1

 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971). Bivens stands for the proposition that “a citizen suffering a

compensable injury to a constitutionally protected interest could invoke the general

federal question jurisdiction of the district court to obtain an award of monetary

damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478,

504 (1978).

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

TERRENCE HAMMOCK, :

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-1015

:

: (Judge McClure) 

CAPTAIN BEBOW, ET AL., :

Defendants :

MEMORANDUM AND ORDER

August 30, 2005

Background

Terrence Hammock (“Plaintiff”), an inmate presently confined at the United

States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”), initiated this

Bivens1-type pro se civil rights action. Service of the complaint was previously

ordered. 

Named as Defendants are the following officials at Hammock’s prior place

of confinement, the Schuylkill Federal Correctional Institution, Minersville,

Pennsylvania (“FCI-Schuylkill”): Warden John Nash, Captain David Bebow;

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2

 Plaintiff notes that on that same day he was taken to the prison hospital for an

examination which purportedly failed to reveal any physical evidence that he had been

in an altercation.

2

Lieutenant Joseph Henger, and Lieutenant M. Breckon. His complaint filed May 7,

2004 states that he was placed in the segregation unit at FCI-Schuylkill on March

31, 2004. Plaintiff’s placement was “pending an investigation - because of a fight

that I have no knowledge of nor did I do.”2 Record document no. 1, ¶ IV(1).

Hammock contends that during the course of his alleged improper

confinement in segregation, he was housed under unconstitutional conditions of

confinement. Specifically, Plaintiff maintains that he was: denied adequate

showering, recreation, commissary and telephone privileges; limited to one haircut

a month; and unable to practice his religious beliefs. His complaint adds that: the

cells were overcrowded; showers were prone to flooding; there was poor

ventilation; inadequate clothing, drinking water, medical treatment and bedding

were provided; and there was an excessive amount of second hand cigarette

smoke. Hammock also claims that he was not provided with adequate access to

the courts and medical treatment. He seeks compensatory damages and injunctive

relief, including a transfer to a different correctional facility.

Presently pending is Defendants’ motion to dismiss (Record document no.

36) the complaint for Plaintiff’s failure to exhaust available administrative remedies. 

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3

The motion has been briefed and is ripe for consideration.

Discussion

Mootness

Adjudicatory power of a federal court depends upon "the continuing

existence of a live and acute controversy." Steffel v. Thompson, 415 U.S. 452,

459 (1974) (emphasis in original). "The rule in federal cases is that an actual

controversy must be extant at all stages of review, not merely at the time the

complaint is filed." Id. at n.10 (citations omitted). "Past exposure to illegal

conduct is insufficient to sustain a present case or controversy regarding injunctive

relief if unaccompanied by continuing, present adverse effects." Rosenberg v.

Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985) (citing O'Shea v. Littleton, 414

U.S. 488, 495-96 (1974)).

Furthermore, "[a]bsent class certification, an inmate's claim for injunctive

and declaratory relief in a section 1983 action fails to present a case or controversy

once the inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173

(11th Cir. 1985) (citation omitted); see also Carter v. Thompson, 808 F. Supp.

1548, 1555 (M.D. Fla. 1992). 

On December 27, 2004, Plaintiff notified this Court that he had been

transferred to USP-Lewisburg. See Record document no. 59. There is no

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4

indication that Hammock will be returned to FCI-Schuylkill in the foreseeable

future.

In light of the Plaintiff’s transfer to USP-Lewisburg, he is no longer being

subject to the deplorable conditions which allegedly existed at FCI-Schuylkill. 

Since Hammock has been afforded the transfer he requested in his complaint

under an application of the standards announced in Steffel and Wahl, his complaint

to the extent that it seeks injunctive relief is subject to dismissal on the basis of

mootness.

Motion to Dismiss

A court, in rendering a decision on a motion to dismiss, must accept the

veracity of the plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals for the Third Circuit added

that when considering a motion to dismiss based on a failure to state a claim

argument, a court should "not inquire whether the plaintiffs will ultimately prevail,

only whether they are entitled to offer evidence to support their claims." "[A]

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"The test in reviewing a motion to dismiss for failure to state a claim is

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5

whether, under any reasonable reading of the pleadings, plaintiff may be entitled to

relief." Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation

omitted). Additionally, a court must "accept as true the factual allegations in the

complaint and all reasonable inferences that can be drawn from them." Markowitz

v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Independent Enters.,

Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). 

