Opinion
Civil No. 02-4199 (JRT/RLE)
March 4, 2004
Josiah I. Robley, Sandstone, MN, pro se.
Mary Jo Madigan, Minneapolis, MN, for defendants
MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Josiah I. Robley brings this action alleging that the defendants were, and continue to be, deliberately indifferent to his medical needs. Plaintiff alleges that such deliberate indifference is caused by the defendants' anti-Semitism, and therefore violates his constitutional rights guaranteed by the First and Eighth Amendments to the United States Constitution. United States Magistrate Judge Raymond L. Erickson, in a Report and Recommendation ("RR") dated December 22, 2003, recommended that the case be dismissed without prejudice because plaintiff failed to exhaust his administrative remedies. Plaintiff timely filed objections to the RR, and suggests that his administrative remedies were exhausted while the RR was pending. In fact, the denial of Plaintiff's administrative appeal is dated December 22, 2003, the same day that the RR issued. The Court has conducted a de novo review of Plaintiff's objection pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons discussed below, Plaintiff's objections are sustained in part. Plaintiff shall have 45 days from the date of this Order to file an amended complaint containing only his administratively exhausted claim, or the action will be dismissed without prejudice, as recommended by the Magistrate Judge.
BACKGROUND
Plaintiff asserts that on August 20, 2002, while he was awaiting transfer to the Federal Correctional Institution in Sandstone, Minnesota ("FCI-Sandstone"), he was bitten on the knee by a brown recluse spider at the United States Penitentiary in Terre Haute, Indiana. Plaintiff alleges that although he informed the transport officials of the bite, they did not offer prompt treatment, and by the time he arrived at FCI-Sandstone, the area bitten was swollen and deep-bluish purple, and he had trouble walking. Plaintiff was first seen by an intake screener at FCI-Sandstone, who informed plaintiff he could see a medical doctor shortly. Plaintiff maintains that he requested a lower bunk from the intake screener, and reported the spider bite to the screener. Plaintiff eventually completed a request for medical attention, and indicated he had been bitten by a spider. After FCI-Sandstone formally was made aware of the request, plaintiff was seen by successive members of the medical staff at FCI-Sandstone. The bite was bandaged, ointment was applied, and plaintiff was prescribed an antibiotic. Plaintiff argues that the medical providers discounted the seriousness of his condition, and refused to remove the "spider core" from his leg. Plaintiff claims that he eventually removed three spider cores from his leg with the assistance of several friends.
A few weeks later, plaintiff was seen by defendant Dr. Santini. Plaintiff indicates that at this appointment, plaintiff requested soft shoes and a lower bunk pass. According to plaintiff, Dr. Santini wrote the prescription for soft shoes but did not authorize a lower bunk pass. Two weeks after his appointment with Dr. Santini, plaintiff claims that he attempted to obtain soft shoes from defendant Roy Ulb. Plaintiff asserts that while Ulb gave him a new set of boots, he would not give plaintiff the soft shoes authorized by Dr. Santini. Plaintiff claims that he later learned from other inmates that Ulb "hates Jews." Plaintiff believes that Ulb's alleged anti-Semitism is at the root of Ulb's alleged refusal to supply the prescribed footwear.
ANALYSIS
I. Exhaustion
The Prison Litigation Reform Act ("PLRA") prohibits inmates from challenging prison conditions in federal courts until they have exhausted their available administrative remedies. 42 U.S.C. § 1997e(a); Thomas v. Woolum, 337 F.3d 720, 725 (6th Cir. 2003). The PLRA's exhaustion requirement is mandatory. See Booth v. Churner, 532 U.S. 731, 739 (2001); see also Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 1999) (recognizing that exhaustion requirement applies to those who are "currently detained," and noting agreement of the Second, Seventh, and Eighth Circuits). "The exhaustion requirement ensures that state prison systems will have an opportunity to handle prison grievances internally before recourse to the federal courts becomes available." Thomas, 337 F.3d at 725. Further, since "Congress has spoken on the question of exhaustion by prisoners prior to the commencement of civil rights actions; it is, therefore, beyond this court's power to waive that requirement for any allegedly equitable reason." Hemphill v. New York, 198 F. Supp.2d 546, 549 (S.D.N.Y. 2002) (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). The exhaustion requirement applies to federal, as well as, state prisoners. Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999).
When the RR issued, plaintiff had provided no information that he had filed an administrative complaint regarding any aspect of his current lawsuit. In response to the RR, plaintiff supplied the Court with a copy of an appeal, dated November 3, 2003, in which plaintiff appeals the denial of proper medical shoes and monetary compensation. Plaintiff also supplied a response from the Administrator of National Inmate Appeals, dated December 22, 2003, denying Plaintiff's appeal because "The record reflects you are receiving medical care and treatment in accordance with Bureau policy." The decision also notes that Plaintiff's request for monetary compensation is denied because the Administrative Remedy Program does not provide for monetary relief. It is unclear from this record what issues, other than the request for medical shoes, were before the National Inmate Appeals Administrator.
