Strouse v. Wilson, No. 3:2013cv00323 - Document 36 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 02/18/2015. Copied mailed to Petitioner. (jsmi, )
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Strouse v. Wilson Doc. 36 IN THE UNITED STATES DISTRICT COURT^ FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAMES STROUSE, Petitioner, V. Civil Action No. ERIC D. 3:13CV323 WILSON, Respondent. MEMORANDUM OPINION James this Strouse, petition a under federal 28 inmate U.S.C. § proceeding 2241^ pro se, (''§ 2241 filed Petition'') challenging his conviction of an institutional infraction. matter is Judgment before (ECF No. the Court 26) . on For the Wilson's reasons Motion that for follow, This Summary the Court will GRANT the Motion for Summary Judgment because Strouse fails to demonstrate that he properly exhausted administrative remedies with respect to the institutional conviction. ^ That statute provides, in pertinent part: (c) The writ of habeas corpus shall not extend to a prisoner unless— (1) He is in custody under or by color of the authority of the United States or is committed for t r i a l before some court thereof; (2) He is in pursuance process, in custody for an act done or omitted of an Act of Congress, or an order, judgment or the United States; (3) He is Constitution States 28 U.S.C. § or in or decree of a court or judge of or custody laws or in violation treaties of the of the United .... 2241(c)(l)-(3). Dockets.Justia.com I. The Magistrate BACKGROXJin^ Judge made the following findings recommendations: A. Procedural History In his conviction of § 2241 an Petition, Strouse institutional challenges infraction. his Incident Report Number 23924 60, that resulted, among other things, in the loss of 27 days of good conduct time. (§ 2241 Pet. 3.) Strouse contests the validity of the conviction on the ground that the Bureau of Prisons (hereinafter ^''BOP") Disciplinary Hearing Officer (hereinafter ^'DHO") who conducted the hearing on the infraction should have recused herself. (^. at 7-8.)^ Wilson has moved for summary judgment on the grounds that, inter alia, Strouse has failed to exhaust his administrative remedies with respect to Incident Report Number 2392460. For the reasons set ^ Strouse used a standard form provided by the United States Courts to submit his § 2241 prompts the petitioner to list Challenge in This Petition." Petition. ''Grounds (§ 2241 The form for Pet. Your 7.) Strouse listed ''Bureau of Prisons, Rules and Regulations known as (program statement #3420.09) . . . [that] state[s] that employee(s) recuse themselve[s] that are involved in, conflict of interest," as Ground One, and "Incident Report(s), DHO Report(s) dated July 10, 2012 DHO Bennett is involved in showing conflict of interest involving plaintiff" as Ground Two. (Id. at 7-8 (capitalization corrected).) Strouse clearly intended for his § 2241 Petition to address only "INCIDENT REPORT #2392460" (id. at 1; see also Pet'r's Mem. Mot. Supp. Summ. J. 1, ECF No. 11), and it appears he identified documents, not legal bases, as his grounds. In any event, in light of the fact that Strouse failed to exhaust his administrative remedies with respect to the conviction related to Incident Report Number 2392460, no need exists to fully decipher his grounds for relief. See Strouse v. Wilson, No. 2014 WL 843276, at *1 n.3 (E.D. Va. Mar. aff_[_d, 575 F. App'x 115 S. 381 Ct. (2014) . (4th. Cir. ) , cert. 3:12CV653, 4, 2013), denied, 135 and forth below, i t is RECOMMENDED that the Court GRANT Wilson's Motion for Summary Judgment {ECF No. 26), and DISMISS exhaust B. Strouse's § 2241 administrative Petition for his failure to remedies. Standard For Summary Judgment Summary judgment must be rendered ^'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). ''[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or ^'depositions, answers to interrogatories, and admissions on file,' designate ^specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)). In reviewing a summary judgment motion, a court ''must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 47 7 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "'[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, "''Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" 1537 (5th Cir. 