Opinion
Civil Action No. 3:04-CV-1102-D.
February 15, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed December 20, 2004, Defendant Lofton's Motion to Dismiss for Failure to Exhaust Administrative Remedies and Lack of Subject Matter Jurisdiction, filed December 16, 2004, has been referred to this Court for recommendation. Respondent did not file a response.
I. BACKGROUND
On May 21, 2004, Plaintiff DeAngelo Edward Jefferson ("Jefferson"), a prisoner incarcerated at that time in the Dawson State Jail facility of the Texas Department of Criminal Justice, filed this lawsuit under 42 U.S.C. § 1983. Defendant Lieutenant Lofton ("Lofton") is a Dawson State Jail employee. The complaint alleges that on April 17, 2004, Lofton violated Jefferson's civil rights by pushing him down and aggravating an injury in his leg. ( See Statement of Claim, at 1-2.) In the days leading up to that incident, Jefferson states that he made several requests for prison officials to fix a problem with the plumbing in his cell. Id. at 1. He alleges that he was sitting on his bunk when Lofton entered his cell to ask about the problem. Id. As Lofton reached for Jefferson's identification on the table, Jefferson states that he jumped off his bunk because he feared Lofton would hit him. Id. at 2. After telling Jefferson not to hit him, Lofton allegedly pushed Jefferson down and ran out of the cell. Id. Jefferson asserts that the fall aggravated a prior injury to his leg. (Compl. at 3.) By this suit, he seeks monetary damages, and administrative review and investigation. Id. at 4.
Jefferson is no longer incarcerated. ( See Letter received January 18, 2005.)
Jefferson attached his Statement of Claim to the complaint form and wrote on the front and back of a single sheet of paper. For ease of reference, the Court refers to the front as page 1 and the back as page 2.
Lofton filed the instant motion to dismiss on December 16, 2004, asserting that Jefferson's suit should be dismissed for lack of subject matter jurisdiction and for failure to exhaust administrative remedies.
II. ANALYSIS
A. Rule 12(b)(1) Motion 1. Legal Standard
Lofton first asserts that Jefferson's claim should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). (Def. Br. at 5-6.) A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. See Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)). Considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id. When the court dismisses for lack of subject matter jurisdiction, that dismissal "is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Id.
The Fifth Circuit recognizes a distinction between a "facial attack" and a "factual attack" upon a complaint's subject matter jurisdiction. Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998). "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. Id. (citation omitted). If the defendant supports the motion with evidence, however, then the attack is "factual," and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of the attack, "[t]he plaintiff constantly bears the burden of proof that jurisdiction does exist." Rodriguez, 992 F. Supp. at 879 ("The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.") (citations omitted).
The instant motion is a facial attack. Lofton did not submit evidence in support of his assertion that the Court lacks subject matter jurisdiction over Jefferson's claim, and Lofton argues that Jefferson's jurisdictional claim fails on legal, not factual, grounds. Thus, all of Jefferson's factual allegations will be accepted as true for the purpose of determining whether the Court has jurisdiction over his claim.
The evidence that Lofton submitted with the motion to dismiss supports his assertion that Jefferson failed to exhaust administrative remedies. The Court did not consider that evidence in determining the request for dismissal for lack of subject matter jurisdiction.
2. Subject Matter Jurisdiction over the § 1983 Claim
Lofton asserts that Jefferson's suit does not involve a federal question because "Jefferson does not base his claim on a federal statute, law, constitutional violation or on a federal question." (Def. Br. at 5.) Lofton further asserts that "Plaintiff's claim involves only state claims best described as assault and/or battery claims against another individual, Lieutenant Lofton." (Def. Br. at 5-6.)
