Opinion
Case No. 1:03-cv-613
December 5, 2003
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, PUB. L. No. 104-134, 110 STAT. 1321 (1996) ("PLRA"), "no action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Because Plaintiff has failed to demonstrate exhaustion of available administrative remedies, the Court will dismiss his complaint without prejudice.
Discussion
I. Factual allegations
Plaintiff Jimmie Lee Riley presently is incarcerated with the Michigan Department of Corrections and housed at the Muskegon Correctional Facility (MCF). He sues Resident Unit Officer (RUO) (Unknown — female) Kurtz.
According to the allegations of the complaint, while Plaintiff was housed in Unit B4 at MCF, he assisted various prisoners with their complaints against Defendant Kurtz, particularly for refusing to allow prisoners the opportunity to use restroom facilities. Because Plaintiff believed that Kurtz willfully deprived prisoners of medical attention, he began to compile documentary evidence, which he hoped would serve as a basis for federal investigation. During a brief verbal exchange with Defendant, Plaintiff advised her that he had complained to the Warden about Defendant's deliberate indifference to prisoner needs to use the restroom.
At that time, Plaintiff was assigned to the Honor Room of the housing unit because of his good conduct. If a prisoner is found guilty of a major rule violation while assigned to the Honor Room, he will be removed from it. Plaintiff alleges that shortly after his disclosures to Defendant, she retaliated against him by filing a false theft charge against him. On May 20, 2002, Plaintiff was found not guilty of the charge.
On June 28, 2002, Plaintiff became sick with a severe stomach and side ache. He began vomiting and had an urgent need to use the restroom. He rushed to the restroom and asked Defendant to contact prison health care. Defendant refused to do so. Instead, she issued Plaintiff a misconduct ticket for being out of place and told Plaintiff to return to his room, where he remained for several hours and suffered pain and discomfort. The following morning, after a different shift came on duty, Plaintiff complained to another officer about his pain and discomfort. A call to health service was made immediately. Medical advice was given and a special diet tray was ordered and delivered twice during the day. Plaintiff alleges that Defendant's actions in failing to provide necessary medical care and in issuing a false misconduct were taken in retaliation for the exercise of his First Amendment rights.
Plaintiff also alleges that Defendant failed to respond to an urgent health request by another inmate, prisoner Hampton, who developed bumps all over his upper body. Hampton told Defendant that he believed he had chickenpox, but Defendant continued to deny medical treatment. Hampton was later diagnosed with chickenpox, a highly contagious illness. (Compl. ¶ 26.) Because the causes of action listed in the complaint do not make any a claim on behalf of Hampton, the Court assumes that the paragraph is intended only to illustrate a pattern of behavior by Defendant.
Two days after the alleged denial of medical care, Plaintiff filed a grievance against Defendant, complaining that Defendant had improperly denied him urgently necessary medical care. The grievance was rejected at Step I. Plaintiff appealed the grievance rejection to Step II. The warden responded, "Your allegations regarding denial of medical treatment by staff have been turned over for investigation. Upon receipt of the investigation, corrective action will be taken if warranted. Grievanceresolved." (Compl. ¶ 30 (emphasis in original).) Plaintiff alleges that following the Step II response, Defendant was reassigned to another unit. Plaintiff makes no allegations that he appealed to Step III for further relief.
There are several steps to the MDOC grievance process. First, the grievant must attempt to verbally resolve the issue within two days after becoming aware that a grievable issue exists. Policy Directive 03.02.130, ¶ T (effective Oct. 11, 1999 and Nov. 1, 2000). If the issue is not resolved, within five days after the discussion, the prisoner may prepare a written grievance and submit it to the Step I grievance coordinator. Id. ¶ Y. At Step I, a prison staff member is responsible for responding to a grievance within fifteen days, plus an additional fifteen days if an extension is granted by the Step I grievance coordinator. Id. ¶ CC. After the prisoner receives the response, the prisoner must request an appeal form within five days, and the prisoner must appeal to Step II within five days from receipt of the appeal form. Id. ¶ DD. At Step II, the grievance coordinator assigns an appropriate respondent, who is responsible for responding to a grievance within fifteen days, plus an additional fifteen days if an extension is granted by the Step II grievance coordinator. Id. ¶¶ EE-FF. Within ten days of receiving a Step II response, a prisoner must appeal to Step III. Id. ¶ GG. At Step III, the Director of the Department of Corrections (or his designee) is responsible for responding. Id. ¶ GG. Policy requires that no more than ninety calendar days may elapse from the filing of the Step I grievance to the Step III response. Id. ¶ V. The rejection of a grievance may be appealed. MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ H (effective 4/28/03). See Little v. Bahr, No. 99-1660, 2000 WL 921978, at *1 (6th Cir. June 30, 2000) (holding that a rejection of a grievance is itself a response that must be appealed).
In his complaint, Plaintiff alleges that Defendant violated his First Amendment rights to file grievances and that she retaliated against Plaintiff for the exercise of those rights by filing false misconduct charges and by denying him necessary health care. He also alleges that the denial of health care violated his rights under the Eighth Amendment and constituted the state tort of intentional infliction of emotional distress. He seeks declaratory and injunctive relief, together with compensatory and punitive damages of $5,000 each.
