Stewart v. JRS Depart. of Corrections

Full title: Kenneth V. Stewart, Plaintiff, v. Jrs. Department of Corrections, Warden…

Court: Superior Court of Delaware, New Castle County

Date published: Aug 8, 2002

C.A. No. 01C-10-058 (Del. Super. Ct. Aug. 8, 2002)

Opinion

C.A. No. 01C-10-058

Submitted: May 20, 2002

Decided: August 8, 2002

Upon Consideration of Defendants' Motion to Dismiss. GRANTED. Upon Consideration of Defendants' Motion to Stay Discovery. DENIED.

Judge Joseph R. Slights, III

I. INTRODUCTION

On October 29, 2001, Plaintiff, Kenneth V. Stewart ("Mr. Stewart"), commenced this litigation while incarcerated at the Multipurpose Criminal Justice Facility ("Gander Hill") against various officials at Gander Hill ("Defendants") to recover compensatory and punitive damages for alleged constitutional violations he suffered at the hands of Defendants.¹ While Mr. Stewart did not plead specifically a violation of 42 U.S.C. § 1983 ("Section 1983"), based on the nature of his allegations, the Court will treat Mr. Stewart's complaint as one brought under Section 1983.²

1 D.I. 1

2 See Dickens v. Carr et al., Del. Super., C.A. No. 97C-06-063, Quillen, J. (Oct. 8, 1999) (Letter Op. at 3)(" Dickens I").

Pending before the Court are Defendants' Motion to Dismiss and Motion to Stay Discovery. For the reasons that follow, Defendants' Motion to Dismiss is GRANTED and Defendants' Motion to Stay Discovery is DENIED as moot.

II. FACTS

The facts set forth below are gleaned from Mr. Stewart's complaint, the only pleading filed in this matter. Mr. Stewart alleges that on May 27, 2001, while in the custody of the Department of Corrections at Gander Hill, he was involved in a verbal altercation with Defendant Rodriguez, a correctional officer at the facility.³ Immediately thereafter, Mr. Stewart alleges that he was physically assaulted by Defendants Rodriguez and Wilson, who pushed him to the floor and confiscated his crutches.⁴ On May 28, 2001, Mr. Stewart was released from the prison infirmary and transferred to a disciplinary unit per order of Defendant McMillan.⁵ He alleges that Defendants refused to return his crutches and placed him in a top bunk bed.⁶ He further alleges that as a result of Defendants' actions, his ankle has not healed properly and he will need to undergo reconstructive surgery. Mr. Stewart is seeking compensatory and punitive damages.

3 D.I. 1 at *6.

4 Id. at *7. Mr. Stewart's ankle was injured in an accident on May 13, 2001. The accident did not occur while Mr. Stewart was in the custody of the Department of Corrections. See Id. at *3.

5 Id. at *11.

6 Id. at *13.

III. DISCUSSION A. Defendants' Motion to Dismiss

Defendants have moved to Dismiss Mr. Stewart's complaint on the basis that he has failed to exhaust administrative remedies at Gander Hill in accordance with the Prison Litigation Reform Act ("PLRA").⁷ In support of their motion, Defendants have attached an affidavit of Sergeant Mary Moody, the Inmate Grievance Chair at Gander Hill, who maintains the records of inmate grievances. Because Defendants have supported their motion with evidence not addressed in the pleadings, the Court will treat their motion as one for summary judgment under Superior Court Civil Rule 56.⁸ As a preliminary matter, the Court notes that Defendants have not filed an answer to Mr. Stewart's complaint. "While it normally seems preferable to answer prior to filing a Motion for Summary Judgment, under Superior Court Civil Rule 56(b), a Defendant can file a Motion for Summary Judgment `at any time.'"⁹ Accordingly, Defendants' motion is properly before the Court.

7 42 U.S.C. § 1997(e).

8 Ruthenberg v. Kimmel Spiller, P.A., 1981 WL 383091 (Del.Super.) at *3 ("It is true that if defendants had filed a motion to dismiss and supported it with an affidavit, it would be treated as a motion for summary judgment.") (citing Brown v. Colonial Chevrolet Co., 249 A.2d 439 (Del. 1968); Phillips v. United Parcel Service Inc., 2001 WL 694535 (D. Del) at *1 (defendants attached affidavits to motion to dismiss and court held that "[b]ecause the court must examine these materials to decide the instant motion, it will treat the pending motion as one for summary judgment.").

