Opinion
CIV-20-875-R
05-17-2021
RA'HEEM LAMONZE PLATER, Plaintiff, v. DAVID BOWERS, et. al., Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendants' Motion to Dismiss or, in the alternative, Motion for Summary Judgment. Doc. No. 45. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss, as converted to a Motion for Summary Judgment, be granted.
I. Plaintiff's Allegations
This case arises from allegations that while Plaintiff has been incarcerated at Lawton Correctional Facility (“LCF”), Defendants have violated his rights under the First, Sixth, and Fourteenth Amendments. Plaintiff also asserts state law claims of intentional and negligent infliction of emotional distress. Plaintiff's claims are related to his ability to access the law library and/or legal materials, and obstruction of his ability communicate with an/his attorney. Doc. No. 38 at 8-15.
Defendants have filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment, wherein they request dismissal of Plaintiff's claims against them based on Plaintiff's failure to exhaust administrative remedies. Doc. No. 45. Because Defendants rely, in part, on evidentiary documents outside of the pleadings in support of their Motion, and Plaintiff was advised of his responsibilities under Fed.R.Civ.P. 12 and 56 in responding to Defendants' Motion, see Doc. No. 46, the Motion will be considered as one seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert motion to dismiss into motion for summary judgment in order to consider matters outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) (“[W]hen a party submits material beyond the pleadings in support of . . . a motion to dismiss, the prior action on the part of the part[y] puts them on notice that the judge may treat the motion as a Rule 56 motion.”).
II. Standard of Review
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law . . . .” Id. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
III. Exhaustion of Administrative Remedies
A. Requirement for Exhaustion of Administrative Remedies
Defendants contends Plaintiff failed, prior to filing this action, to exhaust administrative remedies through the Oklahoma Department of Corrections (“ODOC”) grievance procedure. Proper exhaustion of administrative remedies is mandated by the Prison Litigation Reform Act (“PLRA”), which provides that a prisoner cannot bring an action “with respect to prison conditions under [§] 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”); Ross v. Blake, __ U.S. __, 136 S.Ct. 1850, 1857 (2016) (“[T]he history of the PLRA underscores the mandatory nature of its exhaustion regime.”).
The exhaustion doctrine protects administrative agency authority and promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the exhaustion doctrine is an affirmative defense, the defendants “bear the [initial] burden of asserting and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the defendant demonstrates a plaintiff has failed to exhaust his administrative remedies, “the onus falls on the plaintiff to show that remedies were unavailable to him[.]” Id.
Further, “substantial compliance [with the grievance procedure] is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Proper exhaustion requires compliance with all of the prison's grievance procedures, including adherence to “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, 548 U.S. at 90-91. Thus, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
There is no exception to the exhaustion requirement for “special circumstances.” Ross, 136 S.Ct. at 1856-57 (discussing mandatory language means a court may not excuse a failure to exhaust, even to take special circumstances into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)). Thus, if administrative remedies are available, an inmate must complete each step of the administrative process before a federal court can consider the merits of the inmate's complaint based on alleged violations of constitutional rights.
B. Grievance Procedure for Oklahoma Inmates
The ODOC's grievance procedure is clearly set forth in the ODOC Inmate/Offender Grievance Process OP-090124. Doc. No. 45-2. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. Id. at 6-7. If the matter is not resolved informally, the prisoner must submit a Request to Staff within seven calendar days of the incident, raising only one issue therein. Id. at 7-8.
If the Request to Staff does not successfully resolve the issue, the prisoner must submit a formal Grievance Form, with a copy of the Request to Staff attached, to the appropriate facility reviewing authority within 15 calendar days from the date of the response to the Request to Staff, and can only raise one issue. Id. at 8-10. The reviewing authority will assign a number to each grievance received and will generally answer the grievance within 20 days of its receipt. Id. at 10. If the grievance is denied by the reviewing authority at the prison level, a prisoner must appeal the decision to the Administrative Review Authority within 15 days of receipt of the same to complete exhaustion of his administrative remedies. Id. at 12-14.
When inmates face an emergency or have a sensitive grievance as defined in OP-090124, they can file a grievance directly to the reviewing authority (or to the Administrative Review Authority, if the emergency or sensitive grievance involves the reviewing authority) without attempting to informally resolve the dispute. Id. at 15-17. The reviewing authority must determine within twenty-four hours whether the grievance is of a sensitive nature or requires emergency handling. Id. at 16. If the reviewing authority decides the matter does not involve a true emergency or a sensitive topic, the inmate must restart the administrative process by trying to informally resolve the dispute and resubmitting the grievance. Id. at 6-17.
C. Plaintiff's Utilization of the Grievance Process
Plaintiff does not directly dispute Defendants' contention that he failed to exhaust his administrative remedies prior to initiating this lawsuit. He argues, however, that based on manipulation and misdirection by Defendants he is excused from doing so. The Court disagrees.
