May v. Segovia, 071219 FED10, 17-1458

Docket Nº:17-1458
Opinion Judge:MCHUGH, CIRCUIT JUDGE
Party Name:BILLY F. MAY, Plaintiff - Appellant, v. JUAN SEGOVIA, Defendant-Appellee.
Attorney:Anthony Balkissoon (Amir H. Ali and Joshua Freiman on the briefs), Roderick & Solange MacArthur Justice Center, Washington, D.C., for Appellant. Karl L. Schock, Assistant United States Attorney (Robert C. Troyer, United States Attorney, with him on the brief), Denver, Colorado, for Appellee.
Judge Panel:Before BRISCOE, HOLMES, and McHUGH, Circuit Judges. BRISCOE, J., concurring.
Case Date:July 12, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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BILLY F. MAY, Plaintiff - Appellant,

v.

JUAN SEGOVIA, Defendant-Appellee.

No. 17-1458

United States Court of Appeals, Tenth Circuit

July 12, 2019

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-00405-NYW)

Anthony Balkissoon (Amir H. Ali and Joshua Freiman on the briefs), Roderick & Solange MacArthur Justice Center, Washington, D.C., for Appellant.

Karl L. Schock, Assistant United States Attorney (Robert C. Troyer, United States Attorney, with him on the brief), Denver, Colorado, for Appellee.

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

MCHUGH, CIRCUIT JUDGE

Billy F. May, a former federal prisoner, brought this action in federal district court under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Mr. May claims he was denied his due process rights as a prisoner when he was quarantined without a hearing during a scabies infestation at the prison. The magistrate judge granted Mr. Segovia summary judgment on two issues: first, that the exhaustion requirement of the Prison Litigation Reform Act ("PLRA") applies to Mr. May, and second, that there is no genuine issue of material fact as to the availability of administrative remedies. Mr. May appealed to contest both conclusions. Mr. Segovia opposes Mr. May's appeal and raises two alternative grounds for affirmance that Mr. Segovia raised below but the magistrate judge did not reach.

For the reasons stated, we affirm the magistrate judge's conclusions that the PLRA exhaustion requirement applies to Mr. May and that there is no genuine issue of material fact as to whether administrative remedies were available to him. Because we affirm the judgment below, we need not and do not reach Mr. Segovia's alternative arguments.

I. BACKGROUND

At the time this action began, Mr. May was a prisoner in the Federal Prison Camp in Florence, Colorado. The Federal Prison Camp periodically "experienced chronic outbreaks of scabies, a parasitic infection of the skin caused by scabies mite[s]," and one such outbreak occurred while Mr. May was imprisoned there. Appellant's App. at 16-17 (internal citation omitted). Scabies is a "highly contagious and communicable disease" that is transmitted by sharing "clothing, bedding, or towels," and "through skin-to skin contact." Id. at 16. Individuals infected with scabies develop itchy skin as a symptom, but that symptom may not present for as many as six weeks after the disease is contracted. Due to that delay, it was the prison's policy to treat both "symptomatic inmates and asymptomatic 'close contacts,' namely cellmates." See id. Scabies can be treated either orally (with Ivermectin) or with a skin cream (permethrin cream).

When scabies broke out at the prison in January 2015, the prison required every inmate to take Ivermectin or, if they refused for any reason, to be quarantined in the Special Housing Unit (the "SHU"). Mr. May refused to take the Ivermectin because "he previously suffered an allergic reaction" to the drug. Appellant's App. at 17. Due to that refusal, on January 8, 2015, then camp administrator Juan Segovia ordered Mr. May quarantined in the SHU and treated with permethrin cream "until medically cleared by FPC medical staff." Id.

For an unspecified reason, Mr. May was initially unable to obtain "the appropriate forms" to file an administrative grievance while confined in the SHU. See id. at 18, 25. Although it is unclear from the record how long he lacked access to those forms, the record reflects that Mr. May ultimately filed five grievances before he was medically cleared to leave the SHU on February 4, 2015. Mr. May filed an additional twenty-four grievances between the day he left the SHU and his ultimate release from prison in November 2015. None of the twenty-nine grievances "dealt with [Mr. May's] placement in the SHU, conditions in the SHU, or the denial of a hearing upon his placement in the SHU." Id. at 18.

