Opinion
CIVIL ACTION No. 03-3251-KHV
April 1, 2004
MEMORANDUM AND ORDER
Plaintiff, an inmate at the United States Penitentiary in Leavenworth, Kansas (USP-Leavenworth), brings suit against N.L. Conner, warden at USP-Leavenworth, and D.W. Reed, a prison guard. Under 42 U.S.C. § 1983, plaintiff alleges that defendants violated his constitutional rights by assaulting him and treating all black inmates as gang members. Plaintiff also alleges that in retaliation for his complaint of assault, defendants denied him adequate medical treatment, food and sanitation; planted a knife in his cell; and instructed other inmates and staff to sexually assault him. Plaintiff seeks compensatory damages for medical injuries and harassment. This matter is before the Court onDefendants' Motion To Dismiss. Or In The Alternative. Motion For Summary Judgment (Doc. #24) filed December 22, 2003;Plaintiff's Request For Summary Judgment Pursuant To Rule 56(a) Fed.R.Civ.P. (Doc #28) filed January 15, 2004; defendants' Motion To Strike Plaintiff's Motion For Summary Judgment (Doc. #30) filed January 27, 2004; Plaintiff's Objection To Court's Order (Doc. 39): Request For Pretrial Conference (Doc. #42) filed March 19, 2004; andPlaintiff's Motion To Amend Complaint (Doc. #43) filed March 22, 2004. For reasons set forth below, the Court treats defendants' alternative motion solely as one to dismiss and sustains it based on plaintiff's failure to exhaust administrative remedies and overrules the remaining motions.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers. Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). In reviewing the sufficiency of plaintiff's complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
In deciding a Rule 12(b)(6) motion based on exhaustion of administrative remedies under the Prison Litigation Reform Act ("PLRA), 42 U.S.C. § 1997e, the Court may consider administrative materials attached to the prisoner's complaint. See Steele v. Fed. Bur, of Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003) (citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001)). If the prisoner does not incorporate by reference or attach the relevant administrative decisions, "a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." Steele, 355 F.3d at 1212 (quoting GFF, 130 F.3d at 1384).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Analysis
I. Failure To Exhaust Administrative Remedies
Defendants argue that plaintiff has not stated a claim on which relief may be granted because he has not exhausted administrative remedies. The PLRA, 42 U.S.C. § 1997e, imposes a mandatory exhaustion requirement for inmates who bring Section 1983 claims regarding prison conditions. Specifically, Section 1997e(a) provides that:
[n]o 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). The Supreme Court has interpreted this language broadly, holding that "prison conditions" encompass "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 v. Nussle, 534 U.S. 516, 532 (2002). The statute applies whenever the prison administrative process could provide some relief, even if it could not provide the money damages which plaintiff demands. See Booth v. Churner, 532 U.S. 731, 734 (2001); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (prisoner must exhaust "available" remedies even if they appear futile at providing remedy sought). The exhaustion requirement is mandatory; the Court is not authorized to dispense with it.See Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003) (citations omitted).
The Tenth Circuit recently explained that exhaustion under Section 1997e is a pleading requirement, not an affirmative defense. See Steele, 355 F.3d at 1210. A complaint that does not allege exhaustion of remedies is tantamount to one that fails to state a claim on which relief may be granted. Id. To survive a Rule 12(b)(6) motion, a prisoner must plead his claims with a short and plain statement showing that he is entitled to relief and attach "a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome." Id. (quotingKnuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.), cert. denied, 531 U.S. 1040 (2000)); see Steele, 355 F.3d at 1211-12 (absent particularized averments concerning exhaustion showing nature of administrative proceeding and its outcome, action must be dismissed for failure to state a claim).
