McCoy v. Gilbert

• Decision Date: 30 October 2001
• Docket Number: No. 00-1354,00-1354
• Citation: 270 F.3d 503
• Parties: (7th Cir. 2001) ANTHONY McCOY, Plaintiff-Appellant, v. JAMES R. GILBERT, FREDERICK H. APER, DAVID POGGEMOELLER, HERMAN S. NELSON and ROBERT ZACHARY, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 503

270 F.3d 503 (7th Cir. 2001)

ANTHONY McCOY, Plaintiff-Appellant, v. JAMES R. GILBERT, FREDERICK H. APER, DAVID POGGEMOELLER, HERMAN S. NELSON and ROBERT ZACHARY, Defendants-Appellees.

No. 00-1354

United States Court of Appeals For the Seventh Circuit

Argued September 6, 2001

Decided October 30, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 96-CV-790--David R. Herndon, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before COFFEY, KANNE and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

Anthony McCoy is a federal inmate in Lisbon, Ohio, who was formerly held at the Federal Correctional Institution in Greenville, Ill. ("Greenville"). McCoy claims that he suffered cruel and unusual punishment at the hands of Greenville's correctional officers, who allegedly beat him in late October 1995 in retaliation for his involvement in a prison riot that occurred earlier in the month. The district court found that McCoy had not exhausted the administrative remedies available to him at Greenville. The court granted Defendant Zachary's motion for summary judgment, granted Defendant Nelson's motion to dismiss, and then dismissed without prejudice the claims against the remaining defendants sua sponte. We affirm.

I.

Greenville is an overcrowded, medium- security federal prison where more than 1000 men are housed in four units that have a capacity of 750. By October 1995, tensions had been mounting at Greenville for several weeks.¹ The Bureau of Prisons ("BOP") ordered a lockdown at all federal institutions on October 20, 1995. Greenville's inmates are rarely confined in this manner, and many of them became agitated and suspicious of the guards because they refused to explain the reason for the lockdown. Scores of prisoners in two housing units erupted violently. The ensuing riot, which engulfed the unit where McCoy resided, lasted 24 hours and was of such magnitude that it made national news. Numerous employees sustained severe injuries, and the prison itself suffered more than $400,000 in property damage.

A group of vigilante correctional officers, including the appellees, amassed a list of prisoners who were believed to have been involved in the disturbance. On the night of October 26, 1995, the officers donned full riot gear and burst into McCoy's cell. Nelson sneered, "You like to hurt officers. You like to kill officers. You tried to set me on fire. You're not so tough by yourself. I got my gang now." McCoy told Nelson that he neither joined nor participated in the rioting and, upon review, we have not discovered any evidence that would disprove McCoy's statement. Nevertheless, according to McCoy, Nelson and the others handcuffed him, slammed his head against the cell door, and dragged him into another room used for strip searches. They cut his shirt off, slapped him across the face, and forced him to stand with his nose against the wall. While McCoy stood forlornly, the appellees repeatedly beat him in the rib area with riot sticks. After they completed their assaults, they returned McCoy to his cell, where they continued to verbally taunt him. A few minutes later, the appellees threw another inmate into McCoy's cell and left both men there, bare naked, for the rest of the night.

BOP and the U.S. Department of Justice investigated the prison riot, and Aper, Gilbert, Nelson, and Zachary were cited in April 1996 for such odious misconduct as: verbally and physically abusing inmates, neglecting official duties, advising staff to violate prison policy, failing to report abusive behavior, and filing false statements with the FBI. McCoy brought suit pro se on September 11, 1996. With the assistance of appointed counsel, he filed an Amended Complaint on September 3, 1999, raising claims under the Fifth Amendment and Eighth Amendment.

The Prison Litigation Reform Act of 1995 provides that "[n]o action shall be brought with respect to prison conditions" under 42 U.S.C. § 1983 "or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Greenville, like all federal prisons, has a multi-step administrative grievance system that allows for the hearing and review of prisoner complaints. Federal regulations require prisoners to try to resolve their complaints through informal discussions with the prison's staff. If such discussions are unproductive, then the prisoner has twenty days from the complained-of events to file a written Administrative Remedy Request with the warden, who is empowered to investigate the complaint and to grant or deny the prisoner's request for relief as he deems prudent. If the prisoner is not satisfied with the warden's response, then he may continue to seek relief by filing written appeals to BOP's regional director and then to BOP's general counsel. See 28 C.F.R. § § 542.10 to .19. Only after completing these steps has a prisoner exhausted his administrative remedies.