Jefferson submitted his complaint on the standard form available for use by prisoners filing actions pursuant to 42 U.S.C. § 1983 in the Northern District of Texas. In his complaint, Jefferson alleges that his leg was injured when he was pushed down by a prison official. Liberally construing his pro se complaint, the Court finds that Jefferson is alleging a claim for excessive use of force, contrary to the Eighth Amendment's prohibition against cruel and unusual punishment of a prisoner. Although Jefferson did not use the words "excessive force" and "in violation of the Eighth Amendment," it is apparent from the nature of his complaint that he alleges such a claim. See Williams v. Thomas, 692 F.2d 1032, 1040 (5th Cir. 1982) (finding that a pro se plaintiff is not required to use "magic words" to state a claim). Because he has brought a § 1983 claim alleging use of excessive force by Lofton, the Court is satisfied that Jefferson's complaint is based on an alleged violation of a federal law, and should not be dismissed for lack of subject matter jurisdiction.
The form is entitled "Form To Be Used By a Prisoner in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983."
B. Exhaustion of Administrative Remedies Under the Prison Litigation Reform Act
Lofton also moves to dismiss Jefferson's claim for failure to exhaust administrative remedies as mandated by § 1997e(a) of Title 42 of the United States Code. Section 1997e, as amended by the Prison Litigation Reform Act of 1996 (PLRA), provides that "[n]o action shall be brought with respect to prison conditions under § 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." The exhaustion requirement of § 1997e "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is a prerequisite to suit even when the prisoner seeks relief not available in grievance proceedings such as money damages. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).
Exhaustion under the PLRA is mandatory, and the requirement is strictly construed. See Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). The Court does not "inquire whether administrative procedures satisfy minimum acceptable standards of fairness and effectiveness"; prisoners simply "must exhaust such administrative remedies as are available, whatever they may be." Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (citations and internal quotation marks omitted), cert. denied, ___ U.S. ___, 124 S. Ct. 2071 (2004). In addition, the courts need not "determine whether a prisoner . . . has reasonably and in good-faith pursued his administrative remedies." See Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998).
1. Mechanism for Filing a Motion to Dismiss for Failure to Exhaust
Lofton has not moved to dismiss for failure to exhaust pursuant to a specific Federal Rule of Civil Procedure. "While it is clear that nonexhaustion may be resolved on a motion to dismiss, the appropriate mechanism for doing so is somewhat unsettled." McCoy v. Goord, 255 F. Supp. 2d. 233, 249 (S.D.N.Y. 2003). Exhaustion of administrative remedies pursuant to § 1997e is not a jurisdictional requirement. See Underwood v. Wilson, 151 F.3d 292, (5th Cir. 1998). Thus, a Rule 12(b)(1) motion is not an appropriate mechanism for dismissal for failure to exhaust. See McCoy v. Goord, 255 F. Supp. at 249. "If failure to exhaust administrative remedies is apparent from the face of the complaint . . . a Rule 12(b)(6) motion is the proper vehicle." Id. In the instant suit, as will be discussed in greater detail below, Jefferson's failure to exhaust is evident from the face of his complaint. Accordingly, Lofton's motion to dismiss will be analyzed under Rule 12(b)(6).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges a complaint on the basis that it fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) motions to dismiss are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). To avoid dismissal, the plaintiff's pleadings must show specific, well-pleaded facts, not mere conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless 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. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The court focuses on whether the plaintiff has a right to offer evidence to support his claims, rather than on whether he will succeed on those claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
2. Texas' Two-step Grievance Procedure
To exhaust in accordance with § 1997e(a), a prisoner in a facility of the Texas Department of Criminal Justice ("TDCJ") must pursue his administrative remedies under the two-step grievance procedure applicable in the Texas prison system. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). The Fifth Circuit has described the two-step procedure as follows:
As part of TDC J, the Dawson State Jail follows the same two-step procedure.
Step 1 requires the prisoner to submit an administrative grievance at the institutional level. After an investigation, the unit grievance investigator prepares a report and makes a recommendation to the final decision maker for step 1 of the process, which may be the warden, assistant warden, facility administrator, assistant facility administrator, or health administrator. Step 2 permits the prisoner to submit an appeal to the division grievance investigation with the Institutional Division of the Texas Department of Criminal Justice. After an investigation, the departmental grievance investigator prepares a report and makes a recommendation to the final decision maker for step 2 of the process, which is the director, deputy director, regional director or assistant director.