Plaintiff's complaint does not describe with specificity the administrative proceedings related to the allegations of his complaint or the outcome of such proceedings, and he has not attached copies of the applicable documents to his complaint. Plaintiff has completed a form civil rights complaint which includes a series of questions about exhaustion of administrative remedies. In response to the question whether he presented by way of grievances all grounds for relief raised in his complaint, plaintiff checked both yes and no. See Civil Rights Complaint (Doc. #1) at 5. In response to the next question, which asked plaintiff to state the date of disposition, result and reasons for the administrative decisions, plaintiff stated that "[p]rison Administration denied and refused to address complaints." Id. In response to the next question, which asked on which grounds plaintiff did not pursue the administrative grievance process and why, plaintiff stated that "[s]ome complaints were destroyed by Administration, the Administration refused to return some complaints with response." Id. Because plaintiff's complaint does not include particularized averments concerning exhaustion of administrative remedies, the Court dismisses his complaint under Rule 12(b)(6) for failure to state a claim on which relief may be granted.See Steele, 355 F.3d at 1211-12.
Dismissal of plaintiff's complaint is also warranted because the indisputable authentic copies of plaintiff's grievances and the Bureau of Prisons ("BOP") responses show that plaintiff did not fully exhaust his administrative remedies. See id. at 1212. Defendants have produced six grievances which plaintiff filed in relation to the allegations of his complaint. See Exhibits 7-12 to Declaration Of James D. Crook, attached as Exhibit A to defendants' Memorandum In Support Of Defendants' Motion To Dismiss. Or In The Alternative. Motion For Summary Judgment (Doc. #25). Plaintiff does not dispute that except for two grievances, he did not complete the BOP grievance procedure. "An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies." Jernigan, 304 F.3d at 1032.
Under BOP regulations, an inmate must first complete an informal resolution of his complaint. Yousef v. Reno, 254 F.3d 1214, 1220 (10th Cir. 2001); see 28 C.F.R. § 542.13. The regulations permit an inmate to then "seek formal review [from the Warden] of an issue which relates to any aspect of [his] confinement." 28 C.F.R. § 542.10; see 28 C.F.R. § 542.14. An inmate who is not satisfied with the Warden's response may appeal his complaint to the BOP Regional Director. Yousef, 254 F.3d at 1220;see 28 C.F.R. § 542.15(a). "Finally, the inmate may appeal his case to the General Counsel in the Central Office of the Bureau of Prisons, which is the `final administrative appeal.'" Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997) (quoting 28 C.F.R. § 542.15(a) (1997)), overruled on other grounds byBooth, 531 U.S. 956.
Plaintiff does not dispute that the BOP grievance process provides some relief. In Booth, the Supreme Court ruled that under Section 1997e, inmates who seek money damages must complete a prison administrative process that can provide some sort of relief, even if it can provide no money. See Booth, 532 U.S. at 734.
Plaintiff attempts to allege that the administrative grievance process was futile. He alleges that Conner "destroyed remedy complaints,"Civil Rights Complaint (Doc. #1) at 3, and that it is "likely evidence will no longer be available, fabricated or destroyed"Id. at 4(b). As explained above, exhaustion of administrative remedies is mandatory and the PLRA contains no exception for futility.See Booth, 532 U.S. at 734; Jernigan, 304 F.3d at 1032. The Court also finds that a judicially created exception is not appropriate in this case. See Nunez v. Goord, 172 F. Supp.2d 417, 428 (S.D.N.Y. 2001) (no futility exception to PLRA based on allegations that prison officials destroyed some grievances, that grievance clerk did not regularly visit, that prison officers lost or destroyed numerous grievances). Plaintiff refers to a number of grievances in his complaint, thus showing that he was able to use the grievance procedure. Defendants have produced copies of plaintiff's grievances and the BOP responses, but plaintiff has not specifically alleged that the documents produced are incorrect or that any specific documents are missing. In these circumstances, plaintiff has not shown that his failure to exhaust administrative remedies is excused.
Plaintiff states only that "statements as to . . . assault remedies being exhausted . . . can be proven." Plaintiff's Response To Defense Motion To Dismiss Or For Summary Judgment (Doc. #1) filed December 30, 2003 at 2-3.
