Summary
requiring exhaustion for denial of access to courts case where prisoner claimed prison officials "`stole' his legal materials which resulted in the dismissal of a criminal appeal"
Summary of this case from Whiteside v. ParrishOpinion
Case No. 1:06-cv-431.
September 14, 2006
ORDER
Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. On July 6, 2006, the Court ordered plaintiff to submit a copy of the complaint, summons, and United States Marshal form for each of the defendants named in this lawsuit. (Doc. 2). On July 19, 2006, plaintiff submitted a complaint signed by him on July 14, 2006. This complaint appears to clarify the claims made in his original complaint filed on July 6, 2006. (Doc. 1). Accordingly, the Court shall construe the complaint dated July 14, 2006 as plaintiff's amended complaint and DIRECTS the Clerk of Court to file this document as plaintiff's amended complaint.
This matter is before the Court for a sua sponte review of the amended complaint to determine (1) whether the amended complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief, see 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); and (2) whether plaintiff has exhausted his administrative remedies under 42 U.S.C. § 1997e as amended by the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, 110 Stat. 1321, § 803(d), 42 U.S.C. § 1997e(a).
A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199.
Congress has also authorized the dismissal of complaints which fail to state a claim upon which relief may be granted or which seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2). A complaint fails to state a claim for relief "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
Plaintiff's amended complaint is brought against Terry Collins, the Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Croft, the ODRC Chief Inspector, William Eleby, the Chief of the ODRC Bureau of Classification, ODRC employee Deborah Nixon-Hughes, SOCF Warden Edwin Voorhies, and SOCF employees Dirk Prise, James Goodman, Mathew Stunnabeck, Mary Highfield, Lt. Harold Bell, Lt. Stone, Sgt./Lt. Manzelli, "Mail Room Supervisor," and an "unknown defendant." Plaintiff's amended complaint is somewhat difficult to understand, but appears to raise several issues concerning his treatment as a mentally ill inmate at the prison. He alleges that in December 2005, he was subjected to a beating by an unknown corrections officer without provocation at the direction of defendant Lt. Stone, then forcibly administered medication without his consent. Plaintiff alleges he was again forcibly administered medication twenty-four hours later, then again on or about June 25, 2006 by Nurse Dennis Packard, a non-defendant. Plaintiff filed written complaints to supervisors Dirk Prise, Deborah Nixon-Hughes, Terry Collins, Gary Croft, James Goodman, and Warden Voorhies concerning "abuse, force[d] medication, [and] the need for a mental hospital if denied RTU or Oakwood long term treatment and isolation 23-1 stop isolating mentally ill patients." (Amended Complaint at 5). Plaintiff states these officials "refused to send [him] to RTU [the residential treatment unit] or Oakwood [mental hospital] and stop isolation." Id.
Plaintiff's original complaint also named SOCF employees Mona Parks, Terry Wade, and Sgt. Moore as defendants. The amended complaint does not list these individuals as defendants. Since neither the original nor amended complaints contain any allegations of wrongdoing by these defendants, the Court does not consider these individuals as defendants in this lawsuit.
Plaintiff also alleges that in September or October of 2004 he attempted suicide by hanging. Plaintiff states that Sgt. Manzelli altered the official documents when reporting the incident, claiming plaintiff was involved in "threats of fighting," resulting in punishment rather than treatment for plaintiff's mental illness. Plaintiff complains he was denied recreation for a period of 60 days as a punishment during September through November.
Plaintiff further alleges that in June 2006, defendants Highfield and Voorhies "stole [his] lawsuit, legal research, case law, grievance, chief inspector appeal, indictments and journal entry" resulting in the dismissal of a criminal appeal on June 26, 2006.
Plaintiff also challenges his placement in Unit 4B on October 13, 2005. He states this is a lock down unit with "isolation conditions" and that he was denied due process prior to his placement in the unit. Attachments to the amended complaint clarify that plaintiff is alleging that he is not receiving proper mental health treatment while in this unit.
