Opinion
CIV-20-764-R
12-03-2021
LAMONE JOHNSON, a/k/a/ MARYLIN MONAE PORTER, Plaintiff, v. LUKE PETTIGREW, Interim Warden, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Lamone Johnson, a/k/a Marylin Monae Porter (“Plaintiff”), a state prisoner appearing pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983, alleging civil rights violations. (Doc. 15). United States District Judge David L. Russell referred the matter to United States Magistrate Judge Suzanne Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5). That referral was transferred to the undersigned Magistrate Judge. (Doc. 16).
Before the court are Defendants Luke Pettigrew and Ancilla Monden's Motion to Dismiss (Doc. 29) and Defendant Leo Brown's Motion to Dismiss. (Doc. 36). Plaintiff filed a response (Doc. 37), and the Motions are at issue. For the reasons set forth fully 1 below, the undersigned recommends that the Motions to Dismiss, converted to Motions for Summary Judgment, be granted.
Citations to the parties' filings and attached exhibits will refer to this court's CM/ECF pagination. Except for changes in capitalization, quotations are verbatim unless indicated.
Plaintiff's response is directed only to Defendants Luke Pettigrew and Ancilla Monden's Motion. (Doc. 37, at 1). Given the similarity between the two defense Motions, the undersigned construes Plaintiff's filing to respond to both motions.
I. Procedural History and the Instant Motion
Plaintiff filed an Amended Complaint asserting two claims against Defendants Luke Pettigrew, Ancilla Monden, and Leo Brown, in their individual and official capacities, related to her unsuccessful efforts to marry another state inmate who is housed at a different facility. (Doc. 15). Plaintiff makes the following two claims against each Defendant:
• a violation of the Fourteenth Amendment's right to substantive due process when Defendants refused to allow Plaintiff to marry her fiance, Marquis Porter, who is an inmate at another facility. (Id. at 8-12). Plaintiff seeks $7,000 in punitive damages from each defendant, the “cost for suit, ” and a permanent injunction ordering Defendants to allow her to marry Mr. Porter. (Id. at 12).
• a violation of Plaintiff's equal protection rights under the Fourteenth Amendment by discriminating against her because she is a male-to-female transgender woman who “seeks to marry a gay male.” (Id. at 12-13). She claims “any ‘transgender related matter' ends with discrimination.” (Id. at 13). Plaintiff seeks $3,000 from each defendant in punitive damages and the “cost of [the] suit.” (Id.)
Defendants filed the instant Motions requesting that the court dismiss this action because (1) Plaintiff failed to exhaust her administrative remedies; (2) Defendants did not personally participate in a constitutional violation; (3) Defendants did not violate Plaintiff's Fourteenth Amendment Rights; (4) Plaintiff is not entitled to injunctive relief; and (5) Defendants are entitled to qualified immunity. (See Docs. 29, 36).
Defendants rely on documents outside of the pleadings in their Motions to Dismiss. (See Docs. 29, 36). The parties were advised that “if a Defendant files a Fed.R.Civ.P. 12(b)(6) motion and relies on materials not attached to or incorporated by reference in the Amended Complaint, the court will convert the motion to dismiss into a motion for 2 summary judgment, pursuant to Fed.R.Civ.P. 12(d).” (Doc. 17, at 2). Because the undersigned does not exclude the documents presented outside of the pleadings, Defendants' Motions to Dismiss should be converted to Motions for Summary Judgment. Fed.R.Civ.P. 12(d).
“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.” Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996).
II. Standard of Review for Summary Judgment
Summary judgment shall be granted where 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). Parties may establish the existence or nonexistence of a material disputed fact through:
• submission of “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials; or”
• demonstration “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”Fed. R. Civ. P. 56(c)(1)(A)-(B). The cited evidence should be viewed “in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005) (citation omitted).
When a defendant asserts an affirmative defense, such as the failure to exhaust administrative remedies, in a motion for summary judgment, he or she “must demonstrate that no disputed material fact exists regarding the affirmative defense asserted when the 3 evidence is viewed in the light most favorable to the plaintiff.” Kramer v. Wasatch Cnty. Sheriff's Office, 743 F.3d 726, 746 (10th Cir. 2014) (internal quotation marks and citation omitted). If the defendant satisfies this burden, the plaintiff would incur a duty to “demonstrate with specificity the existence of a disputed material fact” or “show that remedies were unavailable to [her] as a result of” the actions of prison officials. Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). In the absence of either showing, the defendant would be entitled to summary judgment on the affirmative defense. See id.
