James Huff, II v. Latoina NealJames Huff, II v. Latoina Neal
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). We caution Oliva that once he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). Oliva’s motion for appointment of counsel is DENIED.
Fred Turner Hinrichs, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Defendants-Appellees.
James Eli Huff, II, a federal prisoner proceeding pro se, filed suit against Latoina Neal, Scott Fauver, unknown medical staff at the federal Bureau of Prisons (“BOP“), and the United States of America (collectively, the “defendants“), asserting claims pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (“FTCA“). The district court granted summary judgment to the defendants on the Bivens claims and dismissed the FTCA claims. Because Huff failed to exhaust his administrative remedies with respect to the Bivens claims and because the defendants’ actions underlying the FTCA claims fell within the discretionary function exception, we AFFIRM.
I.
Huff was incarcerated at the Federal Correctional Institution in Big Spring, Texas.1 On July 6, 2007, Huff informed Corrections Officer John Skidmore that a violent prison gang, the Hermanos Pistoleros Latinos (“Pistoleros“), had threatened several inmates over mealtime seating arrangements. The next day, in investigating this claim, Lieutenant Neal openly called Huff into her office; after he left, she called three Pistoleros into her office. According to Huff, Lieutenant Neal‘s “open investigation procedure” portrayed Huff as a snitch. Huff then reported to Officer Skidmore that he had been threatened by a Pistoleros member for being a snitch. On July 10, 2007, Captain Fauver approved the placement of two Pistoleros gang members into Huff‘s unit. Two days later, on July 12, 2007, three Pistoleros gang members entered Huff‘s cell and, while yelling “pinche ratto,” violently attacked him. Huff was placed in the Special Housing Unit (“SHU“) following the attack. Medical personnel noted that Huff had an injured nose; multiple abrasions and bruises on his forehead, neck, arms, torso, legs and bottoms of his feet; footprints on his back; a brain stem concussion that caused vision impairment, headaches, and dizziness; and psychological injuries.
On July 20, 2007, Huff was released from the SHU. At that time, according to Huff, he “wanted to file a formal complaint against [Lieutenant] Neal but feared more retaliation. [Lieutenant] Jackson inform[ed] Huff that Captain Fauver is investigating the incident and to just wait for his determination.” Lieutenant Jackson again informed Huff that the investigation was ongoing on August 3, 2007. Huff filed an informal complaint (form BP-8) with Captain Fauver on August 20, 2007, stating “his reluctance to file a complaint fearing more retaliation, and complaining about [Lieutenant] Neal‘s conduct portraying Huff as a snitch.” On November 13, 2007, Huff filed a formal complaint (form BP-9).
On June 25, 2009, Huff filed a lawsuit against the defendants in their individual and official capacities, bringing claims under Bivens and the FTCA. Huff alleged that the defendants retaliated against him and failed to protect his safety. The defendants moved for summary judgment on the Bivens claims brought against them in their individual capacities, arguing that
II.
A.
Huff challenges the district court‘s grant of summary judgment in favor of the defendants on his Bivens claims. We review a summary judgment de novo. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
B.
Huff was required to exhaust administrative remedies for his Bivens claims. Huff argues that he properly exhausted administrative remedies because he timely initiated the BOP‘s administrative process when he notified BOP staff of the imminent threats of assault by gang members. Huff contends that there is no genuine issue of material fact as to whether the defendants had subjective knowledge that he faced serious harm. In support of his position, Huff relies on Smith v. Brenoettsy, in which we stated that “all that we (and the Supreme Court) have required is that the official ... be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists.” 158 F.3d 908, 912 (5th Cir. 1998) (internal quotation marks omitted) (citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).
Huff‘s reliance on Farmer is misplaced. Under the Prison Litigation Reform Act (“PLRA“), an inmate must exhaust available administrative remedies offered by the agency before bringing a civil rights claim against officials in their individual capacities.
The BOP has a four-step process for resolving grievances by inmates. First, an inmate must attempt to informally resolve the issue with the staff.
The defendants’ summary judgment evidence consisted of an affidavit from Jennifer Hansen, the Senior Attorney-Advisor for the BOP, and authenticated computerized records. In her affidavit, Hansen outlined the procedures set forth above and attested, in pertinent part, to the following. The BOP does not retain copies of rejected administrative requests but instead returns them to the inmate. A review of BOP computerized administrative remedy records revealed that Huff failed to exhaust administrative remedies relative to the July 12, 2007, incident and the related issues he raised in his complaint. Because Huff‘s claims involved allegations of staff misconduct, he should have filed his request for an administrative remedy at the institution level via a BP-9 within twenty days of the incident. Huff attempted to file a BP-9 regarding the July 12, 2007, incident on November 13, 2007. That request was rejected on November 27, 2007, as untimely because it was not filed within twenty days of the incident.
