Opinion
CIV-21-516-JD
09-07-2022
WILLIAM L. HARDING, Plaintiff, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff William Harding (“Plaintiff”), a state prisoner appearing pro se,initiated this action in May 2021, alleging racial discrimination, defamation, hostile work environment, retaliation, and violations under 42 U.S.C. § 1981, Title VII of the Civil Rights Act, and the Equal Pay Act, concerning his employment at the Joseph Harp Correctional Center (“JHCC”). (Doc. 1, at 4, 7-10). Specifically, Plaintiff maintains that he was improperly undercompensated and wrongfully “laid in” from his position as Hardwood Chair at the Joseph Harp Furniture Factory (“JHFF”) because of his race. (Id.) United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). (Doc. 6). Plaintiff named the following Defendants: Oklahoma Department of Corrections (“ODOC”), JHFF, Alex Lunn, Keith Wells, and Anthony Wiechec. (Id. at 2-3). Plaintiff also brought identical claims in state court, and Defendants ODOC, JHFF, Lunn, and Wells removed the matter to this Court. Harding v. ODOC, Case No. CIV-21-842-JD (W.D. Okla. Oct. 25, 2021) (Doc. 1, Notice of Removal). This Court consolidated the cases into the above-captioned case number. (Doc. 28).
The court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination.
Before the Court now is Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Doc. 36). Defendants request that the Court dismiss this action because Plaintiff failed to exhaust his administrative remedies and further failed to state a claim for which relief may be granted. (Id.) Plaintiff has responded. (Docs. *27, 39).For the reasons set forth fully below, the undersigned recommends the Court GRANT Defendants summary judgment and DISMISS Plaintiff's Complaint without prejudice based on Plaintiff's failure to exhaust administrative remedies.
Asterisks denote documents available for viewing in the docket sheet for Case No. CIV-21-842-JD.
I. Plaintiff Failed To Exhaust His Administrative Remedies, and Defendants Are Therefore Entitled To Summary Judgment.
A. Standard of Review
Because Defendants rely on materials not attached to or incorporated into Plaintiff's Complaint, Proposition I of their Motion to Dismiss (Doc. 36, at 3-7) regarding exhaustion of administrative remedies is automatically converted to a motion for summary judgment. Fed.R.Civ.P. 56(d); (see Doc. *6, at 3; Doc. 22, at 2). “The court shall grant summary judgment 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). When a defendant asserts an affirmative defense - such as a failure to exhaust administrative remedies - as a basis for summary judgment, he “must demonstrate that no disputed material fact exists regarding the affirmative defense asserted when the evidence is viewed in the light most favorable to the plaintiff.” Kramer v. Wasatch Cty. Sheriff's Office, 743 F.3d 726, 746 (10th Cir. 2014) (internal quotation marks omitted). “[A] defendant bears the burden of ‘proving that the plaintiff did not [exhaust his] administrative remedies.'” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)). If the defendant satisfies this burden, the plaintiff would incur a duty to “demonstrate with specificity the existence of a disputed material fact,” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997), or to “show that remedies were unavailable to him as a result of” the actions of prison officials. Tuckel, 660 F.3d at 1254. In the absence of either showing, the defendant would be entitled to summary judgment on the affirmative defense. See id.
B. Exhaustion Requirement
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Because exhaustion of available remedies “is mandatory under the PLRA[,] . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). This means a prisoner must use “all steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits).” Id. at 90 (internal quotation marks omitted). “An inmate who begins the grievance process but does not complete it is barred from pursuing a . . . claim under PLRA for failure to exhaust his administrative remedies.” Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (internal quotation marks omitted).
But, as noted above, the PLRA's exhaustion requirement is limited to such administrative remedies as are available to be exhausted. “Administrative remedies are deemed unavailable if, among other things, ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” May, 929 F.3d at 1234 (quoting Ross v. Blake, 578 U.S. 632, 644 (2016)). The court liberally construes grievances filed by unrepresented inmates. Greer v. Dowling, 947 F.3d 1297, 1302 (10th Cir. 2020).
