by Douglas Ankney

On November 22, 2024, the U.S. District Court for the District of Arizona sua sponte granted summary judgment to transgender prisoner Oscar Contreras Aguilar on the issue of exhaustion of administrative remedies where Federal Bureau of Prison (BOP) officials repeatedly denied the necessary forms to Aguilar.

Aguilar sued then-­BOP Director Colette Peters (“Defendant”) under 28 U.S.C. section 1331 seeking injunctive relief challenging the BOP’s policies related to her placement and ongoing confinement in the Special Housing Units (“SHUs”) as well as the conditions within the SHUs. According to Aguilar’s Complaint, she had been held in the SHUs at numerous BOP facilities under either administrative or punitive segregation status since she entered BOP custody in July 2021 (a total of 455 days at the time of filing her complaint). The conditions inside the SHUs included “near-­constant isolation in small cells, with little to no access to out-­of-­cell recreation or contact with other people.” And even then, recreation “consisted of one hour in an eight-­foot stripped cage.”

While prisoners in the SHU were to receive five hours of out-­of-­cell recreation per week, BOP guards employed various machinations “to prevent opportunities for recreation and the SHUs are often on lockdown.” And prisoners in the SHUs “have no access to TVs, MP3 players, tablets, commissary, or rehabilitative or educational programs, and they receive one 15-­minute phone call per month when the institution is not on lockdown.”

Aguilar alleged that the conditions in the SHUs “exacerbate her mental illnesses, causing her to suffer auditory hallucinations, constant anxiety attacks, severe depression, panic attacks, insomnia, and suicidal thoughts and ideation.” Aguilar had attempted suicide multiple times while confined in the SHUs, resulting in serious physical and emotional injury. In spite of this history, Aguilar “continue[d] to be held in the SHU without periodic status reviews to determine whether her confinement in the SHU is appropriate, and Defendants manipulate BOP policy to prolong Plaintiff’s confinement in the SHU.”

Aguilar alleged that on May 16, 2023, she informed BOP employees Hernandez, Fragoso, and Valtierra “multiple times during their rounds” that she was experiencing suicidal thoughts and ideation. The employees took no action and Aguilar attempted suicide by hanging. Her cellmate intervened and “pushed the cell’s emergency button” but “[o]fficers did not respond.” It was only after numerous prisoners kicked their cell doors and screamed for help that guards responded. But instead of responding with medical help, the guards “opened the food slot and sprayed [Aguilar] and her cellmate with excessive amounts of chemical agents.”

Aguilar also alleged in her complaint that she requested Administrative Remedy forms BP-­8 and BP-­9 from numerous BOP guards. But these guards informed Aguilar it was “a unit team issue.” But when she requested the forms from Unit Team staff—including Counselors Flores and Villareal and Case Manager Kendryna—they told Aguilar they could not provide the forms because they were not part of Aguilar’s Unit Team. And when Aguilar then repeatedly requested the forms from her Unit Team, including Case Manager Mack, Mack provided only one BP-­8 form for an unrelated issue regarding her medication. Mack routinely failed to provide Administrative Remedy forms, stating she would bring the forms “the next time she did her rounds” but never brought them. Aguilar alleged that in three other issues not related to her Complaint, she was able to file grievances only because she purchased the forms from other prisoners at $50 per form—which she noted at the top of each of those forms at the time she submitted them.

Aguilar attached to her complaint a declaration from her cellmate Robert Velez, in which said he observed Aguilar request BP-­8 and BP-­9 forms multiple times from Unit Team staff, including Mack and Kendrya but that Aguilar never received the forms. Velez also averred that Counselor Wright made rounds in the SHU about once per month but BP-­8 forms had to be submitted within 20 days of the incident giving rise to the complaint.

Defendant filed numerous motions, including the Defendant’s Motion to Dismiss as Moot or in the Alternative Motion for Summary Judgment. As to mootness, the Defendant alleged that Aguilar filed her Complaint while confined in the BOP’s SHU at United States Penitentiary (USP) Tuscon seeking injunctive relief under section 1331 regarding the conditions related to that SHU. But since Aguilar had subsequently been transferred to USP Allenwood, there was now no injunctive relief available to her.