McCoy failed to follow Greenville's procedures. His effort at exhaustion consisted only of complaining to the staff in his housing unit and cooperating with the Justice Department's subsequent investigation of the prison riot.² Although allegations of assault and excessive force are subject to exhaustion, see Johnson v. Litscher, 260 F.3d 826, 828 (7th Cir. 2001); Smith v. Zachary, 255 F.3d 446, 449-50 (7th Cir. 2001), McCoy never filed a formal Administrative Remedy Request asking for money damages, nor did he appeal any decision with which he disagreed.³

Officers Zachary and Nelson both moved to dismiss. Nelson attacked the pleading on its face, while Zachary attached an affidavit from a Greenville administrator, who confirmed that McCoy never "filed any requests for administrative remedy during his incarceration with the Federal Bureau of Prisons." The pleadings were referred to U.S. Magistrate Judge Philip M. Frazier, who considered the affidavit when ruling on Zachary's motion. After completing his review, Judge Frazier properly converted Zachary's motion to dismiss into one for summary judgment, Fed. R. Civ. P. 12(c), and, upon applying the correct standard of review to Zachary's motion for summary judgment and Nelson's motion to dismiss, recommended that they be granted. The district court adopted the recommendation and dismissed the entire complaint, finding that all of McCoy's claims against every defendant were subject to exhaustion. We review the rulings de novo. Massey v. Helman, 259 F.3d 641, 645 (7th Cir. 2001) (dismissal of prisoner's complaint); Patrick v. Jasper County, 901 F.2d 561, 564-65 (7th Cir. 1990) (summary judgment in § 1983 case).

II.

On appeal, McCoy argues that the district court erred in applying the PLRA's exhaustion requirements. McCoy was injured October 26, 1995, and the PLRA was signed into law April 26, 1996. Under Greenville's grievance resolution policy- -which has been in effect since at least 1995--an inmate forfeits his right to sue unless he submits a formal, written complaint within twenty days of the alleged offense or demonstrates "a valid reason for the delay." 28 C.F.R. § 542.14(b). Although McCoy never did file such a complaint, he notes that the law that existed on the date of his assault did not mandate the exhaustion procedure. See, e.g., Neville v. True, 900 F. Supp. 972, 979 (N.D. Ill. 1995). Furthermore, McCoy claims that BOP's twenty-day period for filing formal complaints expired on November 15, 1995, which was long before the PLRA took effect. Thus, his contention is that it was impossible for him to have exhausted his remedies at the time when he brought suit. We reject this argument, because from our review of the record, we are of the opinion that McCoy has always had the opportunity to exhaust, but he simply chose not to.

A.

"When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Lansgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). If the statute does not clearly identify the prior events that may be subject to regulation, then we must consider whether the application of the statute to the conduct at issue would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id.

Of course, almost every new statute results in some perceptible effect or impact on countless past or pre-existing choices, decisions, and interests of the actors and subjects in the newly- regulated field. For example, the Court has held that the PLRA's attorney fee limitations, see 42 U.S.C. § 1997e(d)(3), apply to any postjudgment monitoring performed after the PLRA took effect, even if the underlying case was filed before then. See Martin v. Hadix, 527 U.S. 343 (1999). The Court concluded that the statute, "as applied to work performed after the effective date of the PLRA . . . has future effect on future work; this does not raise retroactivity concerns." Id. at 360. Yet it is apparent that such a statutory construction nevertheless disappoints certain expectations developed by the attorneys who agreed to begin working on the cases before 1996 even if the statute is applied only to work performed after 1996. See id. at 362-63 (Scalia, J., concurring in judgment). When the attorneys decided to file their ambitious institutional reform cases in the late 1970s, they presumably had calculated their potential compensation in reliance on the then-existing legal regime, which did not cap recovery at less-than-market rates. By applying the PLRA's new fee caps to prospective work on existing cases, the Court limited the attorneys' future income stream, effectively reduced the value of the attorneys' prior investment in the litigation, and frustrated certain...