Opinion
ECase No. 5:01-cv-130
December 7, 2001
ORDER REGARDING SERVICE (PARTIAL)
In accordance with the Opinion filed this date:
IT IS HEREBY ORDERED that Plaintiff's claims against all of the defendants except Defendant Gilman are DISMISSED without prejudice because he has failed to show exhaustion as required by 42 U.S.C. § 1997e(a).
IT IS ALSO ORDERED that Plaintiff's claim against Defendant Gilman for failing to transfer him to Level II be DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2), 1915A(b); 42 U.S.C. § 1997e(c).
IT IS ALSO ORDERED that the Clerk shall arrange for service of summons and complaint, along with a copy of this order, upon Defendant Gilman solely regarding Plaintiff's claim that Gilman failed to protect him from harm.
IT IS FURTHER ORDERED that Defendant Gilman shall reply to the complaint after service, by way of answer, motion to dismiss, or motion for summary judgment, within the time allowed by law. See 42 U.S.C. § 1997e(g).
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). The PLRA also requires the Court to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2), 1915A. The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss without prejudice the claims for which Plaintiff has failed to demonstrate exhaustion of available administrative remedies. For the sole remaining claim against Defendant Gilman for which Plaintiff has demonstrated exhaustion, the Court will order service of the action.
Discussion
I. Factual allegations
Plaintiff is presently incarcerated at Michigan Reformatory. In his pro se complaint, he sues Warden Lee Gilman, Assistant Deputy Warden ("ADW") of Custody Dan Wilson, ADW of Housing Richard Signs, ADW of Programs Geraldine Butler, and Corrections Officer Scot Johnson. Although Plaintiff's complaint is quite detailed, his allegations are difficult to follow. His action primarily concerns his placement in segregation and Defendants' refusal to transfer him to a lower security level at another institution.
The following facts are alleged by Plaintiff. On March 29, 2001, another prisoner threw scalding water on Plaintiff while he was sleeping, causing second-degree burns. Plaintiff was placed in protective segregation upon approval by Defendant Warden Gilman. About one week later, on April 12, 2001, Plaintiff became eligible for placement at a decreased security level, Level II. Presumably, placing Plaintiff at the decreased security level required transfer to another institution. However, the transfer was delayed when Case Manager Alexander (who is not a defendant) submitted an incompletely scored classification review sheet to the Security Classification Committee ("SCC"). When Plaintiff learned about the error, he filed a grievance.
Plaintiff was also provided bi-monthly reports from the SCC, specifically, Defendants Butler and Wilson, in mid-April and early May. Plaintiff asserts that these reports show that there was no reason not to transfer him from segregation to a decreased security level.
In early May, Defendant Warden Gilman asked Plaintiff to waive protective segregation. Plaintiff declined because he felt that his safety was at risk and because he wanted to be transferred to Level II. Gilman told him that he could be transferred more quickly from the general population than from segregation. Plaintiff again declined, and Gilman told him that "we don't do transfers from protection" and if Plaintiff would not sign the waiver, he would "sit down here [in protective segregation] the whole damn summer." (Compl., ¶ 26.) Regardless, Gilman removed Plaintiff from protective segregation to the general population.
On May 19, 2001, Plaintiff was assaulted and suffered a head injury. That same day, a notice of intent was issued to place Plaintiff in protective segregation. Gilman recommended that Plaintiff be transferred to Level IV but Plaintiff claims that Gilman failed to initiate the transfer. On May 23, 2001, Plaintiff was returned to protective segregation. He discovered that some time between May 4 and 23, 2001, the SCC did a "ride out" to Oaks Correctional Facility at Level II, but he was not included.
On June 1, 2001, Plaintiff wrote to MDOC Deputy Director Dan Bolden regarding "gross negligence by defendant Gilman and his breach of duty in failing to provide reasonable safety which resulted in assault and injury." (Compl., ¶ 9.) Plaintiff submitted a transfer request. Defendant Butler allegedly instructed Case Manager Mitchell to make Plaintiff's security level Level IV instead of Level II. Plaintiff also asserts that on June 11, 2001, Signs (ADW of Housing) received and ignored instructions from Deputy Director Bolden to transfer Plaintiff to Level II.
On June 25, 2001, Plaintiff filed a grievance against Warden Gilman alleging failure to protect from harm and discrimination. That same day, Plaintiff was required to sit at a table across from the chow hall and eat by himself, which Plaintiff claims was retaliatory for having grieved Gilman. While Plaintiff was eating, Defendant Johnson searched his cell and left it in a shambles. The same thing-eating alone and searching his cell-occurred on June 26. Plaintiff's legal mail and his utensils had been taken. When Plaintiff was seen writing a grievance, he was charged with disobeying a direct order by Johnson. The charge caused the removal of Plaintiff's Level II transfer.