Defendant argues that if even one claim is unexhausted, the Court must dismiss plaintiff's entire complaint under the rule of total exhaustion. Although some courts have followed such a rule, the PLRA does not appear to mandate such a procedure. See Blackmon v. Crawford, ___ F. Supp.2d ___, 2004 WL 369883, at *3-6 (D. Nev. Feb. 25, 2004); Johnson v. True, 125 F. Supp.2d 186, 188 (W.D. Va. 2000) (PLRA language and history do not support total exhaustion rule), appeal dismissed, 32 Fed. Appx. 692 (4th Cir. 2002); Cooper v. Garcia, 55 F. Supp.2d 1090, 1094 (S.D. Cal. 1999) (same); Jenkins v. Toombs, 32 F. Supp.2d 955, 958-59 (W.D. Midi. 1999) (same). If the Court dismisses a complaint which includes both exhausted and unexhausted claims, a prisoner can simply file another complaint which includes only his exhausted claims. Rather than requiring a prisoner to file a separate action, several courts have permitted prisoners to amend their complaint to include only exhausted claims. See Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003); Blackmon, 2004 WL 369883, at *5-6. The Tenth Circuit has not addressed the issue.
See e.g., Julian-Bey v. Crowley, 24 Fed. Appx. 393, 395 (6th Cir. Dec. 3, 2001); Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000); Williams v. Cooney, No. 01-CV-4623, 2004 WL 434600, at*3 (S.D.N.Y. Mar. 8, 2004); Jones v. Theodorff, No. 01-3314-JWL, 2003 WL 21250672, at *1 (D. Kan. May 28, 2003); Smeltzer v. Hook, 235 F. Supp.2d 736, 743-46 (W.D. Mich. 2002); Rivera v. Whitman, 161 F. Supp.2d 337, 339-43 (D.N.J. 2001). These courts have reasoned that because Section 1997e(a) states that no "action" (as opposed to no "claim") with respect to prison conditions shall be brought until administrative remedies are exhausted, the entire action must be dismissed if even one claim has not been exhausted. See Graves, 218 F.3d at 885; Williams, 2004 WL 434600, at *3; Smeltzer, 235 F. Supp.2d at 744;Rivera, 161 F. Supp.2d at 340.
The Court need not decide whether the Tenth Circuit would adopt a rule of total exhaustion because in this case the unexhausted claims are inextricably intertwined with the exhausted claims. Cf. Thomas v. N.Y. State Dep't of Corr. Servs., No. OO-CV-7163, 2003 WL 22671540, at *7 (S.D.N.Y. Nov. 10, 2003) (total exhaustion not required where claims easily severable); Muhammad v. Pico, No. 02-CV-1052, 2003 WL 21792158, at *9-10 (S.D.N.Y. Aug. 5, 2003) (court addressed exhausted claim which involved "discrete events" and was "easily separated" from unexhausted claim); Rivera v. Goord, 253 F. Supp.2d 735, 754 (S.D.N.Y. 2003) (exhausted claim easily severed). On Count I, plaintiff alleges that Reed assaulted him. Although plaintiff has exhausted his appeal of the Disciplinary Hearing Officer report that plaintiff was fighting with another inmate, he has not exhausted his grievance that Reed assaulted him. Plaintiff concedes that both grievances are related to Count I, see Civil Rights Complaint (Doc. #1) at 3(a), and he does not specifically dispute that he failed to exhaust administrative remedies as to the grievance that Reed assaulted him.
Plaintiff also filed a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680, which the BOP rejected.See Exhibit 13 to Declaration Of James D. Crook. The allegations in plaintiff's tort claim mirrored those in the administrative grievances, i.e. constitutional claims based primarily on an alleged assault by Reed and various acts in retaliation for plaintiff's complaint about the assault. The BOP concluded that plaintiff did not suffer personal injury because of the negligent acts or omissions of BOP employees acting within the scope of their employment.See id. Plaintiff fully exhausted his administrative remedies as to his tort claim, but he has not asserted a tort claim against the United States in this action. The Court declines to treat plaintiff's complaint as one under the FTCA because he asserts only assault and various constitutional torts which are not actionable under the FTCA.See F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994) (constitutional torts not actionable); Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998) (same); 28 U.S.C. § 2680(h) (United States immune from claims arising from assault or battery).