III. Analysis: Exhaustion of Administrative Remedies
A. The 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 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 4 deemed unavailable if, among other things, ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (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).
B. The ODOC Grievance Procedure
The Oklahoma Department of Corrections (“ODOC”) Operations Memorandum OP-090124 establishes the offender grievance process for state inmates. (Doc. 28, Ex. 16, at 2-28). The first step in the grievance process is “informal resolution, ” including submitting a “Request to Staff” (“RTS”) if the complaint is not resolved. (Id. at 7-9). The informal resolution process must occur before a grievance can be submitted. (Id. at 7). The RTS “must be specific as to the complaint, dates, places, personnel involved and how the inmate/offender was affected.” (Id.)
When an issue is not resolved with the informal RTS process, the inmate must submit a grievance form. (Id. at 9). 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.” (Id. at 10). The reviewing authority screens grievances to determine, among other things, whether the inmate followed proper procedures for submitting a grievance and whether the grievance and/or RTS contained more than one issue. (Id. at 11-12). “The reviewing authority will notify the inmate/offender when a grievance is submitted improperly” and the “inmate/offender will be given one opportunity to correct any errors and properly resubmit within ten (10) days of the date the 5 inmate/offender is notified of the improper submission.” (Id. at 12-13). If the inmate fails to correct the errors, the grievance “will be not be answered and the inmate/offender will have waived/forfeited the opportunity to proceed in the grievance process.” (Id. at 13).
The final step in the grievance procedure is an appeal to the Administrative Review Authority (“ARA”). (Id.) The appeal must be based on newly discovered or newly available evidence or probable error committed by the reviewing authority. (Id.) If an appeal is submitted improperly, “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 improper submission.” (Id. at 14). “If the inmate/offender fails to correct the errors or properly resubmit, 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. at 15).
The grievance policy allows the reviewing authority to “determine there is abuse or misuse of the grievance process and may restrict an inmate's/offender's ability to submit a grievance.” (Id. at 18). “If abuse of the process is determined, ” the inmate/offender is “placed on grievance restriction.” (Id. at 19). When placed on grievance restriction, “for all grievances and appeals submitted during the restriction period, the inmate/offender is required to show cause as to why they should be permitted to grieve.” (Id.) To do so, the inmate/offender must submit a verified affidavit including “a complete, accurate, and legible list by grievance number, date, description, and disposition at each level, of all grievances previously submitted by the inmate/offender within the last 12 months” and a statement “that all contents of the grievance are true and correct to the best of the 6 inmate's/offender's knowledge.” (Id.) “Each page of the affidavit must be legible and signed, verified, and notarized at the end of the text.” (Id.) “[B]efore considering the merits of the grievance or appeal, the reviewing authority will determine whether the inmate/offender has complied with the requirements for being permitted to submit a grievance or appeal.” (Id.) If the inmate/offender has not complied with all such requirements, “the inmate/offender will be provided written notification and the grievance or appeal will not be answered.” (Id.) But, “the grievance or appeal may proceed when the inmate/offender meets the guidelines outlined in [the] procedure.” (Id. at 20).
C. Plaintiff's Grievance Timeline
Plaintiff filed three grievances related to her efforts to marry Mr. Porter. The three grievances - No. 20-065, No. 20-90, and No. 20-131 - and related Requests to Staff and appeals are substantiated by exhibits attached to the Amended Complaint (Doc. 15) and the Special Report (Doc. 28). Those documents establish the following timeline:
Plaintiff also filed nine Requests to Staff that she did not advance to the grievance stage. (See Doc. 15, Ex. 2; id. at Ex. 6; id. at Ex. 8, at 10-11; id. at Ex. 9, at 2; Doc. 28, Ex. 17, at 7, 10, 19; id. at Ex. 18, at 2, 4).
Grievance No. 20-065
• May 8, 2020: Plaintiff submitted an RTS to “Chaplain Ruby, ” asserting she wanted to marry her fiance, who was an inmate at Lawton Correctional Facility. (Doc. 15, Ex. 3, 7 at 4-5). Plaintiff noted there is an ODOC policy addressing inmate marriages (OP-090128). (Id.) She also cited a case decided by United States Supreme Court, Turner v. Safley, 482 U.S. 78, 100 (1987), which established that inmates have a right to marry other inmates. (Doc. 15, Ex. 3, at 4-5). Plaintiff noted her requested marriage did not affect the security of the prison and that she was supposed to receive assistance in obtaining a marriage license. (Id.) Plaintiff specifically requested approval of a private wedding ceremony with her fiance and help obtaining a marriage license. (Id. at 4).