1994) Resins, 1992)); Inc., see 953 Fed. Forsyth v. {quoting F.2d R. Civ. 909, P. Barr, 19 F.3d 1527, Skotak v. Tenneco 915 & 56(c)(3) n.7 {''The (5th Cir. court need consider only the cited materials . . . ."). Wilson asks the Court to grant summary and dismiss to the exhaust § his exhaustion 2241 Petition because administrative of judgment Strouse remedies. administrative failed As the is remedies an affirmative defense, Wilson bears the burden of pleading and proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007). In support of his argument, Wilson submitted the declaration of Cornelia J. Coll, a Paralegal Specialist at the Federal Correctional Complex in Butner, North Carolina. (Resp't's Mem. Supp. Mot. Summ. J. Ex. 1 (''Coll Decl."), ECF No. 27-1.) Additionally, Wilson submitted summaries of Strouse's various Administrative Remedy Requests (Coll Decl. Attach. 7) and, inter alia, the DHO Report for Incident Report Number 2392460 (Coll Decl. Attach. 4^ (ECF No. 27-2) at 19-21). Strouse responded "Memorandum of Order" V. White, that 366 F.3d 291, unsworn constitute argument admissible by (ECF No. 300 in submitting 29). (4th Cir. a 2004) memorandum evidence) . an unsworn See United States In (observing fails light of to the foregoing principles and submissions, the facts set forth below are established for purposes of the Motion for Summary Judgment. C. Sunmary of Pertinent Facts 1. Strouse's Conviction of an I n s t i t u t i o n a l Offense "On January 2, 2013, Incident Report Number 2392460 was filed, charging Mr. Strouse with the Code 203 prohibited act of threatening another with bodily harm or any other offense." (Coll Decl. SI 8 (citations omitted).) On January 29, 2013, a DHO conducted a hearing on Incident Report Number 23924 60. (Id. f 11 (citation omitted).) The guilty. (Coll Decl. Attach. 4, at sanctioned ^ Strouse by disallowing DHO found Strouse 20-21.) The DHO twenty-seven (27) The Court employs the pagination assigned to this document by the CM/ECF docketing system. days of Strouse's Good Conduct Time. (^. at 21.) The DHO also imposed upon Strouse a six-month loss of TRULINCS^ access, thirty (30) days of disciplinary segregation, and two years' loss of telephone privileges (the latter two sanctions being suspended pending 180 days of clear conduct). (Id. at 21.) On March 21, 2013, the BOP provided Strouse with a copy of the DHO's Report for Incident Report Number 2392460 (hereinafter ^'the DHO Report") . (Id.) 2. BOP's Grievance The ^'to Procedure BOP manages allow an inmate an Administrative to seek relating to any aspect 28 C.F.R. § 542.10(a). exhausts administrative to resolve the matter § 542.13(a). the review of Program an issue of his/her own confinement." Generally, a federal prisoner remedies by first attempting informally. See 28 C.F.R. If informal must inmate formal Remedy then resolution submit is ^^a unsuccessful, formal written Administrative Remedy Request, on the appropriate form (BP-9)," 28 C.F.R. § 542.14(a), at his place of incarceration. See 28 C.F.R. § 542. 14 (d). ''An inmate who is not satisfied with the Warden's response may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response." 28 C.F.R. § 542.15(a). However, an inmate, such as Strouse, who wishes to challenge the decision of DHO, is prohibited from filing a BP-9 at his or her place of incarceration. See 28 C.F.R. § 542.14(d)(2). ''DHO appeals shall be submitted initially to the Regional Director for the region where the inmate is currently located," id., and shall be filed on a BP-10 form. 28 C.F.R. § 542.15(b)(1). Appeals to the Regional Director must be accompanied by a copy of the response the inmate received at the institutional wishes to appeal. ^ TRULINCS is Id. "a level "For DHO Federal . Bureau that . of . Prisons program designed to, among other things, of e-mail available to prisoners." Zickefoose, 530 F. App'x 109, 110 (3d cert. dismissed, denied, 134 S. Ct. 134 S. Ct. 1927 (2014). 1499, he or appeals, she each (BOP) make a form Solan v. Cir. 2013), reconsideration separate incident report number must be appealed on a separate form." 28 C.F.R. § 542.14(c)(2). ''An inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response." 