C. The ODOC Grievance Procedure
The Oklahoma Department of Corrections (“ODOC”) Operations Memorandum OP-090124 establishes the offender grievance process related to Plaintiff's complaints against Defendants. (Doc. *11, at Ex. 8). The first step in the grievance process is “informal resolution,” including submitting a “Request to Staff” form (or “RTS”) if the complaint is not resolved by talking with staff. (Id. at 8). The RTS form must be submitted within seven days of the incident and “must be specific as to the complaint, dates, places, personnel involved and how the inmate/offender was affected.” (Id. at 9). The RTS will be assigned “to the appropriate staff member who will attempt to resolve the issue....The staff member assigned will respond in writing within ten (10) days of receipt ....” (Id. at 10).
If a complaint is not resolved informally, the inmate must submit a grievance form, accompanied by a copy of the underlying RTS and response, to the proper reviewing authority. (Id. at 11). The policy provides that
[i]f the inmate/offender does not follow instructions as explained in this procedure and on the grievance forms, the grievance may not be answered. If allowed, the inmate/offender must properly re-submit the grievance within 10 days of notice of improper filing.(Id. at 11-12). “If the inmate/offender fails to correct the errors or properly resubmit, the grievance will not be answered and the inmate/offender will have waived/forfeited the opportunity to proceed in the grievance process.” (Id. at 14).
The final step in the grievance procedure is the appeal to the Administrative Review Authority (“ARA”), which must be based on newly discovered or newly available evidence or probable error committed by the reviewing authority. (Id. at 14-15). “The ARA will notify the inmate/offender when a grievance and/or grievance appeal is submitted improperly.” (Id. at 16). “The inmate/offender will be given one opportunity to correct any errors, which must be received by the ARA within 10 days of the time the inmate/offender is notified of the improper submission.” (Id.) If the inmate fails to correct the errors or properly resubmit his complaint, “the grievance or grievance appeal will not be answered and the inmate/offender will have waived/forfeited the opportunity to proceed in the grievance process.” (Id.) “The ruling of the ARA is final and will conclude the internal administrative process available to the inmate/offender within the jurisdiction of ODOC.” (Id. at 17).
D. Plaintiff Failed to Exhaust Administrative Remedies on His Claims.
Plaintiff filed three Requests to Staff and two grievances, set forth below, which overlap with the allegations of discrimination asserted in his Complaint.
Plaintiff provides, but does not rely upon, a March 9, 2021, Request to Staff. In this Request to Staff, Plaintiff only requests - and receives - information regarding when he was terminated and by whom. (Doc. 1, at Ex. 2, at 11). Defendants also provide Grievance 20-138, and the related Requests to Staff. (Doc. *11, at Ex. 10). However, Plaintiff does not provide, or rely upon these documents; nor does the undersigned find them to be related to the claims or Defendants in this action. Thus, they are not discussed in this Report and Recommendation.
RTS dated March 11, 2020
• March 11, 2020: Plaintiff submitted an RTS complaining he was “laid in” without cause from his job at the furniture factory as punishment for “hobby crafting,” after building a bench for himself - despite having made six serving trays and one cutting board for Defendant Wiechec's personal use, for which Wiechec promised him one dozen Daylight Donuts apple fritters per item, but only delivered one dozen fritters in total. (Doc. *11, at Ex. 3, at 2-3). Plaintiff requested that he be “fully paid for items made for [Defendant Wiechec]” at the rate of $50 per item, and that he be paid “for all days laid in.” (Id. at 2).
• March 19, 2020: Defendant Lunn responded to the RTS, informing Plaintiff that he was “not allowed to return to work during the investigation of this request. The investigation is currently being handled by OIG. You will be notified of any change.” (Id.)
RTS dated March 18, 2020
• March 18, 2020: After attesting that he had already submitted a Request to Staff or grievance on this same issue, Plaintiff submitted a second RTS complaining that he “could not return to work because of some investigation.” (Doc. *11, at Ex. 4, at 2). Plaintiff then alleged “a blatant display of racial prejudice” and “a hostile work environment” by Defendant Wiechec, citing disciplinary discrepancies based on race. (Id. at 4). Plaintiff asked to “be paid $10.00 a day for every day off, to stay
as head in Hardwood Chair Dept., to be paid 75C an hour, a written apology from [Defendant] Wiechec, and $50.00 for each piece made for [Defendant] Wiechec, which is 7 pieces.” (Id. at 2).
