Opinion
Case No. 2:03-CV-652.
December 5, 2006
OPINION AND ORDER
Plaintiff, a state inmate, brings this action under 42 U.S.C. § 1983 ("Section 1983") alleging that he has been denied his rights under the Constitution of the United States during the course of his incarceration at the Southern Ohio Correctional Facility and the Ohio State Penitentiary. This matter is before the Court on Plaintiff's Motion for Leave to File a Second Amended Complaint [" Motion to Further Amend"]. Doc. No. 81. For the reasons that follow, plaintiff's motion is DENIED.
I. BACKGROUND
On July 23, 2003, plaintiff — acting without the assistance of counsel — filed the instant action asserting eight counts under Section 1983. Doc. No. 2. On July 23, 2004, plaintiff filed a motion to amend the complaint in which he withdrew his fourth claim for relief and withdrew his claims for affirmative relief against 13 named defendants. Doc. No. 21. On October 18, 2004, this Court granted plaintiff's motion to amend, dismissing the fourth claim and 13 of the defendants. In conducting the review required by 28 U.S.C. § 1915A, the Court also dismissed plaintiff's sixth claim for relief for failure to exhaust available administrative remedies. Doc. No. 23. On June 14, 2005, this Court dismissed defendants McGraw, Carter, and Wade from the action because they had not been properly served. Doc. No. 52. Consequently, pending at this time are six claims brought pursuant to Section 1983 against thirteen defendants, i.e., plaintiff's first, second, third, fifth, seventh and eighth claims against defendants Wilkinson, Green, Fout, Ishee, Fletcher, Ritz, Wolfe, Nail, Klienknecka, Cuevas, Henyard, Evans, and Weaks.
Defendants filed a motion for summary judgment addressing all of plaintiff's remaining claims on April 13, 2006. Doc. Nos. 55, 56. That motion remains pending and unopposed.
In May 2006, counsel entered an appearance on behalf of plaintiff. Doc. Nos. 71, 74. Counsel filed the Motion to Further Amend on August 2, 2006. Doc. No. 81.
II. DISCUSSION
Plaintiff moves to further amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, which provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Plaintiff offers four justifications for the request. First, plaintiff offers to dismiss the 13 defendants previously "amended out" of this case. Motion to Further Amend, at 2. However, this dismissal of these 13 defendants was effected on October 18, 2004:
In the amended complaint, plaintiff withdraws his claim for affirmative relief as against 13 of the 30 individuals named as defendants in the original complaint. [Footnoting the names of each of the 13 dismissed defendants]. The Clerk shall INDICATE ON THE DOCKET that these individuals are no longer parties to this action.Order, at 2, Doc. No. 23. It is therefore unnecessary to further amend the complaint to reflect this fact.
Second, plaintiff offers in the proposed second amended complaint to withdraw his claims of conspiracy and any claims related to the adequacy of the prison grievance process. Motion to Further Amend, at 3. However, such claims have not been expressly asserted to this point in the litigation.
Third, the proposed second amended complaint seeks to join Terry Collins, the current Director of the Ohio Department of Rehabilitation and Correction who replaced defendant Wilkinson, as a necessary party to the injunctive relief sought in this action. Plaintiff's Reply at 5. Because the new director has been automatically substituted for defendant Wilkinson in his official capacity, see F.R. Civ. P. 25(d), further amendment of the complaint is not necessary to effect the joinder of this new defendant.
Fourth, plaintiff asks to incorporate in the tendered second amended complaint certain statements of facts filed by plaintiff with the original complaint. However, statements of fact that do not serve to assert a claim against a party, but are of evidentiary value only, need not be asserted in a pleading.
Although plaintiff makes no mention of it in his memoranda, see Plaintiff's Reply, at 4 ("Plaintiff is not "pursuing . . . new claims" here.") the tendered second amended complaint includes for the first time a claim under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"). See Motion to Further Amend, proposed amendment at ¶¶ 69-71 ("Causes of Action — Count I — Americans with Disabilities Act"). Defendants oppose the grant of the Motion to Further Amend to assert a claim under the ADA, arguing that the amendment would be futile. Defendants' Response in Opposition to Plaintiff's Motion for Leave to File Second Amended Complaint at 5-6. Futility of the proposed amendment is grounds for denying leave to amend. See Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th Cir. 1990); Head v. Jellico Hous. Auth., 870 F.2d 1117 (6th Cir. 1989). Defendants contend that plaintiff cannot proceed on a claim under the ADA because he has neither pled nor established that he has exhausted the available administrative remedies with regard to any such claim. Defendants' Response in Opposition to Plaintiff's Motion for Leave to File Second Amended Complaint at 5-6. This Court agrees.
The Prison Litigation Reform Act of 1996 ("PLRA") requires a prisoner to exhaust administrative remedies available to the prisoner prior to filing an action in a federal court. 42 U.S.C. § 1997e(a) (2004). The PLRA states in pertinent part as follows:
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.Id. (emphasis added). "The statute does not apply solely to actions brought under 1983, but includes any action brought under Federal law which would include a claim based on the ADA." Chamberlain v. Overton, 326 F. Supp.2d 811, 815 (E.D. Mich. 2004) (citing Porter v. Nussle, 534 U.S. 516, 534 (2002)). The plaintiff-prisoner bears the burden of proving that a grievance has been fully exhausted. Baxter v. Rose, 305 F.3d 486, 488 (6th Cir. 2002). Although exhaustion is not a jurisdictional predicate, it is nevertheless mandatory, Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999), even if proceeding through the administrative system would appear to the inmate to be "futile." Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999). A prisoner must either 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." Knuckles-El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000) ("The reason for the requirement to show with specificity both the claims presented and the fact of exhaustion is so that the district court may intelligently decide if the issues raised can be decided on the merits.").
In the case sub judice, plaintiff has not carried this burden. Thus, plaintiff cannot proceed on a claim under the ADA.
WHEREUPON the Motion to Further Amend, Doc. No. 81, is DENIED.
Plaintiff may have two weeks from the date of this Opinion and Order to respond to defendants' pending motion for summary judgment.