In response to the defendants’ motion for summary judgment, Huff asserted, among other things, that he reasonably relied on Lieutenant Jackson‘s statements that Captain Fauver was investigating the incident and that Huff should wait until Captain Fauver‘s report was issued to proceed with a complaint. Huff submitted an affidavit in which he attested that he exhausted his administrative remedies to the fullest extent permitted by “BOP Program Statement 1330.16” and that the defendants failed to respond to his BP-8 request for an informal resolution. Huff attached a verified “Administrative Remedy Compendium,” asserting that: Lieutenant Jackson and BOP staff told Huff on August 17, 2007, that Captain Fauver‘s investigation was ongoing; on August 20, 2007, Huff filed a BP-8 to the attention of Captain Fauver, stating that he was reluctant to file a complaint because he feared retaliation; Huff was transferred on October 23, 2007, to a facility in Arkansas; on November 13, 2007, Huff filed a BP-9, stating that he had not received a response to his BP-8. Huff also attached, among other
The district court determined that there was no genuine issue of material fact as to whether Huff had exhausted his administrative remedies. The district court explained that “the only evidence Huff cited was his own declaration containing conclusory statements that he exhausted administrative remedies, that the BOP did not comply with its own regulations,” and that it delayed its response to his request for informal resolution. The district court also concluded that Huff was not excused from the exhaustion requirement.
Huff argues that his evidence shows that he properly exhausted because he began informal resolution on August 20, 2007, was transferred to a facility in Arkansas on October 23, 2007, and filed a BP-9 on November 13, 2007, as soon as he received his property. He also contends that, under the “Best Evidence Rule,” the defendants’ computer-generated spreadsheets of his alleged remedy filings is not competent summary judgment evidence of whether he attempted to exhaust administrative remedies. Federal Rule of Civil Procedure 56 sets out the standards for summary judgment and generally requires that evidence be sworn, certified, or verified material for a court to consider it. Rule 56(c), (e); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987). Hansen attested that the computer records were “computerized inmate records maintained by the BOP in the ordinary course of business” and that her affidavit was based on her own personal knowledge or information acquired through the performance of her official duties. Hansen swore that “[a] thorough review of BOP computerized administrative remedy records revealed that [Huff] ha[d] failed to exhaust his administrative remedies with respect to the issues raised in his Complaint.” Therefore, we agree with the district court that the defendants put forth competent summary judgment evidence.
Under
Huff argues, in the alternative, that he should be excused from the exhaustion requirement because Lieutenant Jackson told him that he should wait until Captain Fauver completed his investigation to file a grievance. Huff also argues that he should be excused because his fear of retaliation rendered his administrative remedies unavailable. We have held that “the exhaustion requirement ‘may be subject to certain defenses such as waiver, estoppel, or equitable tolling.‘” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) (quoting Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)), overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). We have recognized, as a basis for
The district court relied on Johnson v. Ford, 261 Fed. Appx. 752 (5th Cir. 2008) (unpublished), in rejecting Huff‘s argument that he was excused from the exhaustion requirement. In Johnson, as here, an inmate argued that he should be excused from exhaustion because he was advised to proceed through informal resolution and was advised by the warden that the matter was being investigated. 261 Fed. Appx. at 757. We were not persuaded: “[The inmate‘s] argument that he relied on the Warden‘s order of an investigation ... does not serve to excuse his untimely filing of his grievance in the face of a clear ... deadline to file a formal grievance.” Id. at 757.
Similarly, the evidence here demonstrates that the applicable grievance procedure, including the relevant deadlines, was available to Huff.4 Huff‘s knowledge of the grievance procedure generally is evinced by his filing of a BP-8, the first step of the procedure, in August 2007 and his awareness of the BOP Program Statement, which provides the timeliness standards for the procedure. See, e.g., Alexander v. Tippah Cnty., 351 F.3d 626, 630 (5th Cir. 2003) (remedies were available because inmate had knowledge of grievance procedures); Ferrington v. La. Dep‘t of Corrs., 315 F.3d 529, 532 (5th Cir. 2002) (remedies were available because the inmate “was well aware of the general procedural requirements described in the inmate handbook“). Moreover, Huff has not alleged that BOP officials provided him with contrary deadlines. Instead, Huff asserts in his affidavits that Lieutenant Jackson told him to delay filing a BP-9 until after Captain Fauver‘s investigation concluded.5 But Huff points to only one such statement that was made within twenty days following the incident (i.e., on July 20, 2007). Huff‘s assertion regarding Lieutenant Jackson‘s statement, which is merely a reiteration of an allegation in his complaint, is insufficient to raise a fact issue regarding whether BOP officials’ actions rendered his remedies unavailable, given Huff‘s knowledge of the grievance proce-
Huff argues a number of other reasons as to why he should be excused from the exhaustion requirement, but each is unavailing. Huff contends that the exhaustion requirement should be excused because the prison failed to adhere to its own policy requiring the Remedy Coordinator to be flexible and accept untimely informal resolution requests. However, the facility‘s policy did not require prison officials to accept an untimely submission, only that “consideration should be given.” Huff also argues that administrative remedies were rendered unavailable because his injuries prevented him from filing a timely request. We have held that an inmate‘s “personal inability” may render a grievance system “unavailable” for purposes of the exhaustion requirement. Days, 322 F.3d at 867. Although Huff alleges in his complaint, more definite statement, and compendium that he sustained injuries as a result of the Pistoleros’ attack, his summary judgment evidence went only to the nature of his injuries and did not demonstrate that his injuries prevented him from properly exhausting administrative remedies. These conclusory allegations cannot satisfy Huff‘s summary judgment burden.
