Lindsey v. Helland et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
David Shamont Lindsey,
Plaintiff,
v.
E. Helland and B. Eischen,
Defendants.
Case No. 26-CV-374 (PJS/DLM)
REPORT AND
RECOMMENDATION
This matter is before the Court on Plaintiff David Shamont Lindsey’s (1) original
complaint (Doc. 1 (“Complaint”)), (2) Civil Rights Complaint (Doc. 5 (“Supplemental
Complaint”)), and (3) declaration in support of (as relevant here) the complaints (Doc. 11
(“Declaration”)).1 The Court recommends dismissing this action because Mr. Lindsey has
failed to exhaust administrative remedies.
Mr. Lindsey is a federal inmate currently incarcerated at the Federal Prison Camp
in Duluth, Minnesota (“FPC-Duluth”). (Docs. 1 at 1; 5 at 1.) Mr. Lindsey’s Complaints
name three defendants. The first is E. Helland, a correctional officer employed by the
Federal Bureau of Prisons (“BOP”) at FPC-Duluth; Mr. Lindsey sues him in his individual
capacity. (Id.) The second is B. Eishen, FPC-Duluth’s warden, sued in his official capacity
1 The Court received the Supplemental Complaint and the Declaration on the same day that
it 	received 	the 	Complaint; 	the 	intended 	relationship 	between 	the 	Complaint 	and
Supplemental Complaint is unclear. For present purposes, the Court construes the two
complaints as essentially one document and the Declaration as potentially presenting
allegations in support of the complaints.
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 1 of 8

2
“for 	injunctive 	and 	declaratory 	relief 	only.” 	(Id.) 	The 	third 	is 	an 	“Associate
Warden/Captain” at FPC-Duluth, sued in his or her official capacity as a supervisory
official allegedly “responsible for discipline and security enforcement.” (Doc. 5 at 1.)
Mr. Lindsey asserts that he has “engaged in constitutionally protected conduct”—
specifically, “filing grievances and complaints regarding staff conduct and conditions of
confinement” at FPC-Duluth. (Doc. 1 at 2.2) He alleges that Mr. Helland then “authored”
three “100 series incident reports” against him. (Id.3) Mr. Lindsey contends that each report
was false and ultimately dismissed. (Id.; Doc. 5 at 1.) For one report, Mr. Lindsey claims
that Mr. Helland “knew or reasonably should have known” that the alleged underlying
evidence (an “unknown paper”) “would not be sent for independent laboratory testing and
would not support disciplinary sanctions,” but that Mr. Helland “proceeded with the
charge” anyway. (Doc. 1 at 2.)
Even though these reports were eventually dismissed, Mr. Lindsey alleges that he
suffered immediate, punitive consequences before the dismissals. (Docs. 1 at 2; 5 at 1.) For
example, because of the incident report regarding the “unknown paper,” authorities placed
him in the Special Housing Unit (“SHU”) for 21 to 28 days. (Docs. 1 at 2; 5 at 1.)
Mr. Lindsey describes SHU conditions as “substantially more restrictive” than those in the
general prison population: he references “[e]xtreme isolation,” loss of commissary and
2 In the discussion that follows, the Court accepts Mr. Lindsey’s well-pleaded factual
allegations as true.
3 Under the BOP’s disciplinary code, “100 series” offenses are the “Greatest Severity
Level” prohibited acts, which carry the most severe sanctions available within the system.
See, e.g., 28 C.F.R. § 541.3(b).
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 2 of 8

3
recreation privileges, “[h]eightened psychological stress and anxiety,” and “[i]nability to
participate in rehabilitative or sentence reducing programming.” (Doc. 1 at 2.) The
disciplinary action also had direct financial and classificatory consequences. Before SHU
placement, Mr. Lindsey held an institutional work assignment paying about $40 per month.
(See id.) Because of Mr. Helland’s disciplinary actions, he lost this position and was
reassigned to a lower-paying job. (See id.) Mr. Lindsey also alleges that his security
classification was increased due to the incident reports, placing him at heightened risk of
transfer to a higher-security facility. (Doc. 11 at 1.)
Aside from the allegations above, Mr. Lindsey also alleges that Mr. Helland has
been subject to several “PREA related complaints or reports,” presumably referring to the
Prison Rape Elimination Act of 2003.4 (Doc. 1 at 2.) As for Mr. Eishen and the “Associate
Warden/Captain,” Mr. Lindsey alleges that these Defendants had broad supervisory
authority over FPC-Duluth staff and that “[s]upervisory officials were aware of the
repeated dismissals yet failed to intervene.” (Doc. 5 at 1; see also Doc. 1 at 3.)
Liberally construing Mr. Lindsey’s pleading documents, the Court identifies four
causes of action.
• 	First, a First Amendment retaliation claim, under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), against Mr. Helland in his individual capacity. (See, e.g.,
Docs. 1 at 3; 5 at 1.5)
4 Pub. L. No. 108-79, 117 Stat. 972 (codified as amended at 34 U.S.C. §§ 30301–09).
5 The Supplemental Complaint presents a separate count of “Retaliatory Harassment/Abuse
of Authority.” 	(Doc. 	5 	at 1.) 	But 	this 	theory 	overlaps 	substantially 	with 	the 	First
Amendment retaliation claim and identifies no distinct and separate federal cause of action.
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 3 of 8