On Count II, plaintiff alleges that in retaliation for his assault complaint against Reed, defendants gave him inadequate medical treatment and food, denied him sanitation, destroyed his files, planted a knife in his cell, paid an inmate to rape him, made numerous attempts to frame him for drug use, and threatened to write him up. Although plaintiff has exhausted his grievance that defendants gave him inadequate food, he has not exhausted his grievance as to any other alleged acts of retaliation. Plaintiff concedes that at least two grievances are related to Count II, see Civil Rights Complaint (Doc. #1) at 3(b), and he has exhausted only one of those grievances. In these circumstances, all of Count II must be dismissed without prejudice for failure to exhaust. Likewise, Counts III and IV must be dismissed for failure to exhaust administrative remedies. If plaintiff desires to amend his complaint to include only his exhausted claim related to inadequate food, he may do so on or before April 16, 2004. See Kozohorsky, 332 F.3d at 1144 (district court should permit plaintiff to file amended complaint which includes only exhausted claims); Blackmon, 2004 WL 369883, at *5-6 (same);cf. Byers v. Strachaa, 69 Fed. Appx. 274, 275 (6th Cir. June 20, 2003) (district court may, but is not required to, address merits of exhausted claims). If plaintiff does not amend his complaint by April 16, 2004, the Court will direct entry of final judgment in accordance with this memorandum and order.
Count III alleges that after plaintiff complained of the assault by Reed, Warden Conner instructed prison staff to affiliate all black prisoners as gang members and told inmates to make sexual advances to plaintiff. See Civil Rights Complaint (Doc. #1) at 4. In support of his claim, plaintiff refers to administrative remedy #264563 which he did not exhaust. Count IV alleges that Warden Conner paid another inmate to rape plaintiff. See id. at 4(a). In support of his claim, plaintiff refers to administrative remedy #280327 which he did not exhaust.
II. Plaintiff's Motion For Summary Judgment
On January 15, 2004, plaintiff filed a motion for summary judgment. Defendants seek to stake plaintiff's motion for summary judgment for failure to comply with D. Kan. Rule 56.1. plaintiff's motion does not cite evidence in support of his claim, but contains merely argument which primarily addresses why the Court should not grant defendants' motion to dismiss or for summary judgment. Although the Court declines to stake plaintiff's motion for summary judgment, the Court overrules it for failure to comply with D. Kan. Rule 56.1. The Court has nevertheless reviewed plaintiff's arguments, as they pertain to exhaustion of administrative remedies. Plaintiff states that the computer printout of his administrative remedies, which defendants have produced, shows that he fully exhausted his remedies. See Plaintiff's Request For Summary Judgment Pursuant To Rule 56(a) Fed.R.Civ.P. (Doc #10) at 2 (citing Exhibit 6 to Declaration Of James D. Crook). The Court disagrees. The computer printout reflects that only two grievances include an "A-l" code which indicates that the appeal was filed at the national level.See Declaration Of James D. Crook ¶ 21. The remaining four grievances include codes which reflect that plaintiff did not pursue his grievance at the national level. See id. Plaintiff's motion does not otherwise attempt to show that he exhausted administrative remedies.