Aguilar responded that her complaint “challenge[d] the Defendant’s SHU policies and practices and its overuse of SHU in general.” Additionally, when she was transferred to USP Allenwood, she was placed in the SHU and was housed under the same conditions as alleged in her Complaint while confined at USP Tuscon.

As to summary judgment, the Defendant alleged that Aguilar had failed to exhaust her administrative remedies. Defendant submitted the declaration of Lorri Mitchell, USP Tucson’s legal assistant, averring those prisoners at USP Tucson “can obtain administrative remedy forms from any Unit Team member, including Unit Managers, Case Managers, Correctional Counselors, and Unit Secretaries.”

In Aguilar’s “Response to Defendant’s Motion,” she “point[ed] out that Defendant failed to respond to, and thus failed to refute, the detailed factual allegations in her Complaint regarding the denial of BP-­8 and BP-­9 forms from BOP officers, her Unit Team, and Case Manager Mack.”

Defendant then submitted a reply, arguing, for the first time, that “while any Unit Team member may provide an inmate an administrative remedy form, the primary responsibility lies with the Counselor.” Defendant argued that Wright was the one responsible to provide the forms and Aguilar had not alleged she had asked Wright for the forms.

Also in the Defendant’s reply, Mack submitted a declaration, swearing she “would not deny access to Administrative Remedy forms” and that she “did not recall” an occasion when she denied a form to Aguilar. And Wright submitted a declaration averring he had “never denied any inmate, including [Aguilar], an Administrative Remedy form.”

On the issue of mootness, the Court observed “[a] claim is considered moot if it is no longer a present and live controversy or if no effective relief can be granted…When a question before the court has been mooted by changes in circumstances after the complaint is filed, there is no justiciable controversy…[and] Questions of mootness regarding injunctions are viewed ‘in light of the present circumstances.’”

The Court found that Aguilar was subject to the same conditions at USP Allenwood that she alleged in her Complaint while at USP Tucson. Further, her claim for injunctive relief “challenge[d] Defendant’s BOP policies related to placement and ongoing confinement in the SHU. ‘The continued and uncontested existence of the policy that gave rise to [Aguilar’s] legal challenge forecloses [the Defendant’s] mootness argument.’”

On the issue of summary judgment based on a failure to exhaust administrative remedies, the Prison Litigation Reform Act (PLRA) requires prisoners to exhaust administrative remedies that are available to the prisoners before filing any suit regarding conditions of confinement. When a defendant asserts non exhaustion, the initial burden is on the defendant to show an available remedy was not exhausted by the prisoner. If a defendant makes this showing, the prisoner must demonstrate either she did exhaust administrative remedies or “come forward with evidence showing that there is something in h[er] particular case that made existing and generally available administrative remedies effectively unavailable to h[er]…Summary judgment is appropriate if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a failure to exhaust.”

And “[i]f summary judgment is denied, disputed factual questions relevant to exhaustion should be decided by the judge; a plaintiff is not entitled to a jury on the issue of exhaustion.” “But if a court finds the prisoner exhausted administrative remedies, administrative remedies were not available, or the failure to exhaust administrative remedies should be excused, the case proceeds to the merits.”

In the instant case, Defendant was aware of Aguilar’s allegations regarding named and identified BOP staff who had failed to provide her with the administrative remedy forms. Defendant failed to respond to those allegations in its motion for summary judgment. Instead, Defendant presented this new evidence after Aguilar’s response pointed out that Defendant had failed to respond to, or rebut, those allegations. Therefore, the Court refused to consider the declarations submitted in Defendant’s Reply.

“Exhaustion is not required when circumstances render administrative remedies ‘effectively unavailable,’” the Court concluded. Administrative remedies are unavailable “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation…Specifically, a prisoner is excused from the exhaustion requirement where she does not have access to the necessary grievance forms.”

Citing Albino, the Court observed “when a defendant moves for summary judgment based on failure to exhaust under the PLRA and has failed to show a genuine dispute of fact on the issue of exhaustion, it is appropriate for the court to sua sponte grant summary judgment for the nonmovant on the issue.”

Aguilar had alleged undisputed facts that she was denied access to the administrative remedy forms. Accordingly, the Court denied the Defendant’s motion and sua sponte granted summary judgment to Aguilar on the issue of exhaustion. See: Aguilar v. Peters, 2024 U.S. Dist. LEXIS 212753 (D. Ariz. 2024). 

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