Opinion
Case No. 1:05 CV 562.
April 6, 2006
REPORT AND RECOMMENDATION
This matter is before the Court on Defendants Burnett, Bozung and Morris' Motion to Dismiss for Failure to Establish Exhaustion of Administrative Remedies. (Dkt. #30). Defendant Parsons has adopted and incorporated this motion by reference, (dkt. #50), and, therefore, the Court shall consider the present motion as being also filed by Defendant Parsons. Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that Defendants' motion be denied.
BACKGROUND
Plaintiff asserts that he is an adherent of an ancient Egyptian religion known as Kemetic Spiritual Science. Plaintiff alleges that as part of his religious faith he legally changed his name to N. Kalonji Owusu I. Michigan Department of Corrections policy recognizes that prisoners may legally change their names. Specifically, MDOC policy provides that
The commitment name shall be used on all official Department documents throughout the prisoner's incarceration and parole. A new legal name may be used in correspondence to a prisoner and other communications such as grievance responses. However, the commitment name must be used on all documents which affect the prisoner's sentence, such as a forfeiture or restoration of time, a parole order, and a sentence discharge or termination. Commitment names and legal names shall be cross referenced at the information desk and mail room. All computerized records shall be cross referenced to the extent possible.
Mich. Dep't of Corr. Policy Directive 03.01.110 ¶ D.
Prisoners are entitled to receive — at their own expense — a new prisoner identification card "indicating both the commitment name and the new legal name." Id. at ¶ E. The Policy Directive further provides that MDOC employees having contact with the prisoner "should refer to the prisoner or parolee by the new legal name" and "prisoners and parolees shall not be forced to refer to themselves by their commitment name if they have a validly adopted new legal name." Id. at ¶ F.
In his complaint, Plaintiff asserts that Defendants have repeatedly failed to comply with the aforementioned Policy Directive, thus forcing Plaintiff to refer to himself by his former name. Plaintiff asserts that such actions violate his First Amendment right to freely practice his religion. Plaintiff also asserts that the dietary requirements of his religion are comparable to those observed in the Jewish faith. Accordingly, Plaintiff has requested to be placed on the kosher meal plan. Defendants have denied this request which Plaintiff asserts violates his First Amendment right to freely practice his religion.
On October 20, 2005, the Honorable Richard Alan Enslen determined that Plaintiff had failed to properly exhaust his administrative remedies with respect to the claims asserted against eleven defendants. (Dkt. #4). However, rather than dismiss Plaintiff's entire complaint pursuant to the total exhaustion rule announced by the Sixth Circuit in Jones-Bey v. Johnson, 407 F.3d 801 (6th Cir. 2005), the court, finding that the Jones-Bey decision is "void under Sixth Circuit law," dismissed only those claims which had not been properly exhausted.
Asserting that the Jones-Bey decision controls this matter, the remaining Defendants in this matter assert that Plaintiff's complaint must be dismissed in its entirety pursuant to the total exhaustion rule. Defendants also note that the Sixth Circuit, in Rinard v. Luoma, ___ F.3d ___, 2006 WL 590360 (6th Cir., March 13, 2006), expressly rejected the rationale articulated by the district court. Specifically, the Luoma court expressly rejected the argument that the Sixth Circuit had previously declined to adopt the total exhaustion rule, thus rendering the Jones-Bey decision of no consequence. In this respect, the Luoma court stated
In Jones Bey v. Johnson, we addressed and `definitively answer[ed] . . . whether the PLRA requires a complete dismissal of a prisoner's complaint when that prisoner alleges both exhausted and unexhausted claims' . . . There . . . we held that the PLRA requires total exhaustion . . . Thus, although the total/partial exhaustion question lurked amid the record in Hartsfield, that case did not address nor decide the issue as to be binding upon this court. By contrast, Jones-Bey definitively answered the question presented here and we now follow it.Id. at *1-2.
While the undersigned agrees with Defendants' position, the fact remains that the Court has already ruled on this particular question. Accordingly, to the extent that Defendants Burnett, Bozung, Morris, and Parsons seek to dismiss Plaintiff's complaint pursuant to the total exhaustion rule, the undersigned recommends that Defendants' motion be denied.
CONCLUSION
As discussed herein, the undersigned recommends thatDefendants Burnett, Bozung and Morris' Motion to Dismiss for Failure to Establish Exhaustion of Administrative Remedies, (dkt. #30), be denied.OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).