Opinion
Civil Action No. 03-CV-73205-DT.
May 25, 2004
REPORT AND RECOMMENDATION
RECOMMENDATION : This Court recommends that Defendants' Motions To Dismiss be GRANTED and the instant case dismissed as Plaintiff failed to exhaust his administrative remedies. Additionally, Defendant Nino's Discovery Motion For Access to Plaintiff's Medical Records should be DENIED as moot.
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Plaintiff was allowed to proceed in forma pauperis and filed the instant case on August 26, 2003, pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. The defendants to this action are either employed by the Michigan Department of Corrections (MDOC), or provide medical treatment to prisoners incarcerated by MDOC. On October 27, 2003, Defendant Nino filed a Motion To Dismiss pursuant to 42 U.S.C. § 1997e and Fed.R.Civ.P. 12(b)(6). On October 29, 2003, Defendants Cook, Scott, and Williams filed a similar Motion To Dismiss. On November 5, 2003, Plaintiff filed a Response to the Defendants' Motions to Dismiss. On December 3, 2003, Defendant Nino filed a Discovery Motion For Access To Plaintiff's Medical Records which is also before this Court. The case was referred to Magistrate Judge Capel for all pretrial proceedings and re-assigned to the undersigned on February 9, 2004, pursuant to Administrative Order 04-AO-10.
Plaintiff provided few factual details to support his complaint. In his complaint, Plaintiff states the following as Count I — Violation of 42 U.S.C. § 1983:
During the period from about 4-18-03 and continuing[,] Defendants Nino, Scott and Williams deprived Plaintiff of his right to care for his medical needs.
Defendants displayed deliberate indifference or reckless disregard by failing to respond to Plaintiff's medical needs in a timely manner.
Plaintiff suffered several episodes of chest pain, mental anguish, depression, and increase in his medical symptoms, as a result.
(Plaintiff's Complaint, ¶¶ 12-15). Plaintiff's second count ("Negligence") contains the following allegations:
Defendants Nino, Scott and Williams had a duty to attend to Plaintiff's medical needs in a timely manner.
Defendants breached their duty by not providing medications Plaintiff needed, and denying Plaintiff the appropriate accommodations fo his medical conditions.
Plaintiff endured great pain and suffering because of chest pains, joint pains, mental anguish, together with a generalized increase in his medical symptomatologies.
(Plaintiff's Complaint, ¶¶ 16-19). In his third count, Plaintiff alleges that Defendants Cook and Williams failed to protect him from assault. Id. ¶¶ 21-24. Count IV charges Defendants Cook and Williams with negligence in failing to protect Plaintiff from injury. Id. ¶¶ 25-30. Count V alleges violations of Mich. Comp. Laws § 600.2912(a) by Defendant Nino in failing to provide proper medical care. Id. ¶¶ 31-33. Count VI alleges violations of the Eighth Amendment by Defendant Cook who allegedly placed undue restrictions on Plaintiff's opportunities for exercise. Id. ¶¶ 34-38. Count VII similarly implicates the Eighth Amendment based on "inadequate space and policies to house 2 inmates in a confined small space." Id. ¶¶ 39-43. Count VIII pertains to individuals who were previously dismissed by Judge O'Meara based on Eleventh Amendment immunity. In Count IX, Plaintiff alleges infliction of emotional distress by "Defendants' behaviors in failing to attend to Plaintiff's medical needs" Id. ¶¶ 50-56. Count X pertains to the previously dismissed defendants. Count XI alleges that Defendant Cook breached a duty to classify Plaintiff as indigent. Id. ¶¶ 63-67. Finally, in Count XII, Plaintiff alleges liability on the part of MDOC officials under the doctrine of respondeat superior. Id. ¶¶ 68-70.
