Opinion
Civil Action 2:02-CV-583
December 11, 2002
OPINION AND ORDER
Plaintiff Jerry Lee Reynolds, a prisoner at Corrections Medical Center (hereinafter "CMC"), brings this action under 42 U.S.C. § 1983 alleging that defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment when they failed to protect him from an assault by a prisoner who was HIV positive. The United States Magistrate Judge recommended that defendants' July 5, 2002 motion for summary judgment be granted, concluding that plaintiff had failed to exhaust his administrative remedies as is required by 42 U.S.C. § 1997e. Report and Recommendation (October 25, 2002). This matter is now before the court on plaintiff's objection to that Report and Recommendation, which this Court will consider de novo. 28 U.S.C. § 636(b)(1); see also United States v. Shami, 754 F.2d 670 (6th Cir. 1985).
I. Background
Plaintiff is a citizen of Ohio and is currently an inmate at CMC. Complaint, at ¶ 4. Defendant Gary A. Sayers is an inspector for CMC and is responsible for reviewing prisoner grievances. Id., at ¶ 5. Defendant Rod Francis is the warden of CMC and is responsible for the operation, control, supervision, and official policy of CMC. Id., at ¶ 6.
On December 6, 1993, plaintiff was transferred to CMC. Id., at ¶ 7. Thereafter, inmate Morgan was transferred to CMC for treatment of HIV induced skin lesions. Id., at ¶ 8. Plaintiff alleges that defendants were aware of inmate Morgan's HIV status at all times relevant to this case. Id., at ¶ 14. On October 10, 1996, plaintiff filed a grievance with defendant Sayers indicating that plaintiff feared being attacked by inmate Morgan. Id., at ¶ 11. The next day, defendant Sayers discussed the grievance and the fear of an attack with plaintiff Id., at ¶ 12. Nevertheless, on October 16, 1996, inmate Morgan assaulted plaintiff. Id., at ¶ 13. As a result of this incident, both men were bleeding, and plaintiff required four stitches over his eye. Id. Plaintiff alleges that these acts and omissions constitute violations of his Eighth and Fourteenth Amendments rights. Id., at ¶ 16.
Plaintiff originally filed a complaint with this Court on October 15, 1998, regarding defendants' failure to prevent the assault by inmate Morgan. Id., at ¶ 2; Jerry Lee Reynolds v. Gary A. Sayers, et al., Case No. 2:98-CV-1057. This complaint was dismissed without prejudice for failure to exhaust prison administrative remedies pursuant to § 1997e(a). Complaint, at ¶ 2; see also Order, Case No. 2:98-CV-1057 (September 23, 1999), attached as Exhibit A to Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment. Plaintiff appealed, claiming that he did not have to exhaust a § 1983 claim seeking only monetary relief. See Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment. While that appeal was pending, the United States Supreme Court decided the case of Booth v. Churner, 532 U.S. 731 (2001), which held that prisoners seeking money damages, even though not available through the prison grievance process, must still exhaust all administrative remedies. Id. The United States Court of Appeals for the Sixth Circuit then affirmed this Court's dismissal of plaintiffs earlier action. Subsequently, on July 24, 2001, plaintiff filed an appeal to the Chief Inspector's Office in an attempt to fully exhaust his administrative remedies. Complaint, at ¶ 3. That administrative appeal was dismissed as untimely. Id. Plaintiff has now returned to this Court, arguing that he has exhausted all administrative remedies available to him.
Plaintiff had completed two of the three necessary steps to exhausting his administrative remedies when he filed suit. See Affidavit of Linda Coval, attached as Exhibit A to Defendants' Motion for Summary Judgment.
II. Discussion
Section 1997e is mandatory and 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 . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The prisoner has the burden of demonstrating that he has exhausted these remedies. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998), cert. denied, 525 U.S. 833 (1998).
Ohio inmates have grievance procedures available to them under O.A.C. § 5120-9-31. See also Wolff v. Moore, 199 F.3d 324 (6th Cir. 1999). Plaintiff admits that he had completed only two of the three steps established by § 5120-9-31 before filing his first case. After plaintiffs first case was dismissed for failure to exhaust administrative remedies, plaintiff returned to CMC and attempted to complete the third step required by § 5120-9-31, i.e., an appeal to the Chief Inspector. When that appeal was dismissed as untimely, plaintiff returned to this Court arguing that, because he is now time-barred from completing the inmate grievance procedure, he has exhausted his "available" administrative remedies. Plaintiffs argument is unpersuasive.
Plaintiff bases his argument on the assertion that, prior to the Supreme Court's decision in Booth v. Churner, 532 U.S. 731 (2001), there was a "split among the circuits" regarding the issue of whether an inmate must exhaust available administrative remedies pursuant to § 1997e when monetary damages are sought. Plaintiff concedes that Booth ultimately resolved the issue in favor of defendants' position, i.e., that inmates must exhaust their administrative remedies even when seeking monetary damages. However, plaintiff insists that, because he relied on this "split among the circuits" at the time he filed his initial suit, he should not be penalized for failing to complete the administrative process.
While plaintiff cites no authority for this assertion, this Court agrees that there was some conflict among the circuits regarding this issue. See Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir. 1999).
Plaintiff points to no authority in this circuit which induced him to abandon the administrative process contrary to the express language of § 1997e. Nor does he argue that officials at CMC prevented plaintiff from completing the inmate grievance process merely because he sought monetary damages. This Court agrees with the Magistrate Judge's conclusion that a prisoner cannot "abandon the process before completion and claim that he has exhausted his remedies or that it is futile for him to do so because his grievance is now time-barred under the regulations." Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999); Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997), cert. denied, 522 U.S. 906 (1997); Hrynczyn v. Mitchell, unpublished, 2001 WL 1299027 (6th Cir. 2001); Utley v. Hiatte, unpublished. 210 F.3d 373 (6th Cir. 2001); Fisher v. Wickstrom, unpublished, 230 F.3d 1358 (6th Cir. 2000); Qawi v. Stegall, unpublished, 211 F.3d 1270 (6th Cir. 2000); Larkins v. Wilkinson, unpublished, 172 F.3d 48 (6th Cir. 1998).
Plaintiff apparently made the decision to abandon the inmate grievance process to pursue an action in this Court. Plaintiff cannot now avoid the necessary consequences of that decision by claiming that his administrative remedies are no longer "available." To do so would be to defeat the very purpose of the exhaustion requirement. See Wyatt, 193 F.3d at 878-879. Therefore, because the failure to exhaust administrative remedies requires dismissal of a case, see Freeman, 196 F.3d at 645, the Magistrate Judge's conclusion must be affirmed.
Accordingly, plaintiffs objections to the Report and Recommendation are DENIED. The Report and Recommendation is hereby ADOPTED and AFFIRMED. Defendants' motion for summary judgment is hereby GRANTED.
The Clerk shall enter FINAL JUDGMENT in this action.