Nunez v. Duncan

• Decision Date: 11 January 2010
• Docket Number: No. 04-36146.,04-36146.
• Citation: 591 F.3d 1217
• Parties: Gerson NUNEZ, Plaintiff-Appellant, v. Dr. DUNCAN, Officer at FCI; Gary L. Angus, Ex-Counselor at FPC-Sheridan, now FCI; Mike Sandels, Camp-Administrator at FPC-Sheridan; Johnson, Lieutenant at FCI; Gendreau, Lieutenant at FCI; Ex-Captain Smith, at FCI; Robert Hood, Ex-Warden at FCI; Charles A. Daniels, at FCI; Robert M. Haro, Central Regional; Harrel Watts, Central Office Washington, DC; Wanda M. Hunt, Chief, FOIA; Priscilla Jones, Administrative Specialist FOIA, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

591 F.3d 1217 Gerson NUNEZ, Plaintiff-Appellant,
v.
Dr. DUNCAN, Officer at FCI; Gary L. Angus, Ex-Counselor at FPC-Sheridan, now FCI; Mike Sandels, Camp-Administrator at FPC-Sheridan; Johnson, Lieutenant at FCI; Gendreau, Lieutenant at FCI; Ex-Captain Smith, at FCI; Robert Hood, Ex-Warden at FCI; Charles A. Daniels, at FCI; Robert M. Haro, Central Regional; Harrel Watts, Central Office Washington, DC; Wanda M. Hunt, Chief, FOIA; Priscilla Jones, Administrative Specialist FOIA, Defendants-Appellees. No. 04-36146. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 2009. Filed January 11, 2010.

[591 F.3d 1218]

Banurekha Ramachandran, Perkins Coie, LLP, Portland, OR, Gerson Nunez, Pro se, Anchorage, AK, for the appellant.

Margaret M. Ogden, Federal Bureau of Prisons, SeaTac, WA, Amy Potter, Suzanne Bratis, Adrian Lee Brown, Office of the U.S. Attorney, Portland, OR, for the appellees.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding. D.C. No. CV-03-01359-ALA.

Before: W. FLETCHER and SANDRA S. IKUTA, Circuit Judges, and MICHAEL SEABRIGHT,^* District Judge.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge SANDRA S. IKUTA

WILLIAM A. FLETCHER, Circuit Judge:

Federal prisoner Gerson Nunez filed a pro se Bivens complaint alleging various constitutional claims arising out of an unconsented strip search. The district court granted summary judgment for defendants. Nunez contends on appeal that his Fourth and First Amendment claims were improperly dismissed.

The district court recognized that Nunez had asserted a Fourth Amendment claim but dismissed it for failure to exhaust administrative remedies under the Prison Litigation Reform Act ("PLRA"). In the alternative, the district court held that the claim failed on the merits. We hold that Nunez's failure to exhaust his administrative remedies is excused. We hold that Nunez's Fourth Amendment claim fails on the merits.

The district court read Nunez's complaint as not alleging a First Amendment claim. Nunez's appointed counsel on appeal

591 F.3d 1219

contends that, read fairly, his complaint contains such a claim. We assume without deciding that Nunez alleged a First Amendment claim, but we hold that he failed to exhaust his administrative remedies with respect to that claim.

I. Background A. Events Giving Rise to the Complaint

The federal prison in Sheridan, Oregon consists of three separate facilities: the Federal Detention Center, an administrative facility primarily housing pretrial inmates; the Federal Prison Camp ("FPC"), a minimum security satellite prison camp; and the Federal Correctional Institution ("FCI"), a medium security prison. At the times relevant to this suit, Nunez was housed in the FPC.

Beginning in October 2001, Nunez was assigned to work the night shift of an orderly work crew. Nunez presented evidence showing that in May 2002, when he and three other inmates were returning to the FPC from a work detail at the FCI, he was subjected to a strip search by Correctional Officer Eric Duncan. Duncan asked the returning inmates to choose a number between one and ten. Nunez chose four. Duncan said that his number was five, that Nunez's number was closest, and that Nunez was the winner of the "raffle strip search." Nunez was then subjected to a strip search in the men's bathroom two feet away from the urinals, during which he was obliged to stand barefoot on the dirty floor.

B. Exhaustion of Administrative Remedies

Before filing his Bivens suit, Nunez took steps to exhaust his administrative remedies. We first describe the grievance procedures established by the federal Bureau of Prisons ("BOP"). We then describe Nunez's attempts to follow those procedures.

1. Governing Regulations

The BOP grievance process is set forth at 28 C.F.R. § 542.13-.15. As a first step in this process, an inmate normally must present his complaint informally to prison staff using a BP-8 form. If the informal complaint does not resolve the dispute, the inmate may make an "Administrative Remedy Request" concerning the dispute to the prison Warden using a BP-9 form.¹ The BP-8 and BP-9 are linked. Both forms involve a complaint arising out of the same incident, and both forms must be submitted within 20 calendar days of the date of that incident. 28 C.F.R. § 542.14(a). An extension of time is available upon a showing of valid reason for delay. Section 542.14(b) provides a non-exhaustive list of reasons that justify an extension of time. Valid reasons "include . . . an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal." Id.

