Opinion
CIV-21-899-R
04-12-2022
A'HEEM LAMONZE PLATER, Plaintiff, v. EDEN POIROT, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, 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. 18. 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 Claims
This case arises from allegations that while Plaintiff has been incarcerated at Lawton Correctional Facility (“LCF”), Defendants have violated his rights under the First, Eighth, and Fourteenth Amendments. Plaintiff names as Defendant in this matter: Correctional Captain Eden Poirot, Correctional Sergeant Trevor Funk, LCF Warden Dr. Mark Bowen, Assistant Facility Administrator David Bowers, and the GEO Group, Inc. d/b/a GEO Corrections (“GEO, Inc.”). Doc. No. 1 at 1, 4-5. In Claim One, Plaintiff asserts that Defendant Bowers and GEO, Inc. denied him due process and equal protection of the law during disciplinary proceedings. Id. at 7, 8. In Claim Two, Plaintiff contends Defendants Poirot, Funk, Bowen and GEO, Inc. violated his rights under the Eighth Amendment by forcing him to “sleep in his boxers on a [] metal bed in high cold air for seven days” without bedding. Id. at 8-9.
In Claim Three, Plaintiff asserts equal protection and due process claims against Defendants Poirot, Bowen, and GEO, Inc. based on allegations they arbitrarily deprived him of his property without due process. Doc. No. 1-1 at 1. In Claim Four, Plaintiff asserts Defendants Poirot, Bowen, Funk, and GEO, Inc. violated his First Amendment rights by seizing his legal materials and religious property, thereby preventing his participation in Ramadan. Id. at 2. Finally, in Claim Five, Plaintiff asserts a state law claim of intentional infliction of emotional distress against Defendants Poirot, Bowen, Funk, and GEO, Inc. based on the above allegations, as well as Plaintiff's assertion that they denied him the right “to be heard on issue of fear of cohabitation following an attempt upon his life.” Id. at 3.
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, inter alia, Plaintiff's failure to exhaust administrative remedies. Doc. No. 18. 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. 19, 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
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 Ross v. Blake, 578 U.S. 632, 640 (2016) (“[T]he history of the PLRA underscores the mandatory nature of its exhaustion regime.”); 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.”).
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, 578 U.S. at 638-40 (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.
IV. 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. 17-13. 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 810. 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 reviewing authority denies the grievance at the prison level, a prisoner must appeal the decision to the Administrative Review Authority (“ARA”) 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 ARA, 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.
V. Plaintiff's Utilization of the Grievance Process
Relying on the Requests to Staff and Grievances Plaintiff submitted prior to filing this lawsuit, Defendants argue Plaintiff never completed the administrative process regarding any of his claims. Doc. No. 18 at 2-3. In his Response, Plaintiff simply makes conclusory statements that he “has followed PLRA requirements but has been forced to rely upon misrepresentation of Defendants in order to submit ARA level grievances while in RHU. The PLRA has been satisfied in Claim 1 of the Complaint.” Doc. No. 20 at 4.
A. Grievance 306-21
Plaintiff submitted Grievance 306-21, which he labeled an Emergency Grievance, on April 23, 2021. Doc. No. 17-3 at 2. Therein, Plaintiff stated that he was completing the Grievance in pencil because all of his pens had been confiscated. Id. He explained that on April 21, 2021, he refused housing and a cellmate. Id. As a result, Defendant Funk confiscated Plaintiff's legal material and religious property, including but not limited to his Quran. Id. Plaintiff stated that without his religious property he was unable to practice his religion, and additionally, this occurred during Ramadan. Id. at 2-3. Plaintiff further stated that Defendant Funk had left him with only one pair of underwear, meaning that Plaintiff could not maintain proper hygiene, and he was left to sleep on a cold metal bedframe with no bedding. Id. at 3. Plaintiff asserted these confiscations occurred without due process. Id. In his request for relief, Plaintiff stated that he wanted his property returned. Id. He submitted the Grievance to Defendant Bowen whom he identified as the Warden/Facility Head. Id.
