FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING
DEFENDANTS' MOTION TO DISMISS AND DISMISSING PLAINTIFF'S SECOND DUE PROCESS CLAIM, WITHOUT
PREJUDICE,FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
I. Procedural History and Plaintiff's Allegations
On July 6, 2010, Plaintiff Christian Williams ("Plaintiff"), a federal prisoner proceeding pro se and in forma pauperis, filed a complaint in the United States District Court for the District of Columbia, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1.
From January 2008 until September 2010, Plaintiff was incarcerated at USP Atwater.*fn1 Defs. Mem. Mot. Dismiss at 2, Doc. 24-1. In Plaintiff's second amended complaint, he names Hector A. Rios, Warden; Jacqueline Ciufo, Unit Manager; Jessie Gonzalez, Administrative Assistant; S. Putnam, Lieutenant (SHU); Z. Morgan, Lieutenant (SHU); and D. S. Eber, Lieutenant (SHU); who were all employed at USP Atwater. 2d Am. Compl. at 3, Doc. 14.
On June 22, 2009, Plaintiff was placed in segregation for possession of a weapon and subsequently given sixty days in disciplinary segregation. Id. at 4. On July 7, 2009, Unit Manager Ciufo filed a memorandum to Warden Rios for referral to Special Management Unit ("SMU"). Id. Defendants Ciufo and Rios did not notify Plaintiff of the memorandum or provide Plaintiff with a copy. Id. The memorandum contained disciplinary infractions from a prior institution and a charge for which Plaintiff received a forty-five month sentence in the District Court of Louisiana. Id.
On August 4, 2009, Warden Rios received a notice for hearing referral to SMU from Regional Director Robert McFadden. Id. Warden Rios, Ciufo, Putnam, Eber, Morgan, and Gozalez, who were all involved in the referral process, failed to give Plaintiff notice of the hearing. Id.
On August 6, 2009, Plaintiff had a SMU referral hearing without any prior notice. Id. The SMU hearing only addressed three disciplinary infractions Plaintiff received while in USP Atwater. Id. at 5. The hearing administrator recommended Plaintiff for SMU based on Plaintiff's disciplinary history since his entrance in the BOP. Id. Plaintiff was unable to prepare a defense because Ciufo and Rios failed to provide Plaintiff with the July 7, 2009 memorandum. Id.
After completing disciplinary segregation, Plaintiff was held in administrative segregation from August 31, 2009 until September 28, 2010, without notice or hearing. Id. Putnam, Eber, and Morgan did not give Plaintiff the opportunity to attend the review hearings every thirty days. Id. On September 28, 2010, Plaintiff was transferred to USP Lewisburg SMU, which is an extension of the SHU. Id. For relief, Plaintiff seeks immediate release to general population and $200 per day spent in segregation / SMU Id. at 6.
On July 6, 2010, Plaintiff initiated this action. Doc. 1. In his complaint, he stated he exhausted administrative remedies. Id. at 2. On May 12, 2011, Plaintiff filed a first amended complaint. Doc. 12. In Plaintiff's amended complaint, he stated he was denied relief on every level of the administrative remedy process. Id. at 2.
On June 16, 2011, Plaintiff filed a second amended complaint. Doc. 14. In Plaintiff's second amended complaint, he states he exhausted administrative remedies. Id. at 2.
On July 14, 2011, the Court found two (2) cognizable Fifth Amendment due process claims against Defendants for (1) failure to provide notice of his SMU placement hearing and for (2) failure to provide periodic review hearings while in administrative segregation ("ad-seg"). Doc. 15. On October 11, 2011, the Court issued a second informational order, advising Plaintiff that Defendants may file an unenumerated 12(b) motion to dismiss for failure to exhaust administrative remedies and how Plaintiff must oppose the motion in order to avoid dismissal, pursuant to Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th. Cir. 2003) (citing Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). Doc. 23. On November 22, 2011, Defendants filed a motion to dismiss Plaintiff's second due process claim, for failure to exhaust administrative remedies. Doc. 24. On December 9, 2011, Plaintiff filed an opposition to Defendants' motion to dismiss. Doc. 25. On December 16, 2011, Defendants filed a reply. Doc. 28.
II. Motion to Dismiss for Exhaustion Of ...