On June 27, 2001, Plaintiff was attacked. However, he was charged with misconduct for fighting and ultimately found guilty. He was informed that he was no longer eligible for placement at Level II based on the fighting violation. On July 17, 2001, Plaintiff was also found guilty of disobeying a direct order. He was sentenced to fifteen days detention for fighting and thirty days loss of privileges for disobeying a direct order.
On July 18, Plaintiff was placed in segregation, apparently to serve his punishment for the misconduct violations. The next day, July 19, 2001, Defendant Johnson pulled Plaintiff close to him by the arm instead of by the belt attached to his cuffs. When Plaintiff asked why he was not using the belt, Johnson said that he wanted Plaintiff closer to him. Plaintiff asserts that Johnson's conduct was sexual in nature and retaliatory. A month later, on August 19, 2001, Johnson stopped by his cell and said, "you must be a queer." (Compl., ¶ 44.) A few days later, on August 22, 2001, Johnson told Plaintiff, "If I really wanted you Armstrong you would be mine." (Compl., ¶ 45.) Plaintiff asserts that this was a homosexual advance.
On August 13, 2001, Plaintiff filed a grievance because he had not been released from segregation after serving his misconduct sentences. He complained to Defendant Wilson regarding the delays in programming, work and rehabilitation that his placement in segregation was causing and he filed a grievance regarding Defendant Johnson's sexual harassment. On August 31, 2001, Plaintiff refused Defendant Wilson's attempt to put him in the general population, and Wilson told Plaintiff that he would give him two more weeks in segregation to think about it. On September 6, 2001, Plaintiff was moved to another unit.
From the foregoing factual allegations, Plaintiff claims that (1) Defendants Wilson, Signs and Butler failed to initiate a security transfer for protection purposes and a reduced custody Level II transfer; (2) Defendant Gilman was racially motivated to expose him to a known danger by removing him from protective segregation; (3) Wilson, Signs and Butler failed to curb Gilman's racially motivated actions and instead wrote deceiving comments on bi-monthly reports to prolong his exposure to danger and failed to respond to his requests for help; (4) Butler instructed Case Managers Alexanders and Mitchell to write false reasons to prevent Plaintiff's transfer to Level II; and (5) Defendant Johnson retaliated against him based on his race by issuing false disciplinary charges to help conceal the failure to transfer him to Level II. For relief, Plaintiff requests a declaratory judgment that his constitutional rights were violated, an injunction to effectuate the transfer and to expunge the disciplinary convictions, and an unspecified amount of compensatory and punitive damages.
II. Lack of exhaustion of available administrative remedies
Plaintiff has failed to sufficiently allege and show exhaustion of available administrative remedies for the majority of his claims. 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 also Booth v. Churner, 121 S.Ct. 1819, 1823-24 (2001). A district court must enforce the exhaustion requirement sua sponte. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833 (1998); accord Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Booth, 121 S.Ct. at 1824; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.), cert. denied, 531 U.S. 1040 (2000); Hartsfield v. Vidor, 199 F.3d 305, 308 (6th Cir. 1999); Wyatt, 193 F.3d at 878-79; Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).
Plaintiff's claims are the type that may be grieved. 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") (effective Nov. 1, 2000). A prisoner must specifically mention the involved parties in the grievance to alert the prison officials of 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). 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. Knuckles El, 215 F.3d at 642.
Plaintiff has made no allegations regarding exhaustion of his claims other than to list in the form complaint the grievance identifier numbers and dates. However, he has attached copies of grievances and other documents to his complaint. The Michigan Department of Corrections has a formalized grievance process that requires an inmate to pursue his claims from Step I to Step III. Some of the documents Plaintiff has submitted with his complaint are patently not a part of the formalized grievance process. For instance, Plaintiff has submitted copies of letters that he wrote to various prison officials. Where there is grievance process, Plaintiff must make every effort to use it. See Clark v. Beebe, No. 98-1430, 1999 WL 993979, at *2 (6th Cir. Oct. 25, 1999); Parra v. Wilkinson, No. 97-3890, 1998 WL 887271, at *2 (6th Cir. Dec. 10, 1998). Similarly, Plaintiff has attached documents which were submitted on the Step I grievance form; however, some of these were not given a grievance identifier number nor is there any other indication that the grievance was actually submitted in the process. These documents cannot satisfy the exhaustion requirement.