9 Mutter v. American International Group, 1998 WL 960730 (Del. Super) at *1. The Court notes that a motion for summary judgment may not be filed outside of the confines of a case scheduling order.

The Court informed Mr. Stewart of Defendants' motion and requested a response by May 20, 2002. Mr. Stewart has not responded to the motion, nor has he indicated an inability to present facts in opposition to Defendants' motion per Rule 56(f).¹⁰ In light of Mr. Stewart's failure to respond, the Court deems the motion unopposed.¹¹

10 Mr. Stewart did file a response to Defendants' Motion to Stay Discovery, also pending before the Court.

11 See Superior Court New Castle County Civil Case Management Plan, Sect. IV A, 3(b) at 9 (Nov. 2001).

1. Standard of Review

In considering a motion for summary judgment, the Court is required to examine the record, all pleadings, affidavits and discovery.¹² The Court must view this evidence in the light most favorable to the non-moving party.¹³ Summary judgment may be granted only when the Court's review of the record reveals that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.¹⁴ The moving party bears the initial burden of illustrating the absence of a material factual dispute.¹⁵ Then, the burden shifts to the non-moving party to demonstrate that there are material issues of fact that remain in dispute.¹⁶

2. Defendants Have Properly Raised Mr. Stewart's Failure to Exhaust Administrative Remedies

The court may not dismiss a prisoner's suit for failure to exhaust administrative remedies sua sponte.¹⁷ Instead, "failure to exhaust administrative remedies is an affirmative defense to be pleaded by the defendant."¹⁸ Here, Defendants raised Mr. Stewart's failure to exhaust administrative remedies, for the first time, in their motion to dismiss without first having raised it as an affirmative defense in a pleading. The Court has considered the propriety of raising this affirmative defense in a motion before an answer has been filed and concludes that, in this instance, it is appropriate.

Traditionally, the rule has been that affirmative defenses may not be raised in a motion to dismiss or to strike. "Since the facts necessary to establish an affirmative defense generally must be shown by matter outside the complaint, the defense technically cannot be adjudicated on a motion under Rule 12. According to this conception, motions to dismiss or to strike only can attack matters appearing on the face of the complaint; new defensive material therefore must be raised by answer."¹⁹ This procedure seeks to provide a plaintiff with "an adequate opportunity to present arguments rebutting the defense."²⁰

19 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure, § 1277 at 464 (2d ed. 1990).

20 Id. at 467. An exception to this general rule exists in those rare instances where the defendants can establish the applicability of the affirmative defense on the face of the complaint. See Ala Inc. v. Ccair Inc., 29 F.3d 855, 859-860 (3d Cir. 1994) (holding that statute of frauds defense may be raised on a motion to dismiss); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964) (defense of res judicata may be raised either by motion to dismiss or by answer). Cf. Klein v. Sunbeam Corp., 94 A.2d 385, 392 (Del. 1952) (holding that the affirmative defense of qualified privilege in a defamation action, which requires an examination of the facts and circumstances surrounding the publication of the statement, was raised improperly in a motion to dismiss and must be raised in an answer).

In this case, the Court need not determine whether the Defendants may raise their PLRA defense in a motion to dismiss. The Court already has determined that Defendants' motion must be treated as a motion for summary judgment. And the Court already has determined that a motion for summary judgment may be filed before an answer is filed. Accordingly, in this instance, the Court is satisfied that Defendants may raise the PLRA affirmative defense in a motion for summary judgment.²¹. Mr. Stewart has been provided the opportunity to respond to the motion and to present relevant evidence to the Court that rebuts Defendants' assertions. He has declined to do so. Moreover, the determination of whether Mr. Stewart has failed to exhaust available administrative remedies does not require the Court to delve into an in depth analysis of the facts and circumstances of the case. Instead, in the absence of a factual dispute, such as here, the Court can determine the issue quite readily based on unrebutted evidence that no effort to exhaust administrative remedies has occurred.

21 See Weston Funding Corp. v. Lafayette Towers, Inc., 410 F. Supp. 980, 982 n. 2 (S.D.N.Y. 1976) ("defense of res judicata may can be raised and considered at the pretrial stage" in a motion for summary judgment where "plaintiff is provided with adequate opportunity to present arguments rebutting the defense"); Suckow Borax Mines Consol. v. Borax Consol. Ltd., 185 F.2d 196, 205 (9th Cir. 1950) ("affirmative defenses, even though not appearing on the face of the complaint, may be established upon motion for summary judgment"); International EDPM Rubber Roofing Systems, Inc. v. GRE Insurance Group, 2001 WL 477251 (Ohio Ct.App.) (holding that the affirmative defense of res judicata may be raised for the first time in a motion for summary judgment even when no answer has been filed).