On May 5, 2021, the Grievance Coordinator returned Grievance 306-21 to Plaintiff unanswered. Id. at 1. The Coordinator indicated he was returning it unanswered because Plaintiff completed it in pencil rather than the required pen, he had raised multiple issues, and the content was not of an emergency nature. Id. The form further indicated Plaintiff had 10 days in which to resubmit a corrected grievance. Id.
B. Grievances 329-21, 369-21
On April 27, 2021, Plaintiff submitted a Request to Staff in which he stated that Defendant Poirot seized his property, including his legal material, Quran, soap, mat, blanket, shirts, and pens, on April 21, 2021, in violation of LCF policy and his constitutional rights. Doc. No. 17-5 at 3-4. Plaintiff requested that his property be returned, specifically his legal work, Quran, and soap. Id. at 3. On April 30, 2021, Defendant Poirot responded that his property had been returned. Id. On May 5, 2021, Plaintiff submitted Grievance 329-21. Id. at 2. Therein, he stated that Defendant Poirot unconstitutionally ordered the seizure of his religious materials, legal materials, and pens on April 21, 2021. Id. He also noted that she took his Quran during Ramadan. Id. He requested that LCF place the “notification of violations” of policy in Defendant Poirot's file and “notify the contract monitor.” Id. On May 24, 2021, the Grievance Coordinator returned Grievance 329-21 noting Plaintiff had not signed it and had failed to send it to the Facility Administrator. Id. at 1. The form indicated Plaintiff had 10 days to resubmit the Grievance properly. Id.
On May 26, 2021, Plaintiff attempted to cure these deficiencies by submitting Grievance 369-21. Doc. No. 17-9 at 2. Plaintiff signed Grievance 36921 and addressed it to the “Warden/Facility Head, ” thereby seemingly addressing the two deficiencies indicated in the return form for Grievance 329-21. Doc. No. 17-5 at 1; Doc. No. 17-9 at 2. This time the Grievance Coordinator returned Grievance 369-21 unanswered on June 2, 2021, indicating LCF does not address requests for disciplinary action against staff, “[r]elief sought in the ‘Request to Staff' and “Grievance form” did not match, ” Plaintiff failed to follow previous instructions for properly filing the Grievance and had thereby forfeited another opportunity to do so, and Plaintiff failed to send the Grievance to the Facility Administrator. Id. at 1.
The Court notes Plaintiff's original Grievance 329-21 also requested disciplinary action against a staff member and requested relief different from the underlying Request to Staff. When the Grievance Coordinator returned it unanswered, they did not indicate to Plaintiff these were cause for rejection of his Grievance. Doc. No. 17-5 at 1-3. Additionally, Plaintiff addressed Grievance 369-21 to the Warden/Facility Head. Thus, the assertion that he failed to send it to the Facility Administrator appears suspect. His alleged failure to do so is the only previous instruction Plaintiff failed to follow. Moreover, Plaintiff also addressed Grievance 306-21, supra, to the Warden/Facility Head and when the Grievance Coordinator returned it unanswered, he did not indicate Plaintiff had sent it to the wrong individual. Doc. No. 17-1 at 1-2.
C. Grievances 330-21, 370-21
On April 26, 2021, Plaintiff submitted a Request to Staff in which he stated that Sgt. Funk had returned underwear that did not belong to Plaintiff. Doc. No. 17-6 at 3. Additionally, Plaintiff complained his previous property seizure and restriction violated LCF policy and his constitutional rights, including those under the First, Eighth, and Fourteenth Amendments. Id. at 3-4. He requested the return of his property and complained that his refusal of housing, which resulted in the property restriction, was based on a threat to his life for which he had evidence. Id. at 3. On April 30, 2021, Defendant Poirot responded, “Your property restriction was enacted in accordance with Policy and signed off on by the appropriate committee members.” Id.
On May 5, 2021, Plaintiff filed Grievance 330-21, enclosed the April 26, 2021 Request to Staff, and complained that on April 21, 2021, he was stripped to his underwear because he declined a cellmate for mental health reasons. Id. at 2. Plaintiff was not provided a hearing or allowed to explain his reasons, and was forced to sleep in a cold cell, almost naked, with no mat, bedding, or clothing. Id. He also indicated that he sustained an eye infection. Id. Plaintiff explained that officials took his legal work, Quran, and pens. Id. He requested LCF officials report the policy violations to the contract monitor, as well as that a copy of the Grievance be placed in Defendant Funk's file. Id. On May 24, 2021, the Grievance Coordinator returned the Grievance unanswered because Plaintiff had failed to sign it, did not specify time frames in which events occurred, and failed to send it to the Facility Administrator. Id. at 1.