II. Lack of exhaustion of available administrative remedies
Plaintiff has failed sufficiently to allege and show exhaustion of available administrative remedies. Pursuant to 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S.731 (2001). The exhaustion requirement is mandatory and applies to all suits regarding prison conditions, regardless of the nature of the wrong or the type of relief sought. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. A district courtmust enforce the exhaustion requirement sua sponte. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998); accord Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).
A prisoner must allege and show that he has exhausted all available administrative remedies and should attach to his § 1983 complaint the administrative decision disposing of his complaint, if the decision is available. Brown, 139 F.3d at 1104. In the absence of written documentation, the prisoner must describe with specificity the administrative proceeding and its outcome so that the Court may determine what claims, if any, have been exhausted. Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). In addition, a prisoner must specifically mention the involved parties in the grievance to alert the prison officials to the problems so that the prison has a chance to address the claims before they reach federal court. Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001); Vandiver v. Martin, No. 02-1338, 2002 WL 31166925, at *2 (6th Cir. Sept. 27, 2002) ("The issues [plaintiff] may raise, and the defendants he may name, in his lawsuit are limited to the specific issues raised, and the specific individuals mentioned, in his grievance.").
To assist prisoners in meeting this requirement, this Court advises prisoners to attach copies of documents evidencing exhaustion in its form complaint. The form complaint, which is required by local rule, is disseminated to all the prisons. See W.D. MICH. LCivR 5.6(a). Plaintiff has chosen to forego use of the form complaint in this action.
Plaintiff's claims are the types of claims that may be grieved through the three step prison grievance process. See MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ E (may grieve "alleged violations of policy and procedure or unsatisfactory conditions of confinement"); ¶ II (may grieve brutality and corruption by prison staff) (effective Oct. 11, 1999 and November 1, 2000). While Plaintiff alleges that he filed a grievance about his denial of medical treatment and pursued it until it was resolved at Step II, he does not allege that he sought further relief at Step III. A plaintiff must pursue all levels of the administrative procedure before filing an action in federal court. See Freeman, 196 F.3d at 645 ("While we recognize that plaintiff made some attempt to go through the prison's grievance procedures, we must dismiss plaintiff's complaint because he filed his federal complaint before allowing the administrative process to be completed."); Brown, 139 F.3d at 1103 (6th Cir. 1998) (prisoners "must allege and show that they have exhausted all available state administrative remedies"); accord Lutchey v. Wiley, No. 98-3760, 1999 WL 645951, at *1 (6th Cir. Aug. 13, 1999) (dismissal of claim for lack of exhaustion was appropriate where prisoners failed to complete the review process before bringing their lawsuit); Larkins v. Wilkinson, No. 97-4183, 1998 WL 898870, at *1 (6th Cir. Dec. 17, 1998) ("Furthermore, even though Larkins may not have aborted the grievance procedure regarding the ninth cause of action raised in his complaint, such grievance was not resolved prior to the filing of either his complaint or amended complaint and, consequently, is unexhausted."); Tucker v. McAninch, No. 97-3880, 1998 WL 552940, at *2 (6th Cir. Aug. 13, 1998) (plaintiff failed to complete the administrative process when he had grieved and appealed to the warden, but had one more appeal remaining to the director of the department).
In addition, Plaintiff does not allege that he filed any grievance relating to Defendant's issuance of false misconduct tickets on either the theft charge or the out-of-place charge, or that he complained of retaliation in his grievance of the denial of health care. He therefore has failed entirely to allege exhaustion of his remedies with respect to those claims. Accordingly, the Court finds that Plaintiff has failed to demonstrate exhaustion of available administrative remedies.
It is not clear whether Plaintiff may still grieve his claims. Under the policy of the prison, complaints must be resolved expeditiously, and complaints may be rejected as untimely. See Policy Directive 03.02.130, ¶ G(4). The Sixth Circuit held that an inmate cannot 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) (citing Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997)).
Because the exhaustion requirement is no longer discretionary, but is mandatory, the Court does not have the discretion to provide a continuance in the absence of exhaustion. See Wright, 111 F.3d at 417. Rather, dismissal of this action without prejudice is appropriate when a prisoner has failed to show that he exhausted available administrative remedies. See Freeman, 196 F.3d at 645; Brown, 139 F.3d at 1104; White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). Dismissal for failing to exhaust available administrative remedies does not relieve a plaintiff from payment of the civil action filing fee. Smeltzer v. Hook, 235 F. Supp.2d 736, 746 (W.D. Mich. 2002) (citing Omar v. Lesza, No. 97 C 5817, 1997 WL 534361, at *1 (N.D. I11. Aug. 26, 1997)). Accordingly, the Court will dismiss his action without prejudice.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the Court will dismiss Plaintiffs action without prejudice because he has failed to show exhaustion as required by 42 U.S.C. § 1997e(a).
The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). SeeMcGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the $105 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $105 appellate filing fee in one lump sum.
A Judgment consistent with this Opinion will be entered.