ODOC Operations Memorandum OP-090124 states “[t]here is no mailbox rule regarding submission of requests to staff or grievances and grievance appeals. The document must be received in the appropriate office within the required time frame.” (Doc. 28, Ex. 16, at 4). Thus, Plaintiff's administrative filings are listed by the dates on which they were received and not the dates on which she completed the forms.
• May 13, 2020: A staff member sent a response to Plaintiff, stating: “I provided the necessary form to you to fill out and send to the fiance to complete and send to the Agency Chaplain, Leo Brown.” (Id.)
• May 21, 2020: Plaintiff submitted Grievance No. 20-065 to Defendant Pettigrew, in which she asserted the same facts and requested the same relief as in her RTS. (Doc. 15, Ex. 3, at 2-3).
• May 29, 2020: The grievance was returned to Plaintiff unanswered for the following reasons:
You are on grievance restriction and/or proper documentation not included. Per OP-090124, you must submit a duly verified notarized affidavit with a listing containing a complete, accurate and legible list of grievances previously submitted.
* * *
Only the current and correct DOC grievance (OP-090124A- Revised 4/2019) and Request to Staff forms will be accepted. The updated forms may be provided by the Law Library.
* * *8
Other: Per the Request to Staff, information was provided to you by the facility chaplain. In addition, the chaplain stated on send the forms to once complete [sic].(Id. at 1).
• June 12, 2020: Plaintiff submitted a grievance appeal to the ARA asserting probable error by the reviewing authority. (Doc. 28, Ex. 20, at 2-3). Plaintiff also attached a notarized affidavit listing grievances she filed within the prior twelve months. (Id. at 4-5).
• July 8, 2020: The ARA noted Plaintiff's grievance was filed improperly because: “Inmate on grievance restriction and/or proper documentation not included.” (Id. at 6). Specifically, the response stated that Plaintiff's “affidavit [was] not accurate and [was] not in compliance with OP-090124, Section X.B.2.a.” (Id.) The response advised Plaintiff she had “one final” opportunity to resubmit a corrected grievance within ten days of receiving the form. (Id.) A note on Plaintiff's affidavit signed by “MK” indicates the affidavit was missing “‘sensitive' grievance ARA 20-085” from May 12, 2020, and that the back page was not signed and notarized. (Doc. 28, Ex. 20, at 5).
Mark Knutson was the Director's Designee who responded to the appeal on behalf of the ARA. (Doc. 28, Ex. 20, at 6).
• July 27, 2020: Plaintiff resubmitted her grievance and notarized affidavit. (Doc. 28, Ex. 29, at 2-5).
• August 12, 2020: The ARA responded that the grievance was filed improperly because the “resubmitted appeal was out of time and [Plaintiff's] affidavit [was] not accurate or in compliance with OP-090124, Section X.B.2.a.” (Id. at 6). The response also advised Plaintiff that she was “now out of time” to appeal. (Id.). A note on Plaintiff's 9 affidavit indicates it was missing “ARA 20-085 ‘sensitive' grievance” from May 12, 2020. (Id. at 4).
Grievance No. 20-90
• May 13, 2020: Plaintiff filed an RTS to “Chaplain, ” seeking a list of names and addresses of Oklahoma clergy who perform LGBT (lesbian, gay, bisexual, transgender) wedding ceremonies. (Doc. 15, Ex. 7, at 3).
• May 22, 2020: A staff member responded to Plaintiff, writing: “I do not have a list. You would have to find one. I don't have that information.” (Id.)
• June 5, 2020: Plaintiff filed grievance No. 20-90, making the same request as in her RTS. (Id. at 2; Doc. 28, Ex. 21, at 2-3).
• June 15, 2020: Plaintiff's grievance was returned unanswered because: (1) she was on grievance restriction and the proper documentation was not included, and (2) the issue was not considered grievable by ODOC. (Doc. 15, Ex. 7, at 1).
• July 23, 2020: Plaintiff filed an appeal contending there was both newly discovered evidence not considered by the reviewing authority and probable error committed by the reviewing authority. (Doc. 28, Ex. 22, at 2). Specifically, Plaintiff wrote that: “OP-090128 states that there is someone who is to be appointed at the facility to make sure all ‘prerequisites' are met. This facility doesn't seem to have one.” (Id.) Plaintiff also submitted an affidavit listing grievances she had filed. (Id. at 3-4).