Finally, it is additionally well-settled that pro se complaints should be liberally

construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). This Court will now

discuss Defendants’ motion in light of the standards set forth above and Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Defendants contend that Plaintiff failed to exhaust his available

administrative remedies with respect to each of the claims set forth in his

complaint. See Record document 42, p. 5. They additionally note that

Hammock’s complaint acknowledges that the grievance process was not

completed.

42 U.S.C. § 1997e(a) provides as follows:

No action shall be brought with respect to prison

conditions under Section 1979 of the Revised Statutes of

the United States (42 U.S.C. 1983), or any other federal

law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as

are available are exhausted.

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 Section 1997e(a) requires administrative exhaustion “irrespective of the forms of

relief sought and offered through administrative avenues.” Porter v. Nussle, 122

S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Claims

for monetary relief are not excused from the exhaustion requirement. Nyhuis v.

Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an inmate’s claim is

appropriate when a prisoner has failed to exhaust his available administrative

remedies before bringing a civil rights action. Ahmed v. Sromovski, 103 F. Supp.

2d 838, 843 (E.D. Pa. 2000). “[E]xhaustion must occur prior to filing suit, not

while the suit is pending.” Tribe v. Harvey, 248 F.3d 1152, 2000 WL 167468, *2

(6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)).

An inmate’s failure to comply with the administrative exhaustion requirement

constitutes an affirmative defense. See e.g., Massey v. Helman, 196 F.3d 727, 735

(7th Cir. 2000), cert. denied, 532 U.S. 1065 (2001); Jenkins v. Haubert, 179 F.3d

19, 29 (2d Cir. 1999); Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.

1997)(holding, in the context of a Title VII case, that failure to exhaust

administrative remedies is an affirmative defense). Consequently, a prisoner does

not have to allege in his complaint that he has exhausted administrative remedies. 

Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). Rather, it is the burden of a defendant

asserting the defense to plead and prove it. Id.; Williams v. Runyon,130 F.3d 

568, 573 (3d Cir. 1997); Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991); Fed.

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3. Matters excluded from this program are set forth at 28 C.F.R. § 542.12,

which states as follows:

(a) An inmate may not use this Program to submit a Request

or Appeal on behalf of another inmate. This program is

intended to address concerns that are personal to the inmate

making the Request or Appeal, but shall not prevent an

inmate from obtaining assistance in preparing a Request or

Appeal, as provided in § 542.16 of this part. 

 (b) Requests or Appeals will not be accepted under

the Administrative Remedy Program for claims for which

other administrative procedures have been established,

including tort claims, Inmate Accident Compensation claims,

and Freedom of Information or Privacy Act requests. Staff

shall inform the inmate in writing of the appropriate

procedure if the Request or Appeal is not acceptable under

the Administrative Remedy Program.

7

R. Civ. P. 8(c).

The BOP has established a multi-tier Administrative Remedy Program whereby

a federal prisoner may seek review of any aspect of his imprisonment.3 See 28 C.F.R.

§§ 542.10-542.19 (1998). “This program applies to all inmates confined in institutions

operated by the Bureau of Prisons, to inmates designated to Community Corrections

Centers (CCCs) under Bureau of Prisons’ responsibility, and to former inmates for

issues that arose during their confinement but does not apply to inmates confined in

other non-federal facilities.” Id. at § 542.10.

The program provides that, with certain exceptions, "... an inmate shall first

present an issue of concern informally to staff, and staff shall attempt to informally

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4. CCC inmates are not required to seek informal resolution. Id. at § 542.13(b). 

Informal resolution is not required for those matters identified in § 542.14(d), which

include sensitive issues and DHO, Control Unit, and Controlled housing status

appeals. Id. Additionally, informal resolution may be waived in individual cases at the

discretion of either the Warden or the institution Administrative Remedy Coordinator

“when the inmate demonstrates an acceptable reason for bypassing informal

resolution.” Id. 

8

resolve the issue before an inmate submits a Request For Administrative Remedy.”4

Id. at § 542.13(a). Next, if informal resolution fails, the inmate must submit “a formal

written Administrative Remedy Request, on the appropriate form (BP-9),” within 20

“calendar days following the date on which the basis for the Request occurred.” Id.

at § 542.14(a). If a valid reason for delay is given, an extension of the filing time may

be granted. Id. at 542.14(b). The Warden has 20 calendar days from the date the

Request or Appeal is filed in which to respond. Id. at § 542.18. 

