. # 44-2 at 3 ¶9, 12). Werman sent an appeal to the Central Office on September 21, 2021, again setting out multiple unrelated issues and claiming that MARO lied about his failure to include copies of the proceedings before the warden. (Doc. # 1-1 at 23). The Central Office rejected Werman's appeal on multiple grounds on October 25, 2021, and directed him to start each individual grievance at the institutional level. (Doc. # 1-1 at 22; Doc. # 44-2 at 3-4 ¶10, 14). Werman again disregarded these directions.

In his Complaint, Werman contends that the defendants' actions violated his rights under the Eighth Amendment to the United States...