• August 12, 2020: The ARA responded that Plaintiff's grievance was filed improperly because (1) it was received out of time, (2) Plaintiff was on grievance restriction 10 and proper documentation was not included, and (3) because her affidavit was not accurate or in compliance with OP-090124, Section X.B.2.a. (Id. at 5). A notation on Plaintiff's grievance indicates the affidavit was missing “ARA 20-085 ‘sensitive' grievance” from May 12, 2020. (Id. at 3).
• September 1, 2020: Plaintiff filed a Request to Director to Submit a Misconduct/Grievance Appeal Out of Time because the mail room delayed her mail due to COVID-19. (Id. at 6-7).
• September 8, 2020: The Director's Designee denied Plaintiff's Request to Director to Submit a Misconduct/Grievance Appeal Out of Time. (Id. at 6).
Grievance No. 20-131
• July 14, 2020: Plaintiff submitted an RTS to Defendant Warden Pettigrew, stating:
On 7-13-20, I spoke with you at my cell . . . about approving my correspondence to my fiance Marquis Porter . . . at Lawton Corr. Facility. I wish to marry him. Chaplain Ruby has gave me a marriage application[.] My part is filled out, my fiance has to fill out his part, but to send it to him, I need approved correspondence[.]. My name has already been changed to his last name, it is inside my field file, for 1 year, 3 months I have had his name. The records do reflect that he is my fiance[.] In September 1st 2020, it will be 2 years we been together.(Doc. 15, Ex. 10, at 4-5). Plaintiff requested Defendant Pettigrew approve her request to send correspondence to Mr. Porter so that Plaintiff could send him a marriage application. (Id. at 4).
• July 17, 2020: Defendant Pettigrew denied the request, stating: “Per OP-090128, fiance must be on approved visiting list. Per OP-030117, ‘There will be no correspondence 11 between inmates and those under agency supervision . . . .' ‘except as approved by the appropriate facility head/deputy director.'” (Id.)
• July 29, 2020: Plaintiff submitted grievance No. 20-131, alleging the same facts and requesting the same relief as her RTS. (Id. at 2-3).
• August 6, 2020: Defendant Pettigrew denied Plaintiff's grievance because OP-030117 allows for correspondence between inmates if they are immediate family members and no correspondence was allowed between inmates and those under other agency supervision. He further noted that OP-090128 requires that a fiance be on an inmate's approved visitors list for at least six uninterrupted months prior to an application for marriage. (Id. at 1).
• August 17, 2020: Plaintiff filed an appeal which states:
The warden has denied me, marriage rights, & corresponding rights, the policy speaks of “inmate-to-civilian” marriages, it says NOTHING about “inmate-to-inmate” marriages, the warden's error is clearly implying “OP-090128 . . . inmate marriages” to inmate-to-inmate marriages. The U.S. Supreme Court case Turner v. Safley, 482 U.S. 78 (1987) clearly defines that inmates may [marry] other inmates, it is a inmate's right. This should be reversed and remanded and my marriage ceremony and correspondence rights should be granted to me and my common law husband (fiance).(Doc. 28, Ex. 24, at 2-3).
• September 8, 2020: The ARA determined that Plaintiff improperly filed her appeal because she was on a grievance restriction and the appeal did not contain the required affidavit. (Id. at 4). 12
D. Defendants are Entitled to Summary Judgment Because Plaintiff Failed to Exhaust Her Administrative Remedies.
Defendants argue Plaintiff did not exhaust her administrative remedies because she did not “fully or correctly complete the grievance process” with regard to the claims at issue in this case. (Doc. 29, at 16-17; Doc. 36, at 17 (emphasis omitted)). An inmate fails to exhaust her administrative remedies when she makes procedural errors at the grievance and appeal stages - such as failing to comply with grievance-restriction requirements - and forfeits her opportunity to proceed with the grievance process. See Morris v. Fallin, 798 Fed.Appx. 261, 268-69 (10th Cir. 2020) (holding an inmate failed to properly exhaust his claims where his appeal to the administrative review authority was returned unanswered for, among other reasons, failing to comply with his grievance restrictions). “The PLRA clearly prohibits a district court from overlooking grievance procedures set by prison officials. . . . Even substantial compliance is insufficient.” Smith v. Jones, 606 Fed.Appx. 899, 902 (10th Cir. 2015).