3. The Applicability of The Prison Litigation Reform Act

The Prison Litigation Reform Act ("PLRA"), codified in 42 U.S.C. § 1997 (e), provides: "No action shall be brought with respect to prison conditions under section TITLE Del. C. § 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."²² The PLRA defines prisoner as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program."²³ The PLRA was signed into law on April 26, 1996 and applies to suits commenced on or subsequent to April 26, 1996.²⁴ The United States Supreme Court has held that the PLRA's exhaustion requirement applies to " all inmate lawsuits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."²⁵ Nothing in the PLRA itself, or the Supreme Court's interpretation of the statute in Porter would suggest that the statute applies only to actions inititated in Federal court. Indeed, the broad language of the PLRA and Porter supports a commensurately broad application of the statute.

22 42 U.S.C.A. § 1997(e)(a) (West Supp. 2001) (emphasis supplied).

23 42 U.S.C.A. § 1997(e)(g) (West Supp. 2001).

24 Shabazz v. Cole, 69 F. Supp.2d 177, 194-5 (D.Mass. 1999) (holding that the PLRA's exhaustion requirement does not apply retroactively to complaints filed prior to April 26, 1996 when the President signed the act into law, but applies only to actions filed by a prisoner on or after April 26, 1996).

25 Porter v. Nussle, 534 U.S. 516 (2002) (emphasis supplied).

State courts have applied the PLRA's exhaustion requirement to federal claims brought within their courts.²⁶ Indeed, this Court recently pointed to the PLRA's exhaustion requirement as a basis to dismiss a claim brought by a prisoner alleging that his rights had been violated under § 1983.²⁷ This Court likewise concludes that the PLRA is applicable to § 1983 actions brought in state courts.²⁸

26 See e.g. Martin v. Ohio Dep't of Rehabilitation Correction, 749 N.E.2d 787 (Ohio Ct.App. 2001); Adlington v. Mosley, 757 So.2d 573 (Fla.Dist.Ct.App. 2000); Thomas v. Bush, 23 S.W.3d 215 (Tex.App. 2000); Pratt v. Clarke, 604 N.W.2d 822 (Neb. 1999); State ex rel. Ledford v. Circuit Court for Dane County, 599 N.W.2d 45 (Wis.Ct.App. 1999).

27 Watson v. Delaware Correctional Center, et al., Del. Super., C.A. No. 02C-03-127, Alford, J. (May 22, 2002) (ORDER).

28 The Court notes as an aside that a refusal to recognize the PLRA's exhaustion requirement in this Court could easily be remedied by the Defendants. As the plaintiff's claim is based upon a federal statute, the Defendants could remove this action to the United States District Court for the District of Delaware. See 28 U.S.C. § 1441; Dickens v. Costello, C.A. No. 97C-06-063, Slights, J. (Del.Super. June 27, 2002) (ORDER at 4 n. 7) (recognizing right of removal to Federal court in a 1983 case). Once there, the Defendants again could raise the PLRA defense. To require such procedural gymnastics would be inconsistent with notions of comity and judicial economy, both of which are deserving of preservation when possible and appropriate.

4. Mr. Stewart Did Not Exhaust Administrative Remedies At Gander Hill

The undisputed evidence sub judice indicates that Mr. Stewart failed to exhaust administrative remedies before filing his complaint in this Court. Sergeant Moody, the Grievance Officer at Gander Hill, indicates in her affidavit that she has searched the records and has found "no indication that any such grievance was ever filed by Mr. Stewart."²⁹ Mr. Stewart has been afforded the opportunity to dispute the contents of Sergeant Moody's affidavit and has chosen not to do so. The Court is satisfied that Mr. Stewart has failed to exhaust administrative remedies in accordance with the requirements of the PLRA. Accordingly, Defendants' Motion for Summary Judgment is GRANTED.

C. Defendants' Motion To Stay Discovery

Because the Court has granted Defendants' Motion for Summary Judgment, the Motion to Stay Discovery is DENIED as moot.

IV. CONCLUSION

For the reasons set forth herein, Defendants' Motion to Dismiss, converted by the Court into a Motion for Summary Judgment is GRANTED. Defendants' Motion to Stay Discovery is DENIED.

IT IS SO ORDERED.