Opinion
Civil No. 03-1051 (JRT/RLE).
August 31, 2004
Donald James Monaco, Duluth, MN, pro se.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff Donald James Monaco ("plaintiff") filed this lawsuit against corrections officials and staff at the Federal Correction Institution in Waseca, Minnesota and the Federal Prison Camp in Duluth, Minnesota (collectively, "defendants") alleging constitutional violations. Defendants moved to dismiss plaintiff's complaint, or, in the alternative, for summary judgment. This matter is before the Court on plaintiff's and defendants' objections to the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, recommending that the Court deny defendants' motion. The Court has conducted a de novo review of the objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. L.R. 72.1(c)(2). For the reasons set forth below, the Court adopts the Magistrate Judge's Report and Recommendation.
BACKGROUND
Plaintiff is a federal prisoner currently incarcerated at the Federal Prison Camp in Duluth, Minnesota ("FPC-Duluth"). Prior to FPC-Duluth, plaintiff was incarcerated at the Federal Correction Institution in Waseca, Minnesota ("FCI-Waseca").
In his complaint, brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff asserts four claims implicating his Eighth Amendment right to be free from cruel and unusual punishment. In his first claim, plaintiff contends that the FCI-Waseca defendants denied him stronger pain medication for his chronic migraine headaches. Plaintiff's second claim arises from alleged events and omissions that occurred at FPC-Duluth. Purportedly, plaintiff suffered a migraine attack and presented himself to FPC-Duluth medical staff. Plaintiff alleges that the FPC-Duluth defendants denied his request for stronger pain medication. In his third claim, plaintiff asserts that the FPC-Duluth defendants ignored the severity of his migraine attack and forced him to work in the prison kitchen. In plaintiff's fourth claim, he contends that the FPC-Duluth defendants ignored his complaints of pain symptoms and forced him to return to work. Plaintiff further alleges that his assignment to work at a prison recycling center at FPC-Duluth exacerbated his medical condition.
Defendants seek dismissal of plaintiff's claims on grounds that (1) plaintiff has failed to exhaust his administrative remedies; (2) plaintiff does not allege any specific conduct of certain named defendants; (3) certain named defendants are entitled to qualified or absolute immunity; and (4) plaintiff has failed to state a cognizable violation of the Eighth Amendment. In the alternative, defendants seek summary judgment on plaintiff's claims.
On July 1, 2004, the Magistrate Judge filed a Report and Recommendation, recommending that defendants' motion to dismiss, or, in the alternative, for summary judgment, be denied. The Magistrate Judge determined that plaintiff had exhausted claim 1, but had not yet exhausted his administrative remedies with respect to claims 2, 3, and 4, and recommended that plaintiff be permitted to pursue his exhausted claim in this Court by filing an amended complaint. The Magistrate Judge further recommended that, should plaintiff fail to file an amended complaint, the action be dismissed, without prejudice, for failure to exhaust. Plaintiff and defendants timely objected to the Report and Recommendation.
ANALYSIS
I. Failure to Exhaust Administrative Remedies
Defendants seek dismissal of the complaint for failure to exhaust administrative remedies. The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, 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). Exhaustion is mandatory, even where the administrative process cannot provide the relief sought by the plaintiff. See Booth v. Churner, 532 U.S. 731, 741 n. 2 (2001); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). This Court recently held that, where a prisoner exhausts his administrative remedies with respect to only some claims, he should be afforded an opportunity to amend his complaint so as to assert only exhausted claims. Robley v. Anderson, 2004 WL 742089, at *3 (D. Minn. Mar. 4, 2004). See also Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003) (concluding that a district court abused its discretion by implicitly denying a plaintiff's motion to amend the complaint); but cf. Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (explaining that all available grievance remedies must be exhausted as to all claims).
Defendants concede, and plaintiff acknowledges, that plaintiff exhausted his administrative remedies with respect to claim 1. Plaintiff argues that he should not be required to attempt to exhaust claims 2, 3, and 4 given the "identical administrative remedy process" that will likely result in the same negative outcome as obtained with respect to count 1. However, as noted above, futility is not an exception to the mandatory exhaustion requirement. See Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). Because claims 2, 3, and 4 are not exhausted, they are not properly before the Court, and the Court cannot consider them. See Robley, 2004 WL 742089, at *3.
However, in light of the related nature of claims 1, 2, 3, and 4, the Court believes that plaintiff should be given the opportunity to decide whether he wishes to proceed at this time with claim 1 alone, or whether he wishes to have all of his claims considered together once all are properly exhausted. Consequently, plaintiff will be permitted the opportunity to amend his complaint to include only claim 1. If plaintiff intends to proceed with this matter at this time by filing an amended complaint involving only claim 1, he must do so by September 27, 2004. If plaintiff does not file an amended complaint by September 27, this action will be dismissed without prejudice, for failure to exhaust. Plaintiff may, at a later date, file a new complaint containing any fully exhausted claims that he may have at that time.
The Court cautions plaintiff that any future claims must be filed within the applicable statute of limitations. See Sanchez v. United States, 49 F.3d 1329 (8th Cir. 1995) ( Bivens actions are governed by the same statute of limitations as 42 U.S.C. § 1983 actions); Egerdahl v. Hibbing Community College, 72 F.3d 615, 618 n. 3 (8th Cir. 1995) (§ 1983 claims brought in Minnesota are subject to statute of limitations as defined in Minn. Stat. § 541.05).
II. Defendants' Remaining Grounds for Dismissal
Defendants also make three additional arguments for dismissing plaintiff's complaint: (1) plaintiff does not allege any specific conduct of certain named defendants; (2) certain named defendants are entitled to qualified or absolute immunity; and (3) plaintiff has failed to state a cognizable violation of the Eighth Amendment. Having determined that plaintiff should be afforded the opportunity to amend his complaint, the Court need not consider these arguments at this time. In the event that plaintiff chooses to go forward with an amended complaint or re-file upon dismissal, defendants will again have the opportunity to make these substantive arguments.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES plaintiff's objection [Docket No. 54], OVERRULES defendants' objection [Docket No. 55] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 53]. Accordingly, IT IS HEREBY ORDERED that:1. Defendants' motion to dismiss or in the alternative for summary judgment [Docket No. 36] is DENIED WITHOUT PREJUDICE;
2. Plaintiff may file an Amended Complaint, by no later than September 27, 2004, alleging only his exhausted claim;
3. If plaintiff fails to file an Amended Complaint, which asserts only his exhausted claim, by no later than September 27, 2004, this action will be dismissed, without prejudice.
The Clerk of Court is respectfully directed to mail a copy of this Order to the plaintiff.