Jaame Amun Re El v. FCI Berlin, Warden

2022 DNH 087

• Court: District Court, D. New Hampshire
• Decided: July 20, 2022
• Docket: 19-cv-647-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jaame Amun Re El

v. Civil No. 19-cv-647-SE Opinion No. 2022 DNH 087 FCI Berlin, Warden

ORDER

On June 14, 2019, pro se plaintiff Jaame Amun Re El

initiated this action. Doc. no. 1. At the time, El was

incarcerated at the Federal Correctional Institution in Berlin,

New Hampshire (“FCI Berlin”). El alleges that FCI Berlin

employees violated his rights under the United States

Constitution, federal criminal statutes, and prison policy when

they interfered with his legal mail. See doc. no. 39. He seeks

damages for these alleged violations and injunctive relief to

prevent FCI Berlin employees from interfering with his mail in

the future. See id.

There is a lengthy procedural history in this case,

including two issued and approved Reports and Recommendations

and an interlocutory appeal to the First Circuit Court of

Appeals. See doc. nos. 39, 47, 68, 70, 84, 87, 96. All

defendants from El’s action have been dismissed except for four

specific FCI Berlin employees—Mailroom Officer Melanson and Corrections Officers Flynn, Farren, and Burnside. Doc. no. 47;

see doc. no. 39.

There are two pending motions before the court: El’s

“Motion to Compel Arbitration” and notice of address change

(doc. no. 89 (bolding and capitalization omitted)) and the

remaining defendants’ motion to dismiss for failure to state a

claim or in the alternative for summary judgment (doc. no. 91).1

For the reasons that follow, El’s motion is denied, and the

defendants’ motion is granted.

DISCUSSION

I. El’s Motion to Compel Arbitration2

El’s motion is titled: “MOTION TO COMPEL ARBITRATION BY

VERIFIED PARTIES OF THE EXECUTIVE BRANCH OF GOVERNMENT, FOR THIS

CLAIM OF ‘MAIL FRAUD’ (at 18 USC 1341), CLAIM OF ‘DELIBERATE

1 El filed a “surreply” in response to the defendants’ motion to dismiss or in the alternative for summary judgment. Doc. no. 93 (bolding and capitalization omitted). The court construed El’s “surreply” as an objection to the defendants’ motion and gave El an opportunity to file an objection if he did not intend his surreply to serve as one. Endorsed Order, dated Feb. 15, 2022 (Elliott, J.). El did not file a replacement objection. The defendants filed a reply in response to El’s objection. Doc. no. 95. El did not file any further response.

2 This order does not affect the notice of address change contained in the same motion, identifying El’s mailing address in Manchester, Connecticut, as of January 29, 2022. See also doc. no. 76 (prior notice filed April 28, 2021, identifying El’s then-current mailing address in Windsor, Connecticut).

2 INDIFFERENCE’ (at 28 CFR 540.18), FOR FULL CLOSURE AND

SETTLEMENT IN THIS MATTER.” Doc. no. 89 at 1. Although the

motion purportedly seeks to compel arbitration, nowhere other

than in the title does it mention arbitration, much less explain

the basis for the relief El seeks.3 See McKenzie v. Brannan, 19

F.4th 8, 15 (1st Cir. 2021) (Federal Arbitration Act requires

the movant to demonstrate that a valid agreement to arbitrate

exists); 9 U.S.C. § 2. Further, the motion focuses entirely on

the alleged actions of the warden of FCI Berlin, Robert

Hazlewood. As noted in several prior orders, Hazlewood is no

longer a defendant in this case. See doc. nos. 47, 68, 82.

Therefore, El’s motion to compel arbitration is denied.

II. The Defendants’ Motion

The court treats the defendants’ motion as a motion for

summary judgment because the motion relies upon and supplements

information in the record beyond the allegations contained in

El’s complaint and associated filings. See Fed. R. Civ. P.

56(c). Summary judgment is appropriate when the moving party

shows that “there is no genuine dispute as to any material fact

3To the extent that El seeks criminal prosecution, his motion does not offer any authority upon which the court could compel criminal prosecution. See, e.g., Liviz v. Trump, Civil Action No. 19-10463-DJC, 2019 WL 1284818, at *1 (D. Mass. Mar. 20, 2019) (the plaintiff does not have standing to bring a criminal action in federal court).

3 and the movant is entitled to judgment as a matter of law.” Id.

56(a). A genuine dispute is “one that must be decided at trial

because the evidence, viewed in the light most flattering to the

nonmovant, would permit a rational factfinder to resolve the

issue in favor of either party.” Joseph v. Lincare, Inc., 989

F.3d 147, 157 (1st Cir. 2021) (quotation omitted). “Facts are

material when they have the potential to affect the outcome of

the suit under the applicable law.” Id. (quotation omitted).

The defendants raise three arguments in support of summary

judgment, including that El’s remaining claims are barred

because he did not exhaust his available administrative remedies

as required by the Prison Litigation Reform Act (“PLRA”). See 42

U.S.C. § 1997e(a). To prevail on summary judgment based on the

affirmative defense of failure to exhaust, prison officials must

show that no factfinder could reasonably conclude that the

plaintiff exhausted available remedies before filing suit. Burns

v. Croteau, 561 F. Supp. 3d 164, 168 (D.N.H. 2020). If the

defendants make that showing, the burden shifts to the plaintiff

to come forward with definite and competent evidence showing the

existence of a genuine dispute of material fact as to

exhaustion. See id.

Because El was incarcerated at FCI Berlin at the time he

filed his complaint, he was required to exhaust the procedure

available to him through the BOP’s Administrative Remedy Program

4 before filing suit in district court on June 14, 2019. 42 U.S.C.