In their Motions To Dismiss, the Defendants argue that Plaintiff's claims are barred by his failure to exhaust his available administrative remedies as required under the Prison Litigation Reform Act. Alternatively, Defendants contend that Plaintiff has failed to allege the factual basis for his claims such that his complaint should be dismissed for failing to state a claim upon which relief can be granted. Plaintiff filed a Response to Defendants' Motions To Dismiss in which he asserts that filing administrative grievances would have been futile ("The grievance procedure had no effect and would have had no effect on Plaintiff's damages. Assuming that the grievance procedure would have alerted prison officials [of the alleged misconduct], then how would that have changed Plaintiff's suffering?" Plaintiff's Response To Defendants' Motions). Next, Plaintiff argues that the provision of the Prison Litigation Reform Act requiring exhaustion is unconstitutional. Finally, Plaintiff argues that he is not challenging prison conditions and therefore the PLRA should not apply to the instant lawsuit. STANDARD OF REVIEW
When considering a Rule 12(b)(6) motion to dismiss, the trial court must accept all the allegations in the complaint as true and construe the complaint liberally in favor of the plaintiff. FED. R. CIV. P. 12(b)(6); see Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). "Dismissal of a complaint for the failure to state a claim upon which relief may be granted is appropriate only 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. 1997).
EXHAUSTION OF REMEDIES
The Prison Litigation Reform Act (PLRA) of 1995 requires that a prisoner exhaust all administrative remedies before filing a section 1983 action. Specifically, the statute provides, "no action shall be brought with respect to prison conditions under section 1983 . . ., 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." 42 U.S.C. § 1997e(a). The Supreme Court has declined to "read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise." Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). The Sixth Circuit has held that "prisoners filing a § 1983 case involving prison conditions must allege and show that they have exhausted all available state administrative remedies" before a district court may adjudicate their civil rights claims, and has also held that the district court should enforce this requirement sua sponte. Brown v. Toombs, 139 F.3d 1102, 1103 (6th Cir. 1998), cert. denied, 525 U.S. 833 (1998). Compliance with this provision requires that prisoners file a grievance against the person(s) they ultimately seek to sue, Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001), and merely grieving prison conditions, without identifying any particular person who may be responsible, is insufficient. Gibbs v. Bolden, 151 F.Supp.2d 854, 857 (E.D. Mich. 2001).
Generally, a prisoner will exhaust administrative remedies by filing grievances pursuant to MDOC policy, For example, a prisoner may grieve alleged violations of policy and procedure, unsatisfactory conditions of confinement, official acts, or denial of rights which directly affect [Prisoners] (MDOC Policy Directive 03.02.130, PB). The grievance system is comprised of three steps. If the grievant is dissatisfied with the step I response, he/she may appeal to step II. If the prisoner is still dissatisfied with the step II response, he/she may file a step III appeal with the Director of the MDOC. A Plaintiff must pursue all levels of the administrative procedure, even when prison officials fail to respond or respond in an untimely manner. Grabinski v. Gundy, 1999 U.S. Dist. LEXIS 4820 (W.D. Mich. 1999) (citations omitted).
Plaintiff failed to allege with specificity or attach documentation that he exhausted his available administrative remedies. Instead, he indicates that he exhausted his available administrative remedies by checking the appropriate boxes on the form for Prisoner Civil Rights Complaint for Cases Brought Under 42 U.S.C. § 1983. In Plaintiff's Response to Defendants' Motions To Dismiss, he seems to concede that he did not exhaust his administrative remedies and argues that he was not required to do so because the remedy he sought was unavailable through the grievance procedure. The United States Supreme Court has rejected this argument in both Booth v. Churner, 532 U.S. 731, 741 (2001) and Porter v. Nussle, 534 U.S. 516, 524 (2002) ("Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit."). Here, Plaintiff essentially argues that filing an administrative grievance would not have changed the pain and suffering he already experienced and therefore filing a grievance would be futile. This line of reasoning is in direct contradiction with the holdings of both Booth and Porter. Therefore, Plaintiff's argument that the grievance process, as it applied to him, was futile is rejected by this Court. Plaintiff was still required to exhaust his available administrative remedies and failed to do so.