The grievance procedure takes approximately 90 days to exhaust. Prisoners are allowed 15 calendar days to file a step 1 grievance. The response to the step 1 grievance is due within forty days after receipt of the grievance. The prisoner then has 10 days to submit an appeal. The response to the step 2 grievance is due within forty days after receipt of the prisoner's appeal.Id. at 891 (citations omitted).
On the § 1983 complaint form Jefferson submitted to the Court, he failed to respond affirmatively or negatively to the question "Have you exhausted both steps of the grievance procedure in this institution?" ( See Compl. at 3 (leaving Section III related to "Exhaustion of Grievance Procedures" blank).) Due in part to Jefferson's failure to show exhaustion of administrative remedies on his complaint, the Court issued a Notice of Deficiency and Order ("NOD"), which directed him to submit a copy of his step 2 grievance with the response from the Dawson State Jail. ( See Notice of Deficiency and Order dated June 2, 2004.) In the event that he had no copy of the relevant grievance, the Court directed him to provide a response which shows that he has exhausted the prison grievance procedures or explains why he has not done so. Id.
On July 16, 2004 and again on September 29, 2004, the Court received responses from Jefferson to the NOD. ( See Letters received July 16, 2004 and September 29, 2004.) In those letters, Jefferson asserts that he filed a step one grievance on April 21, 2004. Id. He acknowledges, however, that he never submitted a step two grievance. Id. The reason he never submitted a step two grievance, he explains, is because Dawson State Jail officials never responded to the step one grievance he filed. Id. Accordingly, as apparent from the face of his complaint and his responses to the NOD, Jefferson has failed to exhaust his administrative remedies.
3. Defenses for Failure to Exhaust
Because the PLRA's exhaustion requirement is not jurisdictional, the Fifth Circuit has held that it "may be subject to certain defenses such as waiver, estoppel, or equitable tolling." Wendell v. Asher, 162 F.3d 887, 890 (citations omitted). In Days v. Johnson, the Fifth Circuit carved out a specific exception to the exhaustion requirement. 322 F.3d at 867. The plaintiff in Days sustained a hand injury in the incident which gave rise to the suit. Id. at 866. He did not file a grievance until his hand healed, and prison officials rejected it as untimely filed. Id. The Fifth Circuit, emphasizing that its holding was "limited to the narrow facts of this case," held that "administrative remedies are deemed unavailable when (1) an inmate's untimely filing of a grievance is because of a physical injury and (2) the grievance system rejects the inmate's subsequent attempt to exhaust his remedies based on the untimely filing of the grievance." Id. at 868.
Jefferson did not file a response to Lofton's motion to dismiss, and thus has presented no defense for his failure to exhaust administrative remedies. Nevertheless, in an abundance of caution, the Court considers whether Jefferson raised a defense for failure to exhaust in any of his filings or correspondence he submitted to the Court. In his responses to the NOD, Jefferson explained that he failed to file a step 2 grievance because his step 1 grievance was not returned.
Recently, in a separate action in this district, Jefferson offered a similar excuse for his failure to exhaust administrative remedies by filing a step 2 grievance, and that excuse was rejected by the court. See Jefferson v. Lt. Salvador, No. 3:04-CV-2215-L, 2005 WL 43974, at *1, (N.D. Tex. Jan. 7, 2005). Other courts have also held that the failure of prison officials to respond to a grievance does not constitute a valid excuse for failure to exhaust administrative remedies. See Gonzalez v. Basse, 2004 WL 2297346, at *3 (N.D. Tex. Oct. 13, 2004) (finding failure to exhaust where plaintiff stated that he submitted a step 1 grievance which received no response, but failed to indicate that he followed up with another step 1 or a step 2 reasserting the grievance and informing officials of his missing step 1 grievance); Womack v. Simpson, 2004 WL 2070953, at *2 (N.D. Tex. Sept. 15, 2004) (Sanderson, M.J.) (rejecting plaintiff's excuse that he failed to file step 2 grievance because he did not receive a response to his step 1 grievance, treating the excuse as a challenge to the adequacy of the TDCJ prison grievance process and determining that Fifth Circuit case law did not authorize such an inquiry); Saylors v. Ross, 2003 WL 21449279, at *3 (N.D. Tex. Apr. 1, 2003) (Robinson, J.) (finding failure to exhaust where plaintiff explained that he could not submit a copy of step 2 grievances because he never heard back after filing step 1 grievance, but failed to state any other attempts to exhaust the grievance system, such as submitting another step 1 grievance); West v. Baker, 2001 WL 14080386, at *2 (N.D. Tex. Nov. 1, 2003) (Fitzwater, J.) (finding failure to exhaust where plaintiff could not identify disposition information regarding step 2 grievances, including one she claimed was never returned to her). Because the failure of prison officials to respond to a grievance does not relieve a prisoner of his duty to exhaust administrative remedies, Jefferson has not offered a valid defense for his failure to exhaust.