If not satisfied with the Warden's response, an inmate may appeal on the

appropriate form (BP-10) to the Regional Director within 20 calendar days of the date

the Warden signed the response. Id. at § 542.15. Finally, if the inmate is dissatisfied

with the Regional Director's response, that decision may then be appealed on the

appropriate form (BP-11) to the General Counsel within 30 calendar days from the

date the Regional Director signed the response. Id. “When the inmate demonstrates a

valid reason for delay, these time limits may be extended.” Id. The Regional Director

has 30 calendar days to respond and the General Counsel has 40 calendar days in

which to respond. Id. at § 542.18.

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9

The response time provided for at each level may be extended in writing “once

by 20 days at the institution level, 30 days at the regional level, or 20 days at the

Central Office level.” Id. Additionally, “[i]f the inmate does not receive a response

within the time allotted for reply, including extension, the inmate may consider the

absence of a response to be a denial at that level.” Id.

In support of their argument, Defendants state that institutional records establish

that Hammock filed six (6) administrative grievances. All of the grievances were filed

after the initiation of this action. Only one grievance was properly presented at the

regional level and none of the grievances was submitted for final consideration by the

General Counsel. 

The first grievance, submitted on May 12, 2004, appealed the results of a

disciplinary hearing and asserted claims of unconstitutional conditions in the SHU. It

was rejected without prejudice on various procedural grounds. The primary basis for

rejection was because the grievance was initially filed at the Regional Office level

instead of the institutional level, i.e., with the Warden.

One week later, Plaintiff submitted a second grievance which solely appealed

the result of his disciplinary proceedings and thus, is unrelated to his present claims. 

This grievance was likewise rejected for various procedural errors. Plaintiff’s third

and fourth grievances filed respectively on May 28, 2004 and June 1, 2004 likewise

appealed the outcome of his disciplinary hearing and were unrelated to Hammock’s

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5

 The Plaintiff adds that he has initiated a second civil rights action regarding his

FCI-Schuylkill disciplinary proceedings.

10

present claims. Hammock’s final two grievances initiated during July, 2004 also

appealed the sanctions imposed following his disciplinary proceedings. Both were

rejected as being filed at the wrong administrative level.

In his complaint, Hammock clearly admits that he had not completed the

administrative grievance procedure at FCI-Schuylkill. See Record document no. 1, ¶

II(C)). Plaintiff’s initial response to the motion to dismiss does not specifically

address the non-exhaustion argument. Attached to the response are copies of

Plaintiff’s August 11, 2004 request for a transfer which was submitted to the Regional

Director and his August 13, 2004 administrative grievance claiming that he was being

held for an excessive period of time in the SHU and which also sought a transfer. 

Neither filing asserted any of Plaintiff’s present claims of unconstitutional conditions

of confinement. In a second response to the motion to dismiss, Hammock again

failed to address the non-exhaustion argument. See Record document no. 41. 

Plaintiff’s third response reiterates that his present action “only specifically deals with

the deplorable and poor conditions on seg.” Record document no. 44, p. 1.5 He

generally adds only that he sought administrative relief regarding the deplorable

conditions in the SHU. In yet another response (Record document no. 46), Plaintiff

vaguely argues that failure to exhaust administrative remedies is not an adequate basis

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6

 In support of their non-exhaustion argument, Defendants have submitted

copies of the six (6) grievances and the responses which were generated by those

submissions. See Record document no. 42.

11

to deny relief.

A review of the undisputed record, especially the exhibits6 accompanying

Defendants’ supporting brief, shows that they have satisfied their burden under

Williams of establishing that Hammock’s present civil rights allegations relating to the

conditions of his confinement were not administratively exhausted. Hammock has

also not adequately demonstrated any proper basis as to why he should be excused

from the exhaustion requirement. Pursuant to the above discussion, dismissal of

Plaintiff’s civil rights action under § 1997e(a) is appropriate. Consequently, 

IT IS HEREBY ORDERED THAT:

1. Defendants’ motion to dismiss (Record document no. 36) 

is GRANTED.

2. Plaintiff’s action is dismissed without prejudice for failure to

exhaust administrative remedies as required pursuant to 42

U.S.C. § 1997e(a).

3. The Clerk of Court is directed to CLOSE the case.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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