• March 19, 2020: Defendant Lunn responded to the RTS, informing Plaintiff that he was “not allowed to return to work during the investigation of this request. The investigation is currently being handled by OIG. You will be notified of any change.” (Id.)
RTS dated March 19, 2020
• March 19, 2020: After attesting that he had previously submitted a Request to Staff or grievance on this same issue, Plaintiff submitted a third RTS complaining that he “could not return to work due to an ongoing investigation.” (Doc. *11, at Ex. 5, at 2). He stated that “[i]f there is an investigation, I want to be insured that I have a fair chance to have my say myself. Furthermore that I will not be harassed by any employee of OCI or DOC due to any findings or outcome.” (Id. at 3). Plaintiff requested an “injunction [be] place[d] by Warden or Chief that [he] not be shipped due to OCI investigation and to speak with O.S.B.I. investigator about these and other issues.” (Id. at 2).
• March 23, 2020: Defendant Lunn responded to the RTS, informing Plaintiff that “this request and investigation is still under review by OIG. I will forward all information to the investigator(s).” (Id.)
Grievance 20-128
• April 6, 2020: After attesting that he had “previously submitted a grievance on this same issue,” and stating that he “filed Request[s] to Staff on March 12, 16, 18,” Plaintiff submitted Grievance 20-128 to the Director of DOC. (Doc. *11, at Ex. 11, at 4). He complained that he “was laid in without reason from OCI furniture factory [and] discriminated against by [Defendant] Wiechec.” (Id.) Plaintiff further alleged that Defendant Weichec “allowed white inmates get away with” the same things Plaintiff was disciplined for. (Id. at 5). Plaintiff requested that Defendant Wiechec pay him $50 for each personal item that Plaintiff made for him, that Plaintiff retain his job at JHCC Furniture Factory, and that Plaintiff be paid $10 for the time he was “wrongly laid in.” (Id. at 4). This grievance was received by the ARA on April 17, 2020. (Id.)
• April 20, 2020: DOC Director's Designee Mark Knutson informed Plaintiff that his grievance was filed improperly and that he should “properly submit [his] grievance to the review authority at JHCC, not the Director. (Id. at 3).
Grievance 20-054
• April 28, 2020: After attesting that he had “previously submitted a grievance on this same issue,” Plaintiff submitted Grievance No. 20-054, complaining that he “was laid in from OCI . . . for building a work bench and . . . [for] raising [his] voice to [Defendant] Wiechec.” (Doc. *11, at Ex. 9, at 3). Plaintiff refers to his previous Requests to Staff from March 11, 18, and 20, for “complete information,” but fails to attach them. (Id. at 3-4). Plaintiff requested that he “retain job at OCI furniture factory, be paid for all days laid in, [and] paid for work done for [Defendant] Wiechec.” (Id. at 3). The grievance was received in the JHCC warden's office on May 6, 2020. (Id.)
• May 11, 2020: Warden Pettigrew returned Grievance No. 20-054 to Plaintiff unanswered because Plaintiff failed to attach the corresponding Requests to Staff and because the matter was “still pending investigation.” (Id. at 2). Plaintiff signed the response, indicating receipt, on May 18, 2020. (Id.) Plaintiff did not resubmit his grievance with proper attachments, nor did he appeal to the ARA. (Doc. *11, at Ex. 12, at 2).
In response, Plaintiff states that he “did complete the admin remedies available to him to the degree allow[ed].” (Doc. *27, at 1). He further states that,
[t]he original grievance was filed to the OKC head office at the direction of Kara Caskey, the Warden's Secretary. She stated that per Warden Pettigrew, Joseph Harp had nothing to do with the functions of the OCI furniture factory. The OKC DOC office returned the grievance to refile in which Plaintiff did. Which was returned unanswered due to pending investigation. Plaintiff was never given answer nor response as to the results of the investigation until the special report requested by this court. If the Plaintiff would have waited the limitations time to file would have elapsed. . . . Please note Special Report 0017 and 0024 where DOC staff changed the name to ‘Alex Lunn' which hindered to admin process, administrative remedies available to him and DOC created an estoppel when they never informed the Plaintiff with the results of the investigation in which they stated was the reason for not answering the grievance.(Id. at 1-3). Plaintiff contends that ODOC failed to answer his grievances, and therefore his administrative remedies should be deemed exhausted. (Doc. 39, at 3).