28 C.F.R. § 542.15(a). As explained below, Strouse filed numerous administrative remedy requests, but he failed to fully exhaust his administrative remedies with respect to Incident Report Number 2392460. Specifically, Strouse failed to file a BP-11 appeal for Incident Report Number 2392460 3. with the General Counsel of the BOP. Strouse's Attempts at Exhaustion During his incarceration, Strouse has filed forty-nine (4 9) administrative remedy requests with the BOP. (Coll Decl. SI 14.) Of these administrative remedy requests, only one appears to pertain to Strouse's hearing and sanctions for Incident Report Number 2392460. (I^ SISI 14-15.) On March 25, 2013, Strouse filed an administrative remedy request with the BOP's MidAtlantic Regional Office, in which he appealed the hearing and sanctions imposed for Incident Report Number 2392460. (Id. SI 15 (citing Attach. 6, at 5; Attach. 7, at 6; Attach. 8).) On May 29, 2013, the BOP denied the appeal. (Id. Attach. 8,^ at 42.) The denial noted that Strouse could appeal to the General Counsel for the BOP if he was dissatisfied with the response. (Id.) Strouse has failed to file an appeal to the General Counsel for the BOP or any other administrative remedy requests regarding the incident in question.^ ^ (See Coll Decl. f 16.) The Court employs the pagination assigned to this document by the CM/ECF docketing system. ® Strouse alleges that ''BOP staff members detained special mail containing bp-11 remedy . . . for 3 ^ weeks causing bp-11 to be time barred." (Pet'r's Mem. Supp. Mot, Suram. J. 5, ECF No. 11; see also id. at 7.) He directs the Court to an attachment labeled "Exhibit GR-1 BP-11," a copy of a Central Office Administrative Remedy Appeal form filed September 18, 2012. (Id. Att. "GR-1," ECF No. 11-1, at 2.) First, allegations D. Analysis ^'Exhaustion administrative is and an important habeas law . . doctrine . ." in both Woodford v. Nqo, 548 U.S. 81, 88 (2006). Prior to seeking judicial relief, an inmate filing a § 2241 Petition must properly exhaust his or her administrative remedies. McClunq v. Shearin, 90 F. App'x 444, 44 5 (4th Cir. 2004) (citing Carmona v. U.S. Bureau of Prisons, Hopkins, 243 F.3d 629, 634 (2d Cir. 2001); Little v. 638 F.2d 953, 953-54 (6th Cir. 1981)). ^''Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules," Woodford, 548 U.S. at 90, ''''so that the agency addresses the issues on the merits.'" Id. (quoting Pozo v. McCauqhtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). An inmate's failure to properly exhaust the administrative grievance process prior to filing his or her habeas petition may warrant dismissal of the petition. See Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (citation omitted) (internal quotation marks omitted) (noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief"). The applicable prison rules "define the boundaries of proper exhaustion." Jones V. Bock, 549 U.S. Here, BOP 199, rules 218 (2007). required Strouse to file a BP-11 with the General Counsel for the BOP within thirty (30) days of receiving the denial of his administrative remedy appeal on May 29, 2013. See 28 C.F.R. § 542.15(a). Strouse failed to do so. Therefore, he failed to properly exhaust his administrative remedies for the disciplinary hearing that resulted in sanctions. Accordingly, the § 2241 Petition is subject to dismissal for lack of exhaustion. from Strouse's admissible Further, Report unsworn evidence. the Number document 2392460. memorandum See White, does To not the fail 366 to constitute F.3d reference extent Strouse at 300. Incident intends to allege that he attempted to exhaust his administrative remedies, Strouse fails to explain how a document from September 2012 demonstrates exhaustion of administrative remedies concerning an incident that occurred in 2013. Nevertheless, ''a habeas complete the administrative excused where his failure petitioner's failure remedy process may is due to the administrator, rather than the petitioner." Corr. Ctr., 473 F.3d 229, 236 Norton v. Parke, 892 to be F.2d Fazzini (6th Cir. 476, 481 v. N.E. Ohio 2006) (citing (6th Cir. 1989)). Strouse appears to suggest that the Court should excuse him from complying with the exhaustion requirement because the prison ''mail room staff members conspired to cause detention, delay in . . . mailing out administrative remedies form(s) BP-lOs, BP-lls . . . ." (Pet'r's Mem. Supp. Mot. Summ. J. 5, ECF No. 11 (spelling and grammar corrected).) Although Strouse describes difficulties that he experienced with the prison mailroom, he fails to provide a evidence, coherent as to explanation, how BOP much officials less probative frustrated his ability to file a BP-11 with the BOP General Counsel. Further, to the extent Strouse alleges that the mail staff's actions delayed his appeal to the BOP General Counsel, he fails to explain how this fact, if true, should dissuade the Court judgment in favor of Wilson. from granting summary Wilson does not argue that BOP Strouse's time-barred; he appeal to the demonstrates General that Strouse Counsel is failed to file one at all. (Resp't's Mem. Supp. Mot. Summ. J. 8, ECF No. 27.) Strouse's ''Ma]iry generalities [and] conclusory assertions'" about a conspiracy in the mailroom are insufficient '''to stave off summary judgment.'" Robinson v. Johnson, No. 3:07CV449, 2009 WL 874530, at *7 n.5 (E.D. Va. Mar. 26, 2009) (alterations in original) (quoting United States v. Roane, 378 Accordingly, F.3d 382, 400-01 i t is RECOMMENDED (4th Cir. 2004)). that the action be DISMISSED. E. Conclusion issue Wilson has demonstrated the absence of a genuine of material fact with regard to exhaustion. Accordingly, it is RECOMMENDED that Wilson's Motion for Summary Judgment DISMISS No. 1) Strouse's without exhaust his 28 U.S.C. prejudice administrative § 2241 because remedies. the Court GRANT (ECF No. 26) and Petition Strouse failed (ECF to II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION ^'The magistrate makes only a The recommendation has responsibility to make court." 1993) Estrada (citing v. a no presumptive final v. weight, determination Witkowski, Mathews recommendation to this court. 816 Weber, F. 423 408, 261, the with remains Supp. U.S. and this 410 270-71 (D.S.C. (1976)). This Court ''shall make a de novo determination of those portions of the report or specified proposed findings to which filing objection of district is objections judge to made." to focus a 28 U.S.C. magistrate's attention on 474 U.S. 140, recommendation, 28 U.S.C. § this Dismissal enables issues—factual dispute." the and Thomas v. When reviewing the magistrate's Court "may also receive further evidence." STROUSE'S OBJECTIONS AND WILSON'S RESPONSE December "Petition (1985). ''The 636(b) (1) . III. On 147 636(b)(1). report those legal—that are at the heart of the parties' Arn, § or recommendations for of 16, 2014, Memorandum the at Magistrate's Court Law, received Summary Report and of from Strouse Judgment, a and Recommendation," ("Objections," ECF No. 32, at 1),^ which the Court construes as Strouse's Objections to the Report and Recommendation. In his ^ The Court has corrected the capitalization, punctuation, and emphasis in the quotations from Strouse's Objections. Additionally, in citations to Strouse's filings, the Court employs the pagination assigned by the CM/ECF docketing system. Objections, Strouse administrative remedies 2392460, but grievance forms," unit ''has and that with ''prison [a] omitted) . ) alleges officials of attempted respect the history he to Incident ha[ve] correctional this to exhaust Report impeded (Objs. Number Strouse's institution's offense." his 4 mailing {citations Strouse claims that prison officials have previously delayed his mail so that he misses filing deadlines or rendered mailing labels unreadable using an x-ray scanner Post Office returns the mail as undeliverable. Strouse copy of a buried BP-11, in his Exhibits dated June 15, (ECF 2013, so (Id. Nos. to This search not appear in the 32-8) a which he alleges to be an (ECF No. did the at 5-6.) 