Opinion
CIV-20-1185-D
09-14-2021
MIGUEL ADRIAN ADAMS, Plaintiff, v. MICHAL ECCLES, et. al., Defendants.
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. BURCELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner appearing with counsel, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendants' Motion to Dismiss. Doc. No. 60. 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, converted to a Motion for Summary Judgment, be granted based on Plaintiff's failure to exhaust his administrative remedies.
I. Plaintiff's Allegations
This case arises from allegations that while Plaintiff was incarcerated at the Lexington Assessment and Reception Center (“LARC”), he experienced sexual harassment from Defendant Michal Eccles. Doc. No. 58 at 3, 4-5. Plaintiff alleges that after he attempted to report the same under the Prison Rape Elimination Act (“PREA”), Defendants retaliated against him in violation of his First Amendment rights. Id. at 1-2, 3-8. Plaintiff also asserts claims under the Fourteenth and Sixth Amendments and Art. II, § 7 of the Oklahoma Constitution. Id. at 1, 2, 8-9. In addition to Defendant Eccles, Plaintiff also named Nurse Kelsey Knight, Chief of Security Everett Shea, and former Warden Rick Whitten as Defendants in this matter.
During all times relevant to the claims Plaintiff asserts herein, he was confined in LARC. Doc. No. 43-1 at 2; Doc. No. 58 at 3. He was subsequently transferred to and is currently confined in the Lawton Correctional Facility. Id.
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. 61, 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 request dismissal of Plaintiff's claims against them based on his failure to exhaust administrative remedies through the Oklahoma Department of Corrections (“ODOC”) grievance procedure prior to filing this lawsuit. Doc. No. 60 at 4-7. 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, 578 U.S. 1174, 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 that 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. 43-16. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. Id. at 8. 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 8-9.
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 10-11. 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 12-13. 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 14-17.
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 17-18. The reviewing authority must determine within twenty-four hours whether the grievance is of a sensitive nature or requires emergency handling. Id. at 18. 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 8-19.
C. Plaintiff's Failure to Exhaust
Defendants have requested the Court dismiss Plaintiff's claims against them based on Plaintiff's failure to exhaust his administrative remedies prior to initiating this lawsuit. Doc. No. 60 at 4-8. In his Response, Plaintiff does not dispute that he failed to exhaust his administrative remedies. Instead, Plaintiff relies on the submission of his initial complaint under the PREA and the Inspector General's alleged failure to fully and properly investigate his report to argue that administrative remedies were not available. Doc. No. 62 at 2-3. However, Plaintiff has conflated the administrative remedies he is required to exhaust under the PLRA and the submission of a report under the PREA.
As Defendants argue and Plaintiff does not dispute, on or about October 17, 2020, Plaintiff submitted a Request to Staff in which he stated, “I am being lied on if you would please look at the video cameras it will prove that I'm not lying and if you would please have them pull me out to talk to you I can explain that I'm not lying.” Doc. No. 43-17 at 2. Presumably, Plaintiff is referencing his complaint against Defendant Eccles and subsequent retaliatory actions that Defendants took against him in response, though Plaintiff never identified a specific individual or alleged retaliatory action. Id. On October 27, 2020, Ms. T. Powell responded, “This is being investigated by security and the PREA coordinator. I have to let them determine the outcome.” Id.
On November 16, 2020, Plaintiff submitted two Requests to Staff in which he requested a “misconduct appeal form” and a copy of the “disciplinary ops.” Id. at 3-4. The Requests to Staff were returned to Plaintiff on November 16, 2020, with the requested materials attached. Id. On December 27, 2020, after Plaintiff had already initiated the current lawsuit, Plaintiff submitted a Request to Staff in which he requested “Prea Ops or just info dealing with PREA and a[n] Inmate Handbook.” Id. at 8. On December 28, 2020, the Request to Staff was returned to Plaintiff with the requested materials attached. Id.
To the exceedingly limited extent Plaintiff submitted a Request to Staff related to his allegations of retaliation, he did not complete the administrative process by filing a grievance followed by an appeal. Doc. No. 43-17 at 2; Doc. No. 43-19 at 2. Additionally, Plaintiff never submitted any further administrative materials related to allegations of retaliation, nor did he file any administrative materials alleging Defendants were violating his Sixth or Fourteenth Amendment rights. Doc. No. 43-17 at 2-15; Doc. No. 43-18 at 2-22. Thus, the record establishes Plaintiff failed to complete the administrative process prior to filing this lawsuit. As noted, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan, 304 F.3d at 1032.
Plaintiff's failure to exhaust his administrative remedies is fatal to federal judicial review of his claims. Woodford, 548 U.S. at 90-92. Accordingly, the undersigned recommends Defendants' Motion, as converted to a request for 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 Claim
Plaintiff also asserts a claim under Art. II, § 7 of the Oklahoma Constitution. Because Plaintiff has not asserted a viable federal claim herein and has not alleged or established any basis for jurisdiction for a state law claim other than supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claim. 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, as converted to a Motion for Summary Judgement, (Doc. No. 60) be GRANTED and judgment be entered in Defendants' favor based upon Plaintiff's failure to exhaust his administrative remedies. Additionally, the undersigned recommends the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claim.
Plaintiff is advised of the right to file an objection to this Third Supplemental Report and Recommendation with the Clerk of this Court by October 4 th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Third 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 Third Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion before the court is deemed denied.