III. Plaintiff's Motion To Amend Complaint
On March 22, 2004, plaintiff filed a motion to amend his complaint to add claims based on the following events: (1) on November 30, 2003, a prison guard assaulted plaintiff, (2) prison staff delayed medical treatment for plaintiff after the assault and (3) prison staff tampered with several of plaintiff's legal mailings. See Plaintiff's Motion To Amend Complaint (Doc. #43). The Court shall freely give plaintiff leave to amend "when justice so requires." Fed.R.Civ.P. 15. Motions to amend are matters of discretion for the trial court, see Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991), and a refusal to grant leave to amend should normally be justified by factors such as futility, undue delay, undue prejudice to the non-moving party, or bad faith of the moving party. See Frank v. U.S. West. Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A district court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or otherwise fails to state a claim. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992): Schepp v. Fremont County, Wyo., 900 F.2d 1448, 1451 (10th Cir. 1990).
Although defendants have not yet responded to Plaintiff's motion, the Court overrules it based on futility. Plaintiff's proposed claims would not survive a motion to dismiss because (1) he has not exhausted his administrative remedies related to the assault on November 30, 2003 and (2) he does not allege that he has filed any grievance related to the refusal to provide medical treatment or the tampering with his legal mail. See Steele, 355 F.3d at 1211-12 (absent particularized averments concerning exhaustion showing nature of administrative proceeding and its outcome, action must be dismissed for failure to state a claim); Exhibit A to Plaintiff's Motion To Amend Complaint (Doc. #43) (BOP response of January 21, 2004: plaintiff's grievance related to assault was received and accepted as sensitive filing at national level). In addition, plaintiff's proposed amended claims would not survive a motion to dismiss because they do not allege personal participation by Warden Conner or D.W. Reed. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (personal participation is essential element in Section 1983 action): Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (same). For these reasons, the Court overrules plaintiff's motion to amend the complaint.
IV. Plaintiff's Objection To Court's Order Regarding Pretrial Conference
On February 26, 2004, the Honorable G.T. VanBebber stayed discovery in this case pending a ruling on defendants' dispositive motion. See Order (Doc. #35). Based on the stay of discovery, Judge VanBebber overruled plaintiff's request for a pretrial conference. See id. Plaintiff filed another request for a pretrial conference and, on March 12, 2004, Magistrate Judge James P. O'Hara overruled the motion which he construed as a motion for reconsideration. See Order (Doc. #39).
Plaintiff now objects to Magistrate O'Hara's order. Plaintiff first objects because on March 9, 2004, the district judge referred this matter to Magistrate O'Hara for "pretrial proceedings." See Order (Doc. #38). This Court's standard order of referral did not specify what pretrial proceedings were necessary and whether such proceedings should take place before the defendants' dispositive motion had been ruled on. Magistrate O'Hara properly exercised his discretion in denying plaintiff's motion for reconsideration of Judge VanBebber's order. For reasons explained above, the Court finds that dismissal of plaintiff's complaint is warranted because he did not exhaust his administrative remedies. Plaintiff has not shown that a pretrial conference or any discovery would have changed the Court's ruling on defendants' motion. The Court therefore overrules plaintiff's objection to Magistrate O'Hara's Order (Doc. #39).
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss. Or In The Alternative. Motion For Summary Judgment (Doc. #24) filed December 22, 2003 be and hereby is SUSTAINED. The Court dismisses plaintiff's complaint without prejudice for failure to exhaust administrative remedies.
IT IS FURTHER ORDERED that on or before April 16, 2004, plaintiff may amend his complaint to include only his exhausted claim related to inadequate food. If plaintiff does not amend his complaint by April 16, 2004, the Court will direct entry of final judgment in accordance with this memorandum and order.
IT IS FURTHER ORDERED that Plaintiff's Request For Summary Judgment Pursuant To Rule 56(a) Fed.R.Civ.P. (Doc #28) filed January 15, 2004 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that defendants' Motion To Strike Plaintiff's Motion For Summary Judgment (Doc. #30) filed January 27, 2004 be and hereby is OVERRULED as moot.
IT IS FURTHER ORDERED that Plaintiff's Motion To Amend Complaint (Doc. #43) filed March 22, 2004 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff's Objection To Court's Order (Doc. 39): Request For Pretrial Conference (Doc. #42) filed March 19, 2004 be and hereby is OVERRULED.