Plaintiff has also submitted a grievance, RMI 01-05-1080-24C, that was appealed through all three steps of the process. However, this grievance concerns how Case Manager Alexander scored his classification review sheet. Because Alexander is not a defendant in this action, this grievance does not demonstrate exhaustion for any of Plaintiff's claims.
Another grievance, RMI-0106-1437-17G, alleged that Defendant Johnson illegally searched his cell twice to retaliate against him for filing a grievance regarding his transfer. Plaintiff appealed this decision to Step II. However, there is no indication that he appealed to Step III. A prisoner must pursue all three steps of the institutional grievance process. See Freeman, 196 F.3d at 645; 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). Because Plaintiff failed to show that he appealed to Step III, this grievance cannot satisfy the exhaustion requirement for any of his claims.
Another grievance, RMI-0108-1888-24B, concerns Plaintiff's placement in segregation and its effect on his eligibility for parole and other programs. The grievance names Case Manger Nostrandt, who is not a defendant, and does not name any of the defendants in this action. A prisoner must specifically mention the involved parties in the grievance so that the prison has a chance to address the claims before they reach federal court. Curry, 249 F.3d at 505. Thus, this grievance also cannot satisfy the exhaustion requirement. In addition, there is no indication that Plaintiff appealed the denial of the grievance to Step II or III. Plaintiff has brought numerous other claims, namely: (1) Defendants Wilson, Signs and Butler failed to initiate a transfer; (2) Defendant Gilman was racially motivated to expose him to danger by removing him from protective segregation; (3) Wilson, Signs and Butler failed to curb Gilman's racially motivated actions and instead wrote deceiving comments on bi-monthly reports to prolong his exposure to danger; (4) Butler instructed Case Managers Alexanders and Mitchell to write false reasons to prevent Plaintiff's transfer to Level II; and (5) Defendant Johnson retaliated against him by issuing false disciplinary charges. None of the grievances attached to his complaint refer to these defendants and claims simultaneously. Thus, Plaintiff has failed to demonstrate exhaustion of any of these claims against these defendants.
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-3, T, V. 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.), cert. denied, 522 U.S. 906 (1997). Regardless, 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. Further, a Plaintiff may not exhaust his claims during the pendency of his lawsuit and then add those claims to the lawsuit. See Freeman, 196 F.3d at 645; accord Lutchey v. Wiley, No. 98-3760, 1999 WL 645951, at *1 (6th Cir. Aug. 13, 1999). Should Plaintiff exhaust his claims, he will be required to bring them in a new lawsuit.
III. Exhausted Claims
Plaintiff has demonstrated exhaustion for some of his claims against Defendant Warden Gilman. This Court has declined to adopt the "total exhaustion rule" and instead will permit exhausted claims to go forward even when a complaint contains unexhausted claims. See Jenkins v. Toombs, 32 F. Supp.2d 955 (W.D.Mich. 1999). In Grievance RMI 01-06-1376-24C, Plaintiff alleged that Defendant Warden Gilman told him on May 3, 2001, that he would not be transferred from protective segregation to Level II but that he would first be placed in general population for thirty days to see how Plaintiff would adjust. Plaintiff also alleges that Gilman wantonly placed him in harm's way and that he was assaulted while in the general population and then returned to segregation. This grievance was appealed through all three steps. Thus, the Court finds that the claims therein were properly exhausted.
However, Plaintiff's allegations regarding the refusal to transfer him to Level II fails to state a claim. It is established that a refusal to transfer an inmate to another institution does not implicate a protected liberty interest of the prisoner. Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998) (citing Sandin v. Conner, 515 U.S. 472, 478 (1995); Meachum v. Fano, 427 U.S. 215, 225 (1976)). Because Plaintiff has no liberty interest in being placed at a particular security level or at a particular institution, he fails to state a claim against Defendant Gilman for refusing to transfer him to Level II. However, to the extent that Plaintiff claims that Defendant Gilman failed to protect him from harm by placing him in the general population where he was then assaulted, Plaintiff's claim is sufficiently colorable to justify service of this action against Defendant Gilman.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the Court will dismiss Plaintiff's claims against all of the defendants except Defendant Gilman without prejudice because he has failed to show exhaustion as required by 42 U.S.C. § 1997e(a). The Court will dismiss Plaintiff's claim against Defendant Gilman for failing to transfer him to Level II pursuant to 28 U.S.C. § 1915(e)(2), 1915A(b); 42 U.S.C. § 1997e(c), for failure to state a claim. The Court will order service of Plaintiff's claim against Defendant Gilman for failure to protect from harm.
An Order consistent with this Opinion will be entered.