Reviewing administrative documents related to the claims raised herein, Plaintiff submitted a Request to Staff on July 29, 2020. Doc. No. 48-2. Therein, Plaintiff set out approximately 11/2 pages primarily of complaints regarding his demotion to Earned Credit Level (“ECL”) 1. Doc. No. 48-2 at 1-2. In one sentence therein, Plaintiff stated, “My demotion of ECL directly destroys my ability to perfect my appeal.” Id. at 1. Plaintiff did not elaborate further on how his demotion affected an ability to perfect his appeal, nor does he request any relief related to the same. Id. As his requested relief, Plaintiff sought an ECL that permits “4 individuals to be contacted” and to be laterally transferred to another facility or alternatively, to a maximum security facility with an override. Id. In response, an official explained that transfers were not at the facility's discretion but instead rest with ODOC. Id.
In their Motion, Defendants state that Plaintiff submitted a total of four Requests to Staff during his confinement at LCF, including those dated July 27, 2020, August 3, 2020, August 21, 2020, and August 26, 2020. Doc. No. 45 at 3-4. However, as evidenced by Plaintiff in his Response, Plaintiff also submitted Requests to Staff on July 29, 2020 and August 5, 2020. Doc. Nos. 48-2, 48-4.
Following receipt of the response, Plaintiff did not file a grievance regarding this Request to Staff. In his Response to Defendants' Motion, Plaintiff notes that the Request to Staff was initially directed to Warden Bowen but based on someone telling him that the Warden was now Defendant Bowers, Plaintiff drew a line through Bowen's name and wrote Bowers. Id.
Plaintiff next filed a Request to Staff on August 3, 2020. Doc. No. 48-3. Therein, he complained that he had not been allowed law library access in order to work on his criminal appeal. Id. at 1-2. Defendant Cooper responded to Plaintiff explaining that pursuant to policy OP-030115, because he was represented by an attorney in his criminal appeal, Plaintiff was not entitled to access the law library to work on said case. Id. at 1. In his Response to Defendants' Motion, Plaintiff complains that he had addressed this Request to Staff to the Warden but instead, Defendant Cooper responded. Doc. No. 48 at 5.
On August 5, 2020, Plaintiff submitted a Request to Staff directed to Warden Bowers, again based on Plaintiff being informed that Defendant Bowers was now the Warden. Doc. No. 48-4. Plaintiff contends he intended this Request to Staff to be a grievance from a previous Request to Staff as purportedly evidenced by the fact that Plaintiff stated therein that he had already filed a Request to Staff related to the issue raised but had not previously filed a grievance, and he included a grievance number of 787. Doc. No. 48 at 5; Doc. No. 48-4. Plaintiff asserts that he had been incorrectly advised by improperly trained staff that the numbers located in the upper-left hand section of a Request to Staff were the subsequent grievance numbers. Doc. No. 48 at 6. Plaintiff also states that he thought his Request to Staff would be utilized as a substitute for a grievance form under emergency circumstances.
The Court notes that the July 29, 2020 Request to Staff was related to Plaintiff's demotion to ECL1 and the August 3, 2020 Request to Staff was related solely to Plaintiff's ability to access the law library. Doc. Nos. 48-2, 48-3. The August 5, 2020 Request to Staff relates only to Plaintiff's request to make two telephone calls per week. Doc. No. 48-4 Therefore, it could not be considered a grievance arising from a previous Request to Staff. In any event, an official responded that Plaintiff would need to be submit a Request to Staff “on a weekly basis, identifying a day or days of the week.” Id.
On August 6, 2020, Plaintiff wrote a letter to V. Womack, Compliance Administrator. Doc. No. 48 at 7. The following day, Ms. Womack sent a Memorandum in response to the letter. Doc. No. 48-5. Plaintiff contends he sent the letter “due to no available grievance or any alternative.” Doc. No. 48 at 7. Based on Plaintiff's Response and the Memorandum, it appears that, inter alia, Plaintiff informed Ms. Womack that he had a Request to Staff from Defendant Bowers granting Plaintiff access to call his attorney and that he had asked Ms. Womack to make a case manager comply with the same the following day. Doc. No. 48-5 at 1. Ms. Womack responded that Plaintiff's attorney's office is closed on Fridays but that she would assist in facilitating said calls the following week. Id. at 2.
Ms. Womack also noted Plaintiff's letter contained vulgar references and several profanities and she asked that he practice common decency in the future when addressing her or other staff members. Id.
In his Response to Defendants' Motion, Plaintiff states that he believed Ms. Womack was the Administrative Review Authority “based upon the professionalism and unique method of memorandum which no other officer in the facility had ever utilized when addressing any issue grieved by plaintiff.” Doc. No. 48 at 8. He asserts that this belief was further supported by the apparent authority Ms. Womack held over “inferior officers such as Defendant West by ACA Womack commanding (and receiving) immediate compliance and conflict resolution regarding Defendant West.” Id.