In this instance, Plaintiff left blank the area wherein he should have indicated to whom he was submitting the Grievance. Id. at 2.
Plaintiff attempted to alleviate these errors by submitting Grievance 37021 on May 26, 2021. Doc. No. 17-8 at 2. Therein, he noted that the property restriction at issue took place on April 21, 2021, he signed the form, and he addressed it to the “Warden/Facility Head.” Id. He again requested LCF officials report the policy violations to the contract monitor, as well as that a copy of the Grievance be placed in Defendant Funk's file. Id. This time the Grievance Coordinator returned the Grievance unanswered on June 2, 2021, indicating that LCF does not address requests for disciplinary action against staff, “[r]elief sought in the ‘Request to Staff' and “Grievance form” did not match, ” he failed to follow previous instructions for filing the Grievance and had thereby forfeited another opportunity to do so, and failed to send the Grievance to the Facility Administrator. Id. at 1.
Similar to Grievance 369-21, supra, the Court notes Plaintiff's original Grievance 33021 also requested disciplinary action against a staff member and requested relief different from the underlying Request to Staff. Doc. No. 17-6 at 2, 3. When officials returned it unanswered, they did not indicate to Plaintiff these were cause for rejection of his Grievance. Doc. No. 17-6 at 1. Additionally, Plaintiff addressed Grievance 37021 to Warden/Facility Head, thus the assertion that he failed to send it to the Facility Administrator again appears suspect. Failure to do so is the only previous instruction Plaintiff allegedly failed to follow. Moreover, as previously noted, Plaintiff also addressed Grievance 306-21 to the Warden/Facility Head and when the Grievance Coordinator returned it unanswered, he did not indicate Plaintiff had sent it to the wrong individual. Doc. No. 17-1 at 1-2.
D. Grievance 323-21ER
On May 5, 2021, Plaintiff submitted Grievance 323-21ER, identifying the Grievance as an emergency matter. Doc. No. 17-7 at 2. He stated, “You put me on property restriction. I was found not guilty. AFA Bowers ordered a rehearing. My appeal was confirmed 4/22/21. I need to be given permission to access the law library in RHU.” Id. He requested the administrative authority place him “in house 5(c) so my mental health won't be jeopardized; I get paranoid anywhere else.” Id. On May 24, 2021, the Grievance Coordinator returned the Grievance to Plaintiff unanswered, noting Plaintiff had not signed the Grievance, he was attempting to grieve more than one issue, it was not of a sensitive or emergency nature, and he did not send it to the Facility Administrator. Id. at 1.
In this instance, Plaintiff left blank the area wherein he should have indicated to whom he was submitting the Grievance. Id. at 2.
E. Grievance 324-21
On May 4, 2021, Plaintiff submitted Grievance 324-21. Doc. No. 17-4 at 2. Therein, he stated that Defendant Bowen took his pens, Quran, legal work, blanket, mat, shirts, pants, jacket, and towels because Plaintiff refused a cellmate. Id. Plaintiff contended he was deprived of these things without a hearing or a chance to his explain his refusal. Id. The lack of pens meant that Plaintiff could not file a proper grievance and without bedding, he was forced to sleep on metal in the cold. Id. Plaintiff stated that it was “over now, ” but he suffered irreparable psychological harm. Id. He also stated that he needed law library video service. Id. The Grievance Coordinator returned Grievance 324-21 to Plaintiff unanswered on May 24, 2021, because Plaintiff had not included an underlying Request to Staff, failed to sign the Grievance, failed to follow previous instructions on how to properly submit a Grievance, did not specify the dates the underlying events occurred, and did not send it to the Facility Administrator, as required. Id. at 1.