32-1 appeal of Incident Report Number 2392460. BP-11 that BOP's 32-1 at 8.) of Strouse's administrative remedy requests related to Incident Report Number 2392460. (Mem. Supp. Mot. Summ. J. 8.) The Court Objections (ECF No. Response to Wilson No, the Specialist Correctional in On to January declaration at North Carolina, 34-1), Complex 33) . Wilson Petitioner's Objections submitted Paralegal Butner, directed and the Systems the (id., declaration Specialist Petersburg, 1 of at Virginia 10 27, 2015, (ECF No. of Federal Ex. respond to Strouse's Wilson 34). filed a In support, Cornelia J. Correctional Coll, a Complex in ("2d Coll Declaration"), Tracy the Davis, Federal (id., Ex. a ECF Supervisory Correctional 2 ("Davis Declaration"), ECF received the BP-11 Strouse's Objections. ^ 6.) No. form Furthermore, failed to comply documentation, submission. the dated (Resp. had with Pet'r's that 15, 2; the regarding nonetheless the 2013 Objs. mailed policy would swears June Strouse BOP BOP Coll BOP attached 2d Coll BP-11 a to Decl. form, attaching have never but required record of this (Resp. Pet'r's Objs. 2; 2d Coll Decl. SI 7. ) Wilson staff 34-3). also delaying addresses his mail, Strouse's submitting allegations Davis's of sworn mailroom Declaration describing the mail processing procedures employed at Strouse's place of incarceration demonstrate that the in ^'BOP for handling inmate mail, Objs. Finally, 3). exists of inmates' certified mail. On detail employs 2015, evidence unless the Pet'r's Objs. SISI well-established submits outgoing mail, February 9, Decl. including legal mail" Wilson (Resp. (Davis 5-13) procedures (Resp. that Pet'r's no record inmate sent it via 4; Davis Decl. SI 13.) Strouse filed an unsworn ''Petitioners Response to Respondents Objection and Summary of Judgment" No. 35) in which he administrative remedies again to claims that he (ECF exhausted (id. at 5)® and reiterates his previous allegations of mail tampering. ® To support this argument, Strouse directs the Court to ''exhibit GR-1," (id. at 1) a BP-11 unrelated Report Number 2392460. See supra note 6. 11 to the Incident IV. As to an initial matter, respond to Wilson's having an opportunity, may file a addition to and Summary of the notice, expose '^Petitioners Judgment," Strouse misstatements. White, 366 argument does opposition to submissions not are to penalty P. despite Objections, Respondents to of 56(e); (4th Cir. constitute mere failed in Objection oppose Wilson's being unsworn allegations that fail Civ. summary Judgment, Strouse's insufficient the 300 Strouse and clear directions as to how he are R. F.3d 291, that Summary Response to Fed. for notes Furthermore, Motion for Summary Judgment, to Court Motion response.^ his ANALYSIS 2004) evidence judgment motion). allegations, not perjury see United for States (holding that to be for v. unsworn considered Accordingly, evidence any in Strouse's purposes of granting or denying summary judgment. Strouse also fails to present ^'specific written objections to the proposed findings and recommendations." 72(b)(2). uses Instead, he his Objections Fed. as a R. Civ. P. vehicle to ^ When Wilson filed the Motion for Summary Judgment, he sent Strouse Garrison, a Roseboro 528 F.2d Notice 309 (ECF (4th Cir. No. 1975), 28), see Roseboro informing Strouse v. that pursuant to United States District Court for the Eastern District of Virginia Local Rule 7(K), Strouse had twenty-one (21) days to respond to the Motion for Summary Judgment, or the Court may grant summary judgment against him. (Roseboro Notice 1.) Strouse failed to file any response to the Motion for Summary Judgment within the twenty-one day window. 12 introduce, inter alia, he exhausted his a BP-11 form which he alleges administrative remedies. Strouse shows that inexplicably failed to present this form to the Court in any of his numerous prior filings. 21641947, for, Cf. at *1 Rhett (N.D. v. Tex. Revell, July 10, No. 2:96-CV-0114, 2003) (chastising plaintiff "in what could be characterized as an attempt to the Court, . . . wait[ing] and Recommendation] all along"). until after 2003 WL issuance of ^sandbag' [the Report to present evidence he apparently possessed In fact, Strouse's Objections mark the first time he has alleged that he filed a BP-11. Nevertheless, ''as part of its obligation to determine de novo any issue to which proper objection is made, arguments were directed raised before 971 F.2d 1113, its discretion, 1118 a district court is required to consider all to the that issue, regardless magistrate." (4th Cir. 1992). United of whether States In doing so, v. they George, the Court, 'may also receive further evidence.'" in Wojcicki In Strouse's § 2241 Petition, in response to the question "[i]f there are any grounds you did not present in all appeals that were available to you, explain why you did not," he wrote "BP-11, filed tort claim in regards to constitutional issue . . . ." (§ 2241 Pet. 9 (emphasis added).) As noted by the Magistrate Judge, Strouse apparently thought "grounds" meant "documents" in his § 2241 Petition (see supra note 2) ; accordingly, Strouse appears to explicitly state he did not file a BP-11. Furthermore, in Strouse's previously dismissed Motion for Summary Judgment, he details filing numerous administrative remedy requests, including the denied BP-10 related to the incident he challenges here (Pet'r's No. 11), but never mentions writing receiving a response to that BP-10. 