Plaintiff states that in February through May 2006, the mail room staff confiscated his "Maxim" and "FHM" magazines, photos, "nude magazine pages and friendship address books with nude magazine picture on it," and catalogs in violation of his First Amendment rights.
Finally, plaintiff alleges that in May 2006, Lt. Bell found him guilty of a conduct report without properly making a finding with respect to plaintiff's mental illness in accordance with disciplinary procedures for the mentally ill. He claims that Director Collins denied his appeal and affirmed the decision of the Rules Infraction Board on June 13, 2006. Plaintiff seeks declaratory, injunctive, and monetary relief.
Under 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act (PLRA), a prisoner confined in any jail, prison or other correctional facility may not bring an action challenging "prison conditions" under 42 U.S.C. § 1983 or any other federal law "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners who file lawsuits in this Court challenging the conditions of their confinement pursuant to 42 U.S.C. § 1983 "must allege and show that they have exhausted all available state administrative remedies." Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833 (1998). "The prisoner bears the burden of demonstrating that he administratively exhausted his claim, either by attaching documentation of the relevant administrative decisions or by detailing the process followed and the outcome in the complaint." Owens v. Keeling, ___ F.3d ___, 2006 WL 2471963, *3 (6th Cir. Aug 29, 2006) (citing Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000)). "In the absence of particularized averments concerning exhaustion showing the nature of the administrative proceeding and its outcome, the action must be dismissed under § 1997e." Knuckles v. Toombs, 215 F.3d 640, 642 (6th Cir.), cert. denied, 531 U.S. 1040 (2000). The grievance must identify each defendant eventually sued and must contain facts concerning the alleged mistreatment or misconduct by that defendant so as to give the defendant fair notice of the basis of the prisoner's constitutional claims. Bell v. Konteh, 450 F.3d 651, 653 (6th Cir. 2006); Spencer v. Bouchard, 449 F.3d 721, 726 (6th Cir. 2006); Curry v. Scott, 249 F.3d 493, 504-05 (6th Cir. 2001).
The Sixth Circuit has held "that the PLRA does not require `total exhaustion,' and ha[s] instead adopted a rule of `partial exhaustion' — that is, when a prisoner files a civil-rights complaint containing exhausted and unexhausted claims, the prisoner can proceed with his exhausted claims despite the dismissal of his unexhausted claims for failure to exhaust." Owens v. Keeling, ___ F.3d ___, 2006 WL 2471963, *3 (6th Cir. Aug 29, 2006) (citing Spencer v. Bouchard, 449 F.3d 721, 726 (6th Cir. 2006); Burton v. Jones, 321 F.3d 569, 574 n. 2 (6th Cir. 2003); Hartsfield v. Vidor, 199 F.3d 305, 309-10 (6th Cir. 1999)). See also Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006). But see Jones Bey v. Johnson, 407 F.3d 801, 806 (6th Cir. 2005) (holding that the PLRA requires total exhaustion). Federal courts should not prematurely adjudicate the merits of a prisoner's claims until the exhaustion requirement has been satisfied. Brown, 139 F.3d at 1104. "When a prisoner's complaint contains both exhausted and unexhausted claims, the unexhausted claims should be dismissed without prejudice while the exhausted claims are allowed to proceed." Bell, 450 F.3d at 654 (citing Spencer, 449 F.3d at 726; Burton, 321 F.3d at 574 n. 2; Hartsfield, 199 F.3d at 309-10).