It is clear from Eighth Circuit case law that the PLRA "require [s] that inmates who have civil rights claims must first exhaust all administrative remedies before bringing an action under § 1983." Lyon v. Vande Krol, 305 F.3d 806, 808 (8th Cir. 2002). There can be no question that Plaintiff's administrative review was not completed prior to the filing of this lawsuit. The exhaustion requirement applies even if "relief of the sort that the Plaintiff's is seeking is not available through the administrative procedures that are available." Id.
Nonetheless, plaintiff has administratively exhausted at least some of his claims. The denial of appeal notice indicates that it is "in response to your Central Office Administrative Remedy. Appeal in which you request a pair of soft toe medical shoes and monetary compensation." See Exhibit Attached to Plaintiff's objection to the RR dated December 22, 2003 signed by Harrell Watts, Administrator, National Inmate Appeals (hereinafter "Denial of Administrative Appeal"). From this appeal, therefore, it appears that Plaintiff's claim for an Eighth Amendment violation for the failure to provide medically necessary shoes has been exhausted. Although it is difficult to say with certainty, it also appears that the Plaintiff's claims of First Amendment violations (on the basis of alleged anti-Semitism) are also exhausted. See Administrative Appeal ("Finally, as to your request for monetary compensation, the Administrative Remedy Program does not provide for monetary relief. Your request for monetary compensation should be pursued through the appropriate statutorily mandated procedure to resolve this issue.").
Plaintiff's claims, therefore, are partially exhausted. There is no indication, however, that Plaintiff's claims for deliberate indifference relating to the spider bite are exhausted. The question, then, is whether it is necessary for the Court to dismiss the entire action for failure to exhaust, and require plaintiff to refile in a new lawsuit, or whether the Court can allow plaintiff to amend his complaint to contain only the exhausted claims. See Smith v. Federal Bureau of Prisons, 300 F.3d 721, 723 (6th Cir. 2002) ("When a prisoner fails to exhaust administrative remedies before filing a civil rights complaint in federal court, or only partially exhausts administrative remedies, dismissal of the complaint is appropriate."). See also Cain-El v. Burt, 2003 WL 21648721, *3 (E.D. Mich. Mar 31, 2003) (NO. 02-73050) (discussing policy behind total exhaustion).
A recent Eighth Circuit opinion appears to requires the Court to allow plaintiff the opportunity to file an amended petition containing only exhausted claims. In Kozohorsky v. Harmon, 332 F.3d 1141 (8th Cir. 2003), the Eighth Circuit held that the district court abused its discretion when the district court "implicitly den[ied] [plaintiff's] motion to amend the complaint." Id. (analogizing to Rose v. Lundy, 455 U.S. 509, 510 (1982), and distinguishing Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000)). See also McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (noting that in the habeas context, when faced with "mixed petitions" the Court can offer the petitioner the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims). This case is somewhat different, in that plaintiff here has not requested leave to amend, however, the Eighth Circuit has authorized construing a prisoner-Plaintiff's objections to a magistrate judge's RR as a motion for leave to amend. Kozohorsky, 332 F.3d at 1144 (citing Thornton v. Phillips County, Ark., 240 F.3d 728, 729 (8th Cir. 2001) (per curiam)).
In this case, as in Kozohorsky, there is no obvious reason to refuse plaintiff an opportunity to amend. Plaintiff has not shown bad faith or dilatory motives, repeated failure to cure deficiencies, undue prejudice to the non-moving party, or futility of amendment. Id. at 1144 (citing Thopmson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989) (additional citation omitted)).
II. Qualified Immunity
Defendants also request dismissal on the merits, arguing that qualified immunity protects the defendants from the obligation to defend this lawsuit. Defendants' qualified immunity argument, however, is focused on the brown recluse spider claim. Because that claim is not administratively exhausted, it is not properly before the Court, and the Court will not address defendants' qualified immunity argument. Defendant does not make a qualified immunity argument on the claims of anti-Semitism or the denial of medical shoes.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court SUSTAINS IN PART Plaintiff's objections [Docket No. 20] and REJECTS the Magistrate Judge's Report and Recommendation [Docket No. 19]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' motion to dismiss [Docket No. 11] is DENIED.
2. Plaintiff shall, within 45 days of this Order, file an amended complaint including only exhausted claims. If plaintiff does not file an amended complaint within 45 days, this action will be dismissed without prejudice for failure to exhaust.