In this instance, Plaintiff left blank the area wherein he should have indicated to whom he was submitting the Grievance. Id. at 2. The Court notes Plaintiff received all the return forms indicating that he had failed to sign a Grievance on May 24, 2021. Doc. Nos. 17-4 at 1, 17-5 at 1, 17-6 at 1, 17-7 at 1. Plaintiff signed each of the Grievances he resubmitted in an attempt to cure the noted deficiencies. Doc. No. 17-8 at 2, 17-9 at 2.
F. Grievance Restriction Warning
On May 18, 2021, LCF's Lt. Cooper submitted a letter to Plaintiff with the subject line: “12 month Grievance Restriction Warning.” Doc. No. 17-10. Therein, Lt. Cooper stated:
Your grievance is being returned unanswered for the following reasons:
• Grievances intended to harass another;
• The repeated submitting of grievances or “Requests to Staff” about an issue previously addressed by staff in their written response;
• Continued procedural defects, such as submitting additional pages, after having been previously warned.Id. Lt. Cooper did not indicate in the letter which Grievance he was returning unanswered. Id. Additionally, it is unclear whether Lt. Cooper was placing Plaintiff on grievance restriction or instead, providing him a warning that he may be placed on restriction in the future. Id.
G. Misconduct Appeal
On April 21, 2021, Plaintiff received a misconduct report based on allegations that he was in possession of a sharpened instrument. LCF held a hearing on the same on May 14, 2021. Doc. No. 17-12 at 7. Following the hearing, Plaintiff filed an appeal, arguing that he was not permitted the opportunity to present relevant witnesses, submit relevant written witness statements, or present relevant documentary evidence. Id. at 5. He also stated that no evidence, in the form of witnesses, was presented. Id. The appeal was initially returned on June 2, 2021, because Plaintiff did not fill out the title and wrote in the margins. Id. at 4. On June 7, 2021, Plaintiff resubmitted the same appeal. Id. at 2. On June 22, 2021, it was again return unanswered based on writing in the margins. Id. at 1. The return also stated that based on Plaintiff's failure to correct the deficiency, his right to appeal was deemed waived. Id. At some point, an appeal was permitted because the following Response was issued in which Director's Designee, Mark Knutson, ordered a rehearing for Plaintiff. Id. at 7.
A DUE PROCESS REVIEW WAS CONDUCTED BY THIS OFFICE, IT HAS BEEN DETERMINED THAT DUE PROCESS WAS NOT PROVIDED.
This offense report is being returned in order to obtain approval for a rehearing from the director of Community Corrections and Contract Services. During the disciplinary hearing on 4/29/2021 inmate Plater was found not guilty the facility head ordered a
rehearing on 4/30/2021. A rehearing was conducted on 5/14/2021 and the inmate was found guilty. However, “Inmate/Offender Disciplinary Procedures (OP-060125) Section VII.E.2. states, “During the review of the “Disciplinary Hearing Report” form, the facility head/deputy director or designee may order a rehearing of a finding of not guilty or may order the reinstatement of an “Offense Report” that has been dismissed only if approved in writing by the director of Institutions/ director of Community Corrections and Contract Services. A statement must be included in the order for a rehearing or reinstatement of an “Offense Report” or what is to be reheard and why the rehearing/reinstatement is being ordered.” Prior to the rehearing, the facility must obtain approval (in writing) from the director of Community Corrections and Contract Services. The inmate will be provided all copies of evidence, except confidential, at least twenty-four (24) hours prior to the rehearing.
A rehearing is requested upon receipt of this directive and all rehearing paperwork by the facility where the inmate is presently housed. At least twenty-four (24) hours prior to the rehearing, the inmate will receive written notification of the scheduled date and approximate time of the rehearing.Id.
VI. Plaintiff Did Not Exhaust Administrative Remedies
Plaintiff raises several federal claims in this lawsuit. See supra. Drawing all reasonable inferences in Plaintiff's favor, the Court finds Plaintiff did not exhaust his administrative remedies prior to asserting said claims. Plaintiff makes a conclusory statement that he has exhausted his administrative remedies with regard to Claim One. Doc. No. 20 at 4. As to the remaining claims, Plaintiff contends any failure to exhaust is due to misrepresentation by Defendants and/or LCF staff. Id.at 4, 6-8. He also asserts that “it is extremely probable Defendants failed to submit the ARA level grievance by discarding the envelopes mailed to Oklahoma City by Plaintiff.” Id. at 8. In a later filing, Plaintiff asserts the same allegation, stating, “The affidavit in support of this motion (Ex. 1) further establishes Plaintiff submitted requests to the ARA and the reasonable probability employees deliberately mishandled his outgoing mail to the ARA to avoid proper exhaustion of meritorious claims in summary judgment[.]” Doc. No. 21 at 3.