III.
A.
Huff also challenges the dismissal of his failure to protect claim under the FTCA. We review de novo a district court‘s dismissal under
B.
As the sovereign, the United States is immune from suit, except to the extent that it has waived its immunity and has consented to be sued. F.D.I.C. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The FTCA acts as a limited
Courts strictly construe waivers of sovereign immunity and resolve all ambiguities in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Under the discretionary function exception, the waiver of immunity does not apply to any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
To determine whether the discretionary function exception applies, we conduct a two-pronged inquiry. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 713 F.3d 807, 810 (5th Cir. 2013). We ask first whether the challenged act “involv[ed] an element of judgment or choice.” Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (internal quotation marks and citation omitted). If so, we ask next “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. at 322-23, 111 S.Ct. 1267 (internal quotation marks and citation omitted). The exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 323, 111 S.Ct. 1267 (internal quotation marks and citation omitted).
The district court applied the Gaubert test and concluded that the discretionary function exception applied because the BOP exercises “significant judgment in fulfilling its statutory obligation to provide for the safekeeping” of inmates and that the discretionary safekeeping of inmates was the type of action for which the FTCA was designed to shield the government from liability.7
Huff complains that Lieutenant Neal‘s “open investigation procedure” portrayed him as a snitch and that Captain Fauver disregarded his health and safety by placing two Pistoleros into his housing unit. Huff contends that the district court erred when it applied the discretionary function exception because, under
The discretionary function exception “does not apply if ‘a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.‘” Buchanan v. United States, 915 F.2d 969, 971 (5th Cir. 1990) (quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). Although
Because the duty to maintain safekeeping of inmates is a discretionary one, we now turn to the two-pronged inquiry for the discretionary function exception. The placement of Pistoleros in a particular unit of the prison and the investigation of alleged threats inside the prison “involv[ed] an element of judgment or choice,” thereby satisfying the first prong. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. Indeed, the placement of any inmates on any occasion, as well as the investigation of any internal issue at any time, inherently requires that prison officials exercise their discretion to make a choice regarding the proper course of action in furtherance of safekeeping. Moreover, this is the type of conduct that the discretionary function was designed to shield because “a prison‘s internal security is peculiarly a matter normally left to the discretion of prison administrators.” Buchanan, 915 F.2d at 971 (internal quotation marks omitted). Public policy demands that these decisions be made by prison officials, not judges. Therefore, the BOP officials’ actions in this case fell within the discretionary function exception.9
Our conclusion comports with a recent unpublished opinion in which we held that “decisions regarding the transfers and classifications of prisoners generally fall within the discretionary function exception.” Patel v. United States, 398 Fed. Appx. 22, 29 (5th Cir. 2010) (unpublished).
Huff raises a series of other issues that are meritless. He argues that the district court erred when it denied his motion for leave to amend his complaint after the defendants filed their motion to dismiss his FTCA claims. Futility of amendment is a permissible basis for denial of a motion to amend. Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005). Because the court lacks subject matter jurisdiction over Huff‘s FTCA claims, amendment to his complaint would have been futile. Likewise, Huff argues that the district court erred when it denied an opportunity for discovery on the jurisdictional issues that were intertwined with his FTCA claims. A district court‘s decision to delay summary judgment for further discovery is reviewed for an abuse of discretion. Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). Huff has not indicated how any fact he hopes to discover would show that the district court‘s determination on the jurisdiction issue was erroneous. We have stated that a nonmovant “may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.” Id. Therefore, the district court‘s denial of Huff‘s motion for an evidentiary hearing was not erroneous.
In addition, Huff argues that his due process rights were violated when the district court denied his motion to reconsider the dismissal of his FTCA claims and his motion to amend. “We review the district court‘s denial of a motion for reconsideration under an abuse of discretion standard.” Ramon v. Casellas, 165 F.3d 23, *1 (5th Cir. 1998) (unpublished). Huff has not provided grounds for relief from the judgment. The district court therefore did not abuse its discretion.
Finally, Huff argues that he district court abused its discretion when it denied his motion for the appointment of counsel without an analysis of the relevant factors. Huff had no automatic right to counsel and the district court was required to appoint counsel only if the case presented exceptional circumstances. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Although there is no comprehensive definition of exceptional circumstances is practical, we have stated that a number of factors should be considered in ruling on requests for appointed counsel. These include: (1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross-examination. Id. at 213. Huff filed thorough pleadings and responses to the defendants’ motions that adequately addressed the complexities of the case. Therefore, the district court did not abuse its discretion in denying Huff‘s motion for the appointment of counsel.
We AFFIRM.