Next, Plaintiff asserts that 42 U.S.C. § 1997e is contrary to the Fed. Rls. Civ. P. "because it requires `heightened pleadings'" (Plaintiff's Response to Defendants' Motions). Plaintiff contends that the Fed.R.Civ.P require only a short and plain statement of his claim and that to require him to attach copies of his grievance forms would amount to a heightened pleading requirement. Seemingly, Plaintiff suggests that 42 U.S.C. § 1997e conflicts with the Fed.R.Civ.P and is thus unconstitutional. This Court disagrees. The Rules Enabling Act, 28 U.S.C. § 2072 provides that "`[a]ll laws in conflict' with federal rules promulgated pursuant to that Act `shall be of no further force or effect after such rules have taken effect.'" See Local Union No. 38 v. Custom Air Sys., Inc., 333 F.3d 345, 348 (2d Cir. 2003) (citing 4 Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 1030 n. 2, at 125 (2d ed. 1987) ("Statutes enacted prior to the rules that are inconsistent with them are superseded.") "A statute enacted subsequently to a rule promulgated under the Act, however, trumps the rule. Local Union, 333 F.3d at 348 (citing Wright Miller) ("A clearly inconsistent statute enacted subsequent to the Rules' effectiveness would . . . supersede or modify any conflicting Rule."). In this instance, 42 U.S.C. § 1997e became effective well after the adoption of the Fed.R.Civ.P. and therefore the statute is controlling over the Rules.
This Court is not convinced, however, that there is an actual conflict between the Rules and the statute. Plaintiff's real argument seems to be that the statute creates an impermissible heightened pleading requirement by requiring Plaintiff to attach copies of his administrative grievances. The Sixth Circuit, however, has endorsed this form of heightened pleading requirement. In Baxter v. Rose, 305 F.3d 486 (6th Cir. 2002), the Sixth Circuit held:
In Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), we required that a prisoner bringing such an action [challenging prison conditions] specifically allege in his complaint that he had exhausted all administrative remedies. We also required that the plaintiff attach to his complaint the disposition(s) of his available administrative remedies. Explaining our rule in a later case, we noted that the heightened pleading standard permits federal courts to determine whether the claim can be decided on the merits, without inefficiently expending judicial resources on evidentiary hearings and responsive pleadings. See Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2001).Baxter, 305 F.3d at 488 (some internal citations omitted). Accordingly, Plaintiff's argument requiring him to attach copies of his grievances amounts to an impermissible heightened pleading requirement must fail.
Plaintiff's final reason for not filing administrative grievances is that he was not challenging `prison conditions' and therefore the exhaustion provisions of the PLRA were not applicable. Plaintiff asserts that:
[a] prison condition would be a situation existing with the institution, or one created by policy or practice. But when a prison official fails to take action when told of a situation that was not previously a `condition', and does not take corrective measures, that is not a prison condition because it is not one allocated to the prison as a whole. It is an isolated behavior by a particular official. Every singular action by every single prison official cannot be labeled as a prison condition.
(Plaintiff's Response to Defendants' Motions to Dismiss). In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court rejected such a narrow interpretation of `prison conditions'. In Nussle, plaintiff alleged that he had been subjected to a "`prolonged and sustained pattern of harassment and intimidation' from the time of his arrival [in prison." Id. at 520. Without first filing a grievance as provided under the Connecticut Department of Corrections, Nussle filed suit under § 1983. The district court dismissed the suit based on Nussle's failure to exhaust his available administrative remedies and the Second Circuit Court of Appeals reversed. The circuit court held that Nussle was not challenging prison conditions, as defined under the PLRA, but rather was complaining of a single incident directed at a particular individual and therefore Nussle was not required to exhaust his administrative remedies. The Supreme Court reversed and held that "§ 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences" including assaults on individual inmates. Under the Nussle holding, Plaintiff's allegations of misconduct on the part of the MDOC employees would fit within the purview of `prison conditions' as used in the PLRA and therefore Plaintiff was required to exhaust his available administrative remedies.
Accordingly, this Court recommends that Defendants' Motions to Dismiss be GRANTED and the instant case dismissed based on Plaintiff's failure to exhaust his administrative remedies. Additionally, Defendant Nino's Discovery Motion should be DENIED as moot.
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n Of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Any objections must be labeled as "Objection #1," "Objection #2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than ten days after service of an objection, the opposing party must file a concise response proportionate to the objections in length and complexity. The response must specifically address each issue raised in the objections, in the same order and labeled as "Response to Objection #1," "Response to Objection #2," etc.