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Jirak v. Terris

United States District Court, D. South Dakota, Southern Division

September 25, 2015

GENE JIRAK, Plaintiff,
WARDEN J.A. TERRIS, in his individual and professional capacities; ASSISTANT WARDEN TRUE, in his individual and professional capacities; CMS SUPERVISOR WOLFE, in his individual and professional capacities; SAFETY SUPERVISOR KALISTA, in his individual and professional capacities, UNIT MANAGER STONER, in his individual and professional capacities, DR. MALATINKSY, Clinic Director HSD, in his individual and professional capacities; DIRECTOR CHARLES SAMUELS, in his individual and professional capacities; ATTORNEY GENERAL ERIC HOLDER, Department of Justice, in his individual and professional capacities; and UNIT MANAGER ARTURO AVILES, in his individual and professional capacities, Defendants.


LAWRENCE L. PIERSOL, District Judge.

Before the Court is Defendants' motion to dismiss Plaintiff Gene Jirak's ("Plaintiff" or "Jirak") Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper venue, and 12(b)(6) for failure to state a claim. Alternatively, Defendants move to dismiss the complaint pursuant to the Prisoner Litigation Reform Act (PLRA) for failure to exhaust administrative remedies. For the following reasons, Defendants' motion is granted.


Plaintiff Gene Jirak is a federal inmate currently incarcerated at the Federal Prison Camp in Yankton, South Dakota ("FCP Yankton"). He was sentenced by the United States District Court for the Northern District of Iowa on October 11, 2012 to 21 month's imprisonment for submitting a false claim for tax refund, uttering a forged treasury check, committing mail fraud, and committing aggravated identity theft. At all times relevant to the allegations contained in the Complaint, however, Plaintiff was incarcerated at the Federal Correctional Institution in Milan, Michigan ("FCI Milan"). On April 30, 2013, while incarcerated at FCI Milan, Plaintiff claims that he was ordered by Defendant Arturo Aviles to use an electric power washer in a utility room, "Unit F2." Unit F2, Plaintiff alleges, was wired with live electricity at the time. Furthermore, Plaintiff was without proper equipment or training. Unit F2, according to the Complaint, was filled with one to two inches of standing water and was known to be contaminated with asbestos and lead. When Plaintiff protested, he was told that he could either complete the assigned work or an incident report would be filed against him. Shortly after the incident, on May 13, 2013, Plaintiff filed a tort claim under the Federal Tort Claims Act with the North Central Regional Office (NCRO) of the Bureau of Prisons (BOP) against the prison officials alleged to have coerced him into cleaning the unsafe room. Doc. 37-1 at 2. In the claim, Plaintiff sought damages in the amount of $5 million. Id. In response, FCI Milan staff investigated Plaintiff's claim. The investigation revealed neither that Plaintiff experienced any physical harm nor that he had been seen by medical personnel at FCI Milan. Furthermore, the investigation did not indicate that Plaintiff had filed a claim for work-related injury with the Safety Department or any other staff member.

After filing the tort claim, Plaintiff alleges he was intimidated and retaliated against by various prison officials at FCI Milan. The officials, according to Plaintiff, sought to pressure Plaintiff into withdrawing the tort claim. One such alleged incident involved Defendants Warden J.A. Terris ("Terris" or the "Warden"), Assistant Warden True (True), CMS Supervisor Wolfe (Wolfe), Safety Supervisor Kalista (Kalista), and Unit Manager Stoner (Stoner). It is alleged by Plaintiff that he was informed by these Defendants that Unit F2 was not contaminated with asbestos. Complaint at 6. Furthermore, it is alleged in the Complaint that the Defendants "joked around" about putting Plaintiff "on the lead and asbestos cleaning crew." Id. The Complaint details similar interactions between Plaintiff and Defendants taking place between December 9, 2013 and December 11, 2013.

It is also alleged that Defendant Stoner conspired with the other Defendants to falsify an "Initial Job Orientation, " See Plaintiff's Brief in Opposition, Plaintiff's Exhibit B; Declaration of Shawn Stoner at 1, by "backdating" the document to January 25, 2013 when it was actually signed by Plaintiff on July 23, 2013. The document itself is meant to be signed by inmates "[u]pon assignment to a job or detail, and at least annually thereafter or whenever a new process, equipment, or chemical is introduced into the work area" and after the inmate receives training by a supervisor. Plaintiff's Exhibit B at 1. Believing the backdate was meant to falsely show that he was trained in cleaning Unit F2, Plaintiff refused to sign the document unless it reflected that it was signed on July 23, 2013 and not January 25, 2013. Stoner agreed and the document reflected both dates, with Stoner's initials appearing by the July 23, 2013 notation. Declaration of Shawn Stoner at 2; Plaintiff's Exhibit B. Shortly thereafter, Plaintiff's original orientation document, dated February 14, 2013, was located by FCI Milan staff. Declaration of Shawn Stoner at 2.