§ 1197e(a); see Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31,

36 (1st Cir. 2002); 28 C.F.R. § 542, Subpart B. The PLRA

requires “proper exhaustion,” which means that the prisoner must

comply with all of the prison’s “deadlines and other critical

procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006);

see also Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st

Cir. 2006) (“‘To exhaust remedies, a prisoner must file

complaints and appeals in the place, and at the time, the

prison’s administrative rules require.’” (quoting Pozo v.

McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002))). Moreover,

pursuing administrative remedies by taking some, but not all, of

the steps available does not constitute exhaustion under the

PLRA. See Johnson v. Thyng, 369 F. App’x 144, 148-49 (1st Cir.

2010). Finally, the pursuit of administrative remedies after

filing suit cannot satisfy the exhaustion requirement. See

Medina-Claudio, 292 F.3d at 36 (“[E]xhaustion prior to the

commencement of the action [i]s an indispensable requirement.

Exhaustion subsequent to the filing of suit will not suffice.”).

The declaration of a BOP legal assistant, Cheryl Magnusson

(doc. no. 91-2), and the exhibits (doc. nos. 91-3 to 91-9)

submitted with the defendants’ motion demonstrate that El failed

to complete the steps necessary to exhaust his available

administrative remedies with respect to his allegations of

5 improper mail handling prior to commencing this action on June

14, 2019. The majority of the administrative filings described

in the defendants’ motion occurred after El filed his complaint

and are therefore irrelevant to the exhaustion analysis. See

Medina-Claudio, 292 F.3d at 36. The relevant evidence shows that

El initiated the BOP’s administrative process on two occasions

prior to filing suit. Only one effort was related to El’s claims

in this case and neither progressed through all of the steps

required for exhaustion.

The BOP has a four-step procedure enabling prisoners to

pursue administrative relief from a grievance pertaining to the

circumstances of their confinement. See 28 C.F.R. § 542, Subpart

B (beginning with informal presentation of the issue to staff

and ending with an appeal to the BOP’s Central Office). On

February 4, 2019, El filed a Request for Administrative Remedy

(“BP-9”) form pursuant to step two of the BOP’s administrative

remedy procedure complaining about the handling of his legal

mail. For the purposes of this order, the court assumes that El

had previously completed step one, which required an informal

presentation of his grievance. After receiving the warden’s

February 21, 2019 response to the BP-9, El was required to

submit a Regional Administrative Remedy Appeals (”BP-10”) on or

before March 13, 2019 pursuant to step three. Though El

submitted three separate BP-10 forms, each was rejected by the

6 BOP for noncompliance with administrative rules and/or for

untimeliness. The evidence shows that El did not pursue the

fourth step—an appeal to the BOP Central Office (“BP-11”).

The other pre-suit attempt to utilize the BOP’s

administrative remedy procedure, initiated by El on March 11,

2019, did not pertain to his allegations of mail interference

directly, but instead sought information about FCI Berlin’s

insurance policy in an effort to facilitate his forthcoming

lawsuit. The record evidence demonstrates that El did not

complete step four of the BOP’s procedure on this second attempt

until August 2019, after his complaint was filed in this court.

Even if El had properly completed the BOP’s four-step procedure

for seeking administrative relief on this second attempt, using

the process to obtain insurance information does not show prior

administrative exhaustion of his allegations of interference

with his legal mail.

El’s objection does not address any of the defendants’

arguments. See doc. no. 93. It does not offer any evidence that

he sufficiently exhausted his remedies or that his case falls

into the PLRA’s narrow textual exception to mandatory

exhaustion. See Ross v. Blake, 578 U.S. 632, 642-44 (2016). El

did assert in prior pleadings that he exhausted available

administrative remedies. He included, among other attachments, a

series of emails between himself and FCI Berlin’s Case

7 Management account, descriptions of conversations he had with

mailroom staff, and a “Claim for Damage, Injury, or Death” that

he submitted to the Office of the Attorney General of the United

States (doc. no. 1-3 at 2 (capitalization omitted)), detailing

attempts outside of the BOP’s established procedure to report

and seek relief from his allegations of inference with his legal

mail. These attempts do not negate the requirement that El

complete the remedial process set forth in the BOP’s four-step

administrative procedure before filing a complaint in district

court.

El has not provided any competent evidence to counter the

defendants’ evidence of an incomplete and procedurally

noncompliant attempt to exhaust his available administrative

remedies prior to filing his complaint on June 14, 2019. The

court finds that there is no genuine dispute of material fact as

to whether El failed to exhaust. See Woodford, 548 U.S. at 90-

91; Acosta, 445 F.3d at 512; Johnson, 369 F. App’x at 148-49.

El’s failure to exhaust his available administrative remedies

entitles the defendants to judgment as a matter of law on all of

El’s pending claims. Therefore, the defendants’ motion is

granted, and the court need not address the defendants’ other

arguments pertaining to mootness and the impropriety of

extending Bivens to this case. See Bivens v. Six Unknown Named

Agents of Fed. Bur. of Narcs., 403 U.S. 388 (1971).

8 CONCLUSION

For the foregoing reasons, El’s motion to compel

arbitration (doc. no. 89) is denied, and the defendants’ motion

(doc. no. 91) is granted. El’s action is dismissed without

prejudice in its entirety. The clerk shall enter judgment and

close this case.

SO ORDERED.

__________________________ Samantha D. Elliott United States District Judge

July 20, 2022

cc: Jaame Amun Re El, pro se Robert J. Rabuck, Esq.