The Sixth Circuit in Owens noted that the Supreme Court has granted certiorari in Williams v. Overton, 136 F. Appx. 859 (6th Cir. 2005), cert. granted, 126 S.Ct. 1463 (2006), to determine whether the PLRA requires "total exhaustion," meaning a district court must dismiss a prisoner's civil-rights complaint whenever unexhausted claims have been pleaded, despite the inclusion of exhausted claims. The Supreme Court will also consider whether the PLRA mandates that a prisoner name an individual defendant in the administrative grievance in order to exhaust the administrative remedies as to that defendant and in order to maintain the right to sue that defendant as the Sixth Circuit currently requires. Owens, ___ F.3d ___, 2006 WL 2471963, *10.
Ohio Administrative Code § 5120-9-31 sets forth a three-step grievance procedure for inmates housed in Ohio prisons for grievances against all personnel other than the Warden or Inspector of Institutional Services. First, an inmate initiates the grievance procedure by filing an informal complaint with the prison official whose area of responsibility is most related to the grievance. Ohio Admin. Code § 5120-9-31(J)(1). If the inmate is dissatisfied with the informal complaint response, or if there has been no response to the complaint, the inmate may file a Notification of Grievance form with the Institutional Inspector. Ohio Admin. Code § 5120-9-31(J)(2). If this second step does not provide satisfactory results, the inmate may file an appeal with the office of the Chief Inspector of the Ohio Department of Rehabilitation and Correction. Ohio Admin. Code § 5120-9-31(J)(3). The Chief Inspector's written response to the inmate's appeal is the final decision on the grievance. For all complaints regarding the Warden or Inspector of Institutional Services, the inmate must file a grievance directly to the office of the Chief Inspector, and the Chief Inspector's decision is final. Ohio Admin. Code § 5120-9-31(L).
Liberally construing plaintiff's amended complaint, the Court identifies ten claims for relief: (1) an excessive use of force in December 2005; (2) involuntary forced medication on two occasions in December 2005; (3) involuntary forced medication on June 25, 2006; (4) deliberate indifference to plaintiff's need for mental health treatment by refusing his request for placement in a mental hospital or the residential treatment unit and placing him in "isolation;" (5) deliberate indifference to plaintiff's medical needs in September/October 2004 by defendant Manzelli by being charged with a disciplinary infraction rather than being given treatment for mental illness; (6) denial of recreation for 60 days as a punishment in violation of the Eighth Amendment; (7) denial of access to the courts in June 2006 when defendants Highfield and Voorhies "stole" plaintiff's legal materials resulting in the dismissal of a criminal appeal; (8) placement in Unit 4B in October 2005 in violation of due process and the Eighth Amendment; (9) confiscation of books and periodicals in February through May 2006 in violation of the First Amendment; and (10) being disciplined in May 2006 without consideration of plaintiff's mental illness in violation of due process and the Eighth Amendment. For the reasons that follow, Claims One, Two and Seven may proceed against the "unknown defendant" and defendants Voorhies and Goodman, and plaintiff's remaining claims must be dismissed for his failure to demonstrate exhaustion of his administrative remedies.
Claim One alleges the "unknown defendant" used excessive force against plaintiff in December 2005 while plaintiff was forcibly administered medication at the direction of defendant Lt. Stone. Claim Two alleges that plaintiff was forcibly medicated without his consent on two occasions in December 2005, and that defendants Dirk Prise, Deborah Nixon-Hughes, Terry Collins, Gary Croft, James Goodman, and Warden Voorhies were deliberately indifferent to his complaints regarding such actions. The grievance appeal decisions attached to the original complaint show plaintiff's claims of an excessive use of force and being administered forced medication in December 2005 have been exhausted through the inmate grievance procedure as to the "unknown defendant" and defendants Goodman and Voorhies. (Doc. 1, attachments). Because it does not appear beyond doubt that plaintiff can prove no set of facts in support of these claims, his Eighth Amendment excessive use of force and deliberate indifference to serious medical needs claims shall be permitted to go forward. Likewise, because plaintiff is proceeding pro se, the Court liberally construes the amended complaint as alleging a due process claim of being forcibly administered medication without plaintiff's consent. See Washington v. Harper, 494 U.S. 210, 221 (1990). This claim shall also be permitted to proceed.