In her filing and appealing Grievance No. 20-131, Plaintiff did not file an affidavit listing her prior grievances as required by her grievance restrictions. (Doc. 28, Ex. 24, at 4). (See Doc. 28, Ex. 16, at 19 (imposing affidavit requirement “for all grievances and appeals submitted during the restriction period”)). Thus, Plaintiff did not exhaust her administrative remedies with regard to Grievance No. 20-131. See Craft v. Null, 543 Fed.Appx. 778, 779-80 (10th Cir. 2013) (“We conclude that Mr. Craft did not exhaust available administrative remedies. Though he filed a grievance, he did not file the affidavit or list that was required as a result of the grievance restriction.”); Morris, 798 Fed.Appx. at. 268-69. 13 Further, in Plaintiff's appeals of Grievance No. 20-065 and No. 20-90, her affidavits were incomplete because they did not include grievance “ARA 20-085, ” a sensitive grievance filed on May 12, 2020. (Doc. 28, Ex. 20, at 5; id. at Ex. 22, at 3; id. at Ex. 29, at 4). Plaintiff's failure to include all of the required grievances in her affidavit mandates a finding that she failed to exhaust her administrative remedies. See Dopp v. Larimer, 731 Fed.Appx. 748, 753 (10th Cir. 2018) (holding where prison officials return a grievance because the “accompanying affidavit was insufficient” and the inmate was aware of the affidavit requirement, the inmate “may not successfully argue that he had exhausted his administrative remedies”). Thus, because Plaintiff was on grievance restrictions and her appeals were returned for failure to provide a correct affidavit, she failed to exhaust her administrative remedies.
Plaintiff's appeals of Grievance No. 20-065 were procedurally deficient for additional reasons. Her first appeal was deficient because she did not notarize each page, as required by the ODOC grievance procedure. (Doc. 28, Ex. 16, at 19; id. at Ex. 20, at 4-5). Her second appeal was submitted out of time. (Id. at Ex. 29, at 6).
Plaintiff admits she did not exhaust Grievance No. 20-065, in which she expressed her desire to marry Mr. Porter. (Doc. 37, at 7). But Plaintiff makes several arguments attempting to excuse her non-exhaustion on the basis that the grievance procedure was unavailable to her. (Doc. 37, at 4-5, 7-11). First, Plaintiff generally contends the Defendants use their grievance policy to “trip up” inmates and interfere with the grievance process, such that the grievance procedure is unavailable. (Id. at 9-10). This argument has 14 been rejected by the Tenth Circuit. See Gray v. Ade, 818 Fed.Appx. 792, 796 (10th Cir. 2020) (“Nor can we accept Gray's alternative argument - that the defendants instituted excessive procedural technicalities as a means to prevent him from exhausting the administrative remedies. That there are multiple procedural steps Gray must comply with to properly exhaust the process does not excuse an inmate's failure to abide by the rules.”); Morris, 798 Fed.Appx. at 269 (“Although [the inmate] asserts prison officials thwarted his efforts to exhaust by imposing ‘fraudulent' grievance restrictions . . . we have rejected similar arguments.”); Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (holding “[t]he district court did not err in concluding that [the inmate] failed to exhaust his administrative remedies when he did not properly complete all three required written steps” even where he argued “that defendants made the grievance process unavailable by placing him on grievance restriction and by requiring him to comply with their interpretations of the grievance-restriction requirements”).
Plaintiff does not directly address her other grievances, but her arguments seeking to excuse the failure to exhaust apply equally to all of them.
Second, Plaintiff asserts she attempted to request a list of her grievances from prison staff in order to obtain her grievance log so that her affidavit would be accurate. (Doc. 37, at 8; id. at Ex. 8, at 71). Plaintiff contends the official responded that she did not have any records of grievances at JHCC and that Plaintiff would need to request records from other facilities regarding grievances Plaintiff made while housed and those facilities. (Id.) Plaintiff contends this was tantamount to a denial of her request for a grievance log and resulted in Plaintiff's inability to accurately complete a grievance log to fulfill the requirements of her grievance restrictions. (Id. at Ex. 2, at 1). Plaintiff contends she “submitted her affidavit's knowing they were inaccurate because the defendants knew 15 Plaintiff could not do a correct grievance without a grievance log.” (Id. at 9). Plaintiff claims if the grievance log had been sent, “then [she] would have known what grievance entry was missing to apply and fix the grievance affidavit.” (Id. at 11).
