United States District Court, D. Minnesota
Plaintiff, pro se.
Blumenfield, Assistant United States Attorney, for
REPORT & RECOMMENDATION AND ORDER
FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE
MATTER came before the undersigned United States
Magistrate Judge on Defendants' motion to dismiss (ECF
No. 50), and Plaintiff's motion for discovery and
inspection (ECF No. 59). Defendants' motion to dismiss
has been referred to the undersigned for report and
recommendation pursuant to 28 U.S.C. § 636 and Local
Rule 72.1. For the reasons set forth below, the Court
recommends that Defendants' motion to dismiss (ECF No.
50) be GRANTED, and orders that
Plaintiff's motion for discovery and inspection (ECF No.
59) is DENIED as moot.
is currently an inmate at the Federal Prison Camp
(“FPC”) Duluth. ECF No. 54. Plaintiff is
disabled, and has been wheelchair bound for the past twelve
years. ECF No. 1. This case stems from Plaintiff's
contention that his transfer to a federal correctional
facility in Louisiana, originally scheduled for November 18,
2015, was impermissibly delayed and canceled because
Defendants were unable to properly accommodate his disability
when processing his transfer request. See generally
Id. On March 23, 2016, Plaintiff initiated this suit,
raising assorted claims under 42 U.S.C. § 1983, alleging
violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, and rights
secured by the Eighth and Fourteenth Amendments. See
Id. at 2. Plaintiff's Complaint seeks declaratory
judgement and monetary damages. See Id. at 4.
Inmate Policies and Plaintiff's Administrative
Federal Bureau of Prisons' (“BOP”) nearer
release policy provides that when a federal inmate is
incarcerated at a correctional institution 500 miles or more
from either their eventual release destination or legal
residence, it will consider transferring them to either a
facility nearer to their release destination or legal
residence. ECF No. 54 at 11. The nearer release policy
requires that the inmate serve “18 consecutive months
of clear conduct in a general population” before they
are eligible for transfer to a nearer facility. Id.
On October 28, 2015, Defendant Christopher Nickrenz, the
Warden at FPC Duluth, approved Plaintiff's request to be
transferred to a federal correctional institution in
Louisiana, which is closer to his family and eventual release
destination. ECF No. 54, Ex. C. On November 18, 2015,
Plaintiff was scheduled to be transported that morning, by
bus, from FCP Duluth to Terre Haute, Indiana, for subsequent
airlift to the Louisiana facility. ECF No. 54 ¶ 6.
to Plaintiff's Complaint, “when it came time to go
on the bus, [Defendant Lieutenant Bus] said that he was not
going to allow [Plaintiff to board] . . . because he was
wheelchair bound, and the transfer was cancelled.” ECF
No. 1 at 2. Afterwards, “[the Warden] and [Lieutenant
Bus] concurred that Plaintiff would not be transferred”
until alternative transportation could be arranged.
Id. Plaintiff alleges that another inmate, James
Sarber, who is also wheelchair bound, was allowed to board
the bus at the same time Plaintiff was denied. See
Id. at 4.
FPC Duluth could schedule an alternate means of
transportation, Plaintiff received an incident report on
January 14, 2016, for having an unauthorized turkey roast in
his cell. ECF No. 54, Ex. D. On September 12, 2016, Plaintiff
received a second incident report for possessing gambling
paraphernalia. See Id. These incident reports
rendered Plaintiff ineligible for immediate transfer to
Louisiana under the BOP's nearer release policy. See
has filed thirty-four administrative complaints during his
federal incarceration, two of which are germane to this case.
See ECF No. 52. On April 14, 2014, Plaintiff was
transferred to FPC Duluth. See ECF No. 52, Ex. C at
6. At some point in mid-2014, Plaintiff informally asked the
Warden if he could be transferred to Louisiana to be close to
his family, which the Warden denied. See Id. On
September 16, 2014, Plaintiff formally filed Administrative
Remedy 794221-F1, requesting that the Warden grant immediate
transfer to Louisiana. See Id. at 7. On September
22, 2014, the Warden informed Plaintiff that, pursuant to the
BOP's nearer release policy, he would be considered for
transfer to Louisiana in October 2015, and provisionally
denied Plaintiff's transfer request at that time. See
Id. at 6. On October 1, 2014, Plaintiff appealed the
Warden's decision to the BOP Regional Director. See
Id. at 5. On October 9, 2014, the Regional Director
affirmed the Warden's October 2015 provisional transfer
date, and denied Plaintiff's request for immediate
transfer. See Id. at 4. On October 24, 2014,
Plaintiff appealed the Regional Director's affirmance to
the BOP's Central Office. See Id. at 3. Due to a
backlog in responding to administrative remedies, the Central
Office did not respond to Plaintiff's appeal until
December 9, 2015; which by then, the Warden had already
arranged for Plaintiff's November 18, 2015, transfer.
See Id. at 1. To that end, the Central Office's
December 9, 2015, response explained that both the Warden and
Regional Director had adequately addressed Plaintiff's
request and noted that Plaintiff had already been approved
for a 2015 transfer. See Id. Significantly, because
the incident complained of here had not yet happened,
Administrative Remedy 794221-F1, which Plaintiff filed in
September 2014, could not have referenced Defendants'
November 18, 2015, decision to not permit Plaintiff to board
the bus and their failure to secure alternative
transportation to facilitate his transfer to Louisiana.
See Id. at 7.
February 12, 2016, Plaintiff filed Administrative Remedy
851725-R1, challenging the January 14, 2016, incident report
that he received for having an unauthorized turkey roast in
his cell. ECF No. 52, Ex. G at 5. Plaintiff claimed that this
incident report was motivated by Defendants' plan to
block his transfer to Louisiana, see id., and
generally argued that Defendants' transfer policy
regarding disabled inmates violated the ADA. See Id.
On April 8, 2016, the Regional Director affirmed the issuance
of the January 14, 2016, incident report, and informed
Plaintiff that, with respect to his general claim of ADA
non-compliance, this matter must first be presented to FPC
Duluth staff for informal resolution before the matter could
be raised on appeal to his office. See Id. at 4. On
May 2, 2016, Plaintiff appealed the Regional Director's
affirmance of the January 14, 2016, incident report to the
BOP's Central Office. See Id. at 3. However,
Plaintiff did not re-raise his ADA challenge and limited his
appeal to challenging the January 14, 2016, incident report.
See Id. Again, due to a backlog in responding to
administrative remedies, the BOP Central Office did not
respond to Administrative Remedy 851725-A1 until March 6,
2017, when it denied Plaintiff's appeal and upheld the
January 14, 2016, incident report. See Id. at 2.
Motion to Dismiss
instant motion, Defendants move to dismiss Plaintiff's
Complaint pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(b)(1). ECF No. 50. Defendants argue that
Plaintiff's Complaint must be dismissed because: (1) he
has failed to exhaust his administrative remedies under the
Prisoner Litigation Reform Act (“PLRA”); and (2)
the doctrine of sovereign immunity serves as an absolute
defense to Plaintiff's ...