Plaintiff made this assertion in a Motion for Equitable Estoppel, addressed below. Doc. No 21. Contrary to Plaintiff's statement, the Motion was not accompanied by an affidavit or any other exhibit.
A. Claim One
In Claim One, Plaintiff contends Defendant Bowers and GEO denied him due process and equal protection during disciplinary proceedings. As previously established, Plaintiff received a misconduct report based on allegations that he was in possession of a sharpened instrument. Doc. No. 17-12 at 7. Plaintiff was found not guilty in his initial hearing, but the facility head ordered a rehearing in which he was found guilty. Id. at 5. On appeal, the Director's Designee found Plaintiff was not provided due process in the ordering of the rehearing and remanded the matter for further proceedings. Id. at 7.
In his Response to Defendants' Motion for Summary Judgment, Plaintiff appears to be laboring under the mistaken presumption that being granted relief in a misconduct appeal equates to the exhaustion of administrative remedies. It does not. He asserts that “[t]he PLRA has been satisfied in Claim I of the initial Complaint, ” see Doc. No. 20 at 4, however, the record does not contain Requests to Staff or Grievances related to his misconduct charge and related proceedings.The only documents in the record pertaining to his misconduct are his misconduct appeal and the response to the same remanding the matter for further proceedings.
In Grievance 323-21ER, Plaintiff referenced that he was found not guilty after he was placed on property restriction, Defendant Bowers ordered a rehearing, and his “appeal was confirmed” on April 22, 2021. Doc. No. 17-7 at 2. However, Plaintiff did not complain in the Grievance that he was deprived of due process and ultimately requested law library access and different housing. Id.
While Mr. Knutson found Plaintiff had not received due process with regard to the misconduct rehearing, a misconduct appeal is separate from the administrative remedy process. The grievance procedure explicitly sets forth the steps necessary to exhaust administrative remedies, as required by the PLRA, including an informal resolution, request to staff, grievance, and appeal to the ARA. See supra. That procedure stands alone and is not satisfied by a separate misconduct appeal. Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (“Because the prison's procedural requirements define the steps necessary for exhaustion, an inmate may only exhaust by properly following all of the steps laid out in the prison system's grievance procedure.” (citation omitted)).
The Court recognizes that having already been granted a new hearing, Plaintiff may not have been able to obtain further relief through the grievance process from prison officials for the due process violation. Nevertheless, it is well established that a plaintiff is required to exhaust administrative remedies in situations where they cannot obtain the relief desired. “Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.” Robinson v. Adame, 832 Fed.Appx. 542, 545 (10th Cir. 2020) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e stress the point . . . that we will not read futility or other exceptions into [the PLRA's] statutory exhaustion requirements[.]”).
The record establishes Plaintiff did not exhaust administrative remedies with regard to a lack of due process in his misconduct hearings. Accordingly, Defendants are entitled to summary judgment against Claim One.
B. Claims Two-Four
With regard to his remaining federal claims, to the extent his Requests to Staff and/or Grievances addressed them, the record indicates Plaintiff never completed the grievance process by appealing to the ARA. Plaintiff essentially concedes that he has not exhausted his administrative remedies, but states, in wholly conclusory fashion, that there is a “reasonable probability” Defendants and/or LCF officials disposed of his appeal(s) to the ARA. Doc. No. 21 at 3. He also implies that he failed to exhaust because he was “forced to rely upon misrepresentation[s] of Defendants in order to submit ARA level grievances while in RHU.” Doc. No. 20 at 4.
