Opinion
CIVIL ACTION NO. 05-CV-12509-RGS.
July 20, 2007
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION
On December 9, 2005, Jerome Tibbs, an inmate at MCI-Cedar Junction, filed this Complaint against (among others) the Commonwealth of Massachusetts, former Department of Correction Superintendent David Nolan, and two corrections officers, Mark Blette and a Sgt. Higgins. Tibbs alleges that on September 7, 2004, the two officers failed to come to his aid when several unnamed Roxbury District Court bailiffs attacked him while he was being escorted in shackles to a holding cell.
On December 12, 2006, defendants moved for judgment on the pleadings, arguing that Tibbs' civil rights claims should be dismissed because he had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Defendants further argued that Tibbs' negligence claims should be dismissed because Tibbs had failed to comply with the presentment requirement of the Massachusetts Tort Claims Act (MTCA), G.L. c. 258, § 4. When it became apparent that Tibbs had, in fact, made the required MTCA presentment, defendants withdrew that portion of the motion. On April 18, 2007, the court issued a Memorandum and Order rejecting the failure-to-exhaust argument, noting that Tibbs had produced a copy of a supplemental grievance form complaining of the injuries he allegedly received in the Roxbury District Court incident.
The PLRA requires that a prisoner exhaust "such administrative remedies as are available" before filing suit over prison conditions or other incidents of confinement under § 1983 "or any other Federal law." 42 U.S.C. § 1997e(a). See Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA requires "proper," not merely "simple" exhaustion of remedies; a procedurally defective grievance does not comply with the Act. Woodford v. Ngo, U.S., 126 S.Ct. 2378, 2387 (2006) (untimely filing). See also G.L. c. 127, § 38F ("An inmate shall not file any claim that may be the subject of a grievance under [§] 38E unless the inmate has exhausted the administrative remedy established pursuant to said section 38E."); Ryan v. Pepe, 65 Mass. App. Ct. 833, 835-836 (2006) (with limited exceptions, section 38E "covers all inmate grievances."). The PLRA exhaustion requirement is an affirmative defense. A defendant bears the burden of proving a prisoner's failure to exhaust his administrative remedies. Jones v. Bock, U.S., 127 S.Ct. 910, 921 (2007).
On April 25, 2007, defendants filed a motion for reconsideration, arguing that the copy of the supplemental grievance form supplied by Tibbs is not signed and was never filed with the prison grievance office as required by 103 Code Mass. Regs. § 491.09(2)(f). In support of the motion, the defendants have submitted the affidavit of Ann Marie Avevin, the MCI-Cedar Junction grievance coordinator, attesting that there is no record of Tibbs' supplemental grievance form in the MCI-Cedar Junction files. Tibbs avers that he did sign and file the form, but that he did not retain a copy of the signed version. While I have no reason to doubt Avevin's sworn statement that the original of the grievance form cannot be found, given Tibbs' submission of an apparently authentic copy of the form and his sworn statement that it was filed in a timely fashion, I cannot say that defendants have met their burden of showing a failure on Tibbs' part to exhaust his remedies. The second argument raised by defendants, that Tibbs' supplemental grievance form, even if filed, fails to identify Blette or Sgt. Higgins by name, is foreclosed by the Supreme Court's holding in Jones, 127 S.Ct. at 923.
From the court's experience, prison record keeping is not always pristine.
Defendants also argue that the court did not consider the argument that under the Eleventh Amendment, a state, its agencies, and agency officials acting in their official capacities, are not "persons" for purposes of the Federal Civil Rights Act, 42 U.S.C. § 1983, and therefore cannot be sued for money damages in the federal courts. Will v. Michigan Dep't of State Police, 491 U.S. 58, 69-70 (1989). Because the argument was contained in the portion of the brief that was withdrawn, the court did overlook it. The argument is correct, and the Commonwealth will be dismissed as a defendant.
ORDER
For the foregoing reasons, the defendants' Motion to Reconsider is ALLOWED in part. The Commonwealth of Massachusetts and its agencies are DISMISSED as defendants. Tibbs' motion to depose witness Fogeren is MOOT. Tibbs' motion for reconsideration of the court's order striking his affidavit for containing scandalous allegations regarding a female corrections officer is DENIED. The defendants' consolidated motion seeking to expunge Tibbs' subsequent filings containing the same allegations is ALLOWED. The defendants' motion for sanctions against Tibbs is ALLOWED to the extent that the offensive pleadings have been stricken. Tibbs will refrain from further repetition of these scurrilous allegations or his lawsuit will be dismissed with prejudice.
SO ORDERED.