DIAZ

v.

HART

Plaintiff, Tony Diaz, a federal inmate, initiated this case by filing a pro se civil rights complaint under Bivens (Doc. 1; Compl.).¹ Plaintiff moves to proceed as a pauper (Doc. 4), though he has not submitted an affidavit of indigency or a six-month prison account statement. As Defendants, Plaintiff names three officers and the Warden at Coleman United States Penitentiary I (Coleman). Plaintiff alleges Defendants “watched and touched [him] for more than 10 minutes when [he] was nude.” See Compl. at 4. He clarifies that he was working out in the exercise yard without a shirt on, apparently while Defendants watched. Id. at 5. Plaintiff asserts no physical injuries but seeks

1915(e)(2)(B). With respect to whether a complaint “fails to state a claim on which relief may be granted,” the language of the PLRA mirrors the language of Rule 12(b)(6), Federal Rules of Civil Procedure, so courts apply the same standard in both contexts. Mitchell v. Farcass, 112 F. 3d 1483, 1490 (11th Cir. 1997); see also Alba v. Montford, 517 F. 3d 1249, 1252 (11th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Labels and conclusions” or “a formulaic recitation of the elements of a cause of action” that amount to “naked assertions” will not suffice. Id. (quotations, alteration, and citation omitted). Moreover, a complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F. 3d 678, 683 (11th Cir. 2001) (quotations and citations omitted). In reviewing a pro se plaintiff’s pleadings, a court must liberally construe the plaintiff’s allegations. See Haines v. Kerner, 404 U.S. 519, 520-

21 (1972); Bingham v. Thomas, 654 F. 3d 1171, 1175 (11th Cir. 2011). However, the duty of a court to construe pro se pleadings liberally does not require the court to serve as an attorney for the plaintiff. Freeman v. Sec’y, Dept. of Corr., 679 F. App’x 982, 982 (11th Cir. 2017) (citing GJR Invs., Inc. v. Cty. of Escambia, 132 F. 3d 1359, 1369 (11th Cir. 1998)). Generally, when a plaintiff has a viable Bivens claim, case law interpreting § 1983 cases applies. See, e.g., Solliday v. Fed. Officers, 413 F. App’x 206, 209 (11th Cir. 2011). Importantly, however, claims arising under

Bivens are not coextensive with those arising under § 1983. Indeed, since Bivens, the Supreme Court has extended Bivens remedies in only two other contexts: gender discrimination in the workplace and deliberate indifference to serious medical needs in prison. See Ziglar v. Abbasi, 137 S. Ct. 1843,

1854-55 (2017) (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14, 21 (1980)). In Ziglar, the Court emphasized that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at 1857 (quoting Iqbal, 556 U.S. at 675). Thus, the Court urges district courts to exercise “caution before extending Bivens remedies into any new context.” Id. Plaintiff’s claim of alleged sexual assault is meaningfully different from those cases in which the Court has extended Bivens remedies. See id. Thus, his claim likely is not cognizable under Bivens. However, assuming it is, Plaintiff’s complaint is subject to dismissal because he did not exhaust his administrative remedies before initiating this action and, regardless, his vague, conclusory assertions do not satisfy federal pleading standards. The PLRA provides, “[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of available administrative remedies is “a precondition to an adjudication on the merits.” Bryant v. Rich, 530 F. 3d 1368, 1374 (11th Cir. 2008). See also Jones v. Bock, 549 U.S. 199,

211 (2007). While “the PLRA exhaustion requirement is not jurisdictional[,]” Woodford v. Ngo, 548 U.S. 81, 101 (2006), “exhaustion is mandatory . . . and unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211). The Supreme

Court has held “the PLRA . . . requires proper exhaustion,” which means a prisoner must grieve his issues in compliance with the agency’s procedural rules, so the agency has a “full and fair opportunity” to address a prisoner’s issues on the merits. Woodford, 548 U.S. at 90, 93.

“[F]ederal prisoners suing under Bivens . . . must first exhaust inmate grievance procedures just as state prisoners” suing under § 1983 must do. Porter v. Nussle, 534 U.S. 516, 524 (2002); see also O’Brien v. Seay, 263 F. App’x 5, 8 (11th Cir. 2008) (recognizing the PLRA exhaustion requirement applies to Bivens claims). To properly exhaust administrative remedies, a federal prisoner must follow a multi-tiered system as set forth in the Bureau of Prison’s (BOP’s) Administrative Remedy Program (ARP). See 28 C.F.R. §§ 542.13-542.18. See also Okpala v. Drew, 248 F. App’x 72, 73 (11th Cir. 2007) (explaining the process to exhaust administrative remedies under the ARP).

First, except as to “sensitive issues,”² a prisoner must attempt an “informal resolution” by timely submitting form BP-8 to prison staff. See 28 C.F.R. § 542.13(a), (b); O’Brien, 263 F. App’x at 8. Second, a prisoner must seek relief from the Warden by timely submitting an Administrative Remedy

Request using form BP-9. See 28 C.F.R. § 542.14(a); O’Brien, 263 F. App’x at 8. Third, if an inmate is unsatisfied with the Warden’s response, he must timely submit an Appeal to the Regional Director on form BP-10. See 28 C.F.R. § 542.15(a); O’Brien, 263 F. App’x at 8. Finally, to complete the appeal process, a prisoner must timely submit an Appeal to the General Counsel on form BP-11. See 28 C.F.R. § 542.15(a); O’Brien, 263 F. App’x at 8. Prisoners are not required to “specially plead or demonstrate exhaustion in their complaints.” See Jones, 549 U.S. at 216. Nevertheless,

On the face of his complaint, it is apparent Plaintiff did not exhaust his administrative remedies in compliance with the ARP before initiating his federal action in this Court. See Woodford, 548 U.S. at 90. Because exhaustion is mandatory, Plaintiff’s failure to exhaust his remedies is fatal to his claim.

See Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (“[M]andatory exhaustion statutes like the PLRA . . . foreclos[e] judicial discretion.”); Woodford, 548 U.S. at 85 (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”).

Not only did Plaintiff admittedly not exhaust his claims, his allegations are insufficient under the minimal federal pleading standards. Plaintiff names three officers he claims sexually assaulted him. However, he provides no facts explaining what each officer, individually, did. His conclusory assertion,

lumping all Defendants together, is insufficient. Additionally, given the lack of supporting facts, and Plaintiff’s further explanation that he was in the exercise yard without a shirt on, Plaintiff’s assertion that he was sexually assaulted is suspect. Plaintiffs claim against the Warden fails for a different reason: not only does Plaintiff fail to state a plausible claim against the officers the Warden supervises, under Bivens, a supervisory official may not be held liable for the conduct of his subordinates. See, e.g., Gonzalez v. Reno, 325 F. 3d 1228, 1234 (11th Cir. 2008). For the reasons discussed, the Court will dismiss Plaintiff's case without prejudice subject to his right to refile any plausible claims for relief he may have after properly exhausting them. Accordingly, it is ORDERED:

1. This case is DISMISSED without prejudice.

2. The Clerk shall enter judgment dismissing this case without prejudice, terminate any pending motions, and close the file. DONE AND ORDERED at Jacksonville, Florida, this 3rd day of December 2020.

Bhan) Booms

BRIAN J. DAVIS

United States District Judge

Jax-6 C: Tony Diaz