However, plaintiff has not submitted copies of the grievances or appeals upon which the Chief Inspector's decisions are based so the Court cannot determine whether plaintiff identified defendants Lt. Stone, Dirk Prise, Deborah Nixon-Hughes, Terry Collins, and Gary Croft in such grievances or appeals to give these defendants fair notice of his claims against them. Nor has plaintiff in his amended complaint given details concerning the administrative process followed and the outcome with respect to these defendants. See Owens, ___ F.3d ___, 2006 WL 2471963, *3. While plaintiff's motion for production of documents (Doc. 4) states his legal work, including copies of grievances and appeals relating to the claims made in this case, have been confiscated by prison officials, even if this is true, plaintiff still carries the burden of setting forth in his amended complaint particularized averments concerning exhaustion showing the nature of the administrative proceeding and its outcome. This he has failed to do. Therefore, the Court must dismiss the claims against these defendants without prejudice to refiling on the basis of plaintiff's failure to show exhaustion.
Plaintiff's seventh claim alleges that he was denied access to the courts in June 2006 when defendants Highfield and Voorhies "stole" his legal materials which resulted in the dismissal of a criminal appeal. Liberally construed, these allegations state a claim for relief for a denial of access to the courts. See Lewis v. Casey, 518 U.S. 343, 354-56 (1996); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The grievance appeal decision attached to Document 10 in this matter shows plaintiff has exhausted the prison grievance procedure on this claim with respect to defendant Voorhies. (Doc. 10, attachment). However, plaintiff fails to show he named defendant Highfield in any grievance that was fully exhausted through the appeal stage. Therefore, this claim may proceed against defendant Voorhies, but is dismissed without prejudice as to defendant Highfield.
Document 10 is plaintiff's motion for preliminary injunction.
Plaintiff has failed to meet his burden of demonstrating exhaustion on his remaining claims. Plaintiff has not submitted grievance and appeal forms showing he complied with the three-step prison grievance procedure, nor has he set forth specific facts in his amended complaint showing he exhausted the grievance procedure on his remaining claims. Therefore, Claims Three through Six, Nine, and Ten must be dismissed for lack of exhaustion.
Plaintiff is notified that he is not permitted to amend the instant complaint to allege and show exhaustion. Baxter v. Rose, 305 F.3d 486, 489 (6th Cir. 2002). Plaintiff's only option at this point is to file a new complaint against the defendants to plead and show exhaustion. Id. In the event plaintiff chooses to file a new complaint after he exhausts his administrative remedies, he will not be required to pay an additional filing fee. See Owens v. Keeling, ___ F.3d ___, 2006 WL 2471963, *7 (6th Cir. Aug 29, 2006). Plaintiff should, however, attach to his new complaint copies of any grievances, appeals, or administrative decisions showing he exhausted the grievance procedure on his claims.
Accordingly, it is hereby ORDERED that plaintiff's claims against defendants Voorhies, Goodman, and the "unknown defendant" shall be permitted to proceed as set forth in this Order. Plaintiff's remaining claims are DISMISSED without prejudice to refiling after plaintiff has shown he has exhausted the available prison administrative remedy set forth in Ohio Admin. Code § 5120-9-31.
It is ORDERED that the United States Marshal serve a copy of the complaint (Doc. 1), amended complaint, summons, and this order upon defendants Voorhies and Goodman as directed by plaintiff. All costs of service shall be advanced by the United States.
It is further ORDERED that plaintiff shall serve upon defendants or, if appearance has been entered by counsel, upon defendants' attorney, a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the clerk of court a certificate stating the date a true and correct copy of any document was mailed to defendant or counsel. Any paper received by a district judge or magistrate judge which has not been filed with the clerk or which fails to include a certificate of service will be disregarded by the court.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of this Court's Order would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
IT IS SO ORDERED.