Warden Pettigrew returned Grievance No. 20-054 to Plaintiff unanswered in part because Plaintiff failed to attach the corresponding Requests to Staff. (Doc. *11, at Ex. 9, at 2). It is undisputed that Plaintiff did not correct this error and re-submit the grievance. This alone is a failure to exhaust administrative remedies. Indeed, ODOC policy provides that “[i]f the inmate/offender fails to correct the errors or properly resubmit, the grievance will not be answered and the inmate/offender will have waived/forfeited the opportunity to proceed in the grievance process.” (Doc. *11, at Ex. 8, at 14). Plaintiff also does not dispute that he failed to appeal Grievance No. 20-054 to the ARA, as provided in the ODOC policy. A prisoner must use “all steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits).” Woodford, 548 U.S. at 90 (internal quotation marks omitted). “An inmate who begins the grievance process but does not complete it is barred from pursuing a . . . claim under PLRA for failure to exhaust his administrative remedies.” Thomas, 609 F.3d at 1118 (internal quotation marks omitted).
Even to the extent that the grievance was unanswered because the matter was “still pending investigation” (Doc. *11, at Ex. 9, at 2), and that could be deemed a “failure to respond” by the warden,it is undisputed that Plaintiff failed to seek further relief by addressing the lack of response with the ARA - as permitted by ODOC policy. “If there has been no response by the reviewing authority within 30 days, but no later than 60 days, of submission, the inmate/offender may send a grievance to the ARA with evidence of submitting the grievance to the proper reviewing authority,” addressing only the reviewing authority's lack of response to the grievance. (Doc. *11, at Ex. 8, at 13). Thus, Plaintiff had the opportunity to continue his appeal within the administrative system - despite the prison officials' alleged failure to respond. Plaintiff's decision to forgo ODOC's alternative appeal process does not transform a failure to respond into an act that renders the administrative exhaustion process unavailable. In Smith v. Beck, 165 Fed.Appx. 681(10th Cir. 2006), the Tenth Circuit held that
The court reviews evidence and draws inferences in the light most favorable to Plaintiff, the non-moving party. Burke v. Utah Transit Auth. & Loc. 382, 462 F.3d 1253, 1258 (10th Cir. 2006).
[a]lthough a prison official's failure to respond to a grievance can make the administrative exhaustion process unavailable, the ODOC policies provide alternatives: as explained above, prisoners may continue to appeal within the prison system even if they do not receive responses to their Requests to Staff or their grievances. Thus, prison officials' alleged failure to respond does not excuse Mr. Smith's failure to exhaust his administrative remedies.Id. at 685 (10th Cir. 2006) (internal citation omitted). See also Hemphill v. Jones, 343 Fed.Appx. 329 (10th Cir. 2009) (unpublished) (finding plaintiff failed to exhaust administrative remedies by failing to use ODOC's procedure for addressing an unanswered grievance); Leatherman v. CoreCivic, Inc., 2022 WL 1262553 (W.D. Okla. Apr. 28, 2022) (same).
Plaintiff, therefore, fails to satisfy his burden of showing that the grievance process was unavailable to him. The undisputed facts establish that Plaintiff did not exhaust his administrative remedies on his claims because he did not properly utilize all steps of the grievance procedure such that his issues were addressed on the merits. Woodford, 548 U.S. at 90. Because summary judgment can be granted in favor of Defendants on the basis of lack of exhaustion, the undersigned does not address the merits of Plaintiff's claims against Defendants.
II. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that Defendants' Motion to Dismiss (Doc. 36), converted to a Motion for Summary Judgment, be GRANTED on the basis of lack of exhaustion and that Plaintiff's Complaint (Doc. 1) be DISMISSED without prejudice to the re-filing. See Hannah v. Hawk, 53 Fed.Appx. 895, 896 (10th Cir. 2003).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 28, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.