13 or Mot. Summ filing any J. 2-3, BP-11 ECF after V. Aiken Tech. Coll., 360 F. App'x 484, 487 {4th Cir. 2010) his tardy production {quoting 28 U.S.C. § 636(b)(1)). Strouse offers of the June 15, filed no coherent excuse for 2011 BP-11. evidence where producing it See id. at 488 plaintiff had a earlier). Rather, (accepting belatedly reasonable Strouse excuse produced the for not form only after the Magistrate Judge recommended dismissal for his failure to file a envelopes mail BP-11. to his pleadings (see Objs. Pet'r's Despite his attaching numerous photocopies of Mot. Exs. Summ. to show when he placed items ''James-6," J. Exs., and ''Strouse-1," ECF No. 11-1, 15, 2013. the BP-11 never Unlike is valid, and further, foregoing genuine dispute of 2013 Wojicicki, Wilson does submits 1-2), 32-3; Strouse form dated June not evidence concede that the that BOP received i t . Given the a in ECF No. at provides no evidence to show he ever mailed the in the BP-11 to the In Wojicicki, fact circumstances, as fails to create to whether he mailed the June appropriate the Strouse BOP official. Fourth Circuit found Rather, that 15, the the district court had abused its discretion in refusing to consider evidence a pro se litigant submitted after the magistrate recommended dismissal for failure to exhaust administrative remedies, namely right to sue letters from federal and state agencies that directly contradicted the magistrate's conclusion. 360 F. App'x at 488. However, the Fourth Circuit emphasized that this was an abuse of discretion because the defendants knew of the letters and conceded that they were authentic. Id. at 486. The Fourth Circuit also noted that '"this does not appear to be a case where Wojcicki held back the evidence." Id. at 488. 14 evidence shows remedies Report by that Strouse failing Number to failed file 2392460; a to exhaust BP-11 form accordingly, his administrative appealing Wilson is Incident entitled to summary j udgment. Furthermore, delayed mail, Strouse's this conclusion. other Att. prison 2, the letters as undeliverable, First, staff at remedy December 29, 1.) fails to alter the BOP clearly received and documented administrative Strouse after the Decl. that or rendered mailing labels unreadable so that the Post Office returns numerous allegations Second, 2012 requests and DHO hearing. Strouse fails appeals (See from 2d Coll to tender specific admissible evidence regarding any interference with the June 15, 2011 BP-11 form. conclusory assertions'" insufficient Johnson, 26, 2009) Roane, No. ^to administrative because fails 481 (6th (6th Cir. Cir. in to remedies ^'his prison summary or show is due Fazzini v. 2006) at *7 n.5 (quoting are Robinson (E.D. United Va. v. Mar. States v. 2004)). that to N.E. that he the Court the exhausted excuse administrator, rather Ohio Corr. Ctr., Parke, 892 Accordingly, Court will the his should (citing Norton v. 15 [and] malfeasance judgment.'" original) {4th Cir. generalities mailroom demonstrate failure 1989)). ''Ma]iry 2009 WL 874530, 400-01 than the petitioner." 236 off (alterations 378 F.3d 382, 229, about stave 3:07CV449, Strouse this Strouse's 473 F.3d F.2d 476, OVERRULE Strouse's Judgment Objections (ECF No. and GRANT Wilson's Motion for Summary 26). V. CONCLUSION The Report and Recommendation will be ACCEPTED and ADOPTED. Strouse's Motion Objections for Strouse's An (ECF No. 32) Summary claims Judgment and the appropriate will (ECF action will Final Order No. be will be OVERRULED. 26) will Wilson's be GEIANTED. DISMISSED. accompany this Memorandum Opinion. /s/ Q fm ^ Date: Robert E. Payne ^ Senior United States District Judge Richmond, Virginia 16
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