On August 12, 2020, Plaintiff submitted a letter to C.O. Bennet in lieu of a Request to Staff because C.O. Wheeler had informed Plaintiff that she only had one Request to Staff form and that she needed it to make more copies. Doc. No. 48-6. In the August 12th letter, Plaintiff stated that he was able to contact his attorney that morning but that he also asked to speak with Case Manager West about Ms. Womack's absence during that week. Id. Case Manager West refused, stating that they did not have anything important to discuss. Id. Plaintiff also stated, “Let the record reflect Case Manager West showed ‘deliberate indifference' to my constitutional need to directly appeal my verdict.” Id. In light of the fact that Plaintiff had spoken with his appellate counsel that morning, it is not clear how Case Manager West and/or Ms. Womack's absence affected Plaintiff's criminal appeal.
On August 21, 2020, Plaintiff submitted another Request to Staff in which he requested access to the law library so that he could file a federal lawsuit against the parole board under 42 U.S.C. § 1983. Doc. No. 48-7. He also stated that due to the statute of limitations, he needed to file the lawsuit within 90 days. Id. A staff member responded that because he was in segregation, he could not visit the library but could “request legal research by forms.” Id.
Finally, on August 26, 2020, Plaintiff submitted another Request to Staff. Doc. No. 48-8. Plaintiff was again requesting to use the telephone to call his attorney. Id. Case Manager West responded, “This issue has been addressed.” Id.
D. Plaintiff Did Not Exhaust Administrative Remedies
Plaintiff raises a multitude of claims in this lawsuit related to his alleged inability to access the law library and/or contact his attorney. Drawing all reasonable inferences in Plaintiff's favor, the Court finds Plaintiff did not exhaust his administrative remedies prior to asserting said claims. Plaintiff essentially concedes that he failed to exhaust but contends his failure to do so was the result of manipulation and misdirection on the part of Defendants. However, a review of the record and Plaintiff's own statements do not support this assertion.
In his Response, Plaintiff relies on Ross to support his argument that he is excused from exhaustion. He argues that he thought he exhausted his remedies when he sent a “grievance” to Defendant Bowers, based on someone informing Plaintiff that Bowers had become the Warden, and when he sent a letter and received Memorandums from Ms. Womack based on his belief that she was the Administrative Review Authority involved in the final step of the administrative remedy process. Doc. No. 48 at 8-10, 13-14.
To be sure, courts have found grievance procedures unavailable when facility staff misleads an inmate, causing him to fail to exhaust his administrative remedies. Scoby v. Allbaugh, No. CIV-18-721-D, 2020 WL 529705, at *3 (W.D. Okla. Feb. 3, 2020) (citing Davis v. Fernandez, 798 F.3d 290, 295 (5th Cir. 2015). See also Ross, 136 S.Ct. at 1859-60 (noting that administrative remedies are unavailable when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” (quotations omitted)). Here, however, Plaintiff does not indicate a staff member misled him into believing that Ms. Womack was the Administrative Review Authority referenced in the final step of the grievance process. By Plaintiff's own statements, he presumed that to be the case “based upon [Ms. Womack's] professionalism and unique method of the memorandum which no other officer in the facility had ever utilized when addressing any issue grieved by Plaintiff.” Doc. No. 48 at 8. Thus, Plaintiff does not allege that he was manipulated or deceived into believing that he had exhausted his administrative remedies. Instead, Plaintiff reached this conclusion based on his own mistaken assumptions.
Moreover, Plaintiff's letter to Ms. Womack and the Memorandum she sent to him in response do not relate to law library access but instead, to his ability to telephone his attorney. Doc. No. 48-5. Plaintiff never completed the administrative remedy process as to his claims related to either law library access and/or his ability to use the telephone to communicate with his attorney. Thus, presuming without deciding that Plaintiff's Requests to Staff address his asserted claims, many of which are either more specific or more broad than the complaints raised in his administrative filings, it is clear he failed to exhaust his administrative remedies prior to asserting the claims in this lawsuit.
Plaintiff's failure to exhaust administrative remedies is fatal to federal judicial review of his claims. Woodford, 548 U.S. at 90-92. Accordingly, the undersigned recommends Defendant's Motion, converted to one seeking summary judgment, be granted. See Calbart v. Sauer, 504 Fed.Appx. 778, 784 (10th Cir. 2012) (affirming the district court's granting of summary judgment in favor of the defendants against the plaintiff's § 1983 claims based on the plaintiff's failure to exhaust administrative remedies).
IV. State Law Claims
Plaintiff also asserts state law claims of intentional and negligent infliction of emotional distress. Although not addressed by Defendants' counsel, because Plaintiff has not asserted a viable federal claim herein and has not alleged or established any basis for jurisdiction for these claims other than supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law claims. See 28 U.S.C. § 1367(c)(3); cf., Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion to Dismiss, converted to a Motion for Summary Judgment, (Doc. No. 45) be GRANTED and judgment be entered in Defendants' favor regarding Plaintiff's federal claims based upon Plaintiff's failure to exhaust his administrative remedies. Additionally, the Court should decline to assert supplemental jurisdiction over Plaintiff's state law claims. Plaintiff is advised of the right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by June 7 th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.