In support of her argument, Plaintiff cites Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80, 97 (D. Mass. 2005). In that case, the court addressed the grievance procedure in Massachusetts, which is not relevant here. Id. Further, the court found that the defendants could not argue the inmate's lack of compliance with the grievance procedures barred his claims where the defendants “failed to abide by the strictures of their own regulations.” Id. But Plaintiff points to no ODOC policy requiring a prison official to provide a prisoner with a grievance log. To the contrary, when addressing ODOC's grievance procedure, courts have found prisoners failed to exhaust their administrative remedies even where prison staff did not provide assistance upon an inmate's request. See Smith, 606 Fed.Appx. at 901-02 (holding administrative remedies were not “effectively unavailable” when the inmate alleged prison staff “declined to identify [the inmate's] mistakes for him or answer certain questions about the complex grievance procedure”). Indeed, Plaintiff's allegation is similar to another case where the ARA returned an inmate's appeal because the affidavit was incorrect and missing information. Greer v. Fallin, 2018 WL 1354454, at *8 (W.D. Okla. Feb. 15, 2018), adopted, 2018 WL 1352182 (W.D. Okla. Mar. 15, 2018). In Greer, the inmate filed an RTS after the appeal was returned, stating that the ARA did not identify the perceived defect or what was missing and, as a result, “it [was] impossible for [him] to ‘correct' it” and that the ARA was preventing him from correcting the affidavit. Id. at *9. The RTS was sent to the ARA, which explained: “It is 16 your responsibility to keep and maintain copies in order to comply with the provisions of your grievance restrictions.” Id. The court rejected the inmate's claim that “prison officials somehow thwarted the grievance process by failing to help him.” Id. at *10. Here, prison staff also put the onus on Plaintiff to obtain grievances she filed. (Doc. 37, Ex. 8, at 71). Thus, Plaintiff's argument that prison staff did not assist her in obtaining a grievance log did not render the grievance procedure unavailable.
Additionally, Plaintiff acknowledges filing a sensitive grievance with the ARA, but she claims she “never heard anything back” and “never knew [it] was ruled on.” (Doc. 37, at 4, 9). She questions how the ARA expected Plaintiff to include “ARA 20-85” in the grievance log and contends the inaccuracy was not her fault. (Id. at 4-5). Even assuming that Plaintiff's version of events is correct, her failure to include information on the affidavit is not excused. If Plaintiff did not have the grievance number of the sole missing item (which she did have by at least July 8, 2020, through the notations on the returned appeal of No. 20-065), she could have included in the affidavit the information she did know - the date, description, and the lack of disposition of the sensitive grievance. Therefore, the undersigned does not find that Plaintiff's ability to complete the grievance procedure was thwarted because of the ARA's determination that “ARA 20-85” was missing from Plaintiff's affidavit.
Finally, Plaintiff contends granting Defendant's Motion on the basis of failure to exhaust would violate her First Amendment to petition the government for redress of grievances. (Doc. 37, at 9-10). But Plaintiff “has reasonable access to the courts; the PLRA specifies how to access them.” Haywood v. Baylor, 804 Fed.Appx. 401, 404 (7th Cir. 2020) 17 (where an inmate argued “the PLRA's exhaustion requirement is an unconstitutional denial of his First Amendment right to access the courts”); see also Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213, n.5 (10th Cir. 2003) (noting that “the Supreme Court has twice interpreted and enforced the rule of 42 U.S.C. § 1997e(a) that prisoners must exhaust administrative remedies before filing in federal court” in response to the inmate's argument that the PLRA's exhaustion requirement was unconstitutional); abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 211 (2007). Thus, the undersigned finds Plaintiff's argument is without merit.
Plaintiff also objects to Defendants Monden and Pettigrew's Motion because they filed it on the same date as the Special Report. (Doc. 37, at 1-2). The court directed Defendants to “not file an answer and/or dispositive motion until ten days following the filing of the Special Report.” (Doc. 17, at 2). While Plaintiff is correct that Defendants Monden and Pettigrew did not follow the court's order by filing their Motion to Dismiss on the same date as the Special Report, the court finds Plaintiff was not prejudiced by their actions because she asked for and received two extensions of time to respond. (Docs. 30, 31, 33, 35).
Because Plaintiff did not exhaust her administrative remedies, and because those remedies were available to her, the court should enter summary judgment in favor of Defendants. In light of the recommendation herein, it is unnecessary for the undersigned to address Defendants' remaining arguments.
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that Defendants Luke Pettigrew and Ancilla Monden's Motion to Dismiss (Doc. 29) and Defendant Leo Brown's Motion to Dismiss (Doc. 36) be converted to Motions for Summary Judgment and GRANTED. 18
The undersigned advises the parties of their right to object to this Report and Recommendation by December 27, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter. 19