If the Warden renders an adverse decision on the BP-9, the inmate may appeal to the Regional Director using a BP-10 form. 28 C.F.R. § 542.15(a). The BP-10 must be submitted to the Regional Director within 20 calendar days of the date of the Warden's decision. Id. As with the time period for filing a BP-9, an extension of time is available upon a showing of a valid reason. Id. Section 542.15(a) provides that "[v]alid reasons for delay include those situations described in § 542.14(b)." Id.

The inmate may appeal an adverse decision by the Regional Director to the Central

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Office (also called the General Counsel) of the BOP using a BP-11 form. Id. The BP-11 must be submitted to the Central Office within 30 calendar days from the date of the Regional Director's decision. Id. As with the time period for filing a BP-9 and a BP-10, an extension is available upon the showing of a valid reason as described in § 542.14(b). Id.

2. Nunez's Attempts to Exhaust His Administrative Remedies a. Fourth Amendment Claim

The strip search to which Nunez objected took place on May 13, 2002. Nunez filed an informal complaint using a BP-8 the next day, alleging that Duncan had violated his Fourth Amendment rights in conducting a raffle strip search. After describing the strip search, Nunez wrote:

The interest in human dignity and privacy which the Fourth Amendment protects forbid any searches involving intrusions beyond the body's surface on the mere chance of a lottery amusement; in the absence of a clear indication that the inmates had any contact with an outsider, nor any clear indication that in fact any evidence will be found. These fundamental human interests require Officer Dunkin [sic] to suffer the risk to be liable in his personal capacity under Bivens Act; and, because Officer Dunkin [sic] claimed to be following superior order, his superiors would also be liable in their personal capacities.

Nunez also wrote that he was requesting "which law or statutory rule [Correctional Officer Duncan] was acting under" when he conducted the search.

On May 16, Correctional Counselor Gary Angus denied Nunez's BP-8. He wrote:

Inmates who pass through the lobby are subject to pat searches and random visual (strip) search[e]s. This is in the Post Orders for all officers who work this post to follow. [Duncan] choose [sic] to make it fair to the inmates present to select random numbers so all there would share a chance at being searched.

On May 23, Nunez filed a follow-on BP-9 with the Warden. Nunez wrote:

I]nmate Nunez filed a BP-8 requesting proper notice of the law and BOP's regulations under which Sheridan's Lieutenants enforce strip searches without violating the constitutional limits. The BP-8's response is out of the subject matter of inmate Nunez's request. One more time, inmate Nunez wants the staff's proper notification under which law or statutory rule officers Duncan, Gendreau were acting under while performing strip searches under color of federal law.

The Warden responded on June 7. He characterized Nunez's BP-9 as merely a request for a citation to the regulation under which Duncan had been acting, even though the prison was clearly on notice that Nunez was also questioning the constitutionality of the search under the Fourth Amendment. The Warden wrote:

Sheridan staff are following Bureau of Prisons policy as outlined in Program Statement 5500.09, chapter 6, page 5, paragraph D. This policy mandates searching inmates entering or leaving the front entrance of institutions. This policy also mandates that visual searches be conducted periodically.

At the bottom of the form on which the Warden responded was printed a notice informing Nunez that, "If dissatisfied with this response, you may appeal to the Regional Director."

The government concedes that the Warden cited the wrong BOP Program Statement. Program Statement 5500.09, cited by the Warden, is unrelated to strip searches and is unavailable to inmates. Program Statement 5521.05 governs searches of inmates.

[591 F.3d 1221

Not knowing of the Warden's mistake, Nunez attempted to obtain Program Statement 5500.09, to which he had been referred by the Warden. On June 11, four days after the Warden's response, Nunez filed a BP-8 requesting a copy of Program Statement 5500.09. He wrote:

I received the response of my BP-9. However I went to the law library and I do not find Program Sta[te]ment 5500.09, Chapter 6, page 5, paragraph D. Would you please supply me with a copy for me to read.

FPC administrator Mike Sandels denied this request on June 13, writing that Program Statement 5500.09 was "restricted" and not available to inmates. Sandels did not indicate to Nunez that the Warden had cited the wrong Program Statement.

On June 25, Nunez filed another BP-8 requesting a copy of Program Statement 5500.09. On August 13, Nunez filed yet another BP-8, this time requesting a response to his June 25 BP-8. Correctional Counselor Angus responded on August 15, writing that Nunez would need to file a Freedom of Information Act ("FOIA") request to obtain Program Statement 5500.09. Angus did not indicate in his response that the Program Statement was unavailable to inmates. Nor did Angus provide the number of the Program Statement relevant...