Plaintiff's tort claim filed with the NCRO was denied on February 18, 2014 as precluded by 28 C.F.R. § 301.319[1]. Id. at 3; Doc. 37-1 at 12. On June 23, 2014, Plaintiff attempted to file an administrative remedy request (BP-9) pursuant to 28 C.F.R. § 542.14(a)[2], claiming that FCI Milan staff falsified a statement during the investigation.[3] Doc. 37-2 at 3. The request was rejected as Plaintiff failed to show that he had attempted informal resolution prior to the BP-9 submission and failed to attach required documentation. On July 8, 2014, Plaintiff attempted to resubmit the same BP-9. It was rejected on the same grounds as the first. Plaintiff attempted no further BP-9 submissions. This action followed on August 13, 2014 wherein Plaintiff seeks, inter alia, $5 million in damages and injunctive relief against Defendants.

In his Complaint, Plaintiff claims that by forcing him to clean Unit F2, and the subsequent intimidation, Defendants committed assault, abuse of process, and violated his Eighth Amendment right against cruel and unusual punishment. Furthermore, Plaintiff alleges that Defendants committed fraud in falsifying the Initial Job Orientation document. Defendants have moved to dismiss the complaint for, inter alia, lack of administrative exhaustion. Because the Court finds that the issue of exhaustion is diapositive it will not address Defendants' other grounds for dismissal.


Defendants have moved to dismiss Jirak's Complaint based on his failure to exhaust available administrative remedies. Pursuant to the PLRA, Defendants contend that Jirak's action is not properly before a federal court until he has exhausted the BOP's administrative procedure for prisoner grievances. The Court agrees. "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). Prior to 1996, whether a prisoner was obligated to exhaust any available administrative remedies was largely discretionary with the court. See Nussle, 534 U.S. at 523. As passed in 1996, however, 42 U.S.C. § 1997e(a) of the PLRA makes "exhaustion in cases covered by [the statute] [] mandatory." Id. at 524. Further,

unlike the previous provision, which encompassed only [42 U.S.C.] § 1983 suits, exhaustion is now required for all "action [s] (sic)... brought with respect to prison conditions, " whether under § 1983 or "any other Federal law." Compare 42 U.S.C. § 1997e (1994 ed.) with 42 U.S.C. § 1997e(a) (1994 ed., Supp. V). Thus federal prisoners suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)[4], must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.

Id. (first alteration added). That Jirak is seeking money damages as well as injunctive relief is inconsequential. See Booth v. Churner, 532 U.S. 731, 733-34 (2001) (finding that the Prison Litigation Reform Act of 1995 as amended by 42 U.S.C. § 1997e(a) requires a prisoner to exhaust "such administrative remedies as are available" before suing over prison conditions. "The question is whether an inmate seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money. We hold that he must."). Furthermore, "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. Nussle, 534 U.S. at 532. Ultimately, the burden of showing a failure to exhaust is on the defendant. Bock, 549 U.S. at 212 (finding that "the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense."); Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015) (citing Bock, 549 U.S. at 211-12) ("Nonexhaustion is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion."); Wheeler v. J. Prince, M.D., 318 F.Supp.2d 767, 771 (E.D. Ark. 2004) ("Inasmuch as exhaustion is an affirmative defense, defendants must raise and prove that plaintiff did not exhaust administrative remedies.").

In order to satisfy 42 U.S.C. § 1997e(a), an inmate must "pursu[e] the grievance process to its final stage' to an adverse decision on the merits.'" Sturm, 781 F.3d at 451 (quoting Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014)). Relevant to what constitutes the "final stage, " the Supreme Court held in Woodford v. Ngo that "the PLRA uses the term exhausted' to mean what the term means in administrative law, where exhaustion means proper exhaustion[, ]" 548 U.S. 81, 93 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Thus, to constitute the "final stage" of a prison system's administrative process, the inmate must proceed through to the process's terminus. The inmate cannot manufacture that terminus by means of "bypass[ing] deliberately the administrative process by flouting the agency's procedural rules." See id. at 97.

"The Bureau of Prisons (BOP) has a multi-step process for inmates to use in bringing complaints about any aspect of their confinement: an informal resolution, [ see 28 C.F.R. § 542.13(a), ] an administrative remedy (with the warden), [ see 28 C.F.R. § 542.14(a), ] an appeal to the BOP's regional director, [ see 28 C.F.R. § 542.15(a), ] and finally an appeal to the BOP's central office[, see id. ]" Marlin v. Marquez, 218 Fed.Appx. 545, 545 (8th Cir. 2007).[5] Each step has requisite deadlines that must be met. In Marlin, the Eighth Circuit found that the plaintiff a federal inmate, had failed to rebut the BOP's attorney's declaration that the inmate had not complied with the foregoing BOP administrative process. The Marlin Court noted that it would have been ...

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