Plaintiff makes this assertion in his Motion for Equitable Estoppel, filed after his Response to Defendants' Motion for Summary Judgment. Doc. No. 21. Therein, Plaintiff essentially continues his argument, though again in conclusory fashion, that LCF officials thwarted his attempts to exhaust his administrative remedies through allegations that officials disposed of his appeals to the ARA. Id. at 3-4. The undersigned has construed Plaintiff's Motion as a Supplement to his Response and addressed the same herein. Thus, Plaintiff's Motion (Doc. No. 21) should be denied as moot.
To be sure, courts have found grievance procedures unavailable when facility staff prevents an inmate from exhausting 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, 578 U.S. at 644 (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's vague allegations that unknown officials misrepresented some aspect of the appeal process and/or disposed of his appeals to the ARA are vague. Plaintiff provides no details specifying which grievance denials he allegedly appealed or when he sent them. Instead, he merely asserts, without any supporting statements, that there is a reasonable probability such treachery occurred. “[W]holly conclusory allegations are insufficient” to establish Plaintiff's efforts to exhaust were thwarted or hindered by prison officials. Parker v. Troutt, No. CIV-11-197-D, 2012 WL 2571322, at *9 n.11 (W.D. Okla. May 31, 2012); see also Simpson v. Jones, 316 Fed.Appx. 807, 810 11 (10th Cir. 2009) (holding that prison inmate's unsworn, generalized, and conclusory allegations regarding allegedly rampant practice on part of ODOC employees to hinder or sabotage inmates' attempts to exhaust their administrative remedies were insufficient to create any genuine issue of material fact as to whether he had in fact exhausted his administrative remedies); Bell v. Ward, 189 Fed.Appx. 802, 804 (10th Cir. 2006) (finding that where state submitted evidence demonstrating prisoner's file did not contain any administrative appeals for the time period governing prisoner's claims, and prisoner responded with only conclusory allegations that prison officials destroyed his appeals and falsified the prison grievance log, record failed to establish that administrative remedies were unavailable or futile and district court properly applied § 1997e(a)'s exhaustion requirement in dismissing prisoner's § 1983 action).
On April 11, 2022, Plaintiff filed an “Exhibit to Plaintiff's Objection to Defendant's Motion to Dismiss/Motion for Summary Judgment.” Doc. No. 24. Plaintiff's deadline to file a Response to Defendants' Motion was March 30, 2022. Doc. Nos. 18, 19. Thus, this additional supplement is untimely and the Court is not required to consider it. Nevertheless, the Court notes Plaintiff included an Affidavit in which he stated that he had “mailed my ARA level grievances required to exhaust remedies” and that he gave them to Ashley Katzinger, an LCF employee. Doc. No. 24-3 at 1, 2. Presuming without deciding the Court should consider this additional filing, these allegations are still not sufficient to meet Plaintiff's burden of establishing that administrative remedies were unavailable. Tuckel, 660 F.3d at 1254. Plaintiff filed numerous Grievances. See supra. Plaintiff fails to provide any details regarding which grievances he appealed and/or when those appeals were allegedly provided to Ms. Katzinger. Considering the voluminous nature of Plaintiff's Requests to Staff and Grievances, a general statement that Plaintiff “appealed my ARA level grievances” remains insufficient.
Defendants have established Plaintiff never completed the administrative remedy process as to his final three federal claims. Tuckel, 660 F.3d at 1254. Plaintiff, on the other hand, has not satisfied his burden of demonstrating administrative remedies were unavailable to him. Id. Thus, presuming without deciding that Plaintiff's Requests to Staff and Grievances adequately addressed his asserted claims, it is clear he failed to complete the grievance process prior to asserting said 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 Defendants' 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).
In light of the recommended disposition, it is unnecessary for the Court to address Defendants' remaining bases for their request for summary judgment.
VII. State Law Claim
Plaintiff also asserts a state law claim of intentional infliction of emotional distress. Doc. No. 1-1 at 3. Because Plaintiff has not asserted a viable federal claim herein and has not alleged or established any basis for jurisdiction for this claim other than supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claim. 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. 18) be GRANTED and judgment be entered in Defendants' favor regarding Plaintiff's federal claims (Claims One through Four) based upon his failure to exhaust his administrative remedies. Additionally, the Court should decline to assert supplemental jurisdiction over Plaintiff's remaining state law claim.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by May 2nd , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this 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 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.