On February 27, 2015, and while still incarcerated, Mr. May filed a pro se prisoner complaint in federal district court. Among other things, Mr. May alleged that the prison had not "follow[ed] the due process procedures outlined by the Supreme Court" when, "for disciplinary purposes," it placed him in the SHU for refusing to take Ivermectin. See Appellee's Suppl. App. at 4. On March 16, "[a]t the [district] court's direction to refile using the appropriate form," Mr. May filed his First Amended Complaint ("FAC"). Appellant's App. at 14. He made essentially the same allegations-again asserting that the prison had not provided him with a hearing and had not followed the "due process procedures outlined by the Supreme Court," see Appellee's Suppl. App. at 16-but now framed them as Bivens claims.1 The district court dismissed some of Mr. May's claims not relevant here and referred the remainder to a magistrate judge.

In April 2015, Mr. May moved for summary judgment. The government filed its response in opposition to Mr. May's summary judgment motion in June. Attached to that response as Exhibit C was a declaration from Mr. Segovia-who was not yet a named defendant-that stated Mr. Segovia had "made the decision to place" Mr. May in the SHU. Id. at 37-38. In July, Mr. May moved to file a second amended complaint (the "SAC") to add Mr. Segovia as a defendant. Although Mr. May filed that motion in July, the court did not grant it until January 19, 2016, two months after Mr. May had been released from custody.

The magistrate judge construed the SAC as raising three constitutional claims and dismissed two of those claims. Mr. May has not appealed those rulings. The magistrate judge denied the government's motion to dismiss the Bivens claim based on procedural due process against Mr. Segovia; Mr. Segovia then moved for summary judgment. The magistrate judge ultimately granted that motion, concluding that Mr. May was subject to the PLRA and had not exhausted his administrative remedies. In doing so, the magistrate judge also determined there was no genuine issue of material fact that administrative remedies were not "available" to Mr. May.

Mr. May now appeals both of those rulings, arguing the PLRA does not apply to him because he was not a prisoner at the time he filed his operative complaint-the SAC-and even if the PLRA does apply, there is a genuine issue of material fact as to whether administrative remedies were available to him, rendering summary judgment improper. Mr. May does not dispute the magistrate judge's determination that he did not exhaust available administrative remedies.

In opposition to Mr. May's appeal, Mr. Segovia raises two additional issues he argued below but that the magistrate judge did not reach: first, whether this court recognizes a Bivens claim based on procedural due process, and second, if it does, whether Mr. Segovia is entitled to qualified immunity. Because we affirm the magistrate judge's decision on the same grounds relied upon by the magistrate judge, we do not reach Mr. Segovia's alternative arguments.

II. DISCUSSION

The PLRA states: "No action shall be brought with respect to prison conditions . . . 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). Any prisoner who seeks to bring a claim involving "general circumstances or particular episodes" of prison life, see Porter v. Nussle, 534 U.S. 516, 532 (2002), must first exhaust the administrative remedies available to him in prison, Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA . . . ."). Mr. May argues the PLRA exhaustion requirement does not apply to him because his Second Amended Complaint was deemed filed in January 2016, two months after he had been released from prison. Alternatively, he argues that even if the PLRA does apply, there is a genuine dispute of material fact whether any administrative remedies were available to him, which renders the grant of summary judgment improper.

We first address the applicability of the PLRA and conclude it does apply to Mr. May. We next review the magistrate judge's determination that there is no genuine issue of material fact concerning the availability of administrative remedies and affirm its decision.

A. The Applicability of the PLRA

Questions of statutory interpretation, like the proper interpretation of the PLRA, are pure questions of law that we review de novo. See In re Taylor, 899 F.3d 1126, 1129 (10th Cir. 2018). The text of the PLRA establishes a temporal relationship between the exhaustion requirement and any prisoner's suit. "No action shall be brought," it says, "until such administrative remedies as are available shall be exhausted." 42 U.S.C. §...

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