The Court also notes that Jefferson has not indicated in any materials he filed with the Court that he was unable to access the grievance process in a timely manner due to a physical injury, and thus has not stated a valid excuse under the framework set forth in Days v. Johnson.
Accordingly, because Jefferson failed to exhaust his administrative remedies and provided no valid defense for such failure, his § 1983 claim should be dismissed without prejudice.
When a prisoner fails to exhaust his administrative remedies prior to filing suit, without a valid excuse, the Court properly dismisses the action without prejudice to its refiling after the prisoner exhausts his administrative remedies. See Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).
C. Americans with Disabilities Act
Lofton also argues that, inasmuch as Jefferson's complaint alleges entitlement to remedies under the Americans with Disabilities Act ("ADA"), he has not properly demonstrated exhaustion by attaching a copy of a charge of discrimination filed with the Equal Employment Opportunity Commission ("EEOC"). (Def. Br. at 3.) After thoroughly reviewing Jefferson's complaint, the Court is of the opinion that he has not asserted an ADA claim. The only reference Jefferson makes to the ADA is in Section VI of his complaint, in which he lists his requested relief as follows: "(ADA) Money damages/Punitive damages./Proper [a]dminstrative review [a]nd [i]nvestigation." Although Jefferson describes himself as handicapped, he mentions the condition in a context that suggests that he thinks that Lofton's use of force did not constitute a reasonable response to Jefferson's behavior. He appears to imply that even though he stood up suddenly when Lofton entered the cell, Lofton should not have felt threatened because Jefferson cannot walk. ( See Statement of Claim, at 2.) Jefferson has not alleged that Lofton's actions were motivated by Jefferson's disability, nor in any other way suggested that he was discriminated against on the basis of a disability. Because it is clear from the face of Jefferson's complaint that he has not asserted a claim under the ADA, Lofton's motion on this point is moot. See Ghoman v. New Hampshire Ins. Co., 159 F. Supp. 2d 928, 935 n. 8 (N.D. Tex. 2001) (denying defendant's motion for summary judgment as moot insofar as it addressed a claim plaintiff had not asserted).
Even assuming, arguendo, that Jefferson has asserted an ADA claim, dismissal would be appropriate pursuant to the PLRA. The PLRA requires that the Court dismiss a case if at any time the Court determines that the plaintiff fails to state a claim on which relief may be granted. 28 U.S.C. 1915(e)(2)(B)(ii). The ADA "forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodation (Title III)." PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
Jefferson has failed to allege that he was discriminated against on the basis of disability in a major area of public life. This failure is fatal to any ADA claim he may be asserting. See DiSalvo v. Bowles, 2001 WL 705782 (N.D. Tex. June 18, 2001) (finding that prisoner failed to state ADA claim under Title II due to his failure to allege discrimination); McColm v. Hearst Corp., 2001 WL 1112204, at *1 (N.D. Cal. Sept. 17, 2001) (finding failure to state claim under the ADA where plaintiff did not allege discrimination in employment, public service, or public accommodation). Accordingly, while Jefferson does not appear to have asserted an ADA claim, to the extent that such a claim has been asserted, dismissal of such claim would be appropriate for failure to state a claim under the ADA.
III. CONCLUSION
For the reasons stated herein, the Court RECOMMENDS that Lofton's motion to dismiss for lack of subject matter jurisdiction be DENIED. The Court also RECOMMENDS that Jefferson's § 1983 claim against Lofton be DISMISSED without prejudice for failure to exhaust administrative remedies.
SO ORDERED.