4
• 	Second, a Fifth Amendment procedural-due-process claim against
Mr. Helland, in his individual capacity under Bivens. (See, e.g., Doc.
1 at 3-4; Doc. 5 at 1.)
• 	Third, official-capacity claims against Mr. Eishen and the “Associate
Warden/Captain” under the First and Fifth Amendments. (See, e.g.,
Doc. 1 at 4; Doc. 5 at 1.) Mr. Lindsey seeks a declaratory judgment
that Defendants violated his constitutional rights and various forms of
injunctive relief.
• 	Fourth, a potential Bivens claim against Mr. Eishen and the “Associate
Warden/Captain” based on “Supervisory Liability.” (See Doc. 5 at 1.)
Mr. Lindsey seeks several remedies: a declaratory judgment that Defendants
violated his constitutional rights (see Docs. 1 at 4; 5 at 1); “nominal, compensatory, and
punitive damages” from Mr. Helland in his individual capacity (see Doc. 1 at 4); and
prospective injunctive relief against the official-capacity defendants, including orders to
“prohibit[] further retaliation” and require “supervisory review of disciplinary actions
involving” Mr. Lindsey. (Id.)
This action faces a threshold problem. The Prison Litigation Reform Act (“PLRA”6)
requires that “[n]o action shall be brought with respect to prison conditions under [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.” 42
U.S.C. § 1997e(a). This requirement is mandatory and not subject to judicial discretion.
See Porter v. Nussle, 534 U.S. 516, 524 (2002); Smith v. Andrews, 75 F.4th 805, 807 (8th
The Court therefore construes this theory as entirely subsumed within Mr. Lindsey’s First
Amendment retaliation claim.
6 Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321, 1321-66 to -77 (1996) (codified as
amended in scattered sections of 11, 18, 28, and 42 U.S.C.).
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 4 of 8

5
Cir. 2023) (citing Ross v. Blake, 578 U.S. 632 (2016)). It applies equally to Bivens actions
and claims for injunctive relief, and it encompasses “all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter, 534 U.S. at 524, 532; see also Rodd v.
Lariva, 515 F. Supp. 3d 1006, 1012 (D. Minn.) (applying § 1997e(a) to Bivens claim), aff’d
in relevant part, 859 F. App’x 18 (8th Cir. 2021).
“Proper exhaustion” means “compliance with an agency’s deadlines and other
critical procedural rules” through all available levels of administrative review, not just
starting the process. Woodford v. Ngo, 548 U.S. 81, 90, 93, 100 (2006); see also, e.g.,
Prowse v. Washington, 9 F.4th 836, 838 (8th Cir. 2021). Exhaustion must be completed
before a plaintiff files suit; a prisoner cannot file prematurely and then try to complete the
grievance process while federal litigation is pending. See Johnson v. Jones, 340 F.3d 624,
627–28 (8th Cir. 2003); Traylor v. Minn. Dep’t of Corrs., No. 24-CV-1275 (JWB/SGE),
2025 WL 4112898, at *10 (D. Minn. Nov. 24, 2025) (quoting Johnson), R. & R. adopted,
2026 WL 312960 (D. Minn. Feb. 5, 2026).
The BOP has established a comprehensive administrative-remedy program for
federal inmates, codified at 28 C.F.R. § 542.10–.19. The process requires three levels of
formal review: (1) an institutional-level request to a facility’s warden (“BP-9”); (2) an
appeal to the BOP’s regional director (“BP-10”); and (3) a final appeal to the BOP’s general
counsel (“BP-11”). See 28 C.F.R. §§ 542.13-542.15. A prisoner has exhausted available
administrative remedies only after the central office acts on the BP-11 (or the BOP’s time
to respond has expired). See id. § 542.18.
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 5 of 8

6
Mr. Lindsey’s 	sworn 	Declaration 	states 	that 	he 	“has 	initiated 	exhaustion 	of
administrative remedies and has filed a BP-9, which is currently pending review by the
Warden.” (Doc. 11 at 1.) He does not allege, and no exhibit shows, that he has pursued his
administrative remedy to the regional or general-counsel levels. Mr. Lindsey thus remains
in the midst of a multistep process that he admits he has not completed.7
To be 	sure, 	Mr. Lindsey asserts that exhaustion should 	be excused because
“administrative relief cannot prevent immediate harm while retaliation is ongoing.” (Id.)
But the Supreme 	Court has foreclosed this exception. The PLRA “establishes [a]
mandatory exhaustion regime[], foreclosing judicial discretion” to create exceptions based
on futility, urgency, or the inadequacy of administrative relief. Ross, 578 U.S. at 639. A
prisoner must exhaust administrative remedies as long as they remain “available,” meaning
“‘capable of use’ to ‘obtain some relief for the action complained of.’” Id. at 642 (quoting
Booth v. Churner, 532 U.S. 731, 738 (2001)). A court can excuse failure to exhaust an
available remedy only in narrow circumstances: (1) the process “operates as a simple dead
end”; (2) the process is “so opaque” that “no ordinary prisoner can discern or navigate it”;
or (3) “prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 643-44; see also, e.g.,
7 Ordinarily, failure to exhaust is an affirmative defense, and the Court would not raise it
sua sponte at screening. See Jones v. Bock, 549 U.S. 199, 216 (2007). But where the
complaint and supporting materials affirmatively show that a prisoner has not exhausted,
dismissal at screening is appropriate because the pleading’s allegations themselves show
that the plaintiff is not entitled to relief. See id. at 215; see also, e.g., Bailey v. Centurion
Med. Co. Corp. of Minn., No. 21-CV-1927 (PAM/BRT), 2022 WL 2289126, at *4
(D. Minn. Apr. 20, 2022), R. & R. adopted, 2022 WL 2289125 (D. Minn. May 18, 2022),
aff’d, No. 22-2339 (8th Cir. Sept. 22, 2022).
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 6 of 8

7
Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019) (recognizing Ross exceptions).
Mr. Lindsey does not allege that the BOP’s administrative-remedy program is unavailable
in these ways; he alleges only that the process is ongoing. That is a reason to wait, not to
excuse the requirement.
The Court therefore recommends dismissing this action under 42 U.S.C. § 1997e(a)
based on Mr. Lindsey’s acknowledged failure to exhaust administrative remedies. The
Court recommends dismissing without prejudice, allowing Mr. Lindsey to refile after
completing all levels of the BOP’s administrative-remedy program.8 The Court also
recommends denying as moot Mr. Lindsey’s pending Motion for a Temporary Restraining
Order (Doc. 2) and Application to Proceed in forma pauperis (Doc. 9).
RECOMMENDATION
Based upon all of the files, records, and proceedings in this case, IT IS
RECOMMENDED that:
1. 	This action be DISMISSED WITHOUT PREJUDICE under 42
U.S.C. § 1997e(a) based on Plaintiff David Shamont Lindsey’s failure
to exhaust administrative remedies.
8 Even if Mr. Lindsey completes the BOP’s administrative-remedy program and refiles,
several of his claims face serious substantive barriers. First, his central claim of First
Amendment retaliation appears foreclosed by Egbert v. Boule, which holds that “there is
no Bivens action for First Amendment retaliation.” 596 U.S. 482, 499 (2022). Similarly,
his Fifth Amendment due-process claim likely presents a “new Bivens context” that the
Supreme Court has not recognized, and the Court’s recent decision in Goldey v. Fields
reinforces 	that 	the 	BOP’s 	administrative-remedy 	program 	provides 	an 	“‘alternative
remedial structure’” counting against Bivens extensions in the federal-prisoner setting. 606
U.S. 942, 944 (2025) (per curiam) (quoting Ziglar v. Abbasi, 582 U.S. 120, 137 (2017)).
This footnote is simply intended to provide Mr. Lindsey fair notice of these issues so that
he may better decide how to proceed; the Court need not, and so does not, rule on the merits
of any of Mr. Lindsey’s claims.
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 7 of 8

8
2. 	Mr. Lindsey’s Motion for a Temporary Restraining Order (Doc. 2) and
Application to Proceed in forma pauperis in this action (Doc. 9) be
DENIED as moot.
Dated: March 11, 2026 	_s/Douglas L. Micko______________
Douglas L. Micko
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served with a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served with a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c).
CASE 0:26-cv-00374-PJS-DLM